Exact Approximations

Thursday, December 21, 2006

Irony and Hypocrisy

1999: Lex begins reading about firearms and becomes staunchly anti-gun.

2005: Lex and Sadie become friends. Lex pontificates endlessly on ills of gun ownership. Sadie disagrees and shoots quails.

Intermittently since: Mini-discussions and side-arguments regarding gun control come up between Lex, Sadie and Sadie's Boyfriend, Ford Prefect. Nobody is able to convince the other to switch their position.

05/12/06: Ford makes the statement that "If guns kill people, then I can blame misspelled words on my pencil." Comment war regarding gun control ensues on this blog.

11/14/06: Lex's Uncle, CECU, states his belief that there is a fundamental right to gun ownership. Comment war regarding gun ownership ensues on his blog.

12/17/06: Lex and Boyfriend purchase Christmas gifts for Sadie and Ford.

12/19/06: Sadie posts about her birthday. Lex comments, asking Sadie what she got. Sadie responds that Ford got her girly stuff, as requested, because Sadie "got too many guns and shit last year."

12/20/06: Lex and Boyfriend exchange gifts with Sadie and Ford. Lex and Boyfriend give Sadie and Ford paintball GUNS.

Thereafter: Lex is an official hypocrite. But continues to be excited over the possibility that Sadie and Ford's paintball gun-ownership may lead to some pretty entertaining stories.

posted by Lex Fori at 3:32 PM

15 Comments:

  • AWE, GEEZZZ...I guess I will have to wrap and send that gift to you this holiday season after all...one big squirt gun coming your way! I still believe it is your right to own one :)

    By Blogger Crazy East Coast Uncle, at 7:44 PM  

  • So you know that any argument that you will ever make against guns in the future will be vetoed in the house of reptile due to your purchase of said GUN.
    Like my fake lawyer talk?

    By Anonymous Anonymous, at 12:20 PM  

  • That must have been a cute conversation between BF and Lex. Why BF wanted to get Sadie and Perfect guns for Xmas, and, Lex's response in the toy isle, which probably sounded something like her blog comments. However, obviously, BF, put down the hammer! Way to go BF. You be da Man!

    What I like about this thought is: even if Lex attempts to claim otherwise, the actions described in this original post will obviously trump anything hereafter that Lex might care to add to said conversation.

    Gun lovers, well, I am not a gun lover, ...how about, lovers of the 2nd Amendment unite! We won!

    By Blogger Crazy East Coast Uncle, at 2:59 PM  

  • Paint balls don't kill. They just create bruises. So maybe if you get hit enough you'll be killed.

    Ban paint-ball guns!

    By Blogger Arbusto, at 9:45 AM  

  • Supporting gun regulations but owning paintball guns makes you a hypocrite? Maybe, but I'd be more worried that you're a complete square than a hypocrite.

    How about squirt guns? Glue guns? Sure, maybe we should keep these guns out of the hands of kids, but adults? Seriously?

    We should regulate things are super super dangerous, like some guns that kill lots of people. Not glue guns, not squirt guns, and not paintball guns.

    If you think owning any type of gun whatsoever is problematic, then you are worse than a hypocrite. You are a lamo.

    By Blogger wt, at 5:34 PM  

  • THANK YOU to WT

    I didn't want to point out the obvious. I wanted to see if the gun-lovers saw the difference between a paintball gun and a gun-gun. They didn't. This says to me that no one looked very hard at my original arguments. Because even if you disagreed with my position, you could see that a huge portion of my stance on gun control focuses on the power of the instrument itself: the way guns make it easier for situations to escalate to violent and deadly outcomes. Like Arbusto said, paint balls don't kill. And WT made the point even clearer: If I gave Ford and Sadie squirt-guns, would I still be forever banned from making anti-gun arguments? Seriously?

    For anyone to truly think that my giving paintball guns to Sadie and Ford refutes my arguments against gun-ownership demonstrates how very little attention was paid to my arguments in the first place. (for shame) And, perhaps more importantly, how people will run right down the slippery slope if it leads to where they want to think.

    And CECU, seriously, you have to stop with the 2nd amendment thing. There is very serious disagreement about the meaning of the second amendement (I know you don't seem to believe me on this). If you click on the link in this post re: the comment war on this blog, you will see that in one of my comments, I cite to case law where the 2nd amendment has been interpreted counter to what you think it means. Just because you want it to mean one thing, doesn't make it so.

    By Blogger Lex Fori, at 9:50 AM  

  • So lame. WT...Thank you..grrrr.
    Lex, didn't you yourself proclaim your own hypocrisy after presenting gifts??
    I think its all fun and games myself, and strictly a laughing matter but now that we are back to the gun control issue again...whatever.
    Isn't there something to be said for "toys" mimicking violence and weapons? If we are going to duke it out over guns again, aren't we missing an aspect of the argument here?
    Here's my question for you. If Sidekick were old enough and interested, would you by her one?

    So here's the thing. Your argument is based on the resolve that in the end we take everyone's guns away, and no one needs them. 1st, that's not going to happen. I am the voice of reality here. There is no way that you could ever recover every illegal (or legal for that matter) weapon in this country, and if you took a stab at it, and made any kind of dent, you'd still have foreign countries as a threat. And with even 1 isty bisty .22 out there, the hard core gun folks are going to argue that they are not safe (they need to protect) till they are blue in the face.
    Next, you called out CECU on his "interpretation" of the 2nd amendment. Well, its all going to be based on that isn't it. Obviously none of us had the privilege of being present then, and that be said, isn't his interpretation just as valid as yours? We weren't there for the bible either, now were we Lex Fori?
    The thing is, you are trying to ban something that has been in existence since the 15th century. That's a lot of undoing. And a lot of people to convince.
    Furthermore, there's folks like me-and there's a lot of us- who are responsible people. We like to target practice. We like to shoot quail. And some one telling me I shouldn't or can't do that, is going to be wasting a lot of breathe.
    Lex- I luv ya. I get your argument. I just don't think your goal is a realistic one. Nor a fair one. Why shouldn't I be allowed to have a gun? I think its my right too.
    I use gun locks, and I don't think criminals and bad guys should have guns.
    So on the broader scale, who are you to tell me I can't?? :)

    By Anonymous Anonymous, at 2:08 PM  

  • BooYa --- Sadie Props!!!!!

    Got me on the proclamation of hypocrisy at the gift-exchange. Here's where I admit that BF was in control of picking the gifts, and I thought it funny that there I was giving them to you and Ford - especially in light of our past exchanges. But I did think there was a difference between that and if we had given you two real guns. (I would never have green-lighted BF on real guns) And when I mentioned that I would be blogging about this, I started thinking about it all. By the time I went to write the post, I had thought of the things said by Arbusto and WT, but I intentionally left out those arguments because I wanted to see if the pro-gunners would point out the difference.

    Okay, for the rest... I gotta say, I think a lot of this stuff has been covered in past comment-wars on the matter...

    I think the toys mimicking guns issue is interesting, and perhaps a good topic for further exploration. I'm not sure whether you meant real gun or paintball gun when you asked if I would allow Daughter to get one - but I would probably say yes to the paintball (in a couple of years) and no to a real gun. In terms of toys, I would probably ultimately be ok with allowing pretend toys that mimick violent items, like plastic grenades and rubber bomber jets. The way I see it, if they don't have plastic light-sabers, they're just going to use sticks anyhow. But guns are fundamentally different. It goes back to the propensity of the instrument to inflict harm. Toys may "poke someone's eye out" but a gun will kill you dead. I doubt that playing with toys that imitate violent weapons increases a child's propensity towards violence, but I'm not sure - haven't researched the issue. I'm sure some sociologist has...

    Yeah, my position is absolutely that I think we need to take guns away. I look at it from a utilitarian perspective. Fewer guns equals fewer lives lost and that's the way I prefer things. I recognize that there will inevitably be a period where people (like you) who are probably not a threat with their firearms, are going to be the first to lose their guns. And so, there will be a period of time when the majority of guns out there are on the blackmarket and the people that have guns will be the very people we most want to not have guns. I get that. But, over time, the number of guns available will be reduced drastically. Having legal guns makes guns more easy to illegally obtain. Kinda like it's easier for a kid to get alcohol as opposed to heroin. And as far as smuggling from outside countries - it's the same for all the other illegal shit - plutonium, drugs, etc - that stuff is harder to get into the country because it is illegal. Of course there will still be some guns somewhere, but the numbers would plummet if guns were illegal. And if the number of guns plummet, the number of gun-related deaths goes down too. In any event and again, I concede that there will be a period where there will be a significant number of guns out there while they are illegal, and it will take time to truly have a (mostly) gun-free society. It could take decades. But the sooner we start, the sooner we get there. Just because there will be a "suckin" period where things aren't ideal as we put gun control into place, doesn't mean it shouldn't be done. I think the short-term consequence is worth the long-term benefit.

    I jump ass on CECU for the 2nd amendment argument precisely because he was not there and the forefathers aren't here. I don't think the forefathers would want us to make the gun-control decision based on what they were thinking at the time. The Framers realized that society changes and the government needs to be able to change with it - that's why they left flexibility in the Constitution.

    I personally feel that there is no Constitutional right for individual gun ownership, and the courts that have interpreted the issue agree with me. More importantly, my point on the 2nd amendment is that, even if we were there, and knew for sure that the Framers meant for there to be an individual right to bear arms, that doesn't mean it's still good for the country today. Again, the Constitution was meant to be flexible. So, to me, it's really a secondary argument whether or not the 2nd amendment was meant to give an individual the right to bear arms.

    My point is that it's not a good idea for this country now. As far as traditions go - historical traditions need to be constantly re-evaluated. I mean, how long was it just an accepted fact that women were inferior to men? How long was slavery a tradition that everyone assumed was the natural way of things? The Bible is the best example - followers of religion have held to their beliefs for centuries, but that doesn't make them right. And it certainly doesn't mean that religious principles shouldn't be reconsidered. (as an aside, I think religion is bad for the world as well, but that's for another day I suppose). Just because something has been "the way it is" for a long time, doesn't mean it should be so in the future or that it's the right thing.

    I understand that there are many, many people to convince before guns can be taken away. But just because I couldn't conceivably convince today's population doesn't mean that future generations won't be open to the idea. It's like with segregation - there was a time when almost everyone in this country just thought it was "right" to separate blacks and whites from eachother. But, thankfully, public opinion shifted. I truly believe that with information, reflection and time - the mentality of the majority can be changed. But it's not like I'm volunteering my life to the "Make Guns Illegal" campaign, I'm just some blogger spouting opinions on things as they come up. And if I were to devote my life to anything, it would be convincing everyone that religion is a negative force that harms the world (now there's something for me to really, really dream about in terms of converting tons of people's views...)

    I agree that I am not the one to tell you that you can't have a gun. You have guns. I know I can't change that. Frankly, I'm more afraid of the fact that you drive a car (burn). But on the whole, I am alarmed at the effects that guns have had on society. And while I can't tell anyone else what to do, I can form an opinion on the issue, and then try to engage people in an effort to pursuade them to my side. I figure that if things are ever going to change, that change will start with conversation. And hopefully the conversation will someday lead to the government changing the laws. The governement is the one to do it. Society has given the power to determine what we can and can't do to our elected legislature.

    Everything gets regulated by the government. We gave up our right to "do what we want" when we formed a government that is meant to set up rules so that we can all coexist. We might not like the rules, but we're supposed to follow them. If car manufacturers want to forgo safety measures on a vehicle so that they can sell it for a much cheaper price - the car buyer might be ok with that, but the government says "no." And I think that's right. It's the government's job (ideal world) to examine issues, read up on science and statistics, gather information and weigh the pros versus cons of items made available to members of society. And it's my opinion that if/when the government does that (and gets out from under the lobby influence), the government would conclude that gun-ownership is bad for society as a whole. But that's just me - I completely understand and agree that any one individual is far too biased by their own life experiences and exposures to single-handedly make the decision on gun control.

    And I don't think guns should be allowed because there are responsible people who safely use guns for recreation. It sucks for you guys to have that sporting option taken away, but that's part of the Societal Pact. I want to drive my car 120mph because that's fun too, but I can't because the government has determined that it's too dangerous. So I don't think gun ownership is a decision that I should make or that you should make - I definitely think it's one for the government. Fortunately for you, guns are legal now, so quails beware!!

    Off topic - where you at on the book? When will we start that blog-o-topic....

    By Blogger Lex Fori, at 5:41 PM  

  • You were using me as a pawn in your intra-family squabbles?

    I feel so, so, exploited.

    By Blogger wt, at 10:39 PM  

  • Well... I wasn't singling out any one person in particular to be the pawn... But, I concede, I totally exploited you. It does show that I had some faith that the people that agree with me would say so, and that's almost like a compliment, right? =)

    In any event, don't take it too hard. Boys get used by girls all the time, it's the natural order. I'm just honest about it.

    By Blogger Lex Fori, at 9:01 AM  

  • Lex - bad form on your part!

    I got a laugh out of the original post, and thought that was going to be the end of this discussion, but, no...you had to come back later, days later, and attack me...TWICE!

    so, without further ado, it is my turn!

    You criticize my interpretation of the 2nd amendment, saying that I wasn't there, and I can't interpret what the founding fathers meant. That is insulting. I have been able to read plenty of what the founding fathers thought and said during the time period, and it gives a rather solid footing of what they were thinking, of course, I won't go so far as to say "I KNOW what they were thinking," but, I believe I can make my own conclusions from what I have read. As for comparing it to those who supposedly wrote the bible, well, that argument just doesn't stand up. We know the founding fathers. (and you know I don't believe God wrote the Bible! )
    __________________________

    First of all, I know that the militia is defined in the Constitution, which was written before the Bill of Rights. All of the powers of the militia are granted in the Constitution to Congress. Therefore, the beginning section of the 2nd Amendment, "A well regulated Militia being necessary to the security of a free state...," means nothing. The Bill of Rights were a set of rights added to the Constitution after they had already gone into effect, so, the mention of the militia in the 2nd amendment is what I call a smoke screen. Furthermore, it has really nothing to do with the right of The People to keep and bear arms, which is what the 2nd amendment is all about!

    The Bill of Rights were a set of Amendments put forth for The People, as the Constitution did not provide for many of the basic rights that were written into our laws via the Bill of Rights.

    Since the 2nd Amendment was put forth for the people, it really had nothing to do with the Congress, or the militia controlled by the Congress, that has been, and always will be, a smokescreen, to many of those who don't understand the punctuation of the sentence which is the 2nd Amendment!

    Yes, I agree that the founding father were not perfect, but, we have way more documentation about the Constitution and Declaration of Independence, and the Bill of Rights, how, and when, and where, and why they were written than we will ever have about those that wrote the bible! So, no, I was not there, and they are not here now, but, the volumes of information that one can gather about what took place during the creation of this Great Nation can easily allow anyone who wishes to read them, the opportunity to form an opinion on the matter!

    So, during one of your many rants on the subject, (yes, I went back and reread all of the blog comments) you mention case law in a few of your former post. You also mention that the decision from these case agree with your way of thinking. So, let’s see what we have here…

    US v Miller, 307 U.S. 174 (1939)

    This is the last time that the Supreme Court dealt with the 2nd Amendment - IN 1939! Everything else is a lower court decision!

    This deals with the National Firearms Act. Defendants did not register, nor, had appropriate stamps for transporting a double barreled shotgun, with barrel less than 18 inches in length from Arkansas to Oklahoma and back. Defendants claimed the 2nd amendment as a defense, claiming they needed the gun, as part of a militia. Court said his 2nd amendment rights were not violated saying,

    “THE COURT CAN NOT TAKE JUDICIAL NOTICE THAT A SHOTGUN HAVING A BARREL LESS THAN 18 INCHES LONG HAS TODAY ANY REASONABLE RELATION TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA; AND THEREFORE CAN NOT SAY THAT THE SECOND AMENDMENT GUARANTEES TO THE CITIZEN THE RIGHT TO KEEP AND BEAR SUCH A WEAPON.”

    BTW, a “firearm” as defined by the National Firearms Act is,
    “That for the purposes of this Act --
    (a) The term "firearm" means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition [The Act of April 10, 1936, c. 169, 49 Stat. 1192 added the words], but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length.

    I think the fact that the defendant could not prove that he belonged to a militia (which is for the protection of the government and defined by the Constitution) held great sway in this decision, but, that is my opinion. In this decision, the defendants claimed that possession of the gun was for the militia, and that is why he claimed his 2nd amendment rights. In their response, the court defines the type of gun, and its’ particular features as not having any relation to the preservation of efficiency of a well regulated militia. Finally, the court addresses the type of gun, in the final sentence, and states, “SUCH a weapon” (one that was not registered, licensed or approved by the National Firearms Act) is not covered by the 2nd Amendment.

    So, if this citizen had the proper registration and stamps for this gun, he would have never been arrested. And, if they could show that he belonged to a militia, I believe they would have won this argument and this case.

    This case got remanded to the lower court.

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

    I want to insert here, that this case is not what I am talking about. This case involves the first part of the 2nd Amendment which, I don’t believe has anything to do with the 2nd part of the Amendment.

    U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)

    This is a case where the defendant didn’t register his military grade weapons, and was arrested. He claimed that since the weapons were military grade, they were for the well regulated militia. He lost. He relied on the US v Miller 307 case. He was not part of a militia, and none of his weapons were registered!

    http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_hale.txt

    Lewis v. United States, 445 U.S. 55 (1980),

    This case deals with the “Title VII of the Omnibus Crime Control and Safe Streets Act of 1968,” and is more about convicted felons not having the right to carry firearms after serving their sentence, with only a few exceptions.

    I don’t think this case is what this blog discussion is about and I was surprised that you cited this case.

    United States v. Nelson, 859 F.2d 1318 (1988)

    I could not find this case using Google.


    With only one case on this subject being heard during the past century by the Supreme Court, I would look forward to more cases going to the high court on this matter. Right now, I come across lots of arguments by "scholars" from the left and right, (the NRA is basically the right) who wish me to believe this way or that. I find the scholars on the left who you seem to be touting, as not exactly correct in their opinions. They all include the Militia in their arguments.

    Upon researching these cases, I find that there has never been a decision which takes into account only, "… the right of the people to keep and bear arms, shall not be infringed." There has always been "the Militia" issue which confuses the issue. And, when the given facts of a case are further confused due to other infractions of the law, the various outcomes of the decisions, could not possibly decide this matter cleanly.

    I did find that in the U.S. v. Miller, 307 U.S. a very interesting angle which I had not considered before. That point being the creation of the National Firearms Act in 1934. First of all, the creation of this Act shows that due to the way our legal system works, the Constitution is flexible. And I believe the founding fathers wanted it that way, as you stated in your comments.

    I can't find much googling the National Firearms Act, due to most of the information is on legal sites which I am not a member. Due to what I was able to gather from the internet, my understanding of this Act was to regulate various firearms, with registration, and licenses. Apparently it was redone in 1968. What I find interesting about your argument is this:

    Should the Militia be the only entity allowed to have guns, according to your argument, then all guns should have been removed from society years ago, due to the language of the Constitution and your interpretation of the 2nd Amendment. However, that must not be the case and the proof would be in the creation of the National Firearms Act! If the Federal Government is regulating guns, in whatever form, then, they are not outlawing them! IF they are not outlawing them, then, your conclusions, and the conclusions of the scholars that you are using as backup are WRONG! Furthermore, this one case, U.S. v. Miller, is what you used and all other cases on this issue seem to all refer back to this case.

    Now I have found that in that during the history of our country, Congress has touched on this issue three times, in 1866, 1941, & 1986, and each time, Congress reaffirmed the guarantees of personal freedom and adopted specific safeguards to enforce it!

    In 1866, after the slaves had been freed and the Southern States reenacted the slave codes which made it illegal for Blacks to exercise basic civil rights, including the purchase, ownership, and carrying of firearms, the Freedmen’s Bureau Act provided: the right…to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms shall be secured to and enjoyed by all the citizens of such State of district without respect to race or color or previous condition of slavery. (Note: 14 Statutes at large 176-77 (July 16, 1866).)

    In 1941, Congress passed the Property Requisition Act of 1941.
    In 1986, Congress passed the Firearms Owner’s Protection Act of 1986

    As in the Act of 1866, the last two listed Acts also mention the constitutional right to bear arms, and say nothing about the militia.

    This website should help you…

    http://www.stephenhalbrook.com/law_review_articles/congress.PDF

    I will say this again. IT IS ABOUT CHOICE! It has nothing to do with the militia, it has everything to do with the people's right to keep and bear arms.

    Lex, I tend to think that you may have only read the side of the issue that you wished to hear. How unfortunate. I understand that you don’t like guns, or care for guns, and that you would love to rid our society of them. However, please don’t insult my intelligence with these lame rants.

    In summation, the last time the Supreme Court ruled on this issue was in 1939, and that decision got remanded back to the lower court. That particular case is the backbone of your argument and has been shown to not hold water since that case got sidetracked on a militia smokescreen. Since the founding of the country, Congress has touched on this topic three times, and each time, did not confuse the right of the citizenry to keep and bear arms with the militia.

    I have listed three times that Congress has backed up my position, and I have shown that your position is flawed, and all of the cases that you have listed are based on that one case, so, what do you have to say for yourself now?

    By Blogger Crazy East Coast Uncle, at 8:13 PM  

  • I read it quick, and its entirely possible I could be missing something here, but nice job CECU!!
    Love the legal research on your part!! I wish I had done a better job on my comment :)

    It seems like the case law you reviewed was part of this:
    I follow the line of thinking that the 2nd amendment guarantees the right to possess a firearm in connection with service in a well-regulated militia. Courts have consistently ruled as such. See, e.g.: U.S. v. Miller, 307 U.S. 174 (1939), U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), Lewis v. United States, 445 U.S. 55 (1980), United States v. Nelson, 859 F.2d 1318 (1988).
    From Lex's first comment war on her blog.
    But these were cases she was stating upheld her belief on the militia portion of the amendment. They weren't an argument for gun control.

    Wrong or no?

    By Anonymous Anonymous, at 10:48 AM  

  • Well, as I read it, the main case is the Miller case, the first one. The National Firearm Act of 1934 had gone into effect 5 years earlier. The government stated in the act that the people had the right to keep and bear arms, but the government had the right to regulate arms.

    Due to that comment in the regulation, I am saying that the "militia" part of the amendment was not a major part of this case. Now, in the case, the main problem for the defendants was the fact that the guns were not registered and licensed, nor did they comply with the regulation for type of guns that they had. So, their defense was that the guns were for the militia, which, the defendants were not a part of, and since the Congress defines the militia, the type of gun that they possessed that didn't meet regulations, was not part of any militia type gun, therefore, that defense lost. This in no way shows that the 2nd Amendment is just for the militia, and the Act states that the citizenry still has the right to keep and bear arms, but that the government has the right to regulate (tax) arms!

    The next case sites the first one, but, I showed how due to the fact that the defense tried to use the militia in its favor did not work, since the individual was not part of a militia.

    In both cases, the defense was stabbing in the dark for a way to get their client off, when it was obvious, that they had broken some other laws. Since Congress defines what a militia is, the attempts by these individuals to invoke that part of the 2nd amendment in their favor was a stab in the dark. The both lost.

    So, if Lex is following that line of thinking, I believe she needs a new line of thinking! The line of thinking that,"... the 2nd amendment guarantees the right to possess a firearm is connection with service in a well regulated militia," in my opinion, is incorrect. But, what do I know, I am not a lawyer. But I can read it for myself and come to my own conclusions!

    I do know from this research, that I have to register everything. And, if I want to be in a militia, I have to get Congress to recognize me, or a body of individuals that I belong to, as a definition for a militia. Congress hasn't defined a militia for over 100 years. But people have been buying firearms daily since the last time the Congress defined a militia!

    Sadie, I hope that helps!

    By Blogger Crazy East Coast Uncle, at 12:07 PM  

  • CECU,

    Wow, History 101. Good form, But, really, defensive much? As an initial note - the stuff I typed in all caps is intended to highlight things I'm typing. I would use bold or underline, but I dunno how to do that in comments. Just wanted to put that out there because I know that in the e-world, all caps can be construed as yelling.

    Ok, I don't have the time to go back and carefully read all the cases and acts and other lovely laws you cited. I did review some of the cases again. But I will note that you concede that the cases held that the court "can not say that the second amendment guarantees to the citizen the right to keep and bear such a weapon." Clearly you understand that they are saying "such" a weapon because the case dealt with a specific type of weapon, as you mentioned. So your argument sounds a lot like "the Court said you can't have THIS gun, but they didn't say anything about THAT gun." But the Court specifically stated that the type of gun didn't have any reasonable relation to the preservation or efficiency of a MILITIA. The SCOTUS usually sticks to the facts before them, and here that just happened to be the specific type of gun contained in that particular case. But you can’t infer from the holding that while the second amendment doesn’t protect the gun in Miller, it somehow DOES protect other guns. That’s inappropriate reverse logic.

    Ok, your statement that the part of the 2nd amendment that reads "A well regulated Militia being necessary to the security of a free state...," 'means nothing.' (!?!?) That is beyond opinion, that is ignoring the language of the amendment itself and, again, in conflict with interpreting case law. Talk about seeing what you want to see. You can’t just ignore portions of the amendment’s language and say “well, this is what counts, so this is all that the amendment means.” Again, not what the courts have said. And completely inconsistent with the canons of legislative interpretation.

    You spend a great deal of time interpreting Miller, lets look at how Miller was interpreted by Circuit Courts. (which are, as you stated, “lower court” opinions, but trust me when I say that Circuit Court opinions are not to be taken lightly.) It’s also significant that SCOTUS decided not to review Hale, which I take as an indication that SCOTUS did not see any clear constitutional violation in Hale’s holdings.

    Anyhow, the Hale case said: "The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well regulated militia," the Second Amendment does not guarantee the right to possess the weapon."

    Hale’s next paragraph reads:

    "This court has on at least three occasions, citing and relying on Miller, denied challenges to the constitutionality of arms control legislation, because there was no evidence of a reasonable relationship to the maintenance of a militia." (citations omitted)

    More Hale:

    "Rather, THE CLAIMANT OF SECOND AMENDMENT PROTECTION MUST PROVE THAT HIS OR HER POSSESSION OF THE WEAPON WAS REASONABLY RELATED TO A WELL REGULATED MILITIA."

    You state that there has never been a case determining whether there is an individual right to bear arms as opposed to the right in the context of a militia. I think your argument that the "militia" is a smokescreen issue is akin to something I would hear on Fox news (burn). I think the two are always grouped together because the right to bear arms is fundamentally connected to the militia - that's why the two always get discussed together and are placed together in the same amendment. (I understand that your position is that such an interpretation is an error because people have misinterpreted “the punctuation” of the 2nd amendment. I respectfully disagree like a big dog.) It seems to me that if the cases aren't separating the issues, there may be a reason for that. And I think Hale DID address the issue re: individual right to bear arms:

    You dismiss Hale as a case that is really not on point because “he was not part of the militia, and none of his weapons were registered!”

    But the Hale court also said:

    “Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment. When the Second Amendment was ratified in 1791, the state militias functioned as both the principal units of military organization and as an implicit check on federal power. (citations omitted) These militias were comprised of ordinary citizens who typically were required to provide their own equipment and arms. The Second Amendment prevented federal laws that would infringe upon the possession of arms by individuals and thus render the state militias impotent.” The court went on to discuss the history of militias and how they have changed over the past 200 years.

    Hale court:

    “Considering this history, WE CANNOT CONCLUDE THAT THE SECOND AMENDMENT PROTECTS THE INDIVIDUAL POSESSION OF MILITARY WEAPONS... In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well regulated militia," the Second Amendment does not guarantee the right to possess the weapon.”

    Also: Hale cites Cases v. United States for the proposition that "under the Second Amendment, the federal government CAN LIMIT THE KEEPING AND BEARING OF ARMS BY A SINGE INDIVIDUAL, AS WELL AS A GROUP OF INDIVIDUALS, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." Again, it is notable that SCOTUS declined certiorari.

    The Nelson case that you were having trouble accessing addressed the individual right to bear arms as well (admittedly dicta). There, Defendant was importing switchblades or some shit and one of his arguments was that the 2nd amendment provided him the fundamental right to bear arms. The court responded:

    “We also decline to hold that the Act violates the second amendment. Nelsen claims to find a fundamental right to keep and bear arms in the amendment, but this has not been the law for at least 100 years.”

    So, with all due respect, I think you have grossly misinterpreted existing case law. And further, you seem to assume that the 2nd amendment means what YOU think it means, and refuse to recognize that there is serious debate. You brush off an entire portion of the amendment, call it a smokescreen, and then spin the cases to fit your argument. And then accuse me of only gathering information that supports my position? I mean, I think I’m right in my interpretation, but at least I concede that this is a question that has yet to be clearly decided and is surrounded by much debate.

    Next, I agree that there are a lot of writings available re: the creation of the Constitution and Bill of Rights. Of course you can know more about that then about the "Bible-writers." But learning about what the Framers did, the notes they took, the letters they wrote, etc - does not answer the question of what the Framers would have thought we should do about the issue TODAY. I think the Framers would want today’s government to decide the issue. I thought that I was pretty clear about that point, I wasn’t trying to say it’s impossible to learn about history, I was trying to say that they aren’t here and we weren’t there. With that in mind, the question is: who should decide the issue? Today’s society or the men that set it up? I feel it should be decided by today’s society, and I think the men that set up our government would agree.

    I know the SCOTUS hasn't addressed the gun issue for a long ass time, and has declined to review gun cases. But believe you me, if Congress passed a law banning gun-ownership – it would go to SCOTUS and then they would determine whether Congress can Constitutionally create such an all-encompassing ban. As of yet, Congress has placed restrictions on gun-ownership (upheld by SCOTUS), but Congress has not attempted to outlaw guns all together. But Congress COULD outlaw gun-ownership entirely if they chose. And then the Constitutionality battle would begin.

    Your argument that because Congress has regulated gun ownership means that my arguments regarding the 2nd amendment, it’s interpreting case law and scholarly writings on the issue makes me wrong is completely without merit. You are conflating two very different things: the difference between Constitutionally protected rights and Congress’ ability to regulate things so long as they are not UNCONSTITUTIONAL. Sure, Congress has passed legislation regarding keeping, registering and restricting gun ownership. After all, the 2nd amendment doesn’t PROHIBIT gun ownership – it simply fails to give it the status of a constitutional/fundamental right. And just as Congress passed the National Firearms Act and other laws related to gun ownership – they could just as easily turn around and outlaw gun ownership. Again, Congress did this in the 60s when segregation, which was previously legislated, was changed. Congress can change the laws. Congress should change the laws as needed to keep up with the times. Congress has the right to regulate things, and they have done so with guns. That does not mean that these laws cannot (or should not) be changed. I never argued that there are no laws related to gun-ownership, I am (obviously) aware that there are existing laws relating to guns, so the effort of pointing them out doesn’t change my opinion on whether there is a Constitutional right to gun-ownership.

    I don’t think that listing three instances where Congress legislated firearms has any implication on the meaning of the 2nd amendment. And lets remember that when gun-control laws were challenged on the basis of the 2nd amendment, the court shot down the argument that gun-control infringes on a person’s 2nd amendment right. They held that Congress CAN regulate gun ownership – which, if it indicates anything – indicates that gun ownership is NOT a constitutionally protected right. And while there are few cases on the issue, they are important, because it is case law that interprets the Constitution and other laws. So, I disagree completely that you “have shown” that my position is flawed. If anything, I think your pointing to existing legislation just demonstrates even more that gun-ownership is not a fundamental right, otherwise, SCOTUS wouldn’t have permitted such legislation. And I guess we will have to, again, agree to disagree on what the case law says.

    All of this leads me to my final point: The position I thought I was most clear about - and that your response completely ignores - is that the Framer's interpretation of the 2nd amendment is a SECONDARY issue to me. The history, while interesting, should not make the final determination of this issue. More important is that TODAY’S society take a good hard look at guns ownership, the purposes it serves, the damage that can be attributed to gun ownership, and make decisions about gun control based on that information. I think it is high time that the government take a hard look at the effect of guns on society, and do something (more) about it. I would think that you, of all people, would believe that just because something may have been so once, does not mean it should be so forever.

    I fear you’re taking this a little too personally. I mean, you’re clearly frustrated with my bringing up your arguments regarding the 2nd amendment. You put a great deal of effort into researching and composing a historical argument to support your position. That’s fine; I just hope that you aren’t getting upset when I respond to those arguments. I’m not trying to say that you’re stupid, uninformed, or anything like that. We agree on most issues and I think you are a smart man. This just happens to be something that we strongly disagree about. I kept bringing up the 2nd amendment issue in relation to you because it seemed (and kinda still seems) like the backbone of your argument- so I have to address it.

    We have to agree to disagree on what is more important: the “freedom of individual choice” that you argue and the “good of the larger population” that I believe in. I think that's what it comes down to. I’m allowed to want a gun-free country. I’m not getting my way, but I get to think about it, form opinions on it, and argue about it all day long if I want. Disagreeing with you is not an insult to your intelligence, nor does it make my arguments “rants” anymore than yours could be characterized as such. Let’s not allow ourselves to get into a “your theories are meaningless blabber” debate, it’s a short-step away from the meaningless name-calling that Nonys engage in and it’s even more useless than the constant repetition of this issue that we have engaged in time and again.

    Can we get to God now? Sadie and me are reading The God Delusion and it brings up interesting points. Go get it, start reading, and join the book club.

    By Blogger Lex Fori, at 12:28 PM  

  • OK..we agree to disagree! AGAIN :)

    Lex, since this is your blog, you can have the last say on this topic...

    BTW, I wish I had access to the legal websites...I would have probably had more fun with my last responses.

    Bring on the God shit! I can't wait!

    I believe thier is a God.
    I don't believe you need religion to figure God out.
    I believe Jesus was a very wise man, and that is it!
    I believe we are all children of God.
    Notice I am saying God, not Jesus, or Jahovah, or Allah, or Budda, or Shiva, or Zeus, but God.
    I believe everybody has the same God!
    I believe, through the centuries we have been divided by religions, who have manipulated the masses for their own greedy benefit.
    I believe in your right to name your God whatever you want, but don't ask me to use your terminology.

    I am ready, start the debate :)

    By Blogger Crazy East Coast Uncle, at 2:45 PM  

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