IF Gun Advocates Lie (or fib), People Die


Update: The original title was “Gun Advocates Lie People Die“.

So,… Alan Korwin did not exactly fib. He repeated a claim supposedly made by professor Gary Kleck. A claim which no one can produce.

Bucky 2 Guns

I DID however find something else Gary Kleck said:

“..less than 2% of fatal gun accidents occur during defensive gun use.” source

That means that MORE THAN 98 percent of fatal gun accidents DO NOT occur during defensive gun use.

Soooooooo? How DO fatal gun accidents happen?

That pretty much confirms what I though, people don’t kill people, GUNS KILL PEOPLE.

I’m still looking any evidence that ANY fully employed academic would like to claim research that says 2.5mm/700,000/400,000 Americans each year save their lives with guns.

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  1. #1 by Cliff Lyon on April 16, 2008 - 5:03 pm

    I just checked. While Professor Kleck has experienced peer review, his book “Armed: New Perspectives on Gun Control” did not get peer review.

    The book got a review in some backwater pay-us-to-write-a-review magazine called Current Reviews for Academic Libraries (you pay for the title-how clever). I couldn’t help noticing it’s two-bit editorial board from institutions (if you can call them that) that line the bible-belt.

    I can’t wait to read the reviews at Amazon

  2. #2 by Richard Warnick on April 16, 2008 - 7:03 pm

    I own a deadly weapon. According to the National Center for Injury Prevention and Control, in 2005 it and others like it killed 45,520 people. Even though I have no intention of ever using it to kill someone else or kill myself, the law requires me to pass a vision test and a written test to obtain a license for this weapon. I have to pay money every year to register it with the State of Utah. I’m required to carry no-fault liability insurance as long as I own it.

    It’s not a gun, obviously, it’s an automobile. Firearms killed 30,694 Americans in 2005. Are they licensed? Registered? Insured? Not so much. Why not?

  3. #3 by Tomare Utsu Zo on April 16, 2008 - 7:06 pm

    That means that MORE THAN 98 percent of fatal gun accidents DO NOT occur during defensive gun use.

    Oh god, please tell me that was some sort of joke? Did you think you were making an arguement for your side? What you just said is that of the small number of fatal gun accidents that happen per year, on 1-in-50 occur when the gun is being used defensively.

    Further, where did you pull that quote from? I couldn’t find it. What I did find was,

    However, very few accidents occur in connection with actual defensive uses of guns.

    Dude, seriously, whose side are you on here?

  4. #4 by dagamore on April 17, 2008 - 2:22 am

    Richard

    The reason that Guns, unlike Automobiles are licensed is that Driving is a privilege, not a right protected by the US Constitution. And it should be noted that some classes of Firearms are licensed, such as Full-Auto, Short Barreled Rifles, Other Destructive Devices, Pistols (in some city’s/states/jurisdictions), and Rifles again (in some city’s/states/jurisdictions).

    But can I do the same thing you did. If it is really about saving peoples lives then we should outlaw all Automobiles, and or highly restrict them so that only specially trained people that have been FBI certified, and Finger printed, and 18-24 month long back ground checks, before they are even given the option of owning a car. We could save ~47,000 lives every year, but saving people is not your goal is it? Is your real goal controlling people?

    Source for number of auto deaths above.
    http://agsafety.tamu.edu/ACCIDENTAL DEATHS IN THE UNITED STATES.pdf
    It should be noted that Firearms only account for ~2,000 deaths in the same report.

  5. #5 by Xrlq on April 17, 2008 - 3:56 am

    That means that MORE THAN 98 percent of fatal gun accidents DO NOT occur during defensive gun use.

    And it also means that 100% of fatal gun accidents either occur during defensive gun use or they don’t. And that is significant, why? Did you even follow your own link to see what a piddly number of fatal gun accidents there are, relative to even the most conservative estimates of crimes thwarted with guns?

    I’m still looking [sic] any evidence that ANY fully employed academic would like to claim research that says 2.5mm/700,000/400,000 Americans each year save their lives with guns.

    Obviously, you’re not looking too hard, but here’s a better idea. The real issue is not by what margin defensive uses of guns outnumber offensive ones, but merely that they do. In that vein, why don’t you look for evidence that ANY fully employed academic has produced a single peer-reviewed study purporting to show that offensive uses + fatal accidents outnumber successful defensive uses? The only ground rule is that “successful self-defense” must include every instance in which the law-abiding gun owner used a gun to successfully neutralize the threat, whether by killing the assailant (very rare), shooting at him (relatively rare) or simply brandishing and getting the assailant to chicken out (the norm).

  6. #6 by Weer'd Beard on April 17, 2008 - 4:39 am

    “That means that MORE THAN 98 percent of fatal gun accidents DO NOT occur during defensive gun use.”

    that’s the best argument for banning “Gun Free Zones” if you are in a position to defensively use a gun, statistically speaking, you’ve got better than a 98% chance of going home on a day where somebody decideds to OFFENSIVLY use a gun.

    It also works even better against other forms of violence that can result in homicide.

  7. #7 by Bob S. on April 17, 2008 - 5:43 am

    Richard,

    Here is a great answer to your question about why we don’t treat guns like cars.

    The truth is swimming pools accidents kill more kids than guns, but people wouldn’t stand for having any of the same requirements on pools.

    A question that I have for all the anti-civil rights folks, why focus on the object, i.e. the gun? Can anyone show how firearms are picking themselves up, going to a location, aiming at a person, then discharging themselves?
    Of course not, people use the guns to commit the crime. Why not focus on the people committing the crimes?

  8. #8 by rmwarnick on April 17, 2008 - 6:16 am

    I’ll never get tired of saying this. Individuals DO NOT have a Constitutional right to own firearms any more than they have one to own cars. The Second Amendment refers to “the people” which in the language of the day defines a collective, not individuals. It also specifically references the necessity for state militias to bear arms.

  9. #9 by Quentin on April 17, 2008 - 6:45 am

    rmwarnick, you can maintain that delusion about the Second Amendment being a Collective, not Individual right, until SCOTUS rules in the Heller case. And lest you doubt their ruling, then review the question that SCOTUS asked:

    “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

    Notice that part about “Second Amendment right of individuals”????

    What excuse are you going to use then?

  10. #10 by Bob S. on April 17, 2008 - 6:57 am

    Rmwarnick,

    How is it that in the other amendments in the Bill of Rights, People refers to individuals but in the 2nd amendment it refers to a collective?

    By the way, still want to license firearms like automobiles?

  11. #11 by rmwarnick on April 17, 2008 - 8:49 am

    In the Bill of Rights, “the People” consistently refers to the body of the citizenry. Whether individual rights are guaranteed depends on the context. In the case of the right to bear arms, the Second Amendment is clearly intended to guarantee that the federal government will not interfere in the formation of state militias.

    With regard to District of Columbia v. Heller, we shall soon find out how radical the Supreme Court has become as a result of the Bush administration appointments. In order to establish an individual right to bear arms, a majority of the justices will have to overturn U.S. v. Miller (1939).

  12. #12 by Cliff Lyon on April 17, 2008 - 9:13 am

    Even Gun Advocates decry the 400k number as absurd.

    A blog called “Say Uncle” has written bout me in unfavorable terms while some of their more reasoned commenters question Korwin’s numbers.

    I also see that Kleck himself is no where on record defending his “study.” I bet he wishes he never published his bad study (except for the book sales to people who WANT to believe).

  13. #13 by Quentin on April 17, 2008 - 9:42 am

    Overturn Miller? Excellent, I hope they do. Miller was a bad decision all the way around.

    It sidestepped the issue of whether the 2A is an individual or collective right.
    It ignored the fact that a shotgun was common weapon, thus a militia weapon, in WWI. Back then they called them “trench brooms”.
    The case should have dismissed since there was no attorney for the defendant, since Miller was dead. How many times in the history of SCOTUS has a case been heard, much less decided upon, when there was no opposing council?

    And another thing Warnick, since you brought up that rubbish about cars vs. guns. Here’s a link for you.

    If Guns Were Treated Like Cars http://www.mcsm.org/guncars.html
    The Lawdog Files http://thelawdogfiles.blogspot.com/2007/04/we-license-cars-yackyackyack.html

    So tell me again you want to treat guns like cars?

  14. #14 by Bob S. on April 17, 2008 - 9:43 am

    RM,

    Could you elaborate a little more on how the “people” refer to a body of citizenry but requires a context to determine if it is an individual right?

    The right of the people to be secure in their person…etc from unreasonable search and seizure doesn’t sound like we have to be in a organized group to be protected.

    Does the 1st amendment right to free speech only protect newspapers?

  15. #15 by jdberger on April 17, 2008 - 10:58 am

    Cliff,

    Your lack of Google-fu is astounding.

    I also see that Kleck himself is no where on record defending his “study.” I bet he wishes he never published his bad study (except for the book sales to people who WANT to believe).

    Kleck defends his study a number of times. For instance, here, here and here.

    It really is amusing, Cliff, that you apparently felt so overwhelmed by the mountain of data that debunked the contention that Mr. Korwin was a liar in your earlier thread that you had to start a new thread. It’s sort of pathetic.

    Though it’s become painfully clear that your game is just to continually move the goalposts and then feign ignorance (or a lack of a search engine) when confronted with opposing research – SHOULD you be inclined to educate yourself on the subject of guns, gun control and gun politics in America, there is some interesting reading here. http://www.saf.org/AllLawReviews.html
    Authors range from Carl Bogus to Don Kates and occupy the spectrum in the debate.

    We’re really trying to help you, Cliff, misguided as you are.

    BTW, that pic at the top of the blog – the guy is holding BB guns.

  16. #16 by rmwarnick on April 17, 2008 - 11:12 am

    There’s no point in arguing Constitutional law with people who don’t know the subject. We shall see what we shall see when the Supreme Court rules on so-called gun rights.

  17. #17 by Bob S. on April 17, 2008 - 11:13 am

    Cliff,

    How many lives does defensive gun use have to save before it’s acceptable?
    How many crimes does it need to stop before it’s acceptable?

    Over and over again we hear “if banning guns saves just one live, it’s worth it” why not the other side….If carrying guns saves just one live, isn’t it worth it?

  18. #18 by Bob S. on April 17, 2008 - 11:24 am

    RM,

    So, because I ask for clarification and understanding of your view point on the Constitution I don’t understand it?

    Why not use the opportunity to educate and explain? Or is it because that viewpoint doesn’t stand up to scrutiny?
    Please reconsider and take the time to explain. I’m willing to change my viewpoint if I’ve came to a wrong decision.

    By the way, what qualifications to you have to understand constitutional law?

  19. #19 by jdberger on April 17, 2008 - 11:40 am

    There’s no point in arguing Constitutional law with people who don’t know the subject.

    Richard, are you suggesting that a Federal Appellate Judge doesn’t understand Constitutional Law?

    Or perhaps you are referring to Harvard Constitutional Law professor Laurence Tribe?

    So, perhaps you could expound on your assertion that folks who disagree with you “don’t understand Constitutional Law”?

    Or, are you just going to refer to your own post again?

  20. #20 by Albert O. on April 17, 2008 - 11:52 am

    Let’s face it jdberger, it is you who don’t understand constitutional law.

    When you resort to simply cherry-picking of opinions that comport with your own, rather than attempting or even exploring a constututional construction exercise based on the framers’ then state of mind, you expose your hand for what it is: an ill-informed talking-head gun-nut with an agenda.

  21. #21 by jdberger on April 17, 2008 - 12:13 pm

    Hi Albert.

    Nice to see you back.

    What are we arguing about today?

    The definition of “is”?

    But since you began, perhaps you’d like to explain to me (and the rest here) how Judge Silberman, Laurence Tribe, Sanford Levinson, Don Kates and the rest of the “gun-nuts” who have published opinions misconstrued the Second Amendment as an individual right?

    Here’s an easy link so you don’t have to spend too much time looking for source material. May I suggest Carl Bogus and Saul Cornell (not included in the above link).

    Perhaps you can also explain the difference in the term “the people” in the 1st, 2nd and 5th Amendments?

  22. #22 by Albert O. on April 17, 2008 - 12:35 pm

    jdberger:

    The answer to your question is really quite academic: when you read the entire 2nd Amend. to include the preamble – i.e., to include the phrase concerning “milita” – then you find the distinction between the amendments you refer.

    PS I see that you still support your arguments through the cherry-picking technique. Good for you; gives you a lot more time to swill stale tap-beer during lunch and dinner.

  23. #23 by Bob S. on April 17, 2008 - 12:50 pm

    Albert,

    If that view of the 2nd amendment is so prevalent, you should have no trouble providing links or citations supporting it, right?

    How about reviewing the transcripts from the Heller vs DC oral arguments and pointing out how many Supreme Court Justices view the right as a collective?

    Jd asked, and I’ll ask for a simple explanation of how the term “people” differ from the 2nd and the 5th. Not the interpretation of the amendment, but how the framers of the constitution decided to change the meaning of the word.

    Here is an concept, perhaps the Bill of Rights isn’t providing the rights of the state governments to form militias but for the PEOPLE to do so. And to form militias, the PEOPLE needed to be able to keep and bear arms. Can you provide another example in the Bill of Rights where there is an authorization of the government not a control of the government’s powers?

  24. #24 by jdberger on April 17, 2008 - 1:01 pm

    Gee Albert. You must be a speed reader to have read all 5 of Carl Bogus’s law review articles.

    What do you think of his take on the Second Amendment? Does Professor Bogus argue for an individual or collective right?

    Albert, your insistence that I’m “cherry picking” makes me wonder if you have bothered to read the titles of the aforementioned Law Review and scholarly articles. Of course, I don’t blame you. It’s much easier to pretend omniscience and throw insults.

    C’mon, Albert. You seem relatively intelligent – if somewhat obtuse and belligerent. I’m challenging you to do a little reading.

    Here, I’ll even include a link to all the amicus briefs along with those of Petitioner and Respondent in the DC v. Heller matter which is currently under consideration by SCOTUS. You can consider it a boiled down version of the Law Review articles – since most are cited by the briefs.

  25. #25 by Larry Bergan on April 17, 2008 - 1:23 pm

    Laws that can be passed to protect the radical right wing “conservative” law breakers or Supreme Court appointees that can be nominated to the bench because they helped Bush steal an election, (Roberts was involved in Bush vs Gore in Florida), and who will interpret the constitution are now in place and will win cheat. People with guns for brains deceptive agendas will help them.

    Everything else is quaint.

  26. #26 by Larry Bergan on April 17, 2008 - 1:36 pm

    Either you gun enthusiasts really do believe liberals are everywhere, willing to kill you for a dime and are so cowardly that you won’t go anywhere without your gun or you are helping Bush drum up the fear for reasons only known to you.

    Either way, it’s very sad.

  27. #27 by rmwarnick on April 17, 2008 - 1:37 pm

    You know, I am going to link to my previous post because it summarizes the position of the Supreme Court on the issue of the Second Amendment.

    In United States v. Miller (1939) the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. Citing the original provisions of the Constitution dealing with the militia, the Court observed that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.”

    To summarize even further: the Court ruled that the “obvious purpose” of the Second Amendment is to preserve the right of the states to raise and arm militias, and “it must be interpreted with that end in view.”

  28. #28 by jdberger on April 17, 2008 - 1:51 pm

    Richard,

    Keep reading the Miller decision. Miller was about the Federal Government’s ability to restrict the possession and transportation across State lines of a sawed-off shotgun and that relation to the Second Amendment.

    The Court did NOT say that the “obvious purpose” of the Second Amendment was to preserve the right of the States to raise and arm militias.

    The court did say, “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

    Here’s the complete text of the decision in US v. Miller.

  29. #29 by jdberger on April 17, 2008 - 2:41 pm

    Richard??

    C’mon, Richard … the Supreme Court’s decision in US v. Miller is only one page long. Can you please show me the text that asserts

    the “obvious purpose” of the Second Amendment is to preserve the right of the states to raise and arm militias, and “it must be interpreted with that end in view.”

    ??

  30. #30 by rmwarnick on April 17, 2008 - 3:14 pm

    jdberger– I did show you the text. The quote is right there in my comment.

    My source is FindLaw.

  31. #31 by Albert O. on April 17, 2008 - 3:50 pm

    Indeed, richard, a studied review of the quote you provide, read in context with the remainder of the Miller opinion, virtually cries out for rejection of the notion that the individual has a “right” to keep and bear arms.

    Rather, the Miller opinion suggests that individuals once had an obligation to purchase and maintain a flintlock rifle so that when called by their state goverments, the respective militias would be properly armed.

    Today, of course, there is no such obligation as the National Guards are well-armed to suit the purpose.

    The notion that the 2nd Amend. provides an individual right (aka liberty) is simply not supported by the Miller decision, or any other that I am aware.

  32. #32 by Richard Warnick on April 17, 2008 - 4:19 pm

    What is the saying? You can lead a horse to water, but you can’t make him think.

    Albert, you couldn’t have missed my point by a wider margin if you tried. As I have stated over and over, there is no Constitutional right for individuals to keep and bear arms.

  33. #33 by jdberger on April 17, 2008 - 4:49 pm

    Richard,

    Please show me the text in the Miller decision that asserts:

    the “obvious purpose” of the Second Amendment is to preserve the right of the states to raise and arm militias, and “it must be interpreted with that end in view.”

    Should I save you some time? It doesn’t exist.

    You’re conclusion above, which is ostensibly from FindLaw – is not. In fact I can’t find anywhere where it mentions that the “obvious purpose” of the Second Amenment is to preserve the right of the States to raise and arm militias.

    Are you just cutting and pasting phrases to create your own case law?

    Now, I’m challenging your integrity.

  34. #34 by jdberger on April 17, 2008 - 4:52 pm

    Actually, Richard, I’m going to do you one better and expose you for the utter and complete fraud that you are.

    This is the ENTIRE text of the FindLaw cite you use.

    U.S. Constitution: Second Amendment
    Second Amendment – Bearing Arms

    Amendment Text | Annotations
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Annotations
    In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ”individual rights” thesis whereby individuals are protected in ownership, possession, and transportation, and a ”states’ rights” thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.1 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state2 or private3 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.

    In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ”[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.”5 The significance of the militia, the Court continued, was that it was composed of ”civilians primarily, soldiers on occasion.” It was upon this force that the States could rely for defense and securing of the laws, on a force that ”comprised all males physically capable of acting in concert for the common defense,” who, ”when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”6 Therefore, ”[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”7

    Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,8 and proposals for national registration or prohibition of firearms altogether have been made.9 At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer.

    Footnotes

    [Footnote 1] A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions is: Staff of Subcom. on the Constitution, Senate Committee on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).

    [Footnote 2] Presser v. Illinois, 116 U.S. 252, 265 (1886). See also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897). The non-application of the Second Amendment to the States is good law today. Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

    [Footnote 3] United States v. Cruikshank, 92 U.S. 542 (1875).

    [Footnote 4] 307 U.S. 174 (1939). The defendants had been released on the basis of the trial court determination that prosecution would violate the Second Amendment and no briefs or other appearances were filed on their behalf; the Court acted on the basis of the Government’s representations.

    [Footnote 5] Id. at 178.

    [Footnote 6] Id. at 179.

    [Footnote 7] Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the Federal Firearms Act, said: ”Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by 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.” See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the ”Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia”’). See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states, not by private citizens), cert. denied 117 S. Ct. 276 (1996); United States v. Gomez, 92 F.3d 770, 775 n.7 (9th Cir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justification defense ”ensures that [the provision] does not collide with the Second Amendment”).

    [Footnote 8] Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The Supreme Court’s dealings with these laws have all arisen in the context of prosecutions of persons purchasing or obtaining firearms in violation of a provisions against such conduct by convicted felons. Lewis v. United States, 445 U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); United States v. Bass, 404 U.S. 336 (1971).

    [Footnote 9] E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031-1058 (1970), and Final Report 246-247 (1971).

    You, Sir, are a fraud.

  35. #35 by Albert O. on April 17, 2008 - 5:03 pm

    Hmmm. Richard, I think you should reread my comment.

    If you do, I think you will find we are saying precisely the same thing.

  36. #36 by caveat on April 17, 2008 - 5:10 pm

    I have to hand it to Bob S. for being consistently cogent and respectful.

    While some of the PEOPLE are frightened (rightly) of the damaging effects that can be wrought with guns, that doesn’t mean the PEOPLE would be better served by a militia untrained, incompetent and disrespectful of them, (should the need arise). Certainly none of us will agree on all the details of present policy, never have, never will, but it does none of us any good to pull back to the cartoon postures of ‘Right’ and ‘Left’.

    Many have been the times we’ve said, “We’re all in this together”. Let’s keep that in mind, like Bob S. has been doing. Thanks.

  37. #37 by Albert O. on April 17, 2008 - 5:19 pm

    jdberger:

    I think your eyes are scanning the comments too quickly. Following the quote posted by rmw, he summarized the Court’s analysis. His summary obviously wasn’t a quote, intended as a quote or even in quotation marks. Your assertions of fraud are unfounded.

  38. #38 by rmwarnick on April 17, 2008 - 7:12 pm

    Here’s what I wrote:

    To summarize even further: the Court ruled that the “obvious purpose” of the Second Amendment is to preserve the right of the states to raise and arm militias, and “it must be interpreted with that end in view.”

    It’s MY summary of the Supreme Court’s interpretation of the Second Amendment.
    Only the words in quotations are quotations. I was making it simple for simple minds to understand.

  39. #39 by rmwarnick on April 17, 2008 - 7:15 pm

    Albert, I apologize. When you wrote “indeed” you weren’t missing my point. I mis-read your comment.

  40. #40 by jdberger on April 17, 2008 - 10:08 pm

    Richard and Albert,

    I’ll reiterate – Richard’s conclusion is in no way supported by the text of the Miller decision.

    To summarize even further: the Court ruled that the “obvious purpose” of the Second Amendment is to preserve the right of the states to raise and arm militias, and “it must be interpreted with that end in view.”

    Richard simply patched together two disparate phrases with his own wording in the middle to create a false conclusion. That’s fraudulent.

    The Court ruled no such thing. The Court ruled that Mr. Miller (who was neither present nor represented by counsel) simply was not subject to Second Amendment protection because the sawed-off shotgun in question was not useful as a militia weapon.

    Therefore, ”[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.’

    Again, contrary to Richard’s assertions, there is nothing in Miller OR in the FindLaw page dealing with the Second Amendment that remotely suggests that the purpose of the Second Amendment is to preserve the right of the states to raise and arm militias.

    Richard, you apparently thought that I wasn’t familiar with Miller and that I wouldn’t read the page you cited. You tried to pull a fast one.

    But, just for argument’s sake, let’s pretend that Richard’s selective “cut-and-paste” interpretation of Miller is what the judges really said.

    So what? It’s wrong and it (if it were real) deserves to be overturned. Like Plessy v. Ferguson and Bowers v. Hardwick – Miller is a crappy decision (Miller even under the obvious interpretation is a crappy decision for a multitude of reasons).

    Fortunately, Richard and Albert and Cliff will have to opportunity to witness it in July when the Supreme Court returns its decision in DC v. Heller.

    Finally, Albert, have you had a chance to read any of the Law Review articles by Carl T. Bogus? What do you think of his stance on the Second Amendment. After reading them, have you changed your mind? After perusing some of the titles of the Law Review articles that are linked, do you still accuse me of “cherry picking” sources? What did you think of the research of Saul Cornell? Is his a valid position in your opinion?

    I’m waiting with bated breath…

  41. #41 by rmwarnick on April 17, 2008 - 10:39 pm

    jdberger simply quoted a different section of the majority opinion and left out the most significant finding, which is: the Supreme Court decided that “obviously” the Second Amendment pertains only to state militias and MUST be interpreted that way. This clearly goes beyond the case at issue in 1939 and applies to all future Second Amendment cases.

    I will be interested to see if the present-day Court has the cojones to overturn the precedent of United States v. Miller. If so, they’ll have to do better than just selectively quote parts of the prior decision that don’t have bearing on the matter of whether or not there is an individual Constitutional right to bear arms.

  42. #42 by Albert O. on April 17, 2008 - 11:03 pm

    jd:

    Richard’s point is well taken and not fraudulent; and I find it rather interesting that you label it so. Nevertheless, Richard’s point relies on clear unambiguous dicta provided by the Court. That Messrs. Miller or Layton or counsel therefor were not present at the hearing is really quite beside the point.

    The Court laid out precursor language to the 2nd Amend., and then provided the following statement:

    With obvious purpose to assure the continuation and render possible the effectiveness of such forces [state-run militias], the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

    As to the “end in view,” the Court referred, inter alia, “[t]o provide for organizing, arming, and disciplining, the Militia, ….” Miller, at 178 (emphasis added). Reference to arming, of course, implies that the states were charged with such. In the early days, for example, such charge was carried out by requiring men to possess flintlock rifles for the ready. Now days, the states provide all the M-16s that are necessary.

    Richard’s point is in complete harmony with the dicta provided by the Court in Miller. Your attempt to brand Richard a fraud, therefore, must fall on deaf ears.

    Care to try again?

  43. #43 by jdberger on April 18, 2008 - 1:30 am

    Contrary to your assertions, the Court ruled not on whether the Second Amendment was a right reserved to the Government (yet strangely placed in the Bill of Rights) but whether the NFA was constrained by the Second Amendment. They simply answered the question put before it:

    A duly interposed demurrer alleged: the National Firearms Act is not a revenue measure, but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution — “A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed.” [p177]

    The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

    The cause is here by direct appeal.

    The Court ruled that Miller’s shotgun was

    In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

    The Constitution, as originally adopted, granted to the Congress power –

    To provide for calling forth the Militia to execute the Laws of the Union, suppress
    Insurrections and repel Invasions; To provide for organizing, arming, and
    disciplining, the Militia, and for governing such Part of them as may be employed
    in the Service of the United States, reserving to the States respectively, the
    Appointment of the Officers, and the Authority of training the Militia according to
    the discipline prescribed by Congress.

    With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

    Here (above) showing how the Second Amendment modifies Article I, Section 9 of the Constitution. The Second Amendment made sure that the arming of the militia was not dependent upon Congress who could take away the arms so that the people could not use them to oppose an oppressive government.

    Larry’s FindLaw page agrees with me, stating:

    In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ”[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.”5 The significance of the militia, the Court continued, was that it was composed of ”civilians primarily, soldiers on occasion.” It was upon this force that the States could rely for defense and securing of the laws, on a force that ”comprised all males physically capable of acting in concert for the common defense,” who, ”when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”6 Therefore, ”[i]n the absence of any evidence tending to show that possession or use of a ’shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”7

    Had the Court accepted the government’s interpretation of the Second Amendment, the case would have likely been disposed of on the issue of standing. This is because the defendants were not members of militias, and under the government’s interpretation of the Second Amendment, the Court could have found that Miller had no standing to invoke the Second Amendment in the district court.

    More significantly, the actual holding of Miller is a far cry from the proposition for which it is cited by Larry: that the Second Amendment does not protect an individual, enforceable right. On the contrary, the Court’s opinion acknowledges that historical sources “show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense …. And further, … these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

    Here, to suggest that “[t]hat Messrs. Miller or Layton or counsel therefor were not present at the hearing is really quite beside the point” is disconcerting. What would have happened if the Court had heard Miller’s side of the argument detailing evidence about the militia and the types of weapons that militia members commonly possessed? Surely you’re not suggesting that only one party’s counsel should be allowed to speak in front of the Supreme Court, are you?

    By suggesting that dicta is the actual important holding in Miller, aren’t you “cherry-picking” your arguments?

    Finally, Albert? Are you going to answer my question about Carl Bogus? Do you still accuse me of providing you “cherry-picked” sources?

    Albert? Do you still stand by this statement?

    PS I see that you still support your arguments through the cherry-picking technique. Good for you; gives you a lot more time to swill stale tap-beer during lunch and dinner.

    Are you a fraud, too? Or just so blinkered by ideology that you can’t even bother to peruse another’s suggestion for source material?

    Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms.”

    Judge Alex Kozinski – 9th Circuit

  44. #44 by Richard Warnick on April 18, 2008 - 7:35 am

    jdberger doesn’t understand what the Bill of Rights is for. It restricts the power of the federal government. There is nothing “strange” about state’s rights appearing in the Bill of Rights– look at the Tenth Amendment.

    Rather than continue this fruitless discussion, just read the Wikipedia article about United States v. Miller.

  45. #45 by jdberger on April 18, 2008 - 8:02 am

    So Richard?

    The Second Amendment is a Duty of the States?

  46. #46 by Bob S. on April 18, 2008 - 8:04 am

    Richard,

    From Wikipedia
    “Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their position.”

    Ok, what was the case about “the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barreled rifles and shotguns) to be registered” and “On April 18, 1938 Miller and Layton were arrested for transporting an unlicensed sawed-off shotgun (defined as “having a barrel less than eighteen inches in length”) across state lines while engaged in interstate commerce, in violation of the NFA. This was after the fact that the Treasury had “staked out” Mr. Miller and Mr. Layton’s property in suspicion of moonshining. The Treasury, after a day-long stake, found that the distillery was not functional and had in fact been shut down for some time and had the boiler removed. The Treasury then found the sub-eighteen inch shot gun in Mr. Miller’s truck on the seat. It is said that the Treasury, in fear of embarrassment for the distillery mishap, took the two men in on charges for not paying their taxes on the shortened shotgun.”

    So in order to avoid humiliation at finding the government had no case, an reason was found to charge the two….wow, pretty poor police work there.

    Let’s get to the meat of the argument
    “On January 3, 1939, U.S. District Court Judge Heartsill Ragon agreed with the defense’s claim that the NFA was intended to restrict the individual ownership and possession of arms, in conflict with the Second Amendment to the United States Constitution.
    Let’ see a federal judge upheld the right to keep and bear arms was an individual right.

    The Supreme Court ruled in favor of the government, but why “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia,”
    Because the FIREARM had no reasonable relationship to the militia; please note the court did not say that the INDIVIDUAL…or to use the Bill of Rights term PEOPLE had no right to keep and bear arms.

    To put it in the bluntest possible terms, no where in that decision did the court say the PEOPLE did not have a right to keep and bear arms. Think about it, the NFA only required the registration and taxing of certain firearms, the people were allowed to keep and bear them.
    Can you show anywhere in that decision where the court stated, the PEOPLE don’t have a right to keep and bear arms?

  47. #47 by Cliff Lyon on April 18, 2008 - 8:39 am

    “Can you show anywhere in that decision where the court stated, the PEOPLE don’t have a right to keep and bear arms?”

    That’s irrelevant. The courts’ responsibility is to adjudicate the petition at hand, NOT to arbitrarily make unsolicited decisions…thank God.

  48. #48 by Rob F. on April 18, 2008 - 8:46 am

    That pretty much confirms what I though, people don’t kill people, GUNS KILL PEOPLE.

    Really? Inanimate objects are capable of killing other people?

    If that is so, why are you not crusading to ban the use of automobiles? I mean, they are responsible for more deaths than firearms.

    Why are you not crusading against bicycles? They, too, are much more dangerous than firearms.

    What about swimming pools? They kill a lot of people, too. Kids love pools, but pools kill people.

    If your goal is to reduce wrongful deaths, then it would make the most sense to start by fighting what causes the most wrongful deaths: heart disease, cancer, or stroke. Or you could combat the deaths caused by vehicular accidents, suicide, or people falling. (http://www.nsc.org/lrs/statinfo/odds_dying.jpg)

    But no–you chose, instead, to knowingly combat something you fear: weapons. You’re hoplophobic, and let’s be honest, your stance against the law-abiding legally possessing the effective means with which to defend themselves has absolutely nothing to do with the means. You’re just trying to impose your unfounded and indefensible views on others.

  49. #49 by Richard W. on April 18, 2008 - 8:56 am

    One more time, for the benefit of the thick-headed. United States v. Miller is the controlling legal authority for the Second Amendment. The Supreme Court, in a unanimous decision, ruled that the Amendment pertains to state militias and stated:

    With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

    The Second Amendment prohibits the federal government from infringing on the right of states to arm their own militias. There is no Constitutional guarantee for the individual right to bear arms. Neither is there a prohibition for firearms ownership. The U.S. Constitution is silent on this issue. The matter is left to the states to decide.

    Why can’t everyone agree on the plain meaning of the Second Amendment? Like the Court said, it’s obvious.

  50. #50 by rmwarnick on April 18, 2008 - 8:57 am

    Oops. Firefox just updated itself and I lost my One Utah ID– the anonymous post above was me.

  51. #51 by Cliff Lyon on April 18, 2008 - 9:33 am

    Indeed Richard, the unmistakable meaning of the Second Amedment, is the elephant in the room.

    Thanks to Heston and the NRA, gun advocates have become convinced that any gun control will begin a slippery slope…first we’ll take away their AK whatevers then my cop-killer handgun and eventually my BB gun.

    It is this unreasonable fear that creates people like Alan Korwin, who are willing to say the most dishonest disingenuous things in public to pad his wallet.

    My God. If I really believed Korwin, I would be armed to the teeth too.

  52. #52 by jdberger on April 18, 2008 - 9:41 am

    That’s irrelevant. The courts’ responsibility is to adjudicate the petition at hand, NOT to arbitrarily make unsolicited decisions…thank God.

    Excellent, Cliff. At least someone is paying attention.

    So, next step – what was the petition at hand?

    A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-’A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ [307 U.S. 174, 177] The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

    In response to the demmurrer, the Court ruled:

    In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

    Not, as Richard and Albert contend:

    To summarize even further: the Court ruled that the “obvious purpose” of the Second Amendment is to preserve the right of the states to raise and arm militias, and “it must be interpreted with that end in view.”

    Appellant argued the “State’s rights” position and the Court ignored it. Had the Court accepted the government’s interpretation of the Second Amendment, the case would have likely been disposed of on the issue of standing. This is because the defendants were not members of militias, and under the government’s interpretation of the Second Amendment, the Court could have found that Miller had no standing to invoke the Second Amendment in the district court.

  53. #53 by jdberger on April 18, 2008 - 9:58 am

    Albert, about that “cherry-picking” accusation? Still standing by it?

    Read Bogus, yet?

    Richard, you still haven’t answered my question.

    Is, in your opinion, the Second Amendment a duty of the State?

  54. #54 by Anonymous on April 18, 2008 - 10:04 am

    Yes they will adjudicate the petition at hand, and base it on the precedents established by the founders. The ruling on owning personal weapons once confirmed will automatically mend the legal concept attempted by gun control advocates, that the 2nd amendment refers to militias alone. The nonsense is about to be put to its end.

    The personal right to arms is as obvious as the Revolution that created it. All free men had a gun if they desired, and kept it at home for self defense, among other things. Almost all the arms that fought the British and made this Country were PERSONAL, and not possessed in the context of any militia. The issuing of standard militia arms did not occur until sometime later in the war. Many men brought their own powder. Good thing too.

    James Otis, named by John Adams as the “Master” in bringing the ideas of the revolution to the fore in Massachusetts, was bludgeoned by british customs officials, to the extent that he was never quite right in the head, again in his life.

    His reasoning for revolution against tyranny? “So a man can stand up” . Standing up is best of you have your own gun, so as to delay and prevent being shot down. The historical right to bear arms is older than the nation itself. It is unquestioned, and anyone making such a claim as those today against it, would be simply laughed away. So not much has changed in these 230 years.

    He was remanded to be cared for by relatives, and was often seen imagining himself back in his old life, to meet and make appointments in Boston as if he were still in business as a lawyer.

    Upon the outbreak of hostilities and the run up to the Battle of Bunker Hill, Otis ran to his sisters house(where he lived), got her gun, and made his way quickly to Bunker Hill, where he participated in the Battle, and survived it.

    The right to personal arms has no doubt in the context of US history, and the traditions and practices of law in this country. To argue otherwise is an unprecedented approach, and one that will be struck down, as willingly by the court as the illegal brady bill has been.

    The 2nd amendment is about personal rights to bear ARMS.

  55. #55 by Albert O. on April 18, 2008 - 10:23 am

    jd:

    Sorry, yet again, but nice try nonetheless. Dicta by the Court often provides the most compelling inclinations and thoughts of the Court; and, moreover, is used extensively in making arguments to the Court in later cases.

    While Richard’s point may not rise to the level of a holding by the Court, it does provide, nonetheless, a compelling indication of where the Court positions the 2nd Amend. in the discussion re individual rights.

    Finally, jd, per your suggestion, I have been making my way through some of Bogus’ work – e.g., the amicus brief filed on behalf of Rakove et al.:

    http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-290_PetitionerAmCuRakove.pdf

    Perhaps the better question is, then, what do YOU think of this particular work by Bogus?

  56. #56 by Albert O. on April 18, 2008 - 10:32 am

    jd:

    Per your suggestion, I have been making my way through works of Carl Bogus, to wit: the amicus brief filed on behalf of Rakove et al. in the Heller case. A link to the brief follows:

    http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-290_PetitionerAmCuRakove.pdf

    I fail to see how you might conclude that this work would alter my thinking about an individual right to bear arms. Indeed, the work solidifies my thinking; albeit, I confess, I have not read the brief in its entirety. Perhaps you whould take a pass through the brief and share with us your thoughts.

    PS Your comments above indicate a misaprehension on your part of the role dicta plays in reading into the Court’s mind. Richard remains spot on with his analysis of the quote we have been discussing.

  57. #57 by Albert O. on April 18, 2008 - 10:37 am

    jd:

    My comments are being moderated, so just hold on to your shotguns for the moment.

  58. #58 by jdberger on April 18, 2008 - 10:43 am

    Moderated?

  59. #59 by Albert O. on April 18, 2008 - 10:59 am

    Moderated! I included a link to a Bogus work I wanted to discuss with you, and I think the moderation filter is reading it as spam.

  60. #60 by jdberger on April 18, 2008 - 11:12 am

    As you can well guess, I’m familiar with Carl T Bogus (an eponymous name if I’ve ever heard one).

    I believe that a substantial part of his work is here. http://www.saf.org/AllLawReviews.html

  61. #61 by Richard Warnick on April 18, 2008 - 11:34 am

    jdberger, I totally answered your question above. I’ll re-phrase it for you. The Second Amendment does not prohibit federal restrictions on firearms (except in the case of state militias). It is silent on the question of whether states can regulate firearms, which means that they can.

  62. #62 by jdberger on April 18, 2008 - 11:43 am

    Sorry, I had to delete my previous entry because I realized that I didn’t understand your comment.

    You state that, “The Second Amendment does not prohibit federal restrictions on firearms…”. What does it do, then? What does the Second Amendment prohibit?

    Further, you parenthetically state, “(except in the case of state militias).” I don’t understand this statement. Does this imply that the Second Amendment restricts firearms that State Militias can have?

    With regards to your final sentence, I (somewhat) agree since the Second Amendment hasn’t been incorporated under the 14th Amendment. However, I think that it’s bad law and is ripe for being overturned.

  63. #63 by Glenn on April 18, 2008 - 1:03 pm

    Cliff c’mon, you would no more have your relatives in Israel disarmed of their personal weapons than you would get rid of your own.

    We can only assume you are game playing, and drawing numbers to your site.

    I have seen a .44 magnum in your very own house. Your credibility is lacking. As one calls it, so are they very often the same. Amusing. Constitutional advocates don’t begrudge you.

  64. #64 by Cliff Lyon on April 18, 2008 - 1:11 pm

    jdberger,

    Let me try.

    The second amendment affirms the right of states to use militia for “security.”

    “shall not be infringed” is a message to the feds that they cannot restrict the right to bear arms for the purpose of a state militia.

    The main purpose of the Bill of Rights was to convince the States to sign the Constitution. Nobody knew what would come of a federal government, so the States were not about to surrender shit to the feds.

    Its all in the Federalist papers. The intent of the 2nd amendment was and is quite clear.

    Thats why except for a few freaks, no serious constitutional scholar will argue that the second amendment protects an individual right to have a gun.

  65. #65 by Cliff Lyon on April 18, 2008 - 1:13 pm

    Whats your damage Glenn?

    I haven’t argued no one should have a gun, but since you brought it up, I do think handguns should be restricted.

    Neither you NOR I should be allowed to have one.

    I am exercising the power of the web to enforce a kind of meritocracy. Alan Korwin nor anyone should be allowed to get away with lies. The Bush administration does enough lying already.

    Its the power of the permanent record. You see, already, if you Google “Alan Korwin” OneUtah comes up #2 on page two. By tomorrow, it will be on the main page, so people can see that:

    A. Alan repeated the big lie and the documented proof he could have checked his own facts.

    B. Given the opportunity to correct himself, he declined.

  66. #66 by jdberger on April 18, 2008 - 1:25 pm

    OK Cliff,

    Let’s go with your explanation that

    The second amendment affirms the right of states to use militia for “security.”

    “shall not be infringed” is a message to the feds that they cannot restrict the right to bear arms for the purpose of a state militia.

    If the Second Amendment applies only to States (just for fun, let’s entertain this fantasy) doesn’t the Amendment give the States the power to invalidate Federal gun laws? Couldn’t the State of Nevada decide that the NFA was null and void? Doesn’t it render the National Guard unconstitutional as currently constituted?

    Could you name these “few freaks”? Are you suggesting that Prof. Levinson isn’t a “serious Constitutional scholar”? Are you suggesting that Profs. Tribe, Reynolds, Volokh and Judges Silberman and Kozinski aren’t “serious Constitutional scholars”?

    That’s a pretty BOLD statement.

  67. #67 by jdberger on April 18, 2008 - 3:58 pm

    I fail to see how you might conclude that this work would alter my thinking about an individual right to bear arms. Indeed, the work solidifies my thinking; albeit, I confess, I have not read the brief in its entirety. Perhaps you whould take a pass through the brief and share with us your thoughts.

    Albert, I didn’t think that you would disagree with Bogus (wonderful name) or that it would alter your thinking – I was trying to illustrate that contrary to your assertions, I was proffering BOTH sides of the argument. Will you now retract your charge of “cherry-picking”?

    I don’t agree with Bogus. As a counterpoint to the Bogus Brief, please read the Brief from Academics for the Second Amendment. http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-290_RespondentAmCuAcafor2ndAmend.pdf

    The rest of the Briefs for each side as well as the Briefs for Petitioner and Respondent are here along with notes relating Oral Arguments in front of the Court. CSPAN used to have the audio of the arguments, too. http://www.scotuswiki.com/index.php?title=DC_v._Heller

    Apparently, like Stephen Colbert, Judge Kennedy is obsessed with bears.

    The Second Amendment isn’t a Conservative vs. Liberal issue. It’s a Libertarian vs. Statist issue.

  68. #68 by jdberger on April 18, 2008 - 3:59 pm

    I fail to see how you might conclude that this work would alter my thinking about an individual right to bear arms. Indeed, the work solidifies my thinking; albeit, I confess, I have not read the brief in its entirety. Perhaps you whould take a pass through the brief and share with us your thoughts.

    Albert, I didn’t think that you would disagree with Bogus (wonderful name) or that it would alter your thinking – I was trying to illustrate that contrary to your assertions, I was proffering BOTH sides of the argument. Will you now retract your charge of “cherry-picking”?

    I don’t agree with Bogus. As a counterpoint to the Bogus Brief, please read the Brief from Academics for the Second Amendment.
    The rest of the Briefs for each side as well as the Briefs for Petitioner and Respondent are here along with notes relating Oral Arguments in front of the Court. CSPAN used to have the audio of the arguments, too. http://www.scotuswiki.com/index.php?title=DC_v._Heller

    Apparently, like Stephen Colbert, Judge Kennedy is obsessed with bears.

    The Second Amendment isn’t a Conservative vs. Liberal issue. It’s a Libertarian vs. Statist issue.

    HOLY MACKEREL – it finally let me post….

  69. #69 by Albert O. on April 18, 2008 - 5:30 pm

    jd:

    Cherry-picking accusation withdrawn. But the debate must go on!

  70. #70 by Cliff Lyon on April 18, 2008 - 5:46 pm

    Sorry JD,

    I don’t know why, but that one comment got trapped as spam.

  71. #71 by Tomare Utsu Zo on April 18, 2008 - 7:21 pm

    Richard Said:

    The Second Amendment prohibits the federal government from infringing on the right of states to arm their own militias

    Actually, the Second has nothing to do with any sort of select militia.
    Hamilton:

    Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped …

    Madison:

    To a regular army of the US “would be opposed a militia amounty to near half a million citizens with arms in their hands.”

    Madison also said:

    “The advantage of being armed, which the Americans possess over the people of almost every nation” And “Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms”

    Noah Webster:

    Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, which they can command; for otherwise this force would be annihilated, on the first excercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enofrce unjust laws by the sword; because the whole body of th epeople are armed, and constitue a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the powe, and jealouly willinstantly inspire the inclination, to resist the execustion of the law which appears to them unjust and opresive.”

    Are you starting to get the idea that maybe they expected everyone to be armed?

    Being afraid that the fed would creat a select Militia or standing army, they insisted on a Bill of Rights.

    Oliver Ellsworth:

    “a select militia … would be followed by a ruinous declension of the great body of the militia”

    John Dewitt:

    about Congress “at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficientyly numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties …”

    Richard Henry Lee:

    “A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary…[T]he constitution ought to secure a genuine [militia] and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include … all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interest and attachments in the community to avoided.”

    Oh By The Way, Lee’s thoughts on rights were adopted in the First, the Third, the Fourth, the Sixth Ammendments.
    Lee further said, “to preserve liberty, it is essential that the whole body of the people always possess armes, and be taught alike, especially when young, how to use them”

    So it really doesn’t matter if you look at the Militia clause or the “the People” clause, we all have a constitutionally recognized right to keep and bear arms.

  72. #72 by jdberger on April 18, 2008 - 9:07 pm

    jd:

    Cherry-picking accusation withdrawn. But the debate must go on!

    Why thank you, Albert, I’ll accept that as an apology.

    Now that we’re being civil, try out this essay by Don Kates.
    Gun Control: A Realistic Assessment (1990)
    He’s not a stereotypical firebreathing conservative. Check out his bona fides -

    Don B. Kates received his J.D. from Yale University Law School, and he has taught law at Stanford University, St. Louis University, and University of Melbourne. He has previously worked for the late civil rights lawyer, William Kunstler (Kunstler & Kinoy), and the California Rural Legal Assistance, where he served as Director of Legal Research and Senior Litigation Attorney. In addition, he has been Trustee for the Poverty Lawyers for Effective Advocacy, Member of the California State Advisory Committee to the U.S. Civil Rights Commission, Director of Litigation and Deputy Director for the San Mateo Legal Aid Society, Police Legal Advisor for the San Francisco Sheriff’s Department, and consultant to the legal services program for the cities of Seattle and Berkeley, and the state of Alaska.

    Anyway, since I introduced you to Bogus, let me show you the other side with Kates.

    I’ll turn you into a stale beer swilling, shotgun holding onto gun nut in no time.

    And like the light that struck Constantine and the apple that bopped Newton you’ll experience epiphany.

  73. #73 by Bob S. on April 19, 2008 - 12:08 pm

    To all the gun grabbers,

    I’m confused, the Articles of the Constitution are where the Powers or the federal government are spelled out, correct?
    Article 1 section 8 provides the legislative branch the power and authority to organize, arm and discipline the militia.
    So my question still stands from earlier, why is the rights of the people spelled out in the BILL OF RIGHTS referring to powers of the government. Simple answer it isn’t.
    As shown by JD, over and over again, the framers clearly wanted the people to retain the right to keep and bear arms.

    Of course, let’s look at the 10th amendment as some pointed out contains a reference to the state. That amendment states “The POWERS not delegated to the United States by the Constitution, nor prohibited by it to the United States, are reserved to the States respectively, or to the people”

    So the right to bear arms is not prohibited by the Constitution or is it reserved by the Constitution, so therefore even if the 2nd Amendment does not guarantee the right to keep and bear arms, the 10th does.

  74. #74 by rmwarnick on April 19, 2008 - 2:54 pm

    Why can’t people simply own firearms the way they own anything else? Why bother to claim it’s a specific Constitutional right?

  75. #75 by Bob S. on April 19, 2008 - 3:18 pm

    RM,

    Chicago, Washington DC, San Francisco to name a couple of reason.

    How about the fact, it is a Constitutionally protected right. Please note it is a right not given by the Constitution but guaranteed.

    I would be happy to be able to just own a firearm as soon as people stop trying to take away the right to own them. Cliff Lyon stated that he feels no one needs or should be able to own firearms. There are organizations dedicated eliminating or controlling that right, when those organizations stop trying, so will I.

  76. #76 by kofi anon on April 19, 2008 - 3:37 pm

    Bob said it, let us review some history.

    In Vermont, the 1st state to join the Union, up until the Federal background check law came into effect, a person could go into a store, buy a pistol and ammo, put it in their jacket and walk out with it. Like buying groceries.

    There is no Constitutional right to transportation so cars/wagons had to be registered, same is true of anything not expressly stated as a civil right in the Constitution. The 10th amendment, all else reserved to the States.

    Now, how anyone believes that Vermonters, who fought the British with their personal weapons, would sign a Constitution that did not guarantee their right to personal arms is beyond me. The history does not bear it. The joining in Constitution occurred in 1791, and the personal right to arms is express, and implied.

    In fact, the ability to buy and retain guns in Vermont existed in this way for over 2oo years, until the Federal laws on background checks came to pass. Convicted felons are restricted. You do not need a permit to carry a concealed weapon as a law abiding citizen in Vermont.

    That anyone would believe that a group of people that risked their lives to fight against the most powerful entity in the world at the time, would sign away their sovereign right to bear personal arms, and have that right to own them, is just ridiculous. They are being disingenuous, or ignorant of historical context.

    Or both.

  77. #77 by Albert O. on April 19, 2008 - 4:51 pm

    Glenn:

    Times change, and laws/constitution need to be sufficiently flexible to adapt with such change; assuming, that is, the premises to your comment are true.

  78. #78 by anonymous-Glenn on April 19, 2008 - 5:32 pm

    Wrong. The 2nd amendment is in the Bill of Rights.

    The first 10 amendments are inalienable rights, and cannot be changed without altering the fabric of what the Constitution means. Denying the right to personal arms would be akin to re-establishing slavery(14th) or denying women the right to vote. The 10 amendments are ranked in number by their importance. The 1st, freedom of Assembly, speech and worship, are followed by the 2nd amendment, the personal right to bear arms, for what is free speech and assembly if denied you by a tyrant with arms?

    Do you know the 3rd? That would be keeping the military out of your house, which is reconfirmed by posse comitatus, and has just been re-established if I read correctly.

    Your fear of Freedom is justified. It was Eric Hoffer in his book “Escape from Freedom” that described that once a society establishes freedom, there are 2 kinds of people, those that realize the effort and risk required to maintain a free society and are willing to provide all measures for sustaining it, and then those that realize the risk and don’t want to make the effort, and instead want their mommies. These people are all about regulating others in their own fear.

    Are you so willing to escape from Freedom?

    Since we have seen alteration of the 4th, 8th, 6th amendments at least under the current administration, the 2nd amendment takes on even more importance when dealing with a government that has clearly overstepped its bounds. Without arms, there cannot be armed resistance, every tyrant the world has ever known, knows this implicitly.

    Given the propensity of violent crime in America, from assaults to home invasion, to property crime, conditions have not changed since Indians raided the homes of frontiersmen, when the frontier was western Mass, and northern New England.

    The above statements about Vermont are not premises, they are points of historical note. I can just see the likes of Washington after assuming his presidency giving up his guns for the greater good. You must be mad he would imagine.

    NOTHING since then has changed. The Constitution is not a “living document”. We are not reversing it for the benefit of people who which to have a “better” perceived security. Engage that problem on your own, rather than meddle with the Constitution.

  79. #79 by bogardus on April 19, 2008 - 10:50 pm

    Oh, I love it… Dude, you’re so bent out of shape that you want to make folks look bad, so you find a strange caricature of a guy who is holding two -evil- guns… Hate to tell you, but those are BB guns…

    And since the other thread went in directions you didn’t like…

    I am struck by what Bogardus wrote to argue for gun possession.

    “I’m older, and semi-disabled. It’s a little late for me to dedicate the majority of my life to learning unarmed combat techniques, which pretty much only work in the movies anyway.”

    I’m sure his premise is that we should have the right to defend ourselves (with guns).

    Certainly that seems reasonable. But I would ask at what cost.

    So, then, Cliff, do you argue that we should have a society where younger, larger and stronger thugs can do completely as they wish?

    Are you going to tell a rape victim that it is morally righteous that she is NOT ALLOWED to defend herself? After all, -most- women do not have the strength or body mass of -most- men.

    Is a robbery victim morally righteous because they are NOT ALLOWED to counter a street thug with a club or knife with the equivalent deadly force?

    Is a GLBT bashing victim morally righteous because they are NOT ALLOWED to make a group of attackers go find an easier target?

    What will be the cost be of allowing thugs to have their way at will? Are you prepared to pay it? Because it is NOT a monetary cost.

    You may argue that you rely upon the police. Essentially, you are then arming yourself by proxy. And rather ineffectively, since police will generally arrive after the fact.

    So… It’s your choice:

    In a darkened parking garage, confronted by several thugs with clubs, broken bottles, knives, what have you, you can draw a legal concealed weapon, and using your best John Wayne/Clint Eastwood impression (funny, last time I did that, I didn’t know that John Wayne or Clint Eastwood sounded so squeaky, and used the F-bomb so much…), tell them to go find an easier target… You go home, your body, and dignity (didn’t sound a thing like the Duke back there… more like SpongeBob..), mostly intact, and they go on to find either an easier victim or a “party.”

    Or you can hand them your wallet, your watch, your car keys, your shoes, your coat, possibly submit to a rape, and still be killed. And the police will show up later, with their crime scene tape, their cameras and computers, and you’ll be a statistic. But by golly, you’ll be a righteous statistic.

    The vast majority of gun owners are people like myself – not convicted of crimes (hey, I went to college in the eighties…), decent citizens, gainfully employed, or gainfully retired, etc., etc…

    And many of us, when confronted with people who wish to render us defenseless, wonder why.

    Cliff, if neither you, nor I, are allowed to own a gun, then we are both at risk from those who would prey upon the weaker. Maybe you’re an umpteenth degree black belt, having dedicated your life to the study of violence upon your fellow man. I’m not. I just want to be left alone.

    How does all this fit in with your theories? For theories they are, and as such, they are also largely unproven in the real-world testing ground.

    If any of you folks who don’t know about firearms are in the St. Louis area, I’ll be happy to have you as my guest at a local club. You’ll meet some interesting people, and maybe have a few stereotypes busted.

  80. #80 by anonymous - Glenn on April 20, 2008 - 7:34 am

    That is a friend of Cliffs’ dressed up in his redneck costume, complete with the false teeth.

    Making fun of rednecks is a hobby of Cliffs’, and he doesn’t do it with love like Foxworthy.

  81. #81 by bogardus on April 20, 2008 - 9:17 am

    Okay… Seems like someone has some issues, and really needs to work through them. Open up the ol’ “world view” a bit… The xenophobic tendency of many urban academics, even when transplanted to rural areas, is very disturbing to me… We had some genius bought a house in a brand-new subdivision right next to my shooting club, which has been there a LONG time, and is now disturbed that people are shooting. In the country. At targets. Then again, the same geniuses buy houses along airport flight lines… Sigh…

    Some of these small people, in their $350,000 “McMansions” have been heard making fun of local farmers – local “bumpkins” who seem to be successfully operating multi-million dollar enterprises, while the transplanted urban folks are commuting an hour an a half in a disguised “city truck” (people will buy an “SUV” who would NEVER DREAM of buying a “truck” or a “station wagon”) to a job that pays $50K or so, and they’re puzzling over why their house payment has suddenly equaled their take-home pay… Yup… They’re smarter than those country bumpkins, all right…

    Why is closed-mind cruel stereotyping so prevalent among the groups which profess to be the most enlightened?

  82. #82 by Cliff Lyon on April 20, 2008 - 10:27 am

    Uh oh, I smell anti-elitist mongering but I can’t figure out if its the members of the country gentleman’s sporting club, or the white trash who bought the “McMansion” next to it in the new sub-division that used to be old McDonald’s alfalfa field before he sold it off to protect the rest of the farm from the corporate farm down the road a piece – which is being heavily subsidized with urban tax dollars thanks to scum-sucking, god-fearing, pro-gun, fat white, country bumkin republican politicians for whom both Mr. McMansion AND Old McDonald voted.

  83. #83 by Cliff Lyon on April 20, 2008 - 10:41 am

    Professional advice for Sticker-Tramp (bogardus). Scientific studies show that if you put a BIG toll-free number on your e-commerce site, and answer it when it rings, you will get about twice as many customers.

  84. #84 by bogardus on April 21, 2008 - 1:53 pm

    Cliff, I answer e-mail. And since we’ve got a person in the business who is severely hearing-disabled (since an illness as a child, not from evil guns…), we generally do just about everything via e-mail anyway… And so many folks are now cellular/free long distance that toll-free numbers are generally moot. Thanks for the advice tho – but I don’t think it has much impact right now…

    How do you like the stickers that are taking shots at McCain?

  85. #85 by Cliff Lyon on April 21, 2008 - 3:21 pm

    Bogardus,

    I’m just telling you what the professional know from experience. I have found great success in life and business by acknowledging that in almost any realm, there are others with more expertise than I.

    I seek their advice, take it and win. Think of it as a free advantage over the average know-it-all.

  86. #86 by Ken Bingham on April 21, 2008 - 4:34 pm

    Cliff

    You are always saying I vote against my own self interest, but how can you be a businessman and a liberal? The two must come in conflict sometimes and when they do I bet the businessman wins out every time.

  87. #87 by Blink Da! on April 21, 2008 - 5:15 pm

    Cliff is an outsourcing, illegal alien hiring, bigot, that uses this progressive mop as a cover for his real activities.

    Oh yeah, and for good reason, he fears the legally armed citizen. They are beyond his control.

    Onespew is basic camo for him.

  88. #88 by bogardus on April 21, 2008 - 8:55 pm

    Cliff, I’ve done similar things before… Thing is, about 50% of the time around here, if the landline phone rings, it just gets to go to voice mail… I hate that more than I hate just communicating via e-mail… Deafness is also the one disability which everyone seems to just ignore, until they have to deal with someone who is deaf, at which point they blame them for it…

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