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View Diary: What gun control does the Second Amendment allow? (226 comments)

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  •  Whatever (0+ / 0-)

    My larger point was that it is entirely possible to imagine a society in which all firearms are government property issued to private citizens to keep and bear, and have that be consistent with the wording of the Second Amendment.

    •  if they were property of the government, (1+ / 0-)
      Recommended by:
      Adam B

      individuals would hardly be free to keep them and bear them except as desired by the owners of the issuing authority, making it nothing remotely resembling a right.

      States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

      by happymisanthropy on Tue Dec 18, 2012 at 11:40:10 PM PST

      [ Parent ]

      •  The only difference between that ... (0+ / 0-)

        ... and the existing situation is who owns the guns. If you are qualified (no criminal or psychological history), you get to buy one or however many you wish, and you can carry it around if the government decides you meet its standards, and if you somehow no longer meet those standards (felony conviction or mental illness) you have to surrender the weapon (at least in theory). The government is already, as a practical matter, the "issuing authority."

        Is that really so much different from my hypothetical? If it isn't a right because the government can make you surrender guns you own under certain conditions not mentioned in the Second Amendment but that no one seriously disputes, then we are long since out of constitutional compliance already and this discussion is moot.

        •  Yes, it is. (0+ / 0-)

          And here's why:

          Under the existing system, you have the right unless the government can prove, in a court of law, that you have taken actions which allow it to be taken away. (Yes, the boundaries of the right are still in flux.)

          Your thesis turns that upside down.


          "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
          "Dissent is patriotic. Blind obedience is treason." --me

          by Leftie Gunner on Wed Dec 19, 2012 at 08:50:51 PM PST

          [ Parent ]

          •  We've drifted (0+ / 0-)

            The original question was whether "keep and bear" necessarily implies a right to private ownership, if you want to be a Scalia-level textualist or literalist. My hypothetical case (which is likely to remain a hypothetical) would be a government buying guns and then issuing them to citizens who ask for them and otherwise meet requirements similar to those in place in the real world to keep in their homes and, if they meet the standards, bear at leisure in places allowed by law. The resulting situation would outwardly be the same as the present.

            The question before a hypothetical court would be, does this situation comply with the Second Amendment because citizens without disability have the right to keep and bear arms even though they don't own them? (It's similar to the situation with police, who generally take their department-issued duty guns home and keep them there until they go back to work. They are government property but otherwise, when an officer is off-duty, indistinguishable from any privately owned firearm).

            I could see a rational reason why a government might want to do things this way, if a well-regulated militia is necessary to the security of a free people, then perhaps a government would want to make sure that the potential members of that militia have up-to-date arms in good working order, rather than relying on whatever arms people happen to decide to have (you wouldn't want an invasion by a modern army being repelled by people armed primarily armed with the shotgun last fired by grandpa 25 years ago). It could arguably be the sort of policy choice courts have held within the realm of legislatures to make.

            So, if the criteria for issuing guns to citizens requesting them are broadly applied, and those who would be issued the guns are otherwise unmolested by the law save for anything that currently exists, has the right to keep and bear arms been infringed even though the citizens themselves do not actually own the guns they keep and bear?

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