Gun control, civil liberties, poorly-regulated militias, and liberals.

I'd like to look at gun control from a different angle than Kenevan McConnon in his gun control diary of today (which at this writing is up to 1200 comments!). Mr. McConnan says Dems should back off on gun control because it's bad for our political fortunes in the rural West.

I say we Democrats should back off gun control for a different reason: it's bad for the Constitution.

More below the fold.

Before we delve in too deeply, let's pause for a moment to recall what the Second Amendment actually says. Here's the whole thing:

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.

Mainstream gun-control basically falls into two categories:

1. Regulation of who can own a gun. I don't think even the Founders would object to this sort of regulation. Do you have a history of violent mental illness? A habit of committing armed robbery or violent assault? Then it's no restriction on the freedom of society to say you can't own a gun. No, I'm more interested in focusing on the second category of mainstream gun control:

2. Regulation of everybody's right to own some kinds of guns. Specifically, there's been an effort to split guns into three categories -- military, sporting, and personal defense -- and to prohibit or restrict everybody's right to own "military" firearms.

Liberals, I respectfully maintain, should strenuously oppose outlawing private ownership of military-style firearms.

That is not a typo.

Liberals should insist that military-style firearms be available for ownership by sane, law-abiding members of the general public.

And here is why: The Second Amendment is in the same Bill of Rights that guarantees our rights to free speech, to freedom of the press, freedom of worship, freedom from warrantless search and seizure, and our right to counsel in criminal proceedings. If we approve of courts or governments playing fast and loose with the Second Amendment, then we encourage them also to play fast and loose with the First, or the Fourth (rights against warrantless search and seizure), or the Fifth (rights to due process and against self-incrimination), or the Sixth (rights to speedy and public trial with assistance of counsel), etc. (The full Bill of Rights is here.)

Let's look again at the language I think we should scrupulously observe:

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.

The Second Amendment doesn't purport to protect hunting, or target practice, or shooting skeet, or collecting antiques.  It protects the right of people to take military action. It would be more consistent with the Second Amendment to prohibit sporting guns and allow assault weapons than the other way around.

But the Founders, some will say, didn't foresee AK-47s, Uzis, and MAC-10s. And this is true. But the Founders did see the greatest military power of their world defeated by a barely organized coalition of regular citizens, using their own weapons and guerilla tactics to overcome supposedly superior, and certainly more expensive, technology. Not in a skeet shoot or a biathlon, but in warfare.

Sound familiar? The difficulties the U.S. has had in Iraq and Somalia show the continued viability of the Founders' Second Amendment vision.

If liberals want to take military-style firearms away from the sane, law-abiding public, then we ought to frankly and honestly advocate repealing the Second Amendment. (Which would have no chance of happening, and would be politically disastrous.) But as long as the Second Amendment remains in the Constitution, we ought to insist it be accorded the same respect we want accorded to all the other rights we hold dear.

(I'm talking about guns -- not bombs, not rocket launchers, not shoulder-launched missiles, etc. So please don't accuse me of advocating private ownership of backpack nukes, or ICBMs, or Stinger missiles.)

•  Tip jar.

  I will have to be away from my computer soon, and for the next few hours. I will try to address comments, but it may be tomorrow before I can.

  Any mojo? I'm saving it up for a DailyKos Christmas-tree hybrid-car air freshener from the Trusted User online store.

  by HeyMikey on Thu Mar 01, 2007 at 03:19:30 PM PDT

•  I agree

  Your diary is very similar to one I posted 30 minutes ago. :)

  by donkeywonk on Thu Mar 01, 2007 at 03:21:33 PM PDT

  •  Good diary.

    You must have posted while I was drafting.

    by HeyMikey on Thu Mar 01, 2007 at 03:34:03 PM PDT

•  asdf

  The Second Amendment is in the same Bill of Rights that guarantees our rights to free speech, to freedom of the press, freedom of worship, freedom from warrantless search and seizure, and our right to counsel in criminal proceedings.

  I hate to burst your bubble, but most of those freedoms enumerated in the Bill of Rights are NOT absolute. There are restrictions on speech. There are restrictions on what a religion can do. There are situations where a warrantless search can take place, etc.

  As a general rule, these freedoms extend to the point where the harm caused on society by a person exercising their freedom exceeds the value of a person posessing that freedom. One could make an indentical argument with regards to the benefit of a society in posession of certain weapons versus the harm those weapons are likely to do. I don't know where the optimal line would be, but I'm certain there is one.

  by dennisl on Thu Mar 01, 2007 at 03:31:32 PM PDT

  •  I Think It's Clear

    Even if someone crosses the line with speech, we don't cut out his tongue.

    When somebody gets shot, either it was legitimate self-defense, or a criminal act.

    If the former, no problem. If the latter, jail.

    But restricting gun ownership because of statistical probability of harm seems to be on the wrong side of the optimal line.

    by greenskeeper on Thu Mar 01, 2007 at 03:35:45 PM PDT

  •  Why do you think you're bursting a bubble?

    I didn't see anyone arguing for absolute rights to bear private arms.

    As for your "societal benefits" argument... private ownership of military-style weapons is already permitted in most parts of the country. Overall, I see relatively little "societal harm"... at least compared to the societal harm of our military-industrial complex, aggressive militarism, and permanent war economy.

    by donkeywonk on Thu Mar 01, 2007 at 03:36:37 PM PDT

  •  Not absolute, but generally "strict scrutiny."

    The courts generally subject infringements on the Bill of Rights to the 3-part "strict scrutiny" test:

    1. There must be a compelling governmental interest in the regulation.

    2. The regulation must be narrowly tailored to meet that interest.

    3. The regulation must be the least restrictive means of meeting that interest.

    And anyway, I'm talking about what liberals should advocate, not necessarily about what courts or Presidential administrations recognize.

    by HeyMikey on Thu Mar 01, 2007 at 03:38:29 PM PDT

    •  I think my point...

      ...is simply that even under the Constitution, the government does have the ability--to a degree--to restrict private ownership of certain types of weapons.

      Deciding how to use that ability then becomes a policy decision, hence not a constitutional dilemma.

      As far as what liberals SHOULD advocate, I probably agree with you.

      by dennisl on Thu Mar 01, 2007 at 03:44:09 PM PDT

  •  By that same token

    It becomes clear that further regulating law-abiding citizens is pure folly.

    All the firearms that scare the crud out of people either fall under bans or are so heavy regulated and cost-prohibitve that it's ridiculous to keep pounding away on our Bill of Rights.

    by Kimberley on Thu Mar 01, 2007 at 03:39:33 PM PDT

    •  How do you know that gun owners are law abiding

      when anyone can buy a firearm from a private seller without a background check?

      by Dr Colossus on Thu Mar 01, 2007 at 04:25:06 PM PDT

•  Where you lost me

  The "regulated" militia -- well or poorly.

  The NRA and this diary don't seem to envision any regulation of the training or qualifications of this citizen milita.

  by Elwood Dowd on Thu Mar 01, 2007 at 03:38:56 PM PDT

  •  I think that's due to ambiguity in the 2nd Amend.

    It refers to a well-"regulated" militia, but then it says the right of "the people" to bear arms shall not be "infringed." Not "abrogated," not "abolished," but "infringed" -- as in, not fooled around with even a little bit.

    As a civil libertarian, I want all ambiguities interpreted in favor of individual liberty. The same interpretive principles applied to the Second Amendment will be applied to the rest of the Bill of Rights. Example: Google "Alberto Gonzales."

    by HeyMikey on Thu Mar 01, 2007 at 03:44:10 PM PDT

    •  My view

      It was a federalist point: the national government could not disarms the state militias.

      by Elwood Dowd on Thu Mar 01, 2007 at 03:45:46 PM PDT

      •  Open to interpretation

        Just as the framers intended, I presume.

        Narrow readings on constitutionally protected rights invariable move toward grossly overpowering government, at the expense of personal freedom.

        Now we can argue about the meaning of the second amendment all we want, but the fact remains that ignorance is shaping the debate about whether or not to narrow liberty for law-abiding people. That's uncool.

        by Kimberley on Thu Mar 01, 2007 at 03:55:33 PM PDT

        •  What "fact"?

          I'm trying to decide whether you're calling me ignorant -- or just people who have a different view than you in general.

          by Elwood Dowd on Thu Mar 01, 2007 at 04:41:00 PM PDT

          •  No, not you, and I apologize

            for my inadvertent offense in not making that point clearer.

            My point was that the advocacy for further gun restrictions is dominated largely by people using emotional arguments, people that either don't know or understand how thoroughly firearm ownership is already legislated.

            by Kimberley on Thu Mar 01, 2007 at 04:59:54 PM PDT

            •  The pro-nukes people and the pro-gun people

              are united in their general assumption that people who disagree with them are uninformed, emotional, and not very bright.

              by Elwood Dowd on Thu Mar 01, 2007 at 05:08:46 PM PDT

              •  I think they're bright enough

                But poorly informed. It's not a crime but it's irresponsible to whoop and holler for measures that just keep putting the squeeze exclusively on law-abiding people (in hopes of one day hitting the bottom of the barrel users).

                by Kimberley on Thu Mar 01, 2007 at 05:41:36 PM PDT

                •  I don't whoop and I don't holler.

                  (and I've got more evidence of being informed than on being bright ;-))

                  You are providing a great example of the ad hominem crap of this group.

                  And this isn't one of my top ten issues.

                  You folks might as well be screaming "Abortion Is Murder!"

                  by Elwood Dowd on Thu Mar 01, 2007 at 05:45:50 PM PDT

                  •  Whatever dude.

                    by Kimberley on Thu Mar 01, 2007 at 05:46:30 PM PDT

      •  14th Amendment "incorporation."

        Originally the entire Bill of Rights applied only to Congress -- that is, not to states or municipalities. For instance, the 1st Amendment begins, "Congress shall make no law . . . ." In a series of post-Civil-War decisions, the Supreme Court held most provisions of the Bill of Rights are effective against states and municipalities via "incorporation" through the 14th Amendment (one of the post-Civil War amendments).

        by HeyMikey on Thu Mar 01, 2007 at 07:46:00 PM PDT

  •  Not Everyone in the NRA thinks that way

    At least until the NRA kicks them out.

    Have you read about Jim Zumbo's comments on assault rifles?

    He said:

    "Excuse me, maybe I'm a traditionalist, but I see no place for these weapons among our hunting fraternity, ... As hunters, we don't need to be lumped into the group of people who terrorize the world with them. . . . I'll go so far as to call them 'terrorist' rifles."

    And he was run out of town.

    I happen think it's a bit silly that people expect a few guys with assault rifles to be able to go toe to toe with the US Military. The second amendment isn't about "guns", it's about militias. The modern equivalent of 18th century militias are the many state National Guards. I have no problem with the National Guard having all kinds of arms that aren't accessible to the average person. I'm fine with average people having access to most types of firearms, but there should be some reasonable limits.

    by fuzzex on Thu Mar 01, 2007 at 03:51:18 PM PDT

    •  RE:

      I happen think it's a bit silly that people expect a few guys with assault rifles to be able to go toe to toe with the US Military.

      Isn't that what's happening in Iraq right now?

      by Rimjob on Thu Mar 01, 2007 at 03:56:31 PM PDT

      •  Assault rifles and

        rocket launchers and
        IEDs and
        all other manner of medium weaponry.

        Most of those weapons are not legally accessible to average citizens in the United States to my knowledge.

        And in my mind just because an force too small for the job in a chaotic environment is having a hard time dealing with an insurgent force armed with medium weaponry points poor strategy rather than the type of the arms involved.

        by fuzzex on Thu Mar 01, 2007 at 04:03:24 PM PDT

      •  No, unless

        you think that the Second Amendment is about car bombs.

        by Elwood Dowd on Thu Mar 01, 2007 at 05:14:22 PM PDT

    •  Only half the story

      The NRA didn't kick him out because the NRA leadership disagreed with his anti-gun statements. They kicked him out because gun owners like me read Zumbo's comments and were personally insulted. We threatened a boycott of every company or group that did business with Zumbo, including the NRA. Pretty much all of them have caved.

      What you're witnessing, my friend, is the awesome power of the netroots.

      by maxomai on Thu Mar 01, 2007 at 04:26:25 PM PDT

      •  fair enough n/t

        by fuzzex on Thu Mar 01, 2007 at 05:25:41 PM PDT

•  The Dem.s have to,

  need to and must keep the secound amendment whole and as it is. When the f---ing British took over and made India a colony, the first thing they did was to take away firearms... from the Indian citizens so they could control them. The British wanted to disarm our forefathers. If We the People want to keep our freedoms we need an armed citizenery so that no one person or group of people can take us over, including our present Presidential Admin. And it also gives other nations or countries a clear message as to what they can expect from our citizens if they should have thoughts of attacking our shores. I would be a terrorist against an attacking country trying to occupy us. Unless they told us they would just take Bush and his admin. out and leave. Then and only then I would only have to think a secound or two. The secound amendment was well thought out and put in our constitution for very good reasons.

   Of course it is a very, very sad thing when innocent people, children get killed mishandling guns. But in the bigger picture it is a small price to ensure our freedoms as citizens.

  The Dem.'s need to think about this very hard before they act out of emotions and just how many Ind.'s they will lose in '08 that feel very strong about this issue.

   

  by white is black on Thu Mar 01, 2007 at 03:40:12 PM PDT

•  I'm a "strict constructionist"...

  ...and I take a "hands off" approach to the Constitution in general, and the Bill of Rights, in particular. That said, it is a living breathing document that can be changed albeit not on a whim or with tongue in cheek. It's serious business that only those most qualified among us should attempt, and where the angels themselves fear to tread.

  Then, we have presidents who think they know better than all of us and act as though the Constitution is merely a piece of paper to be shredded by their will and at their own personal discretion.

  ...A fully armed populace is absolutely necessary IMHO, to ensure that any tyrant who would vault himself to the position of King or Emperor and attempt to subjugate or enslave us, if he is not "checked and balanced" by the Congress, or the SCOTUS, or the people themselves.

  Firearms in the hands of the people, are our critical and absolute last line of defense against tyranny, treachery, and totalitarianism.

   Any would-be tyrant or dictator must know that force will be met with force in kind. Our Founding Fathers knew only too full well the threats to freedom and liberty that we would face from generation to generation, and often from the usurpations of our own government. I think it would be most unwise and imprudent to second-guess them.

  I fear a government with absolute power over us. More than this, I fear an unarmed populace unable to protect themselves from tyrants, dictators, and traitors!

   Regulate, punish violators of the law, but don't take away our rights to own firearms!
   

  by ImpeachKingBushII on Thu Mar 01, 2007 at 03:57:11 PM PDT

•  The Founders Foresaw Plenty

  Some of them did things like discover electricity in their spare time.

  What I have yet to be convinced the first amendment is about though, is resistance to the "states" own military or police. It specifies its point as being securing a free state. If it left it at that, there would be an argument. But it specifies a well-regulated militia. A militia is a term misused of late in the US but which means a police force or enlisted army. And who but the state is to be doing the regulating?

  I have no dog in this fight, all I have is what I believe is a sensible reading. I'm aware there are some writings among some of the founders that can be taken to add weight to the "armed resistance" argument, but really don't think that it would say one thing and mean another.

  by NewDirection on Thu Mar 01, 2007 at 03:59:55 PM PDT

  •  uh...

    y'might note that america's first militias were self-organizing and self-regulating, as there was no independent government entity not beholden to the British govt. to do any such "regulating."

    by RabidNation on Thu Mar 01, 2007 at 04:28:04 PM PDT

  •  You slipped.

    The First Amendment protects (hat-tip Lenny Bruce) the right to say "Fuck the Government." The Second Amendment protects the means to fuck the government.

    by ben masel on Thu Mar 01, 2007 at 05:22:54 PM PDT

•  So every gun owner will take militia duty...

  One w/e a month and 2 weeks every summer, they report for militia training.  They live in tents, eat MREs and other army fare, and they undergo the kind of training reservists go through.

  We'd have to decide what duty the militia would perform.  That surge in Iraq would be a lot easier if W could call up few state militias.  Maybe they could be better used in Afghanistan now that the Taliban is resurgent.

  WTF does it mean to be in a militia in 2007?  Are you going to go out and fight hostile indigenous tribes?  Are you going to chase the Redcoats up to Canada?  

  The 2d Amend has as much relevance today as the 3d Amend has.  In an age of nuclear weapons, strategic bomber squadrons, and aircraft carriers, a militia that actually provides for the common defense is as obsolete as cavalry brigades.  I honestly don't understand this argument.

  by RFK Lives on Thu Mar 01, 2007 at 04:03:12 PM PDT

  •  BTW, I stole the militia duty idea...

    from Paul Fussell.  I still think the whole idea is totally nuts.

    The last attempted citizen insurrection against the feds I'm aware of was John Brown's raid on Harper's Ferry in 1859.  One can argue that the armed attack on federal marshals trying to protect James Meredith's registration at Ole Miss in '62 was a citizen insurrection.

    Are either of these incidents viewed as role models for militia activity?  If not, what role would a militia play today?  Stationing militia members w/ machine guns on the Sears Tower to foil any attempts to crash planes into it?

    I'm having a hard time understanding this one.

    by RFK Lives on Thu Mar 01, 2007 at 04:13:47 PM PDT

    •  Watts

      The riots in Watts in the 60's were an insurrection.  The black community expelled the white police from huge swaths of L.A. in retaliation for extreme brutality.  

      by Aethern on Thu Mar 01, 2007 at 04:35:04 PM PDT

    •  What role would militia's play?

      In my view they'd help reconstruct devestated American cities (read: New Orleans), they'd help build infrastructure, and they'd train to defend against invasion or authoritarian takeover.

      RFK... are you pro-interventionist? Do you support the numerous foreign wars America has waged over the past 150 years? If not, then in your view, what role would/should the national military play on a day-to-day basis when they aren't invading countries left and right?

      by donkeywonk on Thu Mar 01, 2007 at 04:35:32 PM PDT

    •  Wounded Knee.

      by ben masel on Thu Mar 01, 2007 at 05:15:43 PM PDT

•  Great diary

  I might quibble with some of the specifics, but the central point is right on the money. +1.

  by maxomai on Thu Mar 01, 2007 at 04:05:23 PM PDT

•  Seriously, Dems started cherry picking.....

  Then the GOP ran with the ball of attacking every part of the Constitution.

  Just like liberals started with "policital correctness" only to see it turn into "fair and balanced"

  by bernardpliers on Thu Mar 01, 2007 at 04:11:09 PM PDT

•  For every person who wants to "interpret"

  the 2nd Amendment...

  — Thomas Jefferson

  "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

  by kursk on Thu Mar 01, 2007 at 04:43:27 PM PDT

•  I have no problem with this, but

  two things have to happen.

  First, the NRA needs to be escorted to a nice little padded cell by the friendly people in white coats. Not because they protect gun owners, but because they are so completely out of control that they savage and destroy anyone who even suggests, for example, that shooting small rodents with huge guns is stupid. Maybe there are people who hunt quail with their trusty 9mm semi. I don't know any of them, and I know quite a few hunters.

  Second, if you want to abolish gun control then you have to take responsibility for the main issue that gun control advocates are concerned about: Namely, gang violence. There are really two issues here. Regulating gun ownership will do exactly nothing, because the guns the gangsters use tend to be stolen. Letting thugs turn housing projects into turf wars so that Bud in Wyoming doesn't feel like the UN is going to take his grandpa's 30.06 from him is, shall we say, counterproductive. I'm not implying that there is no solution to this problem except gun control (although gun bans have proven effective), I'm saying outright that if you don't like gun control as a solution to this very real and present problem then let's hear yours.

  The first person to suggest that the gangs be reconstituted as well-regulated militias gets shot. ;-)

  by oldjohnbrown on Thu Mar 01, 2007 at 04:56:35 PM PDT

  •  One more thing

    If the goal of the Amendment is to replace the usual standing army with a citizen army regulated and controlled by the states, and I believe this intent is clear partly because of the tremendous power the Founders granted to the states, and also because of their deep-seated (and prophetic) mistrust of standing armies under Executive control, then there is no reason whatsoever to read "arms" as "guns." "Arms" are whatever a militia would use in warfare. Those were mostly guns in the eighteenth century partly because people had them anyway for hunting, and partly because there weren't many other effective weapons that an individual could bear, unless your gun couldn't take a bayonet and you had to carry a blade.

    by oldjohnbrown on Thu Mar 01, 2007 at 05:04:06 PM PDT

  •  Since you asked...

    Reduce the power of gangs by undercutting them in the maret in currently illegal drugs. Without that, "turf" is not lucrative enough to kill and risk dieing for. Nothing, of course, will solve the teen testosterone factor, so you'll still have gangs, but they won't have the $ for highend armaments.

    by ben masel on Thu Mar 01, 2007 at 05:27:54 PM PDT

    •  That's part of the way there

      First, you want to legalize crack? How about heroin? There's a big drug ring out of Chicago that's currently slinging that stuff, and people are dying from it. How about meth? I understand with drugs that are less virulent (even including, ironically, cocaine, which is at least somewhat controlled by the price it commands) but some of that stuff... well, you'd almost think it was designed to destroy people.

      Second, undercutting the drug market would help, but the root problem is that gangs are surrogate families and surrogate employers. They spring up, and prosper, amid broken homes, pathetic schools and dismal employment prospects. Chalking it up to the "teen testoterone factor" misses the point. My brother worked with a lot of gang members as a teacher in a last resort school and the school would invent extracurricular activities just to keep the kids from having to go home any more than necessary. Home was that bad, and the alternatives were no better.

      So if we can't ban guns on gangland turf, we can do something—and by something I'm thinking Great Society proportions here—to foster a stable family environment and a realistic shot at a good education and gainful employment. Also, the amnesties where people can turn in their guns no questions asked, no matter how illegal they are, have worked pretty well at temporarily disarming the gangs. The thing is that except for a few complete nuts, it's not that the gangs want to do what they're doing. They're lost kids looking out for each other because no-one else is. It may be hard to redeem the kids who are immersed in that culture (though we still owe it to them to try our damndest). The key is to prevent more of them from feeling like it's their best option.

      by oldjohnbrown on Thu Mar 01, 2007 at 06:33:02 PM PDT

•  Can I buy a gatling gun? (please read)

  I want to know if I should be able to buy a gatling gun or mini gun for private use.

  The question is -- what point can i reach for national security? Are fully automatic weapons hunting weapons? I'd say no. But people say they need their assault rifles anyway. Outside of the few select Sniper Rifle tournaments should I be able to own A M82 Barrett, 'the' .50cal sniper rifle?

  So, where do you draw the line?

  by MrMacMan on Fri Mar 02, 2007 at 07:17:19 AM PDT

  •  Well, are you trying to say that the

    original intent was that a person could only own arms that were available at the time of ratification?  If so, then you can't own a mini-gun.  But then I don't think you have Free speech rights on TV, radio, internet or any other medium that didn't exist then...  This sword cuts both ways.

    by kursk on Fri Mar 02, 2007 at 12:03:14 PM PDT

    •  No I'm saying military application is

      completely different.

      A mini-gun is appropriately comparable to a revolutionary war cannon (lets say the 12lb Napoleon Howitzer) -- massively overpowering compared to muskets -- an entirely different league.

      I assume the Howitzer was owned by someone and I would also assume that a Howitzer is a type of 'arm' (if not, is there some separate category that the framers did think there should be restrictions on?) -- so its fine for the public to carry around Howitzer's -- why shouldn't I be able to buy one today?

      If so, I want to know where I can by my personal favorite.

      by MrMacMan on Fri Mar 02, 2007 at 12:51:02 PM PDT

      •  I understand and agree.

        I would say that it would be applicable to the typical infantry "arms".  An assault rifle but not crew serviced weapons.  

        by kursk on Fri Mar 02, 2007 at 02:38:45 PM PDT