Done With Mirrors
Done With Mirrors talks about his 'conversion' to conservatism, or perhaps more truthfully his leaving of what today passes for liberalism. He has a lot of good reasons and good examples that are well worth reading. This bit, on the second ammendment is very interesting though. It presents the argument in a way I had not previously seen:
My commitment to freedom of speech was solid; anything this side of 'shouting fire in a crowded theater,' I endorsed. So, I set myself the task of devising an argument against the Second Amendment that wouldn't also involve, and constrict, the First. I couldn't do it, of course. They are of a piece. Would you say that the framers of the Bill of Rights never imagined the destructive power of modern weaponry? Then neither did they imagine the reach and scope of the modern media -- visual as well as printed, and all the more powerful for its pretense of unbias. Was their commitment to an armed citizenry based on an antiquated military model of a minuteman national army? Then so was their commitment to a free press based on a political system where newspapers served as the principle organs of party communications, something that hasn't been true in America since 1880 or so. You don't need an AK-47 to shoot a white-tail deer, but neither do you need to dunk a crucifix in a piss-pot to make art. Guns kill people -- when people use them for that purpose. So do words. Or were we never serious about that bit about the pen being mightier than the sword?I am certainly not a gun nut. I don't even own a gun, and though I have shot several, I have never been a hunter. I am a strong supporter of the second ammendment though. The only form of government that could ever tollerate having such an ammendment is one that is truely considered legitimate by it's people.
posted by Dave Justus | 12/23/2004 12:23:00 PM
5 Comments:
just as a side note, the second admendment never had anything to do with hunting
Again, this comes back to my bugaboo about judging issues on their merits rather than whether they're deeemed to be "constitutional" or not. Jurisprudence has already determined that both the First and Second Amendments (as well as the Fourth, Fifth, Tenth, Eleventh, and Fourteenth Amendments) are not absolute. There are numerous limitations on all the amendments, most of which are pretty uncontroversial.
Exceptions to the Fourth Amendment requirement that search warrants based on "probable cause" be obtained prior to a search include consent searches, stopping and frisking someone upon "reasonable suspicion (a lesser standard than the language in the amendment), exigent searches (the so-called "automobile exception"), searches of things in plain view, a search incident to an arrest, and searches of "evanescent evidence", that is evidence that may disappear in the time it takes to obtain a search warrant (like blood-alcohol content).
Exceptions to the First Amendment include conspiracy (planning to commit a crime with others and one of you makes at least one overt act in advancement of the crime), defamation (libel and slander), incitement (shouting fire in a crowded theater), obscenity, fighting words, threats, false advertising, fraud, perjury, various professional confidential privileges (doctor-patient, attorney-client), espionage, harassment, and copyright infringement.
I agree with most of these restrictions and disagree with some (like obscenity). But the right to say or write absolutely whatever you want to has clearly never been allowed or practical.
If the right of free speech can be limited because of harm that espionage or revealing private medical information or defrauding investors in your enterprise can do, than why can't the ostensible right to bear arms be limited to protect against harms that weapons ownership can inflict? Do you think that plastic explosives or nuclear artillery or hand grenades or Stinger missiles should be freely owned by the public? If so, do you realize what a fucking nightmare crime (not to mention terrorism) would be like? If not, then what is the logical (constitutional) distinction between nuclear artillery, plastic explosives or hand grenades or Stinger missiles and automatic handguns? As the Supreme Court has noted, the constitution isn't a suicide pact.
At some point, I suppose that a gun owner's interest in maintaining a firearm outweighs the public interst in public safety. But that's a different question that the constitutional absolutism the post endorses.
I don't know of anyone who claims that their should be no limits to any of our rights, although I concede that such people probably exist. Similarly, I have never heard anyone argue that the second ammendment extends to nuclear weapons or even tanks and fighter planes.
Obviously there is a limit to all rights. However, your cavalier willingness to ignore the constitution is troubling to me. I have no problems with someone who argues that the second ammendment is a bad idea and should be repealed (though I disagree, and would oppose the idea), but someone who says the constitution is meaningless and our government can freely ignore it is very troubling. The Constitution places limits on our government, both by what branches have authority over which areas and by what the government as a whole has authority overall. Saying that it is a relic and should not be binding seems to me to be a very quick road to tyranny.
As to the issue of the second ammendment, I hold it's most important reason for existing is that basic idea that an individual has a right to be able to defend themselves, both against their fellow citizen and, if need be, against their very government. Yes, their is a cost to this freedom, as their is to all freedoms, but I hold the cost to be worth it. I also hold that our constitution wisely prohibits the government from infringing on this freedom without good reason, which they must clearly show.
Just to clarify my views on the Constitution:
Like the Bible, the Quran, or the Communist Manifesto, the Constitution has a lot of stuff in it that various people can interpret for their own ends to reach sometime diametrically opposing viewpoints. This propensity to find support for one's position in the Constitution rather than on the merits is much more prone to "tyranny" -- that is, unelected, unaccountable judges making decisions on issues of the day -- than than elected accountable legislators.
Does it make sense to ban semi-automatic handguns, have background checks and waiting periods to buy guns, eliminate a "gun show loophole" to such protections, require registration for gun ownership, require safety locks, restrict the number of guns that a person can buy at one time? I happen to think so, because I find the public safety issues to be gained more compelling than the interest of a gun owner who doesn't want such restrictions. If someone has a different view about the balance of a gun owner's interests against the public safety concern, that's fine -- let's thrash it out in the public over fora like this and through our elected proxies in various legislatures.
But to say that such measures are unconstitutional? That, even if I prevail in my argument before the legislature and a democratic majority wishes to enact such laws, they can't? That's an entirely different argument. If democratic legislatures have no authority to regulate gun ownership in such a way, then why would they have any authority to restrict ownership of any weapon at all?
By the way, I apply this logic not just to things I disagree with but to things I agree with as well. I don't think the Constitution addresses the issue of abortion at all, and I think that Roe v. Wade was a poorly-reasoned decision. Let abortion, along with the other issues I'm walking about, be decided in the public square of democracy, not through litigation.
"[The Constitution] is made for people of fundamentally differing views." -- Justice Oliver Wendell Holmes
"[T]he Constitution is not a suicide pact." -- Justice Arthur Goldberg
I think in practice we may be more similar on this issue than different. As I alluded to in my post I am a fan of the second ammendment, but certainly not an activitst or even especially interested in second ammendment issues.
As to what particular excemptions should apply we could discuss that, but in basic my view is that the second ammendment does give a right to individual citizens to own weaponry. Can that be restricted and regulated? Yes, as long as the restrictions and regulations do not ammount to prohibition. I don't think that any of the specific measures you have talked about do, so I don't think they are necessarily unconstitutional. I might disagree that they are needed, but I agree that those items can in fact be decided by legilation. On the other hand, I am sure you are aware that many anti-gun people would like to see a complete ban of private weapons ownership. Should they get enough support to pass such legislation (but not enough to ammend the constitution) I would hope the courts would rightly overturn such legislation as unconstitutional.
I certainly think that their is a place for the courts to establish limits on legislation and that this is a vital role. I also think at times the courts overstep their bounds. Obviously Courts can make mistakes (in both directions) but by and large I think our system does a good job.
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