Philosophy Discussion Forums

Until I saw it mentioned here and Googled it I must admit I wasn't aware of the "Heller decision". The Wikipedia article on "District of Columbia v. Heller" has this to say about the part of the decision which deals with the types of weapons whose ownership is protected by the Second Amendment:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

On the face of it, the part I've highlighted in bold seems quite odd. It seems to say that the kinds of weapons one is allowed to keep and carry at any given point in history are those that are not dangerous, and those that are commonly kept and carried at that point in history. The second condition seems a tad tautological? If people generally tend to own and carry a particular type of weapon then people should be allowed to keep and carry that type of weapon.

Fooloso4 wrote: ↑March 2nd, 2018, 12:57 pm
How others understood a right to bear arms cannot substitute for how the authors of the amendment understood it or how we are to understand it. The clause regarding a militia can be read as a corrective to how others understood that right - one has a right to keep and bear arms in order to maintain a militia.

It is up to you to supply evidence that the authors --- and the legislators in the 13 states that ratified it --- understood the right differently than everyone else at the time understood it. The presumption would be that they did not. As for how we are to understand it, if we choose to understand it in any way different from the the authors' and ratifiers' understanding then we are indulging in Newspeak and attempting to amend the document stealthily, through verbal flimflam. That is the Humpty Dumpty approach to constitutional interpretation: "Words mean whatever I want them to mean."

Some germane comments from Thomas Jefferson:

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
- Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed."
- Thomas Jefferson, letter to to John Cartwright, 5 June 1824

"On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed."
- Thomas Jefferson, letter to William Johnson, 12 June 1823

Rather than tell me to read something tell me what you think is the reason the amendment distinguishes between what weapons are and are not permissible.

There is no reason for me to retype what you can read in the link.

Steve3007 wrote: ↑March 2nd, 2018, 1:28 pm Until I saw it mentioned here and Googled it I must admit I wasn't aware of the "Heller decision".

It would be worth your while to read the actual decision, via the link I gave, Steve.

GE Morton:

It is up to you to supply evidence that the authors --- and the legislators in the 13 states that ratified it --- understood the right differently than everyone else at the time understood it.

On the contrary, it is up to you to show that the clause regarding militia has no effect because it is not part of how others at the time may have thought of the right to bear arms.

As for how we are to understand it, if we choose to understand it in any way different from the the authors' and ratifiers' understanding then we are indulging in Newspeak and attempting to amend the document stealthily, through verbal flimflam.

How they understood it is what is in question. Those who do not agree with the decision could and do make the same accusations you do.

"Words mean whatever I want them to mean."

Which seems to be the case when a clause is declared to be “prefatory” and without effect.

Some germane comments from Thomas Jefferson:
“The laws that forbid the carrying of arms are laws of such a nature …”

This is not a comment by Jefferson. It is something he quoted. His only “comment” was a marginal note:

False idee di utilità.
False idea of utility.

Jefferson letter:

The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.

What does ‘the people’ mean? It is plural rather than singular, the people rather than a person, such as a monarch.There is no period after the clause quoted but a semicolon. It continues:

that they are entitled to freedom of person

The people are entitled to freedom of person. It is not the right of a person to be armed at all times but the right of the people, that is, the state.

There is no reason for me to retype what you can read in the link.

No need to retype it, you can copy and paste. This does not tell me what you think it means but it does tell me what you think the key arguments are.

It is actually a violation of rule D5 to tell someone to “look it up”.

What is this well armed militia going to do about drone attacks - embed in civilian populations?

It's an interesting militia that kills 30,000 of its fellow citizens, including plenty of their own number via suicide and accidents, every year. Since 3,000 people were killed in the 2001 WTC attack, approx 30,000 are killed by US guns each year. So this fledgling militia that is supposed to protect people has taken about 480,000 lives, perhaps half a million by the end of the year.

The whole notion of creating a militia that would prevent government overreach is an abject failure on all fronts, not least because it does nothing the help economic oppression, and in fact provides resources to the arms companies that created smart weapons for the US government that no local militia will be able to touch.

Fooloso4 wrote: ↑March 2nd, 2018, 5:48 pm
On the contrary, it is up to you to show that the clause regarding militia has no effect because it is not part of how others at the time may have thought of the right to bear arms.

I didn't claim that it has no effect. It indicates an important purpose of the right to keep and bear arms. It also affirms the power of the States to maintain militias, and encourages them to do so.

How they understood it is what is in question.

No, it is not. The only people who question how they interpreted it are modern "progressive" Humpty Dumptys. The commentary from the time is voluminous. You can produce nothing from that period suggesting that the right to keep arms was to be, or should be, confined to militia members.

Here are a few additional quotes:

"No free man shall ever be debarred the use of arms."
- Thomas Jefferson, Virginia Constitution, Draft 1, 1776

"To disarm the people...is the most effectual way to enslave them."
- George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, June 14, 1788

"Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops."
- Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.... The great object is that every man be armed. Everyone who is able might have a gun."
- Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
- Samuel Adams, Massachusetts Ratifying Convention, 1788

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
- Tench Coxe, Philadelphia Federal Gazette, June 18, 1789

This is not a comment by Jefferson. It is something he quoted. His only “comment” was a marginal note:

"False idee di utilità.
False idea of utility."

Yes, he is quoting Beccaria. as I noted. The marginal note is one of approval.

What does ‘the people’ mean? It is plural rather than singular, the people rather than a person, such as a monarch.There is no period after the clause quoted but a semicolon. It continues:

that they are entitled to freedom of person

The people are entitled to freedom of person. It is not the right of a person to be armed at all times but the right of the people, that is, the state.

Oh, my. "People" is a plural of "person." It is not a synonym for "the State." This an especially bizarre interpretation given that we are considering the words of Jefferson, who frequently affirmed the rights of the people against the State. You're really reaching here, Fooloso.

Greta wrote: ↑March 2nd, 2018, 6:57 pm What is this well armed militia going to do about drone attacks - embed in civilian populations?

Nothing. That is a problem for the Air Force.

It's an interesting militia that kills 30,000 of its fellow citizens, including plenty of their own number via suicide and accidents, every year. Since 3,000 people were killed in the 2001 WTC attack, approx 30,000 are killed by US guns each year. So this fledgling militia that is supposed to protect people has taken about 480,000 lives, perhaps half a million by the end of the year.

Now, now, Greta. Street thugs with guns are not members of any militia. And suicides, by gun or any other method, raise no moral issues. If someone wishes to end his life it's his business. There were only about 11,000 gun homicides in 2016 --- way too many, but not as bad as you're picturing it.

https://www.thetrace.org/rounds/gun-hom ... ata-shows/

The whole notion of creating a militia that would prevent government overreach is an abject failure on all fronts, not least because it does nothing the help economic oppression . . .

I agree with your first point there. Technology has rendered the idea of an armed citizenry checking an overreaching government most implausible. But what is this "economic oppression"?

https://www.thetrace.org/rounds/gun-hom ... ata-shows/

GE Morton wrote: ↑March 2nd, 2018, 9:37 pm

The whole notion of creating a militia that would prevent government overreach is an abject failure on all fronts, not least because it does nothing to help economic oppression . . .

I agree with your first point there. Technology has rendered the idea of an armed citizenry checking an overreaching government most implausible. But what is this "economic oppression"?

Haven't you noticed? Arms companies have used their financial power (with the NRA as a mouthpiece) to hold US governments to a non-regulation position contrary to the wishes of most Americans for years now, with deeply problematic and damaging results, including a deepening of the natural fractures in US society.

GE Morton wrote:It would be worth your while to read the actual decision, via the link I gave, Steve.

I'm working my way through it. The part I was talking about in my previous post was where it discusses the types of arms that the Second Amendment is deemed to protect the rights of people to keep and bear. Here are some relevant quotes:

The Heller decision wrote:The Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time."

See bolded parts. As I said in the previous post, the interpretation of the Second Amendment seems to be that people should be allowed to own and carry any arms that are owned and carried by lots of other people at the time (so long as they claim that they are keeping them for lawful purposes). The rationale for this appears to be that the arms kept by people at home are the same arms that they are expected to use if they're called up to serve in a militia, to fight against the colonial oppressors, or the government or some other bunch of bad guys.

As I said, this now seems odd. Presumably it means that if, for example, some new more destructive type of gun becomes popular then that popularity, in itself, permits people to own it. As I've said before, the question of where to draw the line on the spectrum of weapons is a difficult one, but this, on the face of it, doesn't seem to be a particularly good answer to it.

Steve3007 wrote: ↑March 3rd, 2018, 6:12 am
As I said, this now seems odd. Presumably it means that if, for example, some new more destructive type of gun becomes popular then that popularity, in itself, permits people to own it. As I've said before, the question of where to draw the line on the spectrum of weapons is a difficult one, but this, on the face of it, doesn't seem to be a particularly good answer to it.

It is not a definitive answer --- there may not be one --- but the popularity criterion is not as vague and portentous as you might think. A weapon that is more destructive than it need to be to serve the lawful purposes for which it is sought (self-defense, hunting, competitive shooting) is not likely to come into "common use," especially if it is costlier than less destructive weapons. People don't buy Mack trucks to haul their groceries.

GE Morton:

I didn't claim that it has no effect. It indicates an important purpose of the right to keep and bear arms. It also affirms the power of the States to maintain militias, and encourages them to do so.

That is not what a legal effect means.

No, it is not. The only people who question how they interpreted it are modern "progressive" Humpty Dumptys.

I guess you have given up on reasoned argument and must resort to name calling and false and disparaging depictions of everyone who questions the interpretation of the Scalia court.

The commentary from the time is voluminous. You can produce nothing from that period suggesting that the right to keep arms was to be, or should be, confined to militia members.

Please read what I actually said rather than set up straw men to knock down.

Here are a few additional quotes ...

Anyone who is interested can google the quotes in context, both historical and rhetorical. I will mention only the first. You quote Jefferson’s first draft but do not mention how he altered it in the second and third.

The marginal note is one of approval.

And how is it that you know that? It simply says “false utility”. It is clear that he did not approve of disarming the people, but this not translate into the right of every individual to carry arms.

"People" is a plural of "person." It is not a synonym for "the State." This an especially bizarre interpretation given that we are considering the words of Jefferson, who frequently affirmed the rights of the people against the State.

Not people but “the people”. In the letter he says:

we had never been permitted to exercise self-government. when forced to assume it, we were Novices in it’s science. it’s principles and forms had entered little into our former education. we established however some, altho’ not all it’s important principles. the constitutions of most of our states assert that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, both fact and law, in all judiciary cases in which any fact is involved) or they may act by representatives, freely and equally chosen ...

The state is to be the vehicle and mechanism of self-government, it is to represents the will of the people as a whole, not the disparate and often conflicting will of individuals. Self-government does not mean that each and every person governs himself. When the will of a person opposes the will of the people it is the will of the people that shall prevail.

It is the people, the whole of the people, that has the right and duty to be armed. Why would each person have a duty to be armed? Of course the people cannot be armed if no person is armed. The question of which persons or individuals have the right to be armed yields no clear, unambiguous answer. The second amendment is silent on this question. The preamble to the Constitution, however, says:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

It is the purpose of the Constitution to form a union to promote the general welfare. We the people not I the person is first and foremost. It is we the people that protects and promotes the welfare of I the person. Even Scalia acknowledges that not every individual has a right to carry any weapon he wants:

Like most rights, the right secured by the Second Amendment is not unlimited ... [It is] …not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller (an earlier case) said, as we have explained, that the sorts of weapons protected were those “in common use at the time”. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.

I see that you are still refusing to address the question of what arms are permissible. You have ignored Steve’s question about what common use at the time means. Are there any weapons that can maim or kill that are not dangerous? What makes a weapon unusual? Surely most weapons in use today would have been unusual at the time the second amendment was written. If we are to be guided by what they understood as arms then they certainly did not mean the weapons being used with disturbing and increasing frequency in mass shootings.

GE Morton:

A weapon that is more destructive than it need to be to serve the lawful purposes for which it is sought (self-defense, hunting, competitive shooting) is not likely to come into "common use,"

You just shot yourself in the foot. The weapons used in mass shootings do not fit this description.

Steve3007 wrote: ↑March 1st, 2018, 7:48 pm
You've made it clear here and in that post that you see a fundamental difference between explicit threats by other individually identifiable moral agents and general threats of potential harm from a pool of other moral agents who have not yet been individually identified. The definition of "freedom" that you use is such that the former is regarded by you as a reduction of freedom and the latter is not regarded as a reduction of freedom. And therefore (in your view) the former warrants the passing of freedom-restricting legislation and the latter does not.

Yes. You might substitute your second use of "threat" above (the bolded one) with "risk" and see if the connotations of the sentence remain the same. "Threat" carries an implication of intent, derived from its primary meaning, which "risk" does not. Using "threat" in these contexts is somewhat sophistic.

I disagree. I don't think it is always necessary for there to be an explicit declaration of intent to do harm by a particular individual in order for legislation to be passed which (like all legislation) restricts freedoms . . . And, for reasons previously discussed, I don't accept your slippery slope argument that this leads to a police state.

I agree, in general. We would not, for example, allow construction of a dynamite factory or a hazardous waste dump in a residential neighborhood. Most US cities forbid the discharge of firearms within city limits except on licensed shooting ranges or in self-defense. So no backyard target or gopher shooting. Many other risky activities are similarly restricted, and all of those restrictions reduce freedom to some degree. But it is one thing to restrict the possession or uses of useful but dangerous thiugs in places and circumstances where the risks of accidental harms is high (risk = the probability of an event X the probable magnitude of the damage if it occurs), and another to ban the possession or use of that thing altogether, or restrict its use in ways that render it useless for its intended and lawful purposes.
Or when the risk envisioned is not a catastrophic accident, but merely the possibility that someone may intentionally use the item to inflict harm.

It is the latter rationale that careens over the slippery slope. If you disagree there is a slippery slope there, you'll need to point out the crucial difference between a firearm and, say, a baseball bat that stops the slide. Both items have harmless, lawful uses, but both may be used to commit murder. The crucial difference cannot be that firearms are the more popular weapon. If firearms were not available something else will, necessarily, become the most popular weapon. The muggers and robbers and gangsters will not abandon their lifestyles or quell their impulses merely because we've taken away their preferred weapon. They'll find alternatives. And down the slope we go (as I mentioned in another post, to deal with this problem effectively we need to focus on controlling the criminals, not their chosen weapons).

As I explained earlier, I still maintain that the abortion analogy shows that things can exist on opposite ends of a continuous spectrum/slope, with no objectively existing barrier (i.e. no barrier whose position all fair minded, clear thinking people would agree on) on that spectrum/slope, and yet our common sense tells us that an argument for one end does not facilitate an argument for the other.

Heh. Well, I'm not a fan of "common sense." The phrase is an oxymoron. Good sense is not very common, and what is commonly believed is often not very sensible. An argument to ban A because it carries a risk of abuse will, as a matter of logic, apply to anything else that carries a risk of abuse, and will be invoked by anyone who seeks such a ban. Whether those arguments will be heeded and the bans enacted will depend on how much public hysteria can be aroused.

I see nothing wrong with destroying a single celled embryo. I see it as wrong to destroy a newborn child. There is no objectively existing hard dividing line between the two which shows clearly to all fair minded people where right turns to wrong.

This is a subtle issue. The distinction Warren was drawing (and which the US Supreme Court sought to draw in the Roe v. Wade decision) was that between a "human being" (a biological category) and a "person" (a moral category). Not all human beings are persons; that an organism possesses human DNA does not necessarily make it a person. Of course, most fertilized human ova will become persons eventually. The difference between a human embryo or other living organism and a person is clear enough; it is the point at which that change of categories occurs that is problematic, because the change is a gradual process unfolding over time. This is a different sort of issue than the issue of what dangerous items to ban. The transition point for the embryo is, so to speak, a blurry, moving target; the comparative risks for dangerous items are clear fixed points. For the former, since there is no fixed point, any choice of a transition point must be arbitrary and perhaps pragmatic; for the latter a choice of one of the points will not be arbitrary but based on subjective criteria. Since we're speaking of guns, an analogy might be a hunter deciding where to aim when he has only a general idea where the deer is, or when he must decide which of several visible animals to target.

Allowing the destruction of single celled embryos doesn't give others an excuse to kill newborns.

Actually, newborns are not full-fledged persons either. But they are physically independent at that point, and so birth is a reasonable place to draw the line.

You've said that we have no right to expect freedom-limiting legislation whose purpose is to keep us safe from general dangers. I disagree. That doesn't mean I believe in a totalitarian state in which we attempt to eliminate all forms of potential danger and it doesn't mean that I give others an excuse to argue for that. I believe that some level of safety-ensuring legislation is desirable in order to make life tolerably safe.

I'm sure you can see the subjectivity in what is considered "tolerably" safe, and the certainty that others who adopt a lower threshhold of "tolerable" will seize upon your argument.

Fooloso4 wrote: ↑March 3rd, 2018, 2:07 pm
You just shot yourself in the foot. The weapons used in mass shootings do not fit this description.

Yes, they do.

https://www.statista.com/statistics/476 ... ypes-used/

GE Morton:

Yes, they do [fit the description of guns used self-defense, hunting, competitive shooting.]

Your statistics are a bit light on details. No mention is made of what kind of rifles were used, whether they were modified, and how many the gunman used.

What is it you have to defend yourself against with a semi-automatic rifle, let alone a bump stock semi-automatic? Yes, hunters use them, but they would probably use fully automatic weapons if they could. The same goes for competitive shooting. What makes “common use” a reasonable standard? How is common use to be measured when federal law explicitly prohibits federal law enforcement agencies from using dealers' records of sales to establish a centralized system for the registration of firearms, firearm owners, or firearm transactions; or requiring dealers' records of sales to be recorded in, or transferred to a centralized facility.

Once again here is what Scalia said and some of the questions it raises:

Like most rights, the right secured by the Second Amendment is not unlimited ... [It is] …not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller (an earlier case) said, as we have explained, that the sorts of weapons protected were those “in common use at the time”. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.

What does common use at the time mean? What other product’s legality is determined by the fact that it is in common use? Are there any weapons that can maim or kill that are not dangerous? What makes a weapon unusual? Surely most weapons in use today would have been unusual at the time the second amendment was written. If we are to be guided by what they understood as arms then they certainly did not mean the weapons being used with disturbing and increasing frequency in mass shootings.