Why are modern gun owners so willing to throw the 2nd Amendment under the bus?

None of this is relevant to the right to keep and bear arms as held by the people.

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When Heller is overturned, you will have a point. Not until.

 

It is indeed a matter of culture, wholly alien from what most others have experienced. The widespread, private ownership of firearms, independent of the need for permission from government, was largely what made the founding and development of the united states possible to begin with. It was these privately held firearms that, according to historical accounts, were used to drive back the military of the British empire when it was sent to disarm the colonies, and bring them back under control of the crown once again.

To many united state citizens, criticizing the culture that made the founding of their nation a possibility is regarded as an attack on their very individuality, and them being told that their own existence simply does not matter. To them firearms ownership free of the need for governmental permission is as synonymous with freedom, as breathing is with living. They have observed how other countries have gone about implementing laws that have left their populations disarmed, often with one seemingly trivial piece of legislation after another, slowly adding up overtime until they became what they are currently.

In simple, uncomplicated, easy to understand terms, they have observed what other countries have done, and learned from them.

 

But right this is a point where my understanding is ending for the gun law!

Sure, some of your 50 states are in territory large or even larger as a complete European Nation ... Texas is larger as complete France for example ... and you have in total not even the half off the population of what the complete EU has (EU members only) ... USA = 319 million, EU = 743 million.
Out of this I understand that many people live in countryside more remote ... means the next Police Station is far away or some Deputies and Sheriff is responsible for safety of a large area etc. Also I learned in this forum that the trust into Police and in executive and Justice is in the USA a ... let me say ... very special point.

B U T

This law and 2nd amendment was done when with which circumstances at that time existing? Are there still hostile Natives behind every 3rd tree and waiting only to attack you white settlers traveling in a wagon on search for new farmland / living in a very remote farm and wanting to scalp you and your family?

Sure, there are other threats these days, for example gangs everywhere, but didn't you understand that right this 2nd amendment allows at least right these people top be armed with guns too ... or even makes it so easy to have illegal guns?

In my opinion the core point at "gun law discussion" is always that someone is thinking to forbid private guns.
In reality you have to split this and the major important point is ... and I think no one will make an objection against ... to come over with the mass of illegal arms and to make as most as impossible that criminals can get a gun to become a lethal threat to the citizens as it is right now being.

So, how will you get the goal to prevent illegal guns as most as possible by accepting and holding the 2nd amendment?

 

Illegal guns aren't the problem; people being willing to use guns in crime are the problem. We have to take away the seemingly widespread willingness to hurt someone, whether that's through reducing the desire to do so or making the consequences dire enough that those who would act choose not to do so. Enforce current laws so that actual violence people are removed from society. Address the drug problem that is a reason for so much violence. Address the scarcity of mental health resources. Work for real solutions to address poverty.

 

The right to keep and bear arms is every bit as relevant today as it was in 1791.

Because we are free, it is easy for people to break the law.
Better that, than live in a state were it is very difficult to break the law.

It is impossible to enact a law that will prevent someone from breaking another law.

 

Interesting but very incomplete.

All I have is the closing summary from this author—in which he does not disclose any of his sources. From what I read it appears he largely ignores how Article I Section 8 changed the colonial militia system. I find it ironic for one to chide others for ignoring portions of text when he does not explain the effect of other provisions in the Constitution.

Still, the author you quote seems to suggest that “both sides” have ignored a portion of the Amendment. I find the argument would have more weight if he had not completely side-stepped any actual interpretation of what the militia preamble means or how it is to be applied. He merely says that the Amendment as a whole must be interpreted to allow the regulations he finds desirable—by which he implies the militia preamble is the vehicle that tows this trailer of regulatory authority.

It all sounds very “end will justify any means.” Is there something beyond his mere ipse dixit conclusions you can point me to?

I stand by my previous assertions. The individual RKBA pre-existed, and was greater than, the civic duty of militia service. The only connection the RKBA had with the militia was a marriage of convenience for the States. Before the Constitution was enacted they relied upon the individual RKBA as the cheap (for them) source of individual militia arms, and they required militia members to appear bearing their own private arms.

This governmental power has not been destroyed. Rather, it was transferred to Congress in Article I Section 8. Congress has the power to continue the old method of relying on private arms—even today Congress can command that I enroll in the Virginia Militia and that I appear bearing a shotgun—for example—that I provide as a private firearm at my own expense. Congress also has the power to choose its own arming method—which it has done—and to even prevent me from using my own private arms in militia service. The point is militia arms are under the direct control of Congress, and are therefore not a “right” at all.

And although it is clear that Congress’ authority over private arms extends to the total power over inclusion or exclusion for militia use--nothing within this power gave Congress the authority to declare that the tail wags the dog—that the RKBA exists only so long as we desire to use it as a source of militia arms—that the transfer of power over militia arms equals a power to deny arms outside militia service. In short, Congress’ power to divorce the militia from these private arms is not also a new power to destroy that original source. Congress may require me to join a militia. It may even require me to provide my own arms, and even train with them. But it cannot declare that I may own no arms beyond those it demands I have for militia service.

The only way you reach the conclusion that arms may be denied outside militia service is to read the militia preamble as granting that power to Congress—something which altogether destroys the right within the operative clause. It would also represent a departure from the very purpose of the Bill of Rights, where the founders decided—within a list of individual liberties designed to restrict the power of government—to instead enshrine a new power to deny private arms.

Not even your author is willing to make that false claim. And so he tries to find a middle ground where—presumably—the militia preamble allows for virtually all regulation short of a total ban.

I just want to see how he justifies it beyond his conclusory claims that current events provide the necessity—which is always the rallying cry for limiting individual liberty.

I have long ago given my view of the militia preamble, and I stand by my previous argument that it is a statement of principle and not a statement limiting the right which follows.

Nothing in that argument is in conflict with your author’s view that militia service is a civic duty. What you and your author must admit, however, is the Constitution clearly requires action by Congress to trigger it and “activate” my duty. If Congress demands that I become a member of the Virginia Militia then I must do it. But this power to activate my civic requirement is not also a power to deny me a right that everyone agreed pre-existed the civic duty. Nor is it a prerequisite for, or a limitation upon, my individual RKBA that exists outside of and independently of my civic duty of militia participation.

 

Of course are the willing for crimes or the society circumstances which let people to become criminals etc. the basic problem, but illegal guns are an important tool of it and increase the threat of them.
Of course it is ridiculous to say that without guns or with a very strict gun law etc. the number of crimes will go down, but to fight criminality has many attacking points...

 

People use the terms "gun control" or "very strict gun law" but unless clearly defined, they really have no innate meaning. If a law isn't Constitutional, enforceable, effective and necessary then there is no need in even considering it a solution. Any new proposal has to be viewed through that lens. That's why "universal" background checks, magazine capacity restrictions, "assault weapons" bans and the like are so roundly rejected by the pro-gun side. They fail the eye test.

What keeps criminals from breaking laws? It's either the fear of a sufficiently stern punishment or the punishment itself removing the ability of the criminal to commit another crime. When we don't enforce the strict laws we already have, like a 10 year jail term for straw purchasing, then straw purchases continue to be a major source of firearms for criminals.

 

I think if you think of the RKBA as a positive right rather than a negative right then it will all start to make sense to you. It is not a right to be left alone by the government. It is more like the right to vote or the right to a trial by jury- the government has to take some kind of action to ensure that people can enjoy the right. In this case, the government has to organize the militia, enroll people in it, and make sure they are armed. Modern gun owners seem not to care whether the government does this which is why I think they don't care if the RKBA gets thrown under the bus.

 

Except there is no legal basis in the united states to suggest that this is the correct interpretation of the situation.

 

With the same circumstances that led the founding fathers to conclude that government should be required to obtain a warrant before searching your private possessions, that you should have the right to a speedy and public trial, and that cruel and unusual punishment should be prohibited.

Considering reports pertaining to the violence of the drug cartel in the nation of Mexico, their agents in the united states, violent felons continually being released back into society where they can do the most harm, and the threat of so-called lone wolf terrorist attacks, it is not far off.

Indeed it does not. The second amendment does not allow known criminals to acquire or possess firearms. Their acquisition is through illegal channels.

A key aspect of this is being missed. So long as those that will used firearms to harm others remain free in society where they can do the most harm, no legal restriction is going to prevent them from actually doing such. The only way to realistically stop them from either acquiring a firearm, or otherwise harming others, is to permanently remove them from the equation entirely.

 

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

So much for that.

 

The only lawful purpose mentioned is militia service. I am going to interpret the Second Amendment based on what it does say rather than based on what it does not say.

 

What isn't mentioned is just as important, as those are the powers not granted to the government but instead reserved for the people.

 

It does not matter what your interpretation is unless you can prove it as being valid.

According to you, the only lawful purpose of firearms ownership was militia service. According to your own interpretation, there was not so much as one other lawful purpose in existence for having or using a firearm, suggesting that if anyone were to use a firearm for purposes not related to official militia service, that was a criminal act that could be prosecuted.

However an exhaustive search of case law in the united states has turned up absolutely no cases where anyone has ever been convicted, much less prosecuted, of using a firearm for purposes outside of militia service. There is literally not one single case, from the founding of the united states, up until today, that even suggests your interpretation had a basis in law.

 

Nowhere does the 2nd say the only lawful purpose for a firearm is service in the militia.
Nowhere.

 

Now you see I like talking with you Galileo. You’re not just posting click bait. You really make me think things through. I’ve tried to think it though again, and here is what I have come up with. Agree or disagree as you will.

I disagree with your premise. They are not “positive” or “negative” rights. They are individual rights.

The phrase “the right of the people” is used in the 1st, 2nd, and 4th Amendments. And each time it tells us who the right belongs to--who it serves—who controls it—“the people.”

Now your 6th Amendment right to trial by jury is not a solid analogy, but for the sake of argument I will address it. It is also, like every other right in the BoR, an individual right that limits the power of government. You say it requires the government to take action to protect the right. This is because I hold the right—I completely control its exercise—and the government is forbidden from putting me on trial until it honors this right. You see, the government controls prosecution, and when and what I will be charged with. But I control the jury trial right. The right always exists, and the government can take no action to put me on trial until I have either waived the right (the most common occurrence) or it has satisfied the requirements of my individual jury trial right. It is best looked upon as a limitation on government power. Government cannot prosecute me without a jury unless a surrender the right. And if I demand it then the government must make it available or abandon the prosecution. You see, the government may facilitate the right by providing the jurors, but I control the right and whether it will be observed or not. I control it because it is an individual right. And the control is the key to whether it is an individual right or not.

Now look at the 2nd Amendment and consider it along with the rest of the Constitution which preceded it. Article I section 8 says Congress controls the militia organization—how large it will be, and who will and who will not be members. If the RKBA is a “positive” right that requires the government to take action to provide it—if it is limited to militia service—then my “right” is completely controlled by the government. Follow me now….

If I demand a firearm, Congress can tell me that I am not allowed arms because it has decided that I will not be allowed to be a militia member. My right, therefore, is first predicated on Congress’ acceptance of me into the militia club—a choice I have no control over. Oh I agree that Congress has no power over officer appointments, and I can circumvent Congress’ refusal to accept me as a militia member by state appointment as a militia officer. But this merely transfers the power of acceptance from one government to another. So clearly it is not a “right of the people” if limited to militia membership—because I have no control over the necessary pre-condition for the right. It is the very opposite of the control I have over my individual right to trial by jury.

Furthermore, even if government condescends to let me into the club, whether as a private or as an officer, Congress still controls all militia arms under Article I section 8. Congress alone tells me what, if indeed any, arms I am allowed to have—and it totally controls the purposes for which I am allowed to use any arms it allows me to have. There is no “right of the people” where government totally controls the “right.”

But this is exactly what your “positive” right limited to militia service analogy suggests….If the RKBA is restricted to militia service, and requires some Congressional action to enforce it, then the “right of the people” in the 2nd Amendment should be described as follows:

“If Congress decides to allow you into militia service, then you have a right to have whatever arms Congress allows you to have, for only the purposes Congress allows you to have them, and only so long as Congress allows it.”

Do you see how the control of the “right” is decisive—how I control the jury trial right, but here I have no control or say? Your limited to militia service “positive” right is not a “right of the people.” It is a privilege which Congress has the total power to grant or withhold. I believe it makes a mockery of the words “right of the people.” It completely destroys the phrase “the right of the people” in the 2nd Amendment, and considerably weakens the same phrase in the 1st and 4th amendments by example.

Now the only way to get around this is to argue that the 2nd Amendment repealed the article I section 8 power of Congress over militia organization and militia arms—or at least modified it to limit Congress’ power over these militia functions.

This is not an argument I have heard yet from any anti-gunner. It may be because there is absolutely zero historical evidence for the supposition that the 2nd Amendment was intended to repeal the recently won unifying power the Federalists so desired to give Congress over the militia.

Furthermore, even if it were intended to be a total capitulation of the Federalist’s argument for the need to unify the arms and organization of the various militias—an argument they had already won—if it was intended to modify and restrict the power of Congress over militia arms, then it logically should have been placed within article I section 8—directly beside the militia power limiting language concerning the state’s power to appoint militia officers. Instead, the RKBA is referred to as a “right of the people” and is specifically selected for inclusion within a body of other recognized, pre-existing individual liberties. In short, its very placement is evidence it was recognizing an individual right—which the “positive” and “limited to militia service” interpretation destroys. In fact, this argument takes a universally recognized pre-existing individual right—one publically claimed as an individual right beyond mere militia service in famous examples during the revolution—and destroys it completely by placing it under the new and total power Congress has over the militia.

How can it be that a right was included for specific recognition within the BoR for the sole purpose of destroying the right by placing in under the heel of Congress’ article I section 8 power?

Instead, I believe the Amendment properly recognizes the pre-existing RKB private arms outside militia service. The Federalists won the militia debate, and all militia arming power was transferred to Congress. But this transfer of power does not give Congress the right to infringe upon the possession of private arms outside militia service. Congress may require me to serve in a militia, and Congress can further make me bring my private arms for service if it wants to. Congress can even prevent me from using my private arms in militia service, but this does not also give Congress the power to forbid my right to keep and bear private arms outside militia service.

It tracks with the only known contemporaneous explanation of the 2nd Amendment, which was published by the Federalist Tench Coxe:

“As civil rulers, not having their duty to the people duly 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 private arms.” Tench Coxe, discussing the purpose of the Second Amendment in his "Remarks on the First Part of the Amendments to the Federal Constitution," published under the pseudonym, "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 Col. 1. (Emphasis added)

Now I know this receives some criticism. It is rejected by anti-gunners as “only the view of one founding father” and therefore not sufficient to base an interpretation of the amendment upon. I find it ironic that anti-gunners reject an interpretation based upon one writer so that they may embrace their own contrary interpretation—one for which not a single writing exists to support it.

Nevertheless I agree it is one quote published by one founding father. And so I say to my anti-gunner friends: Fine. My quote explains the Amendment—not by implication, but by a direct commentary upon it as a sales pitch to the public for ratification. It is an Amendment sales pitch which was ultimately endorsed by Madison, the amendment’s author. So if you disagree with it, then find a single quote from a founding father that supports your interpretation of the 2nd Amendment. Or, failing this, find one that challenges or calls Coxe’s publicized explanation into question.

I have been waiting for such contrary evidence for a very, very long time.

 

Self defense is not something defined as within the home, or limited to the home, or within the confines of a home or limited to homeowners, this, the concept of home defense, is a relatively new concept, unheard of, at the time of the conception of The Second Amendment.

Defense is proper outside of the home and more than likely necessary, as attackers can more readily access and make an accurate assessment of a victims vulnerabilities, out in the open.

 

And yet firearms are legal to lawfully own.

 

Of course.
The court said "such as", and then used self-defense in the home as an example.
Clearly, you have the right to self-defense outside the home, and a right to keep and bear a firearm for that purpose as well.

 

Correct. And the type of weapons that we may own, are weapons useful for military purposes..

 

Our rights ensure that we are able to fulfill our duties.