There's no unlimited right to bear arms

[Adsos Letter]

Source: LA Times "OP-ED"
By Joseph J. Ellis
September 8, 2013

There is an opinion abroad in the land that the right to bear arms is unlimited, an absolute right, like the right to vote or the right to a fair trial.

This heartfelt conviction has surfaced lately in state legislation that attempts to nullify federal gun regulations. For the nullifiers, and many others, the broadest possible right to bear arms is purportedly enshrined in the 2nd Amendment and recognized in the Supreme Court case Heller vs. District of Columbia.

And yet, no matter how prevalent or fervently held, the opinion that the Bill of Rights supports and the high court acknowledges an absolute right to gun ownership is just plain wrong.

The language of the 2nd Amendment is quite clear: "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." As the minority in the Heller decision argued, and more than a century of judicial precedent at the federal level established, the right to bear arms was not an inherent right of citizenship but rather a right that derived from service in the militia.

Joseph J. Ellis is the author of "Founding Brothers" and, most recently, "Revolutionary Summer."

http://www.latimes.com/opinion/commentary/la-oe-ellis-gun-control-nullification-20130908,0,7673462.story

......................................................

I happened to come across this piece in the LA Times today, and didn't know if anyone in Gun Control & RKBA had seen it. I'm not posting it to argue the case either way, and I'm pretty sure its been argued ad nauseum in here already. Just thought you might be interested in the piece.

Several dissenting opinions are voiced in the responses...

EDIT: corrected source citation.

[ileus]

1. That's for sure, that's one reason firearms tie into civil rights...

Without the ability to defend yourself nothing else really matters. Food, Water, Shelter, Voting....nothing else matters if you're not alive to engage in them.

Never give up the only means to protect yourself efficiently.

[NYC_SKP]

2. It's a fine article, but I've never heard anyone claim that the RKBA is UNlimited.

In short, the article doesn't say anything new, but I'm glad you posted it here.

For an LA Times article, I found it to be pretty balanced and reasonable.

[Adsos Letter]

3. Thanks

I read Ellis' Founding Brothers and enjoyed it, so it caught my attention.

[AtheistCrusader]

4. Author is an idiot.

The right to vote is not absolute either, just ask a felon.

"There is an opinion abroad in the land that the right to bear arms is unlimited, an absolute right, like the right to vote or the right to a fair trial."

Author is guilty of the very thing he decries.

"As the minority in the Heller decision argued, and more than a century of judicial precedent at the federal level established, the right to bear arms was not an inherent right of citizenship but rather a right that derived from service in the militia."

This was not the minority dissent in Heller, clearly he did not read it. NOR was this the findings in the prior Miller vs. US case.

[gejohnston]

5. common misconception

and more than a century of judicial precedent at the federal level established, the right to bear arms was not an inherent right of citizenship but rather a right that derived from service in the militia."

There has been no such precedent, at least not on the SCOTUS level. Miller simply ruled that a sawed off shotgun was not constitutionally protected because it (in their view) had no military value. Previous rulings were pre incorporation, meaning the court ruled that the BoR were enforceable against the US, not not the states, such as Miller v Texas and Presser. State supreme courts, like Nunn v Georgia in the 1840s, used the 2A to strike down the handgun (and some knives like the Bowie) ban.
http://en.wikipedia.org/wiki/Nunn_v._Georgia
Had the militia theory been the precedent, the NFA would have banned private ownership of machine guns and the other weapons regulated under the NFA. The law's supporters feared a ban would be struck down. They decided on the tax and registration scheme to discourage ownership.

[S_B_Jackson]

6. Miller didn't even go that far....

the court said:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

They could not "take judicial notice" because no evidence had been presented by either the prosecution or defense - and the court damn-near begged Miller's/Layton's defense attorney to present arguments, and he bluntly refused because he hadn't heard from his clients since the charges had been dismissed and he wasn't getting paid...so thanks but no thanks.

So the court reversed District Judge Heartsill Ragan's pre-trial summary dismissal and remanded the case back to his court for a trial on the merits of the evidence. Of course, Miller was by then dead; and the DOJ was well informed by the in dicta in Miller that the case was going to turn on demonstrated military utility, which would be no difficulty for the defense to demonstrate as both sides knew that trench guns (aka shotguns having a barrel length less than 18 inches long) had been highly effective in the most recent conflict in which the US military had participated. So the DOJ offered a plea agreement to the remaining defendant for time served + 2 years probation, and Layton leaped at the opportunity to put this behind him and to walk away.

[jimmy the one]

11. sosg ban

Jackson: ... which would be no difficulty for the defense to demonstrate as both sides knew that trench guns (aka shotguns having a barrel length less than 18 inches long) had been highly effective in the most recent conflict in which the US military had participated.

Sawed off shotguns had been banned from use in WWI due their inhumane killing, cutting people literally in half, or slow agonizing deaths.
The ban did not last tho, or perhaps adopted by only some countries; iirc correctly, Germany was for the ban.

[hack89]

13. Short barreled shotguns are not banned by the rules of war

Here is a shotgun presently used by the US military with a 7.75 inch barrel.

http://en.wikipedia.org/wiki/M26_Modular_Accessory_Shotgun_System


Cutting down the barrels would make a shotgun less likely to "cut people in half" because the shot would be dispersed over a wider area. A fully choked shotgun with the shot concentrated in a dense mass would be more deadly - but even then it would not cut people in half because there are only 9 pellets in a 12 gauge buckshot shell.

[derby378]

14. This is true, but a short-barreled shotgun is expressly built AS a short-barreled shotgun

That's the only way a sawed-off shotgun can be guaranteed to operate properly without injuring the shooter as well as the target - if the sawed-off shotgun is designed as such from the get-go, such as the Ithaca Model 37. It's a lot different if someone uses a hacksaw to shorten the double barrels on his duck gun. Metal tolerances are different, heat distribution might be a factor, all sorts of unforeseen complications might come into play.

[hack89]

15. They are still not outlawed by the laws of war

nor will they cut some one in half. My only points.

[jimmy the one]

16. germany banned sosgs wwI

They are still not outlawed by the laws of war nor will they cut some one in half. My only points

A sawed off shotgun will indeed separate the upper half from the lower half, maybe not entirely but enough to make it impossible to put humpty dumpty back together again.
As far as a sawed off shotgun ban in wwI, reread what I wrote & what wiki says about it.

wiki: The shotguns (in wwI) elicited a diplomatic protest from the German government, claiming the shotguns caused excessive injury, and that any troops found in possession of them would be subject to execution. The US Government rejected the claims, and threatened reprisals in kind if any US troops were executed for possession of a shotgun.
http://en.wikipedia.org/wiki/Combat_shotgun

what I wrote: Sawed off shotguns had been banned from use in WWI due their inhumane killing, cutting people literally in half, or slow agonizing deaths. The ban did not last tho, or perhaps adopted by only some countries; iirc correctly, Germany was for the ban.

edit to add from same link: During the trench warfare of the {wwI} Gallipoli Campaign, Major Stephen Midgley of the Australian 5th Light Horse Regiment was widely known to use a sawn-off double barrelled shotgun while leading his troops, resulting in Turkish officers complaining that it was not a 'weapon of war' under international law after Midgley took one Turkish soldier's head "clean off his shoulders". Midgley was ordered by an Australian general to cease using his shotgun and switch to a conventional rifle and bayonet,

[Straw Man]

17. Shotguns.

germany banned sosgs wwI

For one side in a war to try to unilaterally ban a type of weaponry is somewhat disingenuous, especially when that side was deploying machine guns and poison gas. The only reason Germany attempted to ban pump shotguns is that they didn't have them.

A sawed off shotgun will indeed separate the upper half from the lower half, maybe not entirely but enough to make it impossible to put humpty dumpty back together again.

No. It will not. Furthermore, the destructive power of a shotgun has nothing to do with being "sawed off." If fact, a shorter, unchoked barrel will spread its shot cloud wider, the result being more smaller wounds, rather than a single gaping wound. The only reason shorter shotguns are used for combat is to make them easier to wield in close quarters.

Eleven pellets of 00 buckshot may indeed be fatal, but it will not even begin to "separate the upper half from the lower half." That would require multiple hits from hollowpoint bullets in high-velocity cartridges, such as the .30-06 or .303 British of WWI machine guns or the .50 of the WWII Browning M2. And hollowpoints are banned in warfare, although they are, somewhat ironically, in widespread use for law-enforcement, due to their ability to quickly and decisively disable a person while minimizing the collateral damage caused by "pass-through" penetration of the target and by ricochet.

Wartime fables are just that: fables.

[jimmy the one]

22. thin men

straw man: The only reason Germany attempted to ban pump shotguns is that they didn't have them

I've not heard of this, link? My underlying point was to counter Jackson justifying 'trench guns' aka short barreled shotguns as being necessary for average people in 1939 based upon a well reg'd militia, when he wrote this:
'... the DOJ was well informed by the in dicta in Miller that the case was going to turn on demonstrated military utility, which would be no difficulty for the defense to demonstrate as both sides knew that trench guns (aka shotguns having a barrel length less than 18 inches long) had been highly effective in the most recent conflict in which the US military had participated.

The revolutionary war was generally a pretty civil affair amongst the American army & british army, barring the occasional Banistre' Tarleton & Stone Mountains. They would sometimes allow surrendering soldiers to surrender arms & walk home. It was when tory militia & American militia or townsfolk got involved without supervision of regular army soldiers or generals when bloody massacres more often took place.
A firearm able to open up a man's stomach was not what Madison meant by 'shall not be infringed'.

Eleven pellets of 00 buckshot may indeed be fatal, but it will not even begin to "separate the upper half from the lower half."

In some cases a sosg could, depending on size of victim and proximity. If he was thin he could be cut in half whereas just an agonizing death to a heavier man. I should have written it this way in that it 'could' cut a man in half, while a rifle bullet couldn't, tho machine gun possible. Some people were decapitated as per example above. Separating upper & lower half I meant vital organs separated etc..

what I wrote: Sawed off shotguns had been banned from use in WWI due their inhumane killing, cutting people literally in half, or slow agonizing deaths.. ban did not last tho, or perhaps adopted by only some countries; iirc correctly, Germany was for the ban.

[Straw Man]

23. Surely you're joking.

Thin men? Please. "Vital organs separated"? That's hardly cutting someone in half. Keep moving those goalposts.

The only pump shotgun then available were the Winchester Models 93 and 97. The US was the only army providing shotguns to its troops, and we certainly not selling them to Germany.

[doggie breath]

26. You need to read the history

The Germans in WWI were specifically protesting the Winchester Model 97 (also known as M97 or Model 1897) trench gun.
It was not a sawed off shotgun, it was a factory produced shotgun with a 20 inch barrel length and was adapted from the Model 97 riot shotgun, first produced in 1898. The military model did not come out until 1917 and had a heat shield and bayonet lug added.
One of the reasons was that the 97 could be slam fired and in a 6 + 1 loading could throw around 70 projectiles downstream as fast as you can rack the slide. (My personal best is under 2 seconds) Much more effective and easier to carry than a machine gun for trench warfare. If one person were to take the full 7 round discharge, they probably would be cut in half, but no one using a 97 to clear a trench would use it that way.

[jimmy the one]

10. miller explained (again)

Johnston: Miller simply ruled that a sawed off shotgun was not constitutionally protected because it (in their view) had no military value.

That's the gunlobby spin on it, the concoction fabricated by gunnuts as a clever way to tapdance around the 1939 miller decision. What you post above was the out of context 'lead in' to further remarks by the 1939 scotus, here is fuller context:

1939 scotus: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Cant you read? isn't it clear? isn't it clear that they weren't limiting their UNANIMOUS verdict to military weapons? & that's just a progun concoction to get around miller?

S_B_Jackson Miller didn't even go that far.... They could not "take judicial notice" because no evidence had been presented by either the prosecution or defense - So the DOJ offered a plea agreement to the remaining defendant for time served + 2 years probation, and Layton leaped at the opportunity to put this behind him and to walk away.

The technical denouement doesn't override what a unanimous (8-0) court wrote above anymore than if 5th circuits emerson got his guns back - had even ONE of those 1939 justices thought 2ndA an individual rkba they would've objected to the wording above, but not one did.

[gejohnston]

12. I can read just fine

but their unamimous finding was based on one argement, since there was no other. That is what they clarified. What they basically said was only military weapons are constituionally protected. The BoR is a set of negative rights, meaning it limits the govenment, not the individual. It does not give rights (since the founders, like most if not all of the Enlightenment thinkers, viewed those as "natural rights" or "God given" rights."
As origionally adopted, which as nothing to do with the 2A or any other amendment. The BoR were added to get the anti federalists on board.

[jimmy the one]

18. two faced bill of rights

johnston: The BoR is a set of negative rights, meaning it limits the govenment, not the individual. It does not give rights (since the founders .. viewed those as "natural rights" or "God given" rights."

America's bill of rights (BoR) is both a limitation on congress & a protection or assurance of personal rights (in 2ndA case, the personal right to belong to a well reg'd militia):

bill of rightsn. pl.bills of rights
1. A formal summary of those rights and liberties considered essential to a people or group of people:
2. Bill of Rights The first ten amendments to the US Constitution, added in 1791 to protect certain rights of citizens.
3. Bill of Rights A declaration of certain rights of subjects, enacted by the English Parliament in 1689

William Rawle in 1829 in his 'View of the Constitution' referred to the BoR as I put it above: OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS.
THE restrictions on the powers of congress contained in the original text are few. The general principle on which it is constructed being declared and manifest throughout, it follows that to no purpose inconsistent with or extending beyond that principle, can its power of legislation be carried.

Pertaining to 2ndA, Rawle wrote: In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
... In most of the countries of Europe, this right does not seem to be denied... This right ought not, however, in any government, to be abused to the disturbance of the public peace. http://www.constitution.org/wr/rawle_10.htm

Rawle's last sentence above cannot be viewed as merely a limitation on congress. He speaks of misusing the militia based right to bear arms.

[discntnt_irny_srcsm]

19. A simple reading...

...of the 2A contradicts that the RKBA is "...militia based...". The actual text says "...the right of the people...".
The distinction made between the two groups mentioned is not insignificant. The right mentioned in the BoR is possessed by "the people".

[discntnt_irny_srcsm]

28. How could it be logical...

...that "the common defense" is a valid use a firearm but personal defense would not be?

[discntnt_irny_srcsm]

7. Thanks for posting...

...and hope to see more of you.

No rights are absolute but the fact that everyone has rights must be respected. We must all be secure to act within our rights. It is for a jury to decide if crimes have occurred and, if guilt is found, fix a sentence which will likely interfere with the offenders right to liberty. I'm against the death penalty and, I suppose, that means IMHO, the right to life is absolute. It is the knowledge and exercise of our rights that demonstrate freedom. IMHO there is no other means to verify the existence of and respect for human rights.

"...the right to bear arms was not an inherent right of citizenship but rather a right that derived from service in the militia."

Without regard for who may claim or agree with the unfortunate notion published in the Times, it must be fundamental that rights are, as the founders expressed, innate in the character of humanity. The words of the Declaration...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

...express that rights do not derive from human contrivance or government authority. The Declaration explains that the principle role of government is the protection of those rights with equality and justice.

The very nature of a right expresses a protection due a person by government not a permission based on service to said government. Believing otherwise contradicts the basic nature of a right. The notion that citizenship is involved at all is highly unjust.

Just my thoughts.
Have a good day.

[Lizzie Poppet]

8. "a right that derived from service in the militia"

Not only has the Heller decision rendered this incorrect, but rather basic and obvious linguistic analysis also invalidates such an assertion. The RKBA is ascribed to "the People," not the militia.

[Eleanors38]

9. I appreciate the post. This editorial at least shows how the controller echo chamber works:

1) Assign a position to others which few hold; i.e, the Second is an unlimited right, then attack this barren plain.

2) Skirt Heller's finding that there is an individual RKBA, and go right back to discredited "militia clause" doctrine.

[krispos42]

20. Of course it's not unlimited

That does not mean that it can simply be regulated to any extent, in any aspect, without challenge.

NONE of the rights in the Constitution are unlimited. That does not mean that they can be rendered meaningless at the whim of the lawmakers.



What we're suppose to be doing, in my view, is we start from the point of an absolute right and then carefully reduce it only to the extent needed for a demonstrable benefit to public safety.

[beevul]

21. I would add...

I would add:

What we're suppose to be doing, in my view, is we start from the point of an absolute right and then carefully reduce it only to the extent needed for a demonstrable benefit to public safety, but only the least restrictive way, and only in cases where there is no other way.

[skj91]

24. And I would emphasize...

Exactly... the key phrase in that statement being "...to the extent needed for a demonstrable benefit to public safety,".

I can only interpret that to say that above all else, the benefit to public safety trumps any and all blanket protections of individuals' rights the very moment that a general threat to (and therefore, no longer to the benefit of) public safety is recognized. Does anyone else take that to mean or imply anything other than what I just suggested? Particularly when applied to cases in which the elevated danger to public safety is the direct result of affording and maintaining the protection of certain individual rights?

[blueridge3210]

25. Could you clarify what exactly you are trying to say? (nt)

[discntnt_irny_srcsm]

27. Some of the MSM...

...seem to be working on implying some completely false ideas as being beliefs of those they ideologically oppose. Isn't that kind of like when pro-RKBA folks say that the pro-control folks want to ban all guns?

[krispos42]

29. Some anti-gun folks want to ban all guns; it's been said here...

...although I suspect that, if pressed, they would probably make an exception for people that hunt, as part of a wildlife-conservation scheme.

Of course, the guns allowed would not be repeaters (break-action guns only, single and double barrels), registered, and stored at the local police station.

It's not a common point of view, but it's expressed as sort of a knee-jerk trolling effect, I guess.





But a large chunk of people who are anti-gun, I think, are either exhausted about reading and seeing shootings in the news and simply want much tighter controls over gun ownership and transfers.

There is an other large chunk who are uncomfortable with the idea of people owning guns that are optimized for self-defense (tactical use) because self-defense is one form of killing. They are relatively comfortable with "Fudd guns"; traditional-looking and operating hunting guns, but not comfortable with modern tactical guns like the AR-15 or AK-47. These people support "assault weapon" bans, magazine-capacity limits, and if the issue came up, would probably outlaw handguns as well.

There is a 3rd large chunk (and there is a fair amount of overlap between all three groups) for whom ownership of guns is a political choice that shows allegiance to conservatism, Republicanism, TeaBaggerism, racism, sexism, white privilege, Christian theocracy, etc. They see attacking the "fetish" of those people as a critical component of fighting and winning a culture war that would result in the large-scale rejection of gun ownership by the masses.


All three segments point to Great Britain and Australia as models of how to pass gun-control laws after horrific mass-shooting incidents. Those nations undertook policies that drastically limited the hardware available to gun owners, drastically complicated the process for buying and owning a gun, implemented gun registration, made gun ownership a privilege to be extended only for legitimate, proven purposes, and made the ownership of guns for self-defense an invalid reason to get the privilege.

[discntnt_irny_srcsm]

30. I think...

...those folks that want to ban all guns are a tiny minority. I can't think of more than a few here. Aren't they ideologically kind of analogous to but the inverse of those RWingers that view Ted Nugent as their hero?




BTW, haven't we learned anything from the Navy Yard shooter? A Fudd gun = whatever the cop you shoot is carrying.

[krispos42]

32. Absolutism is hard to find

So, yeah, ALL guns would be a tiny minority.

MOST guns? That's lots of people. The idea of combating "gun proliferation" would mean, necessarily, reducing either the number of gun owners and the number of guns per capita, probably both.

Now, if we make the assumption that anybody in the US who wants a gun has a gun, then we can see that, largely unaffected by regulation, the steady-state rate of gun ownership is about 36% of households, and about 900 guns per 1,000 people.

So, to address "proliferation", we would have to start severely curtailing new-gun sales to virtually zero while at the same time removing used guns from the market until some arbitrary target rate is reached.

So, there is a segment of DU that like to get the vapors and clutch their chests about the problem of "proliferation", but nobody seems to seriously think about freezing new-guns sales while removing (somehow) millions of guns per year from the hands of the general public.

Ted Nugent, I try to pretend he doesn't exist. It usually works.

[gejohnston]

31. ironic thing is

All three segments point to Great Britain and Australia as models of how to pass gun-control laws after horrific mass-shooting incidents. Those nations undertook policies that drastically limited the hardware available to gun owners, drastically complicated the process for buying and owning a gun, implemented gun registration, made gun ownership a privilege to be extended only for legitimate, proven purposes, and made the ownership of guns for self-defense an invalid reason to get the privilege.

That was generally the case before the mass shootings. Certainly true in UK, Australia varied by state.

[krispos42]

33. It's my understanding that after the Port Arthur Massacre, and the two shootings in Great Britain...

... basically anything that could fire more than four or five shots rapidly was outlawed or had to be permanently modified to limit capacity. Semi-auto guns as a class were banned, seized, and destroyed, as were handguns.

[gejohnston]

34. In Australia

semi autos and pumps are banned, but semi auto pistols are legal, but most states restricted them anyway. The buzz term for pistols among prohibitionists are "portable SMGs in 700K gloveboxes" which is nonsense. Can't keep a pistols in glove boxes and only target shooters and veterinarians can have semi auto pistols. Revolvers are a different issue.