The FAST Approaching Gun Ban

[broncofan]

But in fact there already exist mental health provisions making it illegal to sell guns on the following basis:

(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.
(b) The term shall include—
(1) A finding of insanity by a court in a criminal case; and

(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

Under the Obama rule, information from the Social Security Administration regarding mental disability benefits would be added to the National Instant Criminal Background Check database for use in firearm background checks.
http://www.snopes.com/congress-gun-legal-mental/

I did not know about these regulations but they are a bit procedurally weak in the sense that they require a determination by a court or commission. They are somewhat weaker in substance in that they require that a person is insane, lacks capacity, or has a condition that makes him a danger to himself or others (the last of which is useful but requires an individual determination). It is possible that someone has schizophrenia and would not necessarily meet this threshold. The hallmark of psychosis like schizophrenia is that someone has lost touch with reality in some way. We are wary of having people forfeit rights based on mental infirmities, but I think when it comes to handling dangerous weapons, the protections need to be more robust.

[Stavros]

It is difficult to implement a ban on weapon ownership based on mental illness because as you say it requires that the person has sought help or there's been some sort of intervention. If gun ownership is really important to people and it could be forfeited by seeking help, they may not do so which is a consequence worth considering. Those provisions are useful, and it's possible that states can pass their own restrictions.

So, as of right now, the second amendment allows people to own guns for self-defense, to potentially fight government tyranny, and to form a militia. .

Interesting points. If someone is aware that a person with a problem may have access to firearms, should they be morally obliged to inform on them where the law is lenient, and would the law prevent the person having access to lethal weapons? It is curious that morals are taken to be crucial in the conservative argument against abortion, should the same argument not apply to someone who, on a bad day, may take someone else's life, perhaps their own too?

Are you sure the Constitution gives someone the right to own firearms to potentially fight government tyranny? If the original fear was of another British invasion -as indeed happened in 1812- the absence of a standing army would justify the deployment of a militia, but did the founding fathers have such little faith 'in their own' that they agreed if 'they' stepped out of line, 'the people' could attack them militarily? I thought the whole point about the separation of powers and checks and balances within the system was designed to prevent tyranny. Has the inauguration of the .45 changed the rules?

[yosi]

Number of Americans killed by firearms since 1968 stands at 1,516,863 !
Source Richard Bacon. Works for BBC & lives in LA

[Aticus100]

Number of Americans killed by firearms since 1968 stands at 1,516,863 !
Source Richard Bacon. Works for BBC & lives in LA

Essentially meaning that the NRA have been hundreds of times more successful at killing Americans than Al-queda, The Taliban, ISIL, etc all put together.

God bless them and their god given right to kill them selves and each other more effectively than terrorists ever could. (I was tempted to add a Yee-hah, but didn’t want to appear offensive)

[broncofan]

Are you sure the Constitution gives someone the right to own firearms to potentially fight government tyranny?

I'm not sure. Here is the quote I was basing that statement on from the intermediate court's decision in Heller, saying that the right to bear arms is "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)."

I assumed this was part of the basis of Scalia's opinion since he agreed with the intermediate court on the outcome. I will take a look in the next day or so to see if the Supreme Court adopted this reasoning as well.

[broncofan]

I assumed this was part of the basis of Scalia's opinion since he agreed with the intermediate court on the outcome. I will take a look in the next day or so to see if the Supreme Court adopted this reasoning as well.

Scalia's opinion indicates that the right to bear arms is one that extends beyond an organized militia and can be used for personal defense. At one point he seems to indicate that if it only applied to an "organized militia" then it could not protect against tyranny, which does not even achieve the purpose that prompted the second amendment's codification. In other words, a militia that requires express authority from Congress is not really the kind of people's militia the founding generation was concerned with.

Dispiriting I know. And remember not necessarily the correct opinion, but his opinion.

Here is an excerpt from his opinion:

Besides ignoring the historical reality that the SecondA mendment was not intended to lay down a “novel principl[e]”
but rather codified a right “inherited from our
English ancestors,” Robertson v. Baldwin, 165 U. S. 275,
281 (1897), petitioners’ interpretation does not even
achieve the narrower purpose that prompted codification
of the right. If, as they believe, the Second Amendment
right is no more than the right to keep and use weapons as
a member of an organized militia, see Brief for Petititioners
8—if, that is, the organized militia is the sole institu tional beneficiary of the Second Amendment’s guarantee—it does not assure the existence of a “citizens’ militia” as a
safeguard against tyranny. For Congress retains plenary
authority to organize the militia, which must include the
authority to say who will belong to the organized force.17
That is why the first Militia Act’s requirement that only
whites enroll caused States to amend their militia laws to
exclude free blacks. See Siegel, The Federal Government’s
Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev.
477, 521–525 (1998. Thus, if petitioners are correct, the
Second Amendment protects citizens’ right to use a gun in
an organization from which Congress has plenary authority
to exclude them. It guarantees a select militia of the
sort the Stuart kings found useful, but not the people’s
militia that was the concern of the founding generation.

[filghy2]

Are you sure the Constitution gives someone the right to own firearms to potentially fight government tyranny? If the original fear was of another British invasion -as indeed happened in 1812- the absence of a standing army would justify the deployment of a militia, but did the founding fathers have such little faith 'in their own' that they agreed if 'they' stepped out of line, 'the people' could attack them militarily? I thought the whole point about the separation of powers and checks and balances within the system was designed to prevent tyranny. Has the inauguration of the .45 changed the rules?

The U. S. Constitution, Article 1, Section 8, states:

“The Congress shall have Power ... To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

Many of the founding fathers were wary of standing armies, which they saw as a potential instrument for military dictatorship. What I find interesting is that the 2nd amendment says "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", yet it's generally interpreted nowadays in way that completely ignores the first half of the sentence.

Ironically, the US has ended up with both a large standing army and lots of arms in private hands, but certainly not "well-regulated". I'm sure the founding fathers would have regarded that as the worst of both worlds,

[Stavros]

Scalia's opinion indicates that the right to bear arms is one that extends beyond an organized militia and can be used for personal defense. At one point he seems to indicate that if it only applied to an "organized militia" then it could not protect against tyranny, which does not even achieve the purpose that prompted the second amendment's codification. In other words, a militia that requires express authority from Congress is not really the kind of people's militia the founding generation was concerned with.
Dispiriting I know. And remember not necessarily the correct opinion, but his opinion.

Although I thank you for the opinion, I am still confused by Scalia's interpretation of the Constitution.

In the first place, I am surprised that he would argue the roots of the 2nd Amendment "codified a right “inherited from our English ancestors,” and in particular "It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation."
The Stuart Kings and Queens did not create a standing army, but relied on the Earls and Dukes of the Kingdom to raise the armed forces as and when they were required. Although young farmers might welcome the 'adventure' of war/battle as a exciting break from the tedium of farm labour, they had no choice in the matter, other than specific causes, these were not voluntary militias and if they were in the earlier Wars of the Roses, the outcome was devastated communities in both Lancashire and Yorkshire. Britain did not begin to organize an army until Cromwell and Fairfax created the New Model Army that defeated Charles I and became the template for the British Army that Charles II embarked on later in the 17th century.

Surely the whole point of the American argument is that the militia be a spontaneous and voluntary group of armed men and women? I just don't see where the Stuart angle is relevant, except as how not to do it.

Again, I am not sure what it is we are talking about when the word tyranny is used. I assume the original meaning referred to the tyranny of the British Crown and its desire to either roll back the revolution or at least punish the Americas for going it alone and, in the case of the Canadian wars, preventing Americans from denying the Crown its sovereign rights north of the border.

It becomes more problematic in the contemporary age where the 2nd Amendment gives to individuals the right to own weapons they could use as a militia when confronting the US Federal Government, claiming that IT is a tyrannical force in the USA. One could I assume argue that the Branch Davidians in Waco stockpiled weapons to defend themselves against what they saw was a tyrannical government seeking to intervene in their private affairs-? And I assume the Bundy Clan could, by designating the 'Feds' to be a tyranny, claim their right to arm a militia to 'liberate' Oregon -? The objective standard by which one judges a government to be a tyranny could be established by a perusal of election results, and one cannot dismiss a government as 'tyrannical' just because one's party lost the election. But if this settles the argument that only Congress can assemble or give legal right to the formation of a Militia, it does not settle the vexing issue of individuals, who by definition are not a militia, nor does it touch upon the precise question of what sort of weapons an individual should be allowed to purchase freely.

I feel, as I have stated elsewhere, that a Constitutional right is being conflated with the implementation of the right, and that by dismissing attempts to control the purchase of specific weapons -semi-automatic rifles with or without add-ons- as a threat to Constitutional rights, organizations like the NRA are impeding attempts to improve public safety. As has been shown, when it wanted to, the NRA supported State and Federal laws limiting gun ownership or the right to publicly carry them, so this near religious fidelity to the 2nd Amendment is bogus. What I see here is not a debate on public safety, but part of the wider debate that has engulfed the USA since the Civil Rights movement of the 1960s. It is about 'Our America' and 'Their America' in which the ownership of guns becomes welded to the playing of the National Anthem at football games, not just standing, but standing and placing your hand over your heart as you sing, and so on.

But when six year old's massacred at school are dismissed as if they were 'collateral damage' then you wonder if 'their America' is worthy of the praise they claim for it, indeed, demand.

[broncofan]

Although I thank you for the opinion, I am still confused by Scalia's interpretation of the Constitution.

In the first place, I am surprised that he would argue the roots of the 2nd Amendment "codified a right “inherited from our English ancestors,” and in particular "It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation."
.

I actually think that these two provisions of Scalia's opinion contradict each other. If Scalia acknowledges that the 2nd amendment only codified a right that already existed in England and is not something newly established by the American founders, then how can that right be re-purposed based on the revolutionary aims of the colonists? Legal commentators believe Scalia is saying this right is a right to have weapons in case insurrection were ever justified.

But he does not explain how the English right entailed anything of the sort...Scalia was probably far too much of a xenophobe to actually consult an English historian to answer this question and instead resorts to a method of interpretation that requires him to analyze information extrinsic to the Constitution and far outside his competence. But did the English have a right to bear arms that was essentially a charter for insurrection against their own government?

As you say above, it's completely inconsistent with the aims of our form of government, which has institutional safeguards that are designed to protect against tyranny in ways that are much more effective than guns. Separation of powers, the power of judicial review, impeachment process, and federalism are all embodied in our Constitution and make such a right obsolete. How can a document that establishes a nation of laws include a provision that seems designed to overturn that order?

Personally, I think the best interpretation of the second amendment is that the prefatory clause Filghy mentions in his post is intended to state a purpose for which that right exists. It is a limit or a parameter for the right to bear arms and not something general to be ignored. Scalia treats it as a floor (or as something to be disregarded), when it might be the only purpose for which the second amendment exists.

Anyhow, at least Scalia's opinion seems to say that the right to have weapons for either an organized militia or alternatively a citizen's militia does not include the right to have military style weapons. It only allows people to purchase weapons that are commonly owned, which is a somewhat circular standard since the legislature can fix what is commonly owned by banning everything not commonly owned at this point, like automatic weapons and assault weapons. I wonder what would happen if the legislature waited until ar-15s were commonly owned household items....then their prohibition would be barred by Scalia's interpretation.

[Stavros]

If we can agree that there are existing mechanisms in the US political system that make tyranny difficult to achieve, the deeper question over gun rights must relate to the rights not of the individual but the State, by which I mean in the US context both Federal and State authorities. When RedVex challenged my definition of the state as having the legitimate monopoly of violence, she did so in (I assume) a libertarian context where the State is the problem and the Individual the solution, so the logic of owning a gun is the outcome of a free person living in a State which no longer constrains his or her freedom.

But the point I was trying to make, one derived from common sense, as well as Hobbes, Locke, Weber and others (whom she appears to dismiss as irrelevant), is that the modern state exists as a functioning structure and whether or not one approves of extent of state power, the alternative would be anarchy, if there is no justification for the State to defend citizens who can defend themselves, no need for laws when people can make agreements among themselves, and no justification for taxation, which is immoral and simply theft. But for me and most others, I believe, the justification for the modern state is that it should benefis the people who live in it, at least as an ideal project (no state is perfect and most of the daily politics is focused on good and bad management).

And, just as crucial, it is because it is the agencies of the state that protect the public from random or organized violence, that it provides a system of justice and law enforcement. In that context, an armed militia can not be justified, and, indeed, its presence, would challenge the right of the state to be the sole source of legitimate violence, a legitimacy it derives from the process of democracy. Thus, by extension, there can be no justification for a citizen to own a weapon of any kind, as every citizen has the right of protection by the state, and in addition, also has the right to be protected from the State. It may true that these arrangements don't work perfectly, but the basic principle is sound.

A good example of what happens when an armed militia challenges the authority of the State is the US Civil War, in which a fair proportion of people in the South became anti-American to the extent that they no longer wished to be part of the Union and were prepared to fight for their independence. Clearly this marked a breakdown in US politics, and it might be argued that having seceded from the Union, the Confederacy was no longer bound by the Constitution, but the secession was not recognized by the rest of the US which continued to believe the southern States were indeed part of the Union and should remain so.

The point is that a Constitutional provision for an armed militia is based on a scenario where the authority of the State is under threat, it was not intended to give citizens the right to bear arms if this resulted in an armed militia or even a citizen undermining or even threatening the rule of law and thus, by extension, the State -this would be an attack on the USA, not the defence of it. Zimmerman's murder of Trayvon Martin is a clear example of a citizen who repudiated the existing authority of local enforcement to impose it himself, while the Branch Davidians and the Bundy Clan by arming themselves with substantial weapons either took on, or threatened to take on the legitimate forces of the State. The Constitution might have had in mind an armed militia fighting the British attempting to overthrow the independent government of the USA, it can only thus exist today to serve a hypothetical scenario in which local law enforcement has broken down, which seems unlikely, or local law enforcement joins a revival of the Confederacy which would make its actions anti-American and illegal, which means incidentally that it must surely be anti-American to display in public the Battle Flag of the Confederate Army?

The 2nd Amendment was designed to protect the USA and its citizens, it appears now to have become a threat to citizens, and the authority of the State. It should be repealed, and a round-up or amnesty of weapons take place across the USA as a celebration of democracy and the freedom of the individual. The National Rifle Association is a terrorist organization and should be banned.