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Self-defense and gun ownership

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  • Self-defense and gun ownership

    Second Amendment advocates implicitly argue that it's wrong to deprive people of a proper means of self-defense. And that a proper means of self-defense in a society with any form of government requires the use of firearms because if that government were to become tyrannical there is the threat of civil violence through the public's damaging use of firearms. The right to bear arms then keeps the government in check, robbing them of an incentive to dip into tyranny via the threat of public militias.

    ​​​​​​The argument, then, isn't just for personal self defense, but national self defense against civil tyranny.

    Any opinions on this argument? Arguments for and against the Second Amendment have always been in my peripheral interests.

  • #2
    I think, practically speaking, the argument is wildly off base. A gun is a good method of self-defense against other individuals of roughly the same skill at using that gun. It's rather ineffective against squads of well-trained, professional warriors. Let alone the insanely destructive non-conventional weapons the government has--chemical and biological weapons, tanks, the technological capability to track your every movement and non-face to face conversations, the ability to shut off power grids and water supplies, the ability to manipulate or destroy our wildly un-diverse food sources (read "cornfields"), etc. It's a frighetening fact of modern industrial societies that the average individual can't produce his own food, acquire energy sources, or fix most common tools that are depended on for normal life--engines, cooling units in refrigerators or freezers, integrated cuircit chips found in electronics--let alone produce new ones. The government could render 90% of the population helpless without using a single bullet or being within reach of your bullets.

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    • #3
      I'm in favor of (reasonable) gun rights, but I find the appeals to the Second Amendment to be bizarre in the extreme. The right is safeguarded in the Bill of Rights specifically because of the existence of the colonial militia and the need for its members to be armed--it has nothing to do with personal safety and the rights of the individual, and everything to do with eighteenth century national security issues. This is explicit in the wording of the Amendment: "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." I think it's an abuse of the meaning of the text to argue that these militias were intended to be used against the government, since the whole point was the government being able to raise armies at need.

      I also agree with Brian concerning the absurdity of claiming that private gun ownership could serve as a check against a tyrannical government, given the types of weapons that modern militaries possess.
      Last edited by Hypatia; 08-10-2019, 12:02 AM.

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      • #4
        I agree that it's silly to think even a massive union of well formed public militias could stand toe to toe with a tyrannical government. The argument, however, isn't concerned with the public being able to stand toe to toe with the government. From what I understand, pro gun people are arguing that a government would be less likely to become tyrannical if the public brandished firearms even in a losing battle. I guess an analogy would be this: a thief with a firearm would be more likely to pilfer the house of someone without a hatchet at his bedside than someone who does keep a hatchet at his bedside. Even though a firearm is incredibly more lethal than a hatchet, the hatchet still can do harm, and the thief would rather not risk the damage.

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        • #5
          Hmm, I am not convinced. Historically, the threat of uprisings doesn't seem to have prevented governments from being absolutist--the key seems to generally be separation of powers, whether between branches of government, between a king and a powerful nobility, or other models. In any case, if a government were to actually become tyrannical in this day and age, it would probably also be with the backing of considerable populist support, so the argument strikes me as doubly problematic. Rather than an armed civilian force standing against a tyrannical government, you could easily end up with the tyranny of an armed majority.

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          • #6
            Originally posted by Hypatia View Post
            The right is safeguarded in the Bill of Rights specifically because of the existence of the colonial militia and the need for its members to be armed--it has nothing to do with personal safety and the rights of the individual, and everything to do with eighteenth century national security issues. This is explicit in the wording of the Amendment: "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." I think it's an abuse of the meaning of the text to argue that these militias were intended to be used against the government, since the whole point was the government being able to raise armies at need.
            I don't see any tension here and rather think that the text suggests the opposite. The colonial militia itself was used to rebel against the British government and found a new one, and this was, needless to say, fresh in early Americans' minds. The Second Amendment does not establish a right for the government to maintain a militia; it establishes the right of the people to bear arms. I don't think it's at all a stretch to think that the possibility is being entertained of a militia's being employed against a tyrannical government. This is in keeping with the point of the entire Bill of Rights, which is consistently to explicitly reserve rights to the individual states and to the people against the federal government. None of the first ten amendments are in the business of securing rights for the federal government, to raise an army or to do anything else.

            The amendment itself has two parts, the first part essentially making a claim about the necessity of a militia for keeping a state secure, and the second establishing the right of the people to bear arms. It's a bit of an odd situation because I agree that the claim made by the first portion is not true. That citizens are armed and may form a militia is neither necessary nor sufficient for protection from tyranny. In a given situation a militia may or may not be enough. Understandably the revolutionaries were more inclined to think a militia would be likely to be enough. The prospects are pretty dim today, and it is hard to imagine that any group in the United States could rebel against the country and not look like a collection of fringe nutjobs, even to those who are in sympathy with their concerns.

            Still, I don't think it can fairly be said that the right the amendment guarantees is conditional upon the truth of the first claim. It simply makes the claim and establishes the right. Proponents of the Second Amendment are not committed to employing such arguments.

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            • #7
              Originally posted by Greg View Post
              I don't see any tension here and rather think that the text suggests the opposite. The colonial militia itself was used to rebel against the British government and found a new one, and this was, needless to say, fresh in early Americans' minds. The Second Amendment does not establish a right for the government to maintain a militia; it establishes the right of the people to bear arms. I don't think it's at all a stretch to think that the possibility is being entertained of a militia's being employed against a tyrannical government. This is in keeping with the point of the entire Bill of Rights, which is consistently to explicitly reserve rights to the individual states and to the people against the federal government. None of the first ten amendments are in the business of securing rights for the federal government, to raise an army or to do anything else.

              The amendment itself has two parts, the first part essentially making a claim about the necessity of a militia for keeping a state secure, and the second establishing the right of the people to bear arms. It's a bit of an odd situation because I agree that the claim made by the first portion is not true. That citizens are armed and may form a militia is neither necessary nor sufficient for protection from tyranny. In a given situation a militia may or may not be enough. Understandably the revolutionaries were more inclined to think a militia would be likely to be enough. The prospects are pretty dim today, and it is hard to imagine that any group in the United States could rebel against the country and not look like a collection of fringe nutjobs, even to those who are in sympathy with their concerns.

              Still, I don't think it can fairly be said that the right the amendment guarantees is conditional upon the truth of the first claim. It simply makes the claim and establishes the right. Proponents of the Second Amendment are not committed to employing such arguments.
              Hmm. On second thought, it's probably a bit too complicated to assign any one motive to the drafters of the Bill of Rights, since they would all have had different concerns. I'm thinking more along the lines of potential invasion by one of the European powers, or even border conflicts with the Native Americans which would require states to be able to act in their own defense without the need for the federal government. What you are saying is a pretty plausible motivation as well, though, given anti-federalist sentiment. It was probably a mixed bag.

              I do agree that proponents of the Second Amendment do not have to make this sort of argument, though I think the situation is much trickier for those who are also committed to originalism.

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              • #8
                Originally posted by Hypatia View Post
                Hmm. On second thought, it's probably a bit too complicated to assign any one motive to the drafters of the Bill of Rights, since they would all have had different concerns. I'm thinking more along the lines of potential invasion by one of the European powers, or even border conflicts with the Native Americans which would require states to be able to act in their own defense without the need for the federal government. What you are saying is a pretty plausible motivation as well, though, given anti-federalist sentiment. It was probably a mixed bag.

                I do agree that proponents of the Second Amendment do not have to make this sort of argument, though I think the situation is much trickier for those who are also committed to originalism.
                It is trickier for originalists who think original intent should be decisive, but most originalists (most notably Scalia) believe that it should rather be original public meaning. The law should interpret the Constitution as people would have understood it at its ratification (its amendments at their ratifications). What the drafters intended to accomplish by such and such is neither here nor there.

                There is a reason this is the more common form of originalism, in that it is much more reasonable. To be sure, there are problems as regards ascertaining what the original public meaning of some text was at the time of its publication, as there are problems as regards interpreting any text whose author we cannot question further, and an old text will leave some contemporary questions unsettled. But less easily knowable still are the intentions of the authors (which might diverge, anyway, as you note). It is also not clear we should care what the original intent was, even if we could discover it. (Someone may have introduced an innocent measure with an aim of preserving the institution of slavery. Why should that have anything to do with the application of that measure today?)

                And original public meaning is a style of constitutional interpretation suited to let a constitution accomplish what it is supposed to accomplish. A constitution is supposed to help establish rule of law and prevent people (including those who drafted it) from applying the law inconsistently. That the significance of the law is fixed independently of what they thought it would do is necessary for it to serve that function. For a constitution to secure rule of law, it has to tie our hands in unforeseen circumstances and prevent some of us from doing what we otherwise would try to do.

                So I think originalists/textualists who support the Second Amendment are on pretty solid ground. The founders may have thought that it would provide for citizen militias who could defend against, say, rival powers. They may have thought that their experiment would work well enough that it would never have crossed their mind to think citizen militias might defend the people against the federal government (though I doubt that--the whole point of the balance of powers established by the Constitution is the founders' incessant fear that the government would become tyrannical, as they thought every prior government tended to do). It is still not very doubtful at all that the Second Amendment simply reserves a right to ordinary people to bear arms. (I don't even think the point that "arms" today are rather different from what they were 200 years ago suggests that they are excluded from the amendment's purview. That is not to say that there are no originalist grounds to placing any restriction on possession of firearms. One's right to bear arms might not be infringed even if there are some firearms one is not permitted to buy, or some people deemed unfit to purchase firearms.)
                Last edited by Greg; 08-28-2019, 06:05 PM.

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                • #9
                  Originally posted by Greg View Post
                  It is trickier for originalists who think original intent should be decisive, but most originalists (most notably Scalia) believe that it should rather be original public meaning. The law should interpret the Constitution as people would have understood it at its ratification (its amendments at their ratifications). What the drafters intended to accomplish by such and such is neither here nor there.

                  There is a reason this is the more common form of originalism, in that it is much more reasonable. To be sure, there are problems as regards ascertaining what the original public meaning of some text was at the time of its publication, as there are problems as regards interpreting any text whose author we cannot question further, and an old text will leave some contemporary questions unsettled. But less easily knowable still are the intentions of the authors (which might diverge, anyway, as you note). It is also not clear we should care what the original intent was, even if we could discover it. (Someone may have introduced an innocent measure with an aim of preserving the institution of slavery. Why should that have anything to do with the application of that measure today?)

                  And original public meaning is a style of constitutional interpretation suited to let a constitution accomplish what it is supposed to accomplish. A constitution is supposed to help establish rule of law and prevent people (including those who drafted it) from applying the law inconsistently. That the significance of the law is fixed independently of what they thought it would do is necessary for it to serve that function. For a constitution to secure rule of law, it has to tie our hands in unforeseen circumstances and prevent some of us from doing what we otherwise would try to do.

                  So I think originalists/textualists who support the Second Amendment are on pretty solid ground. The founders may have thought that it would provide for citizen militias who could defend against, say, rival powers. They may have thought that their experiment would work well enough that it would never have crossed their mind to think citizen militias might defend the people against the federal government (though I doubt that--the whole point of the balance of powers established by the Constitution is the founders' incessant fear that the government would become tyrannical, as they thought every prior government tended to do). It is still not very doubtful at all that the Second Amendment simply reserves a right to ordinary people to bear arms. (I don't even think the point that "arms" today are rather different from what they were 200 years ago suggests that they are excluded from the amendment's purview. That is not to say that there are no originalist grounds to placing any restriction on possession of firearms. One's right to bear arms might not be infringed even if there are some firearms one is not permitted to buy, or some people deemed unfit to purchase firearms.)
                  I should probably be less vague if I'm going to make potentially controversial comments.

                  My point was that proponents of the Second Amendment who are also originalists do need to approach the question from an 18th century perspective, and thus do need to make the type of argument that is under review here. They do not really have the luxury of treating the Second Amendment like a matter of private rather than public security, since the original public meaning was in fact tied to the functioning of a militia. They do need to figure out how the original public meaning can apply to modern situations, and I think are barred from using some of the more powerful arguments in favor of gun rights by virtue of the restrictions they place upon themselves.

                  To put my own cards on the table, I am a proponent of the Second Amendment (though I do favor an assault weapon ban). I am not an originalist--in fact, I'm not even sure that originalism is coherent, due to the way the context of the Fourteenth Amendment transforms our understanding of how constitutional rights are to be applied. Can we view something like the Fifth Amendment right to due process independently of the 19th century public meaning of the term? I would say no, so I don't see how it's possible to view the Constitution as unchanging and frozen in time when major social upheavals are actually enshrined within it.

                  Judicial activism is a separate issue, I think. I'm no longer sure where I stand on that, since I've always revered the Warren Court, but I'm beginning to see what Sandra Day O'Connor meant when she said that legislating on contentious social issues from the bench only cuts off the type of national discussion that needs to be taking place.

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                  • #10
                    Originally posted by Hypatia View Post
                    My point was that proponents of the Second Amendment who are also originalists do need to approach the question from an 18th century perspective, and thus do need to make the type of argument that is under review here. They do not really have the luxury of treating the Second Amendment like a matter of private rather than public security, since the original public meaning was in fact tied to the functioning of a militia.
                    The bolded seems false to me. As I said, the Second Amendment has two parts, and though the first mentions militias, the second, rights-conferring portion is apparently logically independent of the first. That is to say, the Second Amendment does not make the conferral of the right to bear arms conditional upon the truth of the first part. And the second part does not contain any distinction between private and public: "the right of the people to keep and bear arms shall not be infringed." Honestly, the identification of the right as a right "of the people" indicates if anything that it is a private right to keep and bear arms, with an anticipated public use. It's not plausible to maintain, I think, that what "the right of the people to keep and bear arms" meant 200 years ago was what we now would understand by "the right of the people to keep and bear arms for use in a public militia". The meaning of those words has actually been pretty stable. The "tie" of the words to the functioning of militia seems to be a clear case of the intent of the framers, if even that, as distinguished from their meaning.

                    Originally posted by Hypatia View Post
                    To put my own cards on the table, I am a proponent of the Second Amendment (though I do favor an assault weapon ban). I am not an originalist--in fact, I'm not even sure that originalism is coherent, due to the way the context of the Fourteenth Amendment transforms our understanding of how constitutional rights are to be applied. Can we view something like the Fifth Amendment right to due process independently of the 19th century public meaning of the term? I would say no, so I don't see how it's possible to view the Constitution as unchanging and frozen in time when major social upheavals are actually enshrined within it.
                    I find it hard to imagine what alternative there could be to a certain form of originalism. That the law has to be interpreted according to what it meant when it was established strikes me as a truism. The change in meaning of words over time is arbitrary. If it is arbitrary to be bound by the past, it is still more arbitrary to be bound by a past sentence taken out of context. There are cases which old laws do not foresee, and there are cases which it did foresee but which we now think differently about. Those are cases, I think, where Americans should change the law, not project new meaning onto old laws. I actually don't really understand the alternative if rule of law is desirable.

                    There are definitely epistemic difficulties with originalism. There are also some genuine hard cases. As I mentioned, though our weapons are different today, I don't think the Americans who ratified the Second Amendment would fail to recognize them as "arms." But the ban on "cruel and unusual punishments" need not, I think, be tied to 18th-century standards of cruelty and unusualness. That is to say, we are not deviating from what it meant for a punishment to be cruel and unusual for them, but we might not agree with them as to what is cruel and unusual. So the fact that Americans did not then regard the death penalty as cruel and unusual does not show that it is not cruel and unusual. It is hard to draw the line between the two cases. That is not a theoretical problem for originalism, but it calls for caution in applying it. It is a serious issue, I think, and it comes to a head especially in those amendments where "rights" are mentioned, for the question becomes one of what sort of case it is, and whether we may read the rights we (or some of us) now acknowledge into the Constitution.

                    As far as judicial activism is concerned... I simply think that we have three branches of government, and the legislative is distinct from the judiciary. When the Supreme Court is effectively legislating, and when judgments of expediency play a fundamental role in constitutional interpretation, that is a failure of our judicial system, quite apart from its consequences for the country, which are indeed bad. In general, there are good reasons for separating out procedure and substance, and the tendency of the last several decades has been to completely subordinate the court to substantive political ends, and treat the procedures of the court just as the framework to do so, unless one can get away with setting them aside. It is no surprise that people go bonkers over the court when it acts as a legislature with unelected, lifetime appointments.
                    Last edited by Greg; 08-29-2019, 06:04 PM.

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                    • #11
                      Originally posted by Greg View Post
                      The bolded seems false to me. As I said, the Second Amendment has two parts, and though the first mentions militias, the second, rights-conferring portion is apparently logically independent of the first. That is to say, the Second Amendment does not make the conferral of the right to bear arms conditional upon the truth of the first part. And the second part does not contain any distinction between private and public: "the right of the people to keep and bear arms shall not be infringed." Honestly, the identification of the right as a right "of the people" indicates if anything that it is a private right to keep and bear arms, with an anticipated public use. It's not plausible to maintain, I think, that what "the right of the people to keep and bear arms" meant 200 years ago was what we now would understand by "the right of the people to keep and bear arms for use in a public militia". The meaning of those words has actually been pretty stable. The "tie" of the words to the functioning of militia seems to be a clear case of the intent of the framers, if even that, as distinguished from their meaning.
                      My head is full of Greek participles right now, so I may not be interpreting things in a modern English fashion, but I don't see the two clauses as logically independent. If there was no intention for the second clause to be read in light of the first one, the framers could have left it out entirely. They did not, so it seems too important for an originalist to get away with omitting from consideration altogether.

                      Originally posted by Greg View Post
                      I find it hard to imagine what alternative there could be to a certain form of originalism. That the law has to be interpreted according to what it meant when it was established strikes me as a truism. The change in meaning of words over time is arbitrary. If it is arbitrary to be bound by the past, it is still more arbitrary to be bound by a past sentence taken out of context. There are cases which old laws do not foresee, and there are cases which it did foresee but which we now think differently about. Those are cases, I think, where Americans should change the law, not project new meaning onto old laws. I actually don't really understand the alternative if rule of law is desirable.
                      I agree in part, though I think interpreting the Bill of Rights is much trickier than interpreting normal legislation, simply because it is more an attempted codification of Enlightenment ideals than anything else. These are not laws, per se, but more a motor for keeping the government from infringing upon citizens' liberties. Even the Ninth Amendment spells trouble for attempts to limit these rights to what is specifically written out.

                      I think it's also worth pointing out that common law systems are fairly organic in general, so constitutional law being a somewhat more flexible system based on precedents and guiding principles really does make more sense to me than the alternatives.

                      Originally posted by Greg View Post
                      There are definitely epistemic difficulties with originalism. There are also some genuine hard cases. As I mentioned, though our weapons are different today, I don't think the Americans who ratified the Second Amendment would fail to recognize them as "arms." But the ban on "cruel and unusual punishments" need not, I think, be tied to 18th-century standards of cruelty and unusualness. That is to say, we are not deviating from what it meant for a punishment to be cruel and unusual for them, but we might not agree with them as to what is cruel and unusual. So the fact that Americans did not then regard the death penalty as cruel and unusual does not show that it is not cruel and unusual. It is hard to draw the line between the two cases. That is not a theoretical problem for originalism, but it calls for caution in applying it. It is a serious issue, I think, and it comes to a head especially in those amendments where "rights" are mentioned, for the question becomes one of what sort of case it is, and whether we may read the rights we (or some of us) now acknowledge into the Constitution.
                      I'm honestly not sure if there are that many constitutional cases that don't pose genuine difficulties for originalism, just given how different the modern world is from the colonial one. The problem is usually not that people are interpreting the Constitution in a completely different fashion, but that the types of situations that arise are so far outside of anything that would have been imagined in the colonial era that all people end up doing with an originalist analysis is projecting whatever ideas they already have onto 18th century society.

                      Originally posted by Greg View Post
                      As far as judicial activism is concerned... I simply think that we have three branches of government, and the legislative is distinct from the judiciary. When the Supreme Court is effectively legislating, and when judgments of expediency play a fundamental role in constitutional interpretation, that is a failure of our judicial system, quite apart from its consequences for the country, which are indeed bad. In general, there are good reasons for separating out procedure and substance, and the tendency of the last several decades has been to completely subordinate the court to substantive political ends, and treat the procedures of the court just as the framework to do so, unless one can get away with setting them aside. It is no surprise that people go bonkers over the court when it acts as a legislature with unelected, lifetime appointments.
                      I would agree with your assessment of the current situation, but I think that there's historically more to judicial activism than political maneuvering. I had in mind the Warren Court of the 50s and 60s rather than the more modern version, which seems to have been subordinated to ethical rather than political principles. If the role of the judiciary is in part to uphold the rights of the individual against the government, then I find it hard to argue against a decision like Brown v. Board, which puts us right at the heart of the debate over judicial activism.

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