Letters to the Editor
Xanthro
Published Letters: 522 Editor's Choice: 47
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Clarification.
[Read the article: Repeal the Second Amendment]
[Read more letters about this article: Here]If that's your stance, I'm not sure I understand what point you're trying to make here. Is this just an idle intellectual exercise for you?
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Partially an intellectual exercise, but the underlying legal issues are important. Historically, the Second Amendment has been interpreted protecting an individual right. A relatively modern argument is that it protects the National Guard. That’s what Weikuboy is arguing, despite the fact that National Guard did not exist for 100 years after our Constitution was adopted.
If the State can simply decide that “the right of the people” in the Second Amendment doesn’t apply to a person, then the State can decide that “the right of the people” in the First or Fourth Amendments. I’m not willing to stand aside and watch Constitutional protections of freedom of speech, assembly, petition, religion, press or unreasonable search and seizure be set aside because some people dislike firearms. If the Bill of Rights can simply be subject to the whim of politics and the meaning distorted to point of destruction, then we may as well not have a Bill of Rights.
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“Why would a gun control advocate bring a case before the courts?”
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Because some Gun Control laws are ruled unconstitutional. Legislative bodies constantly pass laws that do not pass Constitutional muster. It’s true that the first case is brought to court on the behalf of someone opposed to the law. If the law is ruled unconstitutional, then supporters of the law have the option to appeal to a higher Court. ======================================
“I don't get what you are saying about neither side wanting to end the debate because of all the money they are raking in. What money? I suppose if you have a very cynical view of politicians, you could argue that they gain more from the debate itself than from having the debate settled, but it's not politicians who bring cases to court. If you have an even more cynical view of lawyers you could claim that they are all violating their own ethics and simply bilking their clients and not really trying to win anything in court in order to keep the money flowing in, but I don't buy that at all - among many other reasons, why would their clients put up with it? And certainly the gun lobby has every financial incentive to actually win challenges against gun control laws, don't they?”
Unfortunately, neither side has incentive to actually settle the issue. Groups such as NRA-ILA, California Gun Owners Association, Hand Gun Control Inc receive millions of dollars in contributions each year. These organizations would cease to exist if there was no Gun Control debate, and organizations like to exist.
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I don't know what you mean by "standard model" but you seem to be saying that, yeah, no gun control opponent has ever successfully challenged a gun control law and gotten the Supreme Court to say -- well, whatever point you seem to be trying to make; I guess I'll know that better once you clarify -- but that doesn't mean they couldn't win if they really put their minds to it. It kind of reminds me of the person who says he can quit some habit any time he wants to, he just doesn't want to.
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The Standard Model refers to the Second Amendment as being an individual right, as opposed to the State Model which refers to the Second Amendment as being a State Right.
The Supreme Court has never directly ruled on the issue, though tangentially it has affirmed it is an individual right, such as UNITED STATES v. VERDUGO-URQUIDEZ. By tangentially, I mean the issue before the Court was not a direct ruling on the Second Amendment, but the Second Amendment was mentioned in a ruling.
Some people try to claim that Verdugo-Urquidez settles the issue, but because it was not a direct ruling, I do not consider the law settled.
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"I mean all this back and forth about militias and individual rights and whatnot seems pointless. If gun control laws are on the whole constitutional, as you seem to concede, does the legal nuance of why that is the case really matter? It seems like the only place to go from there is to look at individual laws and decide whether they are effective and good policy."
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The chasm between a protected right and a privilege is wide. Rights must be curbed in the least restrictive manner possible. Privileges can simply be taken away. In a Republican form of government, it’s not enough that the body politic think the law is effective and good policy. You can’t outlaw a religion, even if 99% of Americans were supported outlawing that particular religion, and even if it could be proved that there would be some benefit to the populace at large. This is because we cannot legitimately take away the rights of others.
This doesn’t mean a religion can do whatever it wants. You can’t have human sacrifice for example, but the State must make efforts to accommodate the religion. An example of this is the use of peyote among Native Americans. Peyote use is against Federal law, but some courts have ruled that an exemption must be made in the case of Native Americans.
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"What is the purpose of splitting legal hairs unless there is some actual relevance to the law? Laws on abortion are constantly being challenged in court, and some challenges are successful and some are not, but that doesn't seem to be the case with gun control laws, so the comparison appears to be a poor one."
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I used abortion as an example of a right that is constantly being challenged. Many States pass laws that unconstitutionally restrict abortion, and these laws are litigated before they can take affect. The same applies to gun control, and other rights.