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barking_iguanaCross-posted from Blue Jersey
First, let me get everyone mad at me.
The Bill of Rights was passed during an unusual time in history. The strength of a military is a combination of the number of soldiers (and sailors, etc.) in it, the training those soldiers have undergone, and the expensive tools of war given to them to use. In the age of muskets (and to some extent until the development of rugged machine guns) the relative value of men was much higher than usual, with the value of the money that went into training and material being correspondingly comparatively lower.
Under those conditions, an armed populace was a powerfully democratizing force. It is much less so now.
If we took "arms" to mean anything which countries keep as weapons, then we'd have someone developing Alzheimer's or schizophrenia set off their private nuke just often enough so that we'd have no people at all, and therefore no democracy.
Instead we limit "arms" to those things that allow one person to kill one other person at a time, which was the essence of the democratizing musket. That gets half a loaf in the sovereignty bakery. The population can still make itself virtually impossible to govern, but it cannot impose its will in forming its own government that runs contrary to the wishes of a better equipped force. Nor can it prevent itself from being annihilated.
Of course there's also a cost to an armed populace. And with modern guns, the cost is much more than the founders encountered. Guns now fire several rounds per second, rather than something on the order of one per minute. It used to be that if you needed to fire more than one shot, you'd better have an army to back you up, so that yours wasn't the only bayonet. Until recently, fists and knives were both better weapons than guns in a crowd.
So the cost:benefit ratio of the 2nd Amendment is vastly worse than it was 220 years ago. But it is still on the books. If we don't want to abide by it, we should amend the Constitution, rather than undermining the Constitution by pretending it says whatever we want it to say.
Furthermore the 14th Amendment was written with the clear intent and meaning of extending all the protection in the Bill of Rights (as well as other protections) to those whose rights were infringed upon by individual states, rather than only by the federal government. In the racial backlash that followed Reconstruction, the Court refused to recognize the 14th Amendment for what it was. That outrage has largely been fixed (though its effects are still with us mightily in their effect on the racial character of our country) through the gradual "incorporation" of most of the rights into the understanding of the 14th Amendment.
The present ruling currently only applies to the federal government, and therefore to the District of Columbia, which is administered under license from the federal government. But now that the 2nd Amendment is correctly understood as an individual right (however anachronistic the underlying reason), the court should not repeat its 19th Century mistake of saying that the sates may infringe on the right when the federal government may not. And I don't think the Court will make that mistake, either.
Here's where New Jersey gun laws stand now.
First, let me get everyone mad at me.
- Banning handguns in urban areas would be a very good idea.
- The conservatives on the Court are absolutely right that such a ban is unconstitutional.
The Bill of Rights was passed during an unusual time in history. The strength of a military is a combination of the number of soldiers (and sailors, etc.) in it, the training those soldiers have undergone, and the expensive tools of war given to them to use. In the age of muskets (and to some extent until the development of rugged machine guns) the relative value of men was much higher than usual, with the value of the money that went into training and material being correspondingly comparatively lower.
Under those conditions, an armed populace was a powerfully democratizing force. It is much less so now.
If we took "arms" to mean anything which countries keep as weapons, then we'd have someone developing Alzheimer's or schizophrenia set off their private nuke just often enough so that we'd have no people at all, and therefore no democracy.
Instead we limit "arms" to those things that allow one person to kill one other person at a time, which was the essence of the democratizing musket. That gets half a loaf in the sovereignty bakery. The population can still make itself virtually impossible to govern, but it cannot impose its will in forming its own government that runs contrary to the wishes of a better equipped force. Nor can it prevent itself from being annihilated.
Of course there's also a cost to an armed populace. And with modern guns, the cost is much more than the founders encountered. Guns now fire several rounds per second, rather than something on the order of one per minute. It used to be that if you needed to fire more than one shot, you'd better have an army to back you up, so that yours wasn't the only bayonet. Until recently, fists and knives were both better weapons than guns in a crowd.
So the cost:benefit ratio of the 2nd Amendment is vastly worse than it was 220 years ago. But it is still on the books. If we don't want to abide by it, we should amend the Constitution, rather than undermining the Constitution by pretending it says whatever we want it to say.
Furthermore the 14th Amendment was written with the clear intent and meaning of extending all the protection in the Bill of Rights (as well as other protections) to those whose rights were infringed upon by individual states, rather than only by the federal government. In the racial backlash that followed Reconstruction, the Court refused to recognize the 14th Amendment for what it was. That outrage has largely been fixed (though its effects are still with us mightily in their effect on the racial character of our country) through the gradual "incorporation" of most of the rights into the understanding of the 14th Amendment.
The present ruling currently only applies to the federal government, and therefore to the District of Columbia, which is administered under license from the federal government. But now that the 2nd Amendment is correctly understood as an individual right (however anachronistic the underlying reason), the court should not repeat its 19th Century mistake of saying that the sates may infringe on the right when the federal government may not. And I don't think the Court will make that mistake, either.
Here's where New Jersey gun laws stand now.
- Child Access Prevention laws, which require guns to not be readily usable in a hurry go against the reasoning of today's ruling, and are probably not long for the world.
- Juvenile Possession laws and Juvenile Sale/Transfer laws are probably safe, as juveniles could reasonably (but not necessarily) join with felons and those mentally ill as classes outside the protection of the amendment. Certainly there's some age under which the protection doesn't apply, and I don't see the court insisting that that age must be something under 18.
- The permit to purchase seems like a method of implementing the restriction the Court says are OK in a way that the court will also say is OK.
- A separate permit to carry may or may not pass muster; requiring the carrying of the permit to buy when carrying the gun is a possible middle ground.
- Licensing per se of owners doesn't seem to go beyond what the court has said is OK, but making the handgun licensing requirements more onerous than the permit to purchase requirements could be deemed an unwarranted restriction.
- A 30 day wait could be deemed too long.
- I don't know anything in the decision that pertains to transaction tracking, but I think the conservatives will mostly favor it because they have no wariness of government having information and the liberals will favor it because they want states to be able to keep the streets safe.
- IANAL
- For the sake of the above, I've taken "nothing in this decision should be construed to mean that 'blah blah blah' is prohibited" to mean that 'blah blah blah' is allowed. They didn't actually say that. All they've absolutely said is that this decision doesn't stop the government from prohibiting possession by felons and the mentally ill, etc.
- My knowledge of the decision comes mostly from NPR radio reports and a little bit from blog posts. I haven't read the decision itself, but the NPR reports seemed rather thorough.
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no subject
Date: 2008-06-27 01:28 am (UTC)no subject
Date: 2008-06-27 01:36 am (UTC)no subject
Date: 2008-06-27 01:49 am (UTC)Frankly, preventing the government from banning access to the internet is probably as good a method of preventing tyranny now as preventing the government from banning guns was 200 years ago.
no subject
Date: 2008-06-27 02:42 am (UTC)You really think we could get an amendment passed dissolving the standing federal military?
no subject
Date: 2008-06-27 03:00 am (UTC)no subject
Date: 2008-06-27 04:03 am (UTC)no subject
Date: 2008-06-27 09:49 am (UTC)no subject
Date: 2008-06-27 11:07 am (UTC)no subject
Date: 2008-06-27 12:48 pm (UTC)no subject
Date: 2008-06-27 07:22 pm (UTC)How do you figure? Nukes are pretty expensive, both to build and to maintain. It costs the US billions of dollars each year just to keep our nuke stockpile of a few thousand weapons in working order -- that's millions of dollars for each bomb, and we probably benefit from economics of scale. Even if it were legal for private citizens to own one, not many people would.
no subject
Date: 2008-06-27 11:01 pm (UTC)Just wanted to say
Date: 2008-08-03 05:15 pm (UTC)Good page..
Date: 2008-09-24 02:19 pm (UTC)Nice page..
Date: 2008-09-28 06:32 pm (UTC)Good post.
Date: 2008-10-07 03:22 am (UTC)well done
Date: 2008-10-09 05:03 am (UTC)