2nd Amendment--applicable how?

[Schiavona]

Originally Posted by jeff

I just saw a relevant and timely article in the NYT: Massachusetts has a new electronic gun check system with a fingerprint scanner. "On Wednesday, moments after a court placed a woman's husband under a restraining order. a notice about the order popped up un a new computer terminal at the police station here. Given that information, the Woburn police went to the man's house and confiscated his guns, all 13 of them". And "the system provides instant updates on arrest warrants, restraining orders and convictions". That's why registration is necessary: because otherwise you don't know about somebody having weapons if he is subsequently arrested or convicted.

This type of law, confiscation of property(guns) without a conviction, has, at least one other state, been overturned as unconstitional-and it is. If the guy has money to fight this I'm sure it would be overturned in Mass as well.

Originally Posted by jeff

What do the gun owners and sellers think? This was trialed at the state's largest gun dealer, Four Seasons, and the owner is all for it, saying that they've sold over 2,000 weapons since they started using the system, without a single complaint. The system speeds the ability for gun purchasers to get a new gun once licensed, and speeds the licensing process.

Gun owners and the NRA have always been for instant checking when buying a gun.

Originally Posted by jeff

(Aside: consider that "For murder victims, 43% were related to or acquainted with their assailants; 14% of victims were murdered by strangers, while 43% of victims had an unknown relationship to their murderer in 2002." (Source: Bureau of Justice: http://www.ojp.usdoj.gov/bjs/cvict_c.htm ) So, the scenario that gun owners like to tout about firearms providing protection is at best only slightly better than 1/2 the cases. Having firearms widely available means that it's a lot easier for a domestic violence situation to become fatal.)

I can ask how you infer that these are domestic situations? What there stats don't show is how many of the acquaintance or related murders involved people with criminal records. Two 'dealers' who know each other get into a shooting, they wind up in these stats as well as an abusive husband killed by his wife or vice versa. The use of drugs and/or alchol always seems to be a factor as well. The overwhelming amount of crime happens between people who know each other. Stranger on stranger crime has always been the minority.

Originally Posted by jeff

Back to the article: This illustrates why "after the fact" is not good enough, and why registration is necessary. Instead of focussing on the fantasy of a future dictatorship fended off with unregistered guns, we should think about the reality of homicides happening today - frequently done by people who know one another rather than professional crooks, people without priors that would prevent their ownership, We register cars and dogs - lethal weapons should be registered too.

Once again how do you know that most murders are committed by people without 'priors'? People who know one another, yes, but no 'priors'? Confiscation without conviction is unconstitutional. Laws don't automatically get reviewed for their constitionality, they have to be challenged. If the ACLU were strict constitutionalists they would be challenging this.

So, paring down your above statement; guns should be registered so they can be taken away because some one might commit a crime with them. I know that restraining orders are serious things, but then so is consfication without conviction. Today a restraining order, someday sedition? I hope this is a paranoid fantasy, but history shows it might not be.

[Inquartata]

Originally Posted by jeff

I just saw a relevant and timely article in the NYT: Massachusetts has a new electronic gun check system with a fingerprint scanner. "On Wednesday, moments after a court placed a woman's husband under a restraining order. a notice about the order popped up un a new computer terminal at the police station here. Given that information, the Woburn police went to the man's house and confiscated his guns, all 13 of them".

I suspect that there must be more to this story than is in your summary of it, since as Schiavona points out confiscation of property merely because of a restraining order being filed is...frightening. Buying a gun is illegal if one has been convicted of domestic violence, but that's contingent upon conviction. Anyone can request and usually get a restraining order against someone else, and no actual crimes even have to be committed. Yet not only is the gun purchase being denied but the police are raiding someone's home and taking ones already owned?! Something is rotten in the state of Massachusetts, if this is the whole story. ( Which sadly would not surprise me, given that it IS Massachusetts. )

In fact, I don't even see how an attempt to buy a gun would meet scrutiny from any court as probable cause for a search warrant for the person's home...

And "the system provides instant updates on arrest warrants, restraining orders and convictions".

And arrest is not grounds for confiscation, either. I have seen people who were arrested while carrying weapons, which were logged into evidence, come to Property and get them back. Because if there's no conviction there can be no punishment, which seizure of property would be...

That's why registration is necessary: because otherwise you don't know about somebody having weapons if he is subsequently arrested or convicted.

Interesting. So you think that letting the government compile lists of the property its citizens own is acceptable?

And to continue Schiavona's First Amendment comparison yet again, does that mean letting it compile lists of the books people look at in libraries or sites they view on line is also aceptable, because it might be of use to law enforcement?

I mean, if the latter is a violation of First Amendment civil rights, it follows that the former is a violation of Second Amendment civil rights, is it not?

What do the gun owners and sellers think?

Properly used---ie against criminal attempts to buy guns---I suppose such instant checks are OK, given the point we are at. Ideally, I would prefer that there be no such systems, as I do not think it is wise to require background checks as a prerequisite to arms ownership, for the same reason I oppose licensing: it establishes precedent that ownership is a privilege that can be denied at the discretion of the state.

But even so, use against those not convicted of any crime is overstepping the acceptable use of the tool, IMO.

This was trialed at the state's largest gun dealer, Four Seasons, and the owner is all for it,

Argumentum ad verecundiam, if this is meant to assert that his support somehow makes the system more worthy of respect or acceptance, or that it means the system is not an infringement on the Second Amendment. Merely because he is a dealer in firearms does not establish him as an expert on all matters appertinent to them. His opinion is just one of many, and it should be given no greater weight than any other.

The system speeds the ability for gun purchasers to get a new gun once licensed, and speeds the licensing process.

Don't get me started on licensing....

(Aside: consider that "For murder victims, 43% were related to or acquainted with their assailants; 14% of victims were murdered by strangers, while 43% of victims had an unknown relationship to their murderer in 2002." So, the scenario that gun owners like to tout about firearms providing protection is at best only slightly better than 1/2 the cases.

No, because the statistic only captures murders, ie unlawful killings, not justified ones---and not uses of a gun where there is no death, much yet defensive uses where no discharge of a weapon even occurs. In many cases of defense the gun is not used but merely displayed; it has an apotropaic effect. ( Many of these go unreported, so it's impossible to count them. Their omission will necessarily skew the statistics. )

Having firearms widely available means that it's a lot easier for a domestic violence situation to become fatal.

No doubt. But does that warrant restricting the ownership of them, given the Second Amendment protections? I do not believe so. It's emblematic of the view that government ought to protect people from themselves, foreclose choices because "it's for your own good". This is not IMO a legitimate function of government.

Instead of focussing on the fantasy of a future dictatorship fended off with unregistered guns,

Interesting that you characterize a fundamental philosophical desideratum of the Founders as "fantasy" and believe that despite it's place of importance in the Bill of Rights it should be dispensed with. Which other Constitutional protections should we also get rid of, in your view, on the basis that they simply aren't relevant?

we should think about the reality of homicides happening today -

How far shall we extend this logic?

More children drown every year than are the victims of homicide or accidents with firearms. Should we enact restrictions or prohibitions on swimming pools, bathtubs, buckets and puddles? Or are we back to the "But guns are designed to cause death so they're different" argument again?

We register cars and dogs - lethal weapons should be registered too.

Neither of those are specifically protected by the Bill of Rights...and neither, BTW, is universal. Dogs do not have to be "registered" everywhere, and vehicles need not be, either, if they are only used on private property and not on the public thoroughfares.

[jeff]

Both Inq and Schiavona answered the same material, so I'll try to respond once rather than separately and try not to miss points (apologies in advance if I do - I'm doing this quickly because this isn't how I plan to spend the afternoon!)

- I gave all the information I had in the short article. I don't know, for example, if weapon confiscation follows all restraining orders, or must be specifically requested or based on prior violence or threats of violence. In any case, it seems to me to conform to a "do no harm" rule. Weapons can be returned after legal contestation without permanent harm to the owner. If the owner intended to waste the person requesting the restraining protection, refusal to grab the weapons can lead to that person's death - and that cannot be undone.

- I hear and appreciate the comments about confiscation of guns prior to a conviction, however there really is an issue of domestic violence (that certainly applies to this particular case) though, as both I. and S. comment I have no good stats on how many assaults of people who know one another are domestic violence. I'm really tired of hearing on the news about some jealous ex-boyfriend blowing away the ex-missus. From the Bureau of Justice site I quoted before "Intimate violence is primarily a crime against women -- in 1998, females were the victims in 72% of intimate murders and the victims of about 85% of nonlethal intimate violence." So, for violence against women, it is by far the case that it's "intimate violence". I think it's essential we do something about that - so I'm really in favor of Massachusett's action.

- For the "slippery slope" argument (today confiscate on a restraining order, then what happens tomorrow?) all I can say is that slippery slopes are prevented (solely) by an engaged and informed populance that says "this ruling over here is okay; that ruling over there is not". I see this as completely parallel to Patriot Act, for example.

- 1st vs. 2nd: I don't think that "protected speech" arguments can be translated directly to "possession of lethal weapons" - speech just isn't the same thing. This also begs the question of what the 2nd amendment really means: an unfettered right to arms vs. right to arms only in the context of a well ordered militia. If the latter is true, then all this discussion is moot and things like restraining orders are clearly legitemate. Unfortunately, we have no way to settle the two clauses of the 2nd amendment to everyone's satisfaction. I also think that if the Framers had started the 1st amendment with "A well regulated Newpaper, being essential..." we would have quite a different conversation about freedom of speech.

- regarding challenges: ACLU sometimes does do challenges on subject that dismay its left constituency (remember them defending the Nazi's marching in Skokie?) but they tend to be more 1st Amendment oriented and 2nd. The NRA really has that turf, and are quite well funded. Further to the Constitution, I cite "while the Constitution protects against invasions of individual rights, it is not a suicide pact" (See http://slate.msn.com/id/2060342/#ContinueArticle for interesting, if not completely relevant discussion, which also touches on protected speech, as well as Bush administration policy)

- If you don't have registration, how do you confiscate the weapons after somebody is convicted (or commited for insanity)? If law enforcement doesn't know they're their, how do they know to get the weapons even after a felony conviction?

- NRA being in favor of instant checks means (hurrah) a point of agreement, rather than dispute. Let's cherish these rare and precious instances....

- apotropaic. Good one.

- I understand that the gun dealer's point of view doesn't deal on the 2nd amendment legality of the action. That wasn't a legal comment at all; rather, a representation of opinion on the part of a party interested in making sure fetters on gun ownership aren't burdensome.

[Inquartata]

Originally Posted by jeff

I don't know, for example, if weapon confiscation follows all restraining orders, or must be specifically requested or based on prior violence or threats of violence. In any case, it seems to me to conform to a "do no harm" rule. Weapons can be returned after legal contestation without permanent harm to the owner. If the owner intended to waste the person requesting the restraining protection, refusal to grab the weapons can lead to that person's death - and that cannot be undone.

A question I forgot to ask is this: If the person in question was really planning to commit a violent act, would he really need to go out and buy a gun if he already had several at home? Attempting to buy a gun seems like very shaky evidence of the likelihood of a crime in the offing, at least under those circumstances. It looks to me more like overzealous law enforcement taking every opportunity to get guns out of private hands, no matter how whimsical the justification...

I still suspect that there is more to the story, such as that he had a history of violence, had made threats, or had committed other offenses. At least I hope so. Otherwise it seems awfully high-handed to send the police to force their way into and search a private residence and confiscate property therefrom based solely on the filing of a restraining order. It would seem to raise Fourth Amendment questions.

I'm really tired of hearing on the news about some jealous ex-boyfriend blowing away the ex-missus.

Yep. But where do you draw the line? Sometimes the boyfriend uses a knife or bludgeon or runs her down with a car. Is that enough to send the police to remove the kitchen cutlery, fireplace implements, plumbing and furniture from an implicated person's home and seize his car as well? The reasoning would seem to be no different. If one is warranted, why not the other?

- 1st vs. 2nd: I don't think that "protected speech" arguments can be translated directly to "possession of lethal weapons" - speech just isn't the same thing.

Because they are different does not imply that they should be given greater or lesser weight or protection than the others, does it? I don't think the Bill of Rights was constructed on a sliding scale, with some rights being held to a higher standard of inviolability than others. Just my opinion, but I've seen no evidence that that was the Framers' intent...

This also begs the question of what the 2nd amendment really means: an unfettered right to arms vs. right to arms only in the context of a well ordered militia. If the latter is true, then all this discussion is moot and things like restraining orders are clearly legitemate. Unfortunately, we have no way to settle the two clauses of the 2nd amendment to everyone's satisfaction.

True. But given a choice of interpretations, oughtn't a free society to err in the direction of greater, not lesser, liberty?

- If you don't have registration, how do you confiscate the weapons after somebody is convicted (or commited for insanity)? If law enforcement doesn't know they're their, how do they know to get the weapons even after a felony conviction?

My answer, in a perfect world, would be: they get a search warrant, or they don't get to do it. ( And in that regard it has already been mentioned that the courts have ruled that a person suspected or convicted of a crime cannot be required to register weapons, as this would constitute de facto self-incrimination, violating his Fifth Amendment rights. ) We don't force people to tell us, before they have done anything at all to indicate that they are anything other than law-abiding citizens, that they own such and such, just in case the police want to come and take it away one day...

This is very much a matter of ongoing debate in the realm of the law of search and seizure: what constitutes undue intrusion, what justifies expansion of a search, etc. If one is found with drugs on one's person, should the police be permitted, without other justification, to search ones home and business for more? What about the trunk of one's car? What about your passenger's home? How far do we go down that road, and why is it permissible to go further when it's firearms than with people's other property and effects?

[the doc]

as an englishman i really struggle to see the need for a gun and i can't see how not owning or being allowed to own a gun makes one any less free.

the stat earlier in the thread about 12000 gun murders alone in a year the us not being much is put in stark contrast when in the uk total murders average about 800 year.

inq's reductio ad absurdum arguement is precisely that, absurd. while you can never stop someone who really wants to kill someone, removal of guns significantly raises the threshold on how easy it is to kill someone. killing someone using a knife or baseball bat takes a considerable amount more effort, desire and meaning than simply pulling a trigger. i would imagine that a significant number of those 12000 deaths above were not entirely meant. certainly, if the only instrument available for killing had been a baseball bat, then you would have a much smaller number than 12000. it is a lot harder to kill someone by accident with a baseball bat than it is a gun.

[mrbiggs]

As long as there are people, there will be people who want to kill each other.
As long as there are people who want to kill each other, there will be guns.
Legislation can't erase that.

[Schiavona]

Originally Posted by the doc

as an englishman i really struggle to see the need for a gun and i can't see how not owning or being allowed to own a gun makes one any less free.

Some people think that the ability to own guns makes one a citizen not a subject. I've always been confused though, are the English citizens or subjects?

Originally Posted by the doc

the stat earlier in the thread about 12000 gun murders alone in a year the us not being much is put in stark contrast when in the uk total murders average about 800 year.

And the population of the US is 300 million and the UK is?

It's my understanding, please correct me if I'm wrong, that under English Common Law that people have the right to self defence. How can that be when they don't have access to tools for self defence. Kinda of sounds like you're in the position of might makes right when it comes to dealing with people who prey on other people for their living. If not, what tones down the violence of people who attack others, good manners?

[the doc]

the population of the uk is somewhere between 56 and 60 million, which as you can see is not directly in proportion to the amount of murders there are in the us.

as for the subject/citizen thing, i suppose we are subject of the queen, but either way makes no real material signifcance to my life and i couldn't give a toss what label you give it.

actually, you raise an interesting point about the right to self defence in england. there have been a number of high profile cases here where people have been prosecuted for attacking burglars or the like. but recently, after a guy was stabbed to death in his house, the government are going to change the emphasis on how extreme the defending reaction has to be before you get charged.

as it stands, at the moment almost no house burglars or muggers carry guns, so the unarmed victim has a reasonable chance to defend themselves. the majority of gun crime (which is rising here) is due to yardie style gangs killing each other, which is no bad thing in my book. the real problem here is one of culture as it is a rising thing amongst young black men to carry guns for 'respect' in the tradition of the la gangs, which is a very bad thing. we would be as well not to copy the us in this manner. it would save a lot of death and destruction.

[jeff]

Good posts, doc (and similar low death rates apply in other low gun use countries too...).

However: care to translate "yardie" for us Yanks?

[the doc]

yardie is the term for the jamaican gangs, similar in style to yakuza etc. the term apparently comes from a contraction of back yard trash which is what the other jamaicans call them.

they are responsible for a lot of gun crime and drug running in london and are often first generation jamaicans rather than british born jamaicans. the problem is sufficiently bad for there to be a unit of the met police called operation trident which deals only with black on black crime.

[Schiavona]

Originally Posted by the doc

the population of the uk is somewhere between 56 and 60 million, which as you can see is not directly in proportion to the amount of murders there are in the us.

Yes, the murder rate is much higher in the US, no arguement there. I just have trouble blaming it on access to firearms. When I was a child people could buy shotguns and rifles through the mail legal access has gotten much, much tighter, yet the murder rate has gone up.

Originally Posted by the doc

actually, you raise an interesting point about the right to self defence in england. there have been a number of high profile cases here where people have been prosecuted for attacking burglars or the like. but recently, after a guy was stabbed to death in his house, the government are going to change the emphasis on how extreme the defending reaction has to be before you get charged.

How nice that the Brittish can now try to defend themsleves in their homes without going to jail for it

Originally Posted by the doc

as it stands, at the moment almost no house burglars or muggers carry guns, so the unarmed victim has a reasonable chance to defend themselves.

Really? A person at home, not expecting to be robbed and/or attacked has a reasonable chance to defend themselves from some one who has planned to rob or attack them ? I don't see it.

A large problem on defining the pros and cons of this debate is that the con side-deaths are recorded while the pro side-the stopping of a crime isn't recorded as it is a non-event.

On the other hand. There are many, many misconceptions about guns and the legal use of guns for self-defence in America. Both here and abroad. Where I live the use of deadly force in defending oneself or family has to be a last resort. If you can flee, you must flee. Other states are somewhat more 'bloodthirsty'. One of the dumber allowances for the use of deadly force in Alaska is that you can kill some one to stop them from damaging(ie blowing up) the Trans Alaska Oil Pipeline. Here oil is more important than human life

[jeff]

Sorry, I skipped over this in looking at the_doc and asking him about "yardie". Etymology trumps argument for me every time.

Originally Posted by Inquartata

A question I forgot to ask is this: If the person in question was really planning to commit a violent act, would he really need to go out and buy a gun if he already had several at home? Attempting to buy a gun seems like very shaky evidence of the likelihood of a crime in the offing, at least under those circumstances. It looks to me more like overzealous law enforcement taking every opportunity to get guns out of private hands, no matter how whimsical the justification...

I still suspect that there is more to the story, such as that he had a history of violence, had made threats, or had committed other offenses. At least I hope so. Otherwise it seems awfully high-handed to send the police to force their way into and search a private residence and confiscate property therefrom based solely on the filing of a restraining order. It would seem to raise Fourth Amendment questions.

In the article, the person in question already had weapons - the ones that were confiscated - so it's really a gun registration issue rather than a reference check at time of purchase. I guess that the gun registration database showed that Mr. X had the weapons at the time of the restraining order. We don't know for a fact (it wasn't in the article), but it seems likely to me that there was a threat of violence (else, why is there a restraining order in the first place?), so I wouldn't call that "whimsical" in the least. I'll proceed as if there was a threat of violence for sake of argument, and cede the point that it was whimsical/wrong to remove weapons if the guy had never given hint or threat or record of violence.

Originally Posted by Inquartata

Yep. But where do you draw the line? Sometimes the boyfriend uses a knife or bludgeon or runs her down with a car. Is that enough to send the police to remove the kitchen cutlery, fireplace implements, plumbing and furniture from an implicated person's home and seize his car as well? The reasoning would seem to be no different. If one is warranted, why not the other?

I think "where do you draw the line" is exactly the question to be asked. Many homicides are done with firearms; they are explicitly weapons rather than household items or vehicles that can be used as weapons despite their quotidian purposes. It looks to me as if that's exactly where the legal system drew the line in this case, and IMO quite reasonably so (based on the little information we have). We needn't go to reductio ad absurdum in every situation: that's where we hope that reasonable people in the legal system (and civil groups that keep an eye on it) are acting to balance safety of someone who was under threat against somebody's right to bear arms.

Originally Posted by Inquartata

Because they are different does not imply that they should be given greater or lesser weight or protection than the others, does it? I don't think the Bill of Rights was constructed on a sliding scale, with some rights being held to a higher standard of inviolability than others. Just my opinion, but I've seen no evidence that that was the Framers' intent...

I don't claim a sliding scale either - I'm just pointing out that (a) the underlying subject matter has different properties of revocability and harm (bullets can't be called back) hence my remarks about the Bill of Rights not being a suicide pact, and (b) the Framer's saddled us with that cryptic phrase on the 2nd Amendment, but not on the 1st. They must have perceived a difference, because they used different wording.

Originally Posted by Inquartata

True. But given a choice of interpretations, oughtn't a free society to err in the direction of greater, not lesser, liberty?

Maybe - in a perfect world where this freedom wasn't accompanied by that society's well-documented experience of thousands of fatalities per year. Further, by this logic we would toss out the whole issue of the Framers' intentions. I thought a lot of the gun-rights advocates' case is based on arguing these intentions - a magic card that trumps all otheres. Certainly a lot of the argument on this board is based on their intention. Perhaps a free society freely chooses to restrict access to firearms because of the clear threat they represent.

Originally Posted by Inquartata

My answer, in a perfect world, would be: they get a search warrant, or they don't get to do it. ( And in that regard it has already been mentioned that the courts have ruled that a person suspected or convicted of a crime cannot be required to register weapons, as this would constitute de facto self-incrimination, violating his Fifth Amendment rights. ) We don't force people to tell us, before they have done anything at all to indicate that they are anything other than law-abiding citizens, that they own such and such, just in case the police want to come and take it away one day...

This is very much a matter of ongoing debate in the realm of the law of search and seizure: what constitutes undue intrusion, what justifies expansion of a search, etc. If one is found with drugs on one's person, should the police be permitted, without other justification, to search ones home and business for more? What about the trunk of one's car? What about your passenger's home? How far do we go down that road, and why is it permissible to go further when it's firearms than with people's other property and effects?

So, if I'm convicted of assault with a deadly weapon, I get to keep the weapons I legally purchased, and have the use of them before and after I'm in stir? I call that "soft on crime". I also think that letting some guy keep his weapons after screaming "I'm gonna kill you!" to his ex-wife to be totally irresponsible and heartless. Surely you're not arguing we have to wait till he carries out this threat?

I see nothing wrong with (and certainly not via the 2nd Amendment) that says that I can have firearms, that they be registered, and that they can be confiscated under circumstances that bear upon my particular situation and "reasonable cause". There has to be monitoring of this (I'm sure you're aware of the excesses the NJ Troopers got in trouble with), but that's what the checks and balances of a free society are there for.

As you said to Bokken in the Patriot Act thread "I trust in the balance of power system. It's early on in the debate over the PA, and I fully expect that any overreaching provisions will be shot down in the courts, which latter are pretty jealous of their prerogatives. Or else new restictions and safeguards will be added. Either way, I think the assumption that it's a sure slide from the PA to totalitarianism is...premature and unwarranted". I would remove "early in the debate", and substitute "gun control" for PA in your paragraph and feel that the same logic correctly applies, in particular your conclusion about the "sure slide". Also your statement "Why, that is, are we to accept your statement that "the right to privacy as an individual supercedes the proclivities of the government to gather information" is worthy of deference and acceptance? There has to be a rationale for such a thesis, not merely a bald statement of "this is". Replacing "privacy" with "firearms", and "gather information" with "protect its citizens", and I think it applies wisely for this subject.

[jeff]

Originally Posted by Schiavona

One of the dumber allowances for the use of deadly force in Alaska is that you can kill some one to stop them from damaging(ie blowing up) the Trans Alaska Oil Pipeline. Here oil is more important than human life

That's really weird...

On the subject of running away, I was told to never shoot a criminal who is running away, as he's no longer a threat to your life. Hmm, let me correct that: I was told to make sure turn him around...

[scrapinpeg]

Or you could borrow an unofficial guideline used by certain French police units not so long ago: "Two shots. One in the head, one in the air. Then remember them in reverse order."