And he - or anyone - can read the most recent legal scholarship on the Second Amendment in the briefs filed for DC v Heller, at Gura's site
http://dcguncase.com/blog/case-filings/
Brilliant, Kevin. One tiny quibble, though. Concerning artillery, breech loaders are allowed too, and unregulated. Also, not all muzzle loaders are allowed. The issue isn't where the gun is loaded from, but whether or not it uses fixed ammunition. The type of powder (black or modern) does not matter either. A breech-loading Civil War cannon that had separate powder and projectile would be ok, but a muzzle-loading mortar that used fixed shells would not be ok.
http://usgovinfo.about.com/bloldguns.htm
Doesn't affect your arguement, but it's a common misconception that I'd like to correct.
Maybe Captain Apostrophe considers laws banning the use of the apostrophe to be irrefutable, too. Which may be the case, since there are not any such criminal laws that I know of. If they do not exist, can they be refuted?
Has Captain Apostrophe heard of the US Supreme Court?
Could Captain Apostrophe, perhaps, be aware that the US Supreme Court publishes their opinions? Opinions that Captain Apostrophe might obtain. Once obtaining these opinions, Captain Apostrophe might read them - even the ones that have those vicious nasty apostrophes.
Be sure to drop him a note, pointing him at this post. Something tells me that he is the kind of person who would merrily ignore it, unless someone dropped it right in his lap.
That said, I do believe you did a fairly outstanding job handing him his nether regions on a silver platter... The man obviously knows very little of what he speaks, and you more than adequately demonstrated that ignorance. I completely doubt he will admit to that ignorance, and I feel certain that he will ignore this post in its entirety (despite you emailing him, if you do), but that is just me.
Oh, I emailed him last night within a minute or two of posting. But remember what I told him in my invitation email:
"I don't expect to change your mind, or you to change mine, but what I endeavor to do is to put up both sides of the topic, argued by dedicated advocates using reason, logic, and citations so that those still on the fence - the ignorant, as you style them - can be educated and decide for themselves which argument makes more sense on the evidence."
We'll see how dedicated an advocate he is, won't we?
When I hear claims that the 2nd wasn't intended to protect an individual right, I look first to the calls from the States asking for a Bill of Rights, starting with the Pennsylvania Dissent:
"the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". The Right to Keep and Bear Arms clearly encompassed private ownership and private use for private aims.
There is no question at all that the passage ratification of the 2nd occurred in the context of a debate in which individual rights were a concern.
Next, I look at the amendments that were actually proposed. There was an amendment returning power over the militias to the states, and it was a different amendment than the one dealing with the right to keep and bear arms. Madison dropped the militia amendment from the list. The 2nd was clearly not primarily concerned with the militia, because there was another proposed amendment that was. The other amendment, if passed, would have clearly done exactly what the "collective rights" crowd claim the 2nd does. Except that the other amendment didn't pass.
Third, I look to the Senate debates. There was an amendment offered to add the words "in the common defense" to the language of what became the 2nd Amendment. These words would have clearly restricted the 2nd so as to not protect an individual right. The amendment was defeated. The words were not added. The 2nd was not so restricted.
To the best of my recollection, anti-gun(redundancy alert!)Hollywood friends of Charlton Heston telephoned him during the Rodney King riots, as the rioters came closer to their homes and assumptions. "Hello Chuck!? Uh, you have guns over there, don't you." "Um, yes, I do." "Err..well, could I borrow one of them?"
See also Baghdad Bob, "There are no Americans at the airport!!"
This is an excellent post. Thanks for doing all of the heavy lifting! The arguments and evidence you present are a huge assistance to folks like me who struggle to clearly explain reality to friends and family. The next time I am sputtering in near-impotent rage at some tossed off comment from one of my friends or neighbors, I will quickly scan my soon-to-be well worn copy of this post (the one in tiny, tiny print that I will keep in my wallet).
Good luck on getting any response though - I agree with the commenter who said that the likely reply will be "You're still wrong!"
No, the response Kevin would get would be "Youre wrong"
ROFL.
Seriously. People actually pay this idiot to write? He'd have flunked out of our lower-level journalism class if all of his writing is as bad as what we've seen here.
It feels like you are beating a dead horse. I found the arguments well founded and persuasive.
But that doesn't address the "irrefutable" claims of the fanatical Marc Rubin. A fanatic has decided he *owns* the truth, and anything contrary is a sign of sickness or sin or manipulation by the Devil, at least, in the perspective of the fanatic.
I am sure that Rubin appreciates the traffic his diatribe is generating, and revels in opposition. Rather that considering that he might have erred, I am sure Rubin, like other bigots and fanatics, is rather delighted. He finds opposition not to be a sign of error, but of confirmation that idiots don't understand *his* truth.
Your post is impressive, in how it brings together the history and many players in the discussion of gun rights, how the 2nd Amendment was written, just like the rest of the Bill of Rights, to assure the states that the Federal Government would not be able to restrict their ability to oppose that Federal Government, in the event the Federal Government became tyrannical.
You, sir, suffer from the weakness of assuming that acting within the truth and with good will, acting respectfully with regard to a respectable opponent can result in a debate and discussion of ideas, with the object of reaching an agreement, a sorting out of doubts and flaws in thinking. The reality is that Marc Rubin, by his writing at least, is not such a respectable partner in a search for truth. He seems to be a fanatic, placidly content that his grasp of thought is superior to any argument.
"You, sir, suffer from the weakness of assuming that acting within the truth and with good will, acting respectfully with regard to a respectable opponent can result in a debate and discussion of ideas, with the object of reaching an agreement, a sorting out of doubts and flaws in thinking."
Nah - I don't know how long you've been following this blog, but generally the idea is to just put the arguments side by side in a rational light to at least let bystanders decide, based on the merits of the arguments themselves, what the truth is.
It's one of the reason some of those here still bother with Markadelphia.
[Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"
[Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."
In general, I think Copperud did very well insofar as he limited his analysis to his field of expertise: grammar. But in this case, he wandered off the grammatical reservation with an assertion about the desires of the writers, and confusion about what constitutes "the military."
It is accurate to assert that the Founders were concerned about civilian control of the military, albeit in varying degrees according to political philosophy and whether their party happened to control the military at the time. (Jefferson loathed the idea of a regular army, right up until he controlled one. Plus ça change, n'est-ce pas?.) But when we talk about civilian control of the military, we are referring to the regulars, i.e., the Continental Army. There was no reason to worry about civilian control of the militia because the militia were civilians. Their officers, almost exclusively, were the powerful men of the local community who would have been the ones exercising control in the first place. The militia, as envisioned in the immediate post-Revolutionary era, was the free citizenry in arms.
"Regulated" is a tricky word in the 2nd Amendment, because it really can be understood several ways. The good news is that it doesn't change the proscriptive meaning of the amendment, which forbids infringement regardless of how we understand "regulated." But still, we seek after meaning and truth whether applicable or not. One objection I have to Copperud's answer in this case is that "subject to regulations of a superior authority" isn't a concept that can be meaningfully modified by the word "well." That is, adding the word "well" to the phrase "subject to regulations of a superior authority" does not produce any modification in the phrase's meaning.
More likely, regulated means "made regular." Regularity is not well suited to modification by the word "well" either, except in a military context. "Regular" troops were professional troops, indicating both their employment status and their degree of training, equipment, and discipline. (The OED shows this etymology going back to 1705, and in current use at the time of the American Revolution.) Thus, any band of armed men can be placed on a scale of regularity, ranging from regular (represented at the time by the British Army, which was the gold standard for discipline and training) to irregular (represented by any armed rabble). Militia, being the armed citizenry, default to the far irregular side of this spectrum, and are only improved through effort. (Note that the term 'irregular' with respect to troops doesn't appear until the mid-19th C., though the concept certainly existed) When the ratifiers of the 2nd Amendment stated that the security of a free state is dependent on the militia being well regulated, they meant that American bodies of militia needed to be display a degree of proficiency more akin to the exemplars of the British army than to a disorganized rabble. And right they were, since the latter tended to do rather poorly in battle when compared to the former.
I think it would be more accurate to say that the term "well-regulated" encompasses all of Schulman's proposed meanings but the last. A well-regulated militia, being a militia that possesses the proficiency necessary to fight effectively, must necessarily be well-equipped, well-organized, well-trained, and especially well-disciplined.
There was no need to specify that the militia should be "subject to regulations of a superior authority," because militias had always been chartered by state governments in the American tradition. There was never a long-standing tradition of private armies, roaming the countryside, free from government oversight or charter. (See: Shays' Rebellion & Whiskey Rebellion for what happened when post-Revolutionary Americans tried it!)
---
"It also guarantees that the states have the right to have the same weapons as a federal army, a right in existence today and has always been, since the National Guard of every state does have most of the same weapons that the Federal army has. National Guard units have tanks, they have fighter jets. They have bombers.And it's why National Guard units have been fighting in Iraq since 2002. The 2nd amendment guarantees the right of the states to have them. It is also what allowed the states of the Confederacy to have the weapons to fight a Civil War."
What a uniquely cockamamie argument! No doubt the NGAUS would have been gratified to learn, back when they were fiercely lobbying to enshrine the National Guard as a deployable fighting force, that their efforts were in fact guaranteed by the Constitution. However that would mean that the specialization of National Guard units has been unconstitutional. Why does California get fighter planes at Fresno, while Arizona is stuck with tankers at Sky Harbor? They get fighters and we get great big explodey targets?
Sarcasm aside, Mr. Rubin clearly knows bugger-all about the structure and status of the National Guard. It is better to remain silent and be thought a fool...
---
Now, on to private ownership of artillery. This is an interesting one, and I'm tempted to research and write an article on the subject. Privateers are an oft-cited and appropriate example, although their applicability is limited. First, they operated on the high seas, where as a practical matter law was very different than on land. Second, privateers carried letters of marque legalizing specific offensive actions. This is perhaps very similar to a company of Volunteers with orders to make a punitive raid on an Indian village/French settlement/&c. I'd like to see a serious examination of the legal and practical similarities between privateers and militia/Volunteers on government orders. In the absence of such a comparison, I'd counsel debaters not to lean too heavily on the example of privateering.
Private ownership of cannon was relatively rare throughout American history for a number of reasons, none of which were about legality. Except in very specific circumstances, involving either battlefield conditions or fortifications, cannon are practically useless. They're just plain difficult to move, supply, and use. Unless you need to punch through a wall, hit massed troops, or break massed troops up to make them vulnerable to cavalry, you're better off leaving the cannon at home. Individuals generally didn't own cannon (with functional intent) because cannon are expensive and crew-served. Throughout the locally-raised militia/volunteer organizational period (roughly 1792-1903), federal planners tried to get the states to raise cavalry and artillery units. In true grassroots American style, communities ignored the planners and organized themselves as infantry. Infantry were cheaper (to equip, to train, and to pay), and infantry officers got more glory and respect, which heavily motivated the community leaders who raised the units. Artillery officers, in particular, were seen as egghead specialists--all that trigonometry was ungentlemanly.
And even if a local community was going to raise an artillery unit, the various members didn't go out and buy their own cannon. The locals would beg the cannon off the state. The state, in turn, would beg the cannon off the feds. The feds would provide the oldest, most useless cannon available. If it trusted the requesting citizens, the state would pass it along, though without half the required equipage. The locals would never bother actually training to a decent standard with the things, but would certainly have spiffy uniforms made when they fired the cannon off on the 4th of July. Eventually, a couple of the crew members would move, die, or lose hands in threshing accidents, the artillery unit would die, and the cannon would be relegated to a spot out in front of the courthouse.
Kevin - You need to fix your blockquote comment problem. I suggest by moving to a comment package that doesn't rhyme with FAIL-Oh-SCAM. ;)
(Robb, I currently have 33,789 comments on HaloScan, and they link pretty reliably to the correct posts and everything! Unfortunately, I don't think it's logistically possible to move those comments and keep the links intact, so I'm staying with HaloScan, which works acceptably well with the exception of blockquotes. - Ed.)
When you meet someone of that level of obtuseness, you'd think it should be visible, shouldn't it? I mean, you'd think Rubin would have a huge sign floating over his head that said "Obtuse". That level of obtuseness should be visible from space.
An incredibly detailed and well prepared fisk, lacking only the constant repetition of "Rubin, you anencephalic brat" to make it perfect.
Kevin just tee's it up on the first hole, I enjoy reading so many various Tigers, Phils, Ernies, and Vejays hit the long drive to the cup. Eagles all around - while Irrefutable is playing at the Arcade across the street, trying to putt across the bridge that goes to the mouth of the big Clown-Head.
"all very nice, but arguing with a fool is a fool's errand. you both end up covered in mud, and the pig has a grand old time."
In this case I disagree. I'd say arguing with a fool on a fool's terms is a fool's errand. That would describe, say, the Republican Party. Instead, Kevin comes out of this unscathed, looking nothing but scholarly.
Rubin; Thirty years ago I might have written a piece much like yours. As one who changed his mind based on both personal experience and new (to me) information, I invite you to join the club of We The People Who Advocate Freedom. It doesn't come with a membership card, or special rates on your insurance or anything like that. It only comes with the knowledge that you're supporting something very rare in the world and very precious. Turn from the Dark Side-- stop railing against liberty at the least. Do that and eventually, as one who comes to believe in it, you'll be more and more compelled to speak out in favor of that jewel, liberty, and against those who oppose it. There is a right and a wrong side to this, don't you know? Power and consensus are different matters altogether.
OK, I tried. At some point this push against shove comes to blows. History says it is so (irrefutably?). The thief in the night doesn’t often give up his ways just because someone says, "Stop!"
Opinions are like a-holes, everybody has at least one, and they usually stink; here are a few of mine:
- Use of the “militia” in the 2nd.
Article I, Section 8, (in part) “The Congress shall have Power…
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Article II, Section 2,
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;…
So, what Constitutional defect does the ‘National Guard’ interpretation of the 2nd correct?
- “A well regulated militia”
Just to be a little bit of an obtuse engineer geek – whatever the “militia” is, given the time, “well regulated” does not mean the modern “these are your limits and you will pay through the nose to get to it”, nor the quasi-military ‘well trained/equipped/disciplined’, it means “optimum execution across the board” over the several States, hence the lack of ‘Congress shall…’ vs. the free speech and religion of the 1st (I figure those old farts, esp. those who were engineers, architects, and surveyors, had reason to specify Congress in the 1st but not the 2nd).
- “right of the States to the same weapons as the Federal”
The most ignorant, nay, fence-post dumb argument EVER – Private entities make and sell weapons to the Fed. And if the Fed rejects delivery???
Would like to expand, but when one makes this argument they should be dismissed in disgust.
Good Post. I think I'll send it to all my gun-nut and minority co-workers in the morning.
That was awesome. Every once in a while I run into someone as "uninformed" as this guy and your site is the best location on the web to get facts to counter the lies and misinformation out there. Great work as usual.
oh c'mon, y'all. you don't *really* think rubin's "head will explode as he processes this", because you know good and well from sad experience that there's no chance in hell he even gave an instant's thought to the words, if he even read them at all. you see it all the time in political discussions - and yes, those on the right are just as bad as those on the left - when a partisan runs up against an argument that runs counter to their dearly-held dogma, THEY IGNORE IT. tell a lefty pushing socialized medicine horror stories of VA incompetence, mixed in with post office efficiency/courtesy/cost control, *they won't hear a word you say*. tell a righty pushing 'no government interference in business' horror stories of 8-year-olds working in coal mines and orphans starving to death by the hundreds in 1880's new york city, *they won't hear a word you say*.
kevin, your argument was well-written, well-reasoned, 10,000 words of truth that must have taken you some hours to write and edit and post. but the net effect, at least for the guy you directed your arguments to, will be zero. like must humans, especially political humans, i guarantee you he stopped listening at "i disagree".
you argued with a fool. (as he's a leftist, he can be nothing less.) you spent precious time and resources doing it, and all for naught. it was a fool's errand. hell, even lyle, who said i was mistaken by saying 'don't argue with fools' earlier admits it: "the thief in the night doesn't often (more like 'almost never') give up his ways just because someone says 'stop!'"
Wow. I'm in awe. Reading your stuff is always very educational for me. If only it was for Mr. Rubin too - I suspect the only education he got from it was a sore backside, from an absolutely righteous spanking. Ouch.
"you spent precious time and resources doing it, ..."
Yup, he said so.
"... and all for naught."
No, that would be true if the fool were the only one who read it. I read it, as did lots of other people (witness the comments), and we got a lot out of it (again, witness the comments).
Now, do you s'pose any others of Rubin's ilk read it? If so, do you s'pose they learned something from it?
"Now, I don't expect to change your mind, or you to change mine, but what I endeavor to do is to put up both sides of the topic, argued by dedicated advocates using reason, logic, and citations so that those still on the fence - the ignorant, as you style them - can be educated and decide for themselves which argument makes more sense on the evidence."
I call it time and resources well spent. Fools should not be allowed to win by default, and their foolishness should be on display in the public square.
"Did he really say "[Citizens of DC] don't even have a say in the election of a the President"?"
Washington D.C. does not get any Electoral College votes. Nor do they have a Senator or Congressional Representative. Thus, they have no vote for President or Congress.
That's not to say that they have no influence, just no vote.
Does anyone know the exact reason for this? It sure sounds like the concept of "those who receive money from the Government must not have any control over the purse strings."
Amendment 23 - Presidential Vote for District of Columbia. Ratified 3/29/1961.
1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
2. The Congress shall have power to enforce this article by appropriate legislation.
D.C. doesn't have statehood (Article I, Section 8: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States), but they do get to vote on the President.
Remember, the people who are in DC should only be there for short times - it was to be the center of government (and a small one!) not a city, much less one with a huge population.
DC's in the middle of a swamp - what would that many people do for a living in a swamp?
The thing that really stuck in my craw was that Mr. Rubin had the audacity to state that he *knew the intentions* of the framers when they wrote the text. Everything he said after that was obviously manure. I hope he's actually a columnist or commentator, because a journalist, he is pathetic.
Amazing. The only thing here more astonishing than what you fisked, Kevin, is his post afterward that you linked to in your update.
We've all seen what a person who cannot or will not learn is like, but running into him is like running into a brick wall at full throttle. Do they come any more stupid?
"The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent..., or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." -Thomas Jefferson
Clearly, old Tommy was just talking about States rights.
"So by your 'originalist' interpretation of the Second Amendment, Arizona can have its very own nuclear, biological and chemical weapons under the control of Gov. Brewer? Cool! Can we nuke California?
"Argument refuted."
Kevin -- this is your only stumble in that very long article. Here you are doing what Rubin does -- an idea is not to your liking, so you declare it, without further argument, "refuted".
I think the 2nd Amendment pretty much DOES say that people could have *any weapons* they want. True, Washington et al didn't imagine bombs that could level entire cities, but they also didn't write a law that restricted such weapons.
That is, "shall not be infringed" means "shall not be infringed", and I don't see any language in there that limits the *type* of "arms".
Stephen, his argument was that the 2nd Amendment allowed STATES to have any weapons they wanted. As far as the question of "what weapons" individuals could possess, that goes back to the "original understanding" legal interpretation.
MY understanding of that goes back to Tench Coxe: ""Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
"The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people."
"Their swords and every terrible implement of the soldier" in my understanding of the time extended to the weapons of infantry soldiers - the guys who hold the ground, and have since before Alexander conquered most of the known world.
Brought forward to today, and the intent would be for all small-arms, up to crew-served man-portable weapons. I think a reasonable (and legal) argument could be made that the "unorganized militia" as defined by USC Title 10, Subtitle A, Part I, Chapter 13, §311 could be further limited to weapons that are not crew-served, but we're not even close to that discussion, having been deflected away from automatic weapons in 1934 and even further with the "sporting use" restrictions in 1968.
The "shall not be infringed" as meaning "anything, anywhere, anytime" doesn't hold up under "original understanding" scrutiny because discussions over what type of weapons could legally be carried were going on even as the Bill of Rights were being ratified.
Kevin, suppose instead you simply told Stephen, "You're wrong, dude! Go see for yourself!" Would he do so? How many times would you have to say it before he tried? If he tried to see for himself, how far would he get, and would he get it right?
Kevin -- didn't you first argue that the *intent* didn't matter, but the actual law they wrote matters? Original understanding vs. original intent?
Because your response to my comment argues original *intent*.
I'm looking at the law they actually wrote, not the literature preceding it. Surely if they meant to limit the type of arms, they could have done so. They did not; they did the exact opposite.
...sort of. The 2nd Amendment protect an (understood) pre-existing right, and they do not specify the bounds of that pre-existing right, except to say that it shant be infringed.
So I'm not arguing that the 2A protects the right to have a nuke, but the "refutation" you made via "can California have nukes" was a weak argument: basically "That's crazy talk -- so that can't be what it says," which is exactly what your opponent does.
I see your point, but you missed mine. Original understanding means "how was it interpreted by the courts." Tench Coxe's statement reflects that. (I didn't feel like digging out Clayton Cramer's "For Defense of Themselves and the State" for the legal citations. I could just as easily quoted St. George Tucker and Joseph Story, but Coxe said precisely what needed saying.)
How the courts interpreted the words in the law is what matters. Problem is, there's not a lot of law on the Second Amendment prior to the Civil War. Kentucky's Bliss v. Commonwealth is the earliest one I'm aware of:
"In truth, the right of the
citizens to bear arms, has been as directly assailed by the
provisions of the act, as though they were forbid carrying guns on
their shoulders, swords in scabbards, or when in conflict with an
enemy, were not allowed the use of bayonets; and if the act be
consistent with the constitution, it cannot be incompatible with
that instrument for the legislature, by successive enactments, to
entirely cut off the exercise of the right of the citizens to bear
arms. For in principle, there is no difference between a law
prohibiting the wearing concealed arms, and a law forbidding the
wearing such as are exposed; and if the former be unconstitutional,
the latter must be so likewise."
Bliss said that the law protected weapons that can be carried.
I suppose it's possible to make a man-portable nuke, but you see my point?
What I was ridiculing about Rubin's position was that he was making the "any weapon, anywhere, anytime" argument, but stating that the States had that "right," enforceable against the Federal government.
My argument is that the right is individual, but "original understanding" limits weapons to those carried by infantry soldiers.
"The project, which involved a small nuclear weapon, was designed to allow one person to parachute from any type of aircraft carrying the weapon package and place it in a harbor or other strategic location that could be accessed from the sea. Another parachutist without a weapon package would follow the first to provide support as needed."
Thus, one man to carry it and place it, and another to carry his lunch and toilet paper "as needed."
JS-Kit/Echo comments for article at http://smallestminority.blogspot.com/2009/07/refuting-irrefutable.html (79 comments)
Tentative mapping of comments to original article, corrections solicited.
Nicely done.
You must read FAST!
Errr... Yes? :)
And he - or anyone - can read the most recent legal scholarship on the Second Amendment in the briefs filed for DC v Heller, at Gura's site
http://dcguncase.com/blog/case-filings/
all very nice, but arguing with a fool is a fool's errand. you both end up covered in mud, and the pig has a grand old time.
Brilliant, Kevin. One tiny quibble, though. Concerning artillery, breech loaders are allowed too, and unregulated. Also, not all muzzle loaders are allowed. The issue isn't where the gun is loaded from, but whether or not it uses fixed ammunition. The type of powder (black or modern) does not matter either. A breech-loading Civil War cannon that had separate powder and projectile would be ok, but a muzzle-loading mortar that used fixed shells would not be ok.
http://usgovinfo.about.com/bloldguns.htm
Doesn't affect your arguement, but it's a common misconception that I'd like to correct.
This is what I am talking about! Dang this ought to be on Pay per View!
Best regards,
Albert
Protect Yourself from Plagiarism: Part I
Protect Yourself from Plagiarism: Part II
Maybe Captain Apostrophe considers laws banning the use of the apostrophe to be irrefutable, too. Which may be the case, since there are not any such criminal laws that I know of. If they do not exist, can they be refuted?
Has Captain Apostrophe heard of the US Supreme Court?
Could Captain Apostrophe, perhaps, be aware that the US Supreme Court publishes their opinions? Opinions that Captain Apostrophe might obtain. Once obtaining these opinions, Captain Apostrophe might read them - even the ones that have those vicious nasty apostrophes.
Be sure to drop him a note, pointing him at this post. Something tells me that he is the kind of person who would merrily ignore it, unless someone dropped it right in his lap.
That said, I do believe you did a fairly outstanding job handing him his nether regions on a silver platter... The man obviously knows very little of what he speaks, and you more than adequately demonstrated that ignorance. I completely doubt he will admit to that ignorance, and I feel certain that he will ignore this post in its entirety (despite you emailing him, if you do), but that is just me.
Oh, I emailed him last night within a minute or two of posting. But remember what I told him in my invitation email:
"I don't expect to change your mind, or you to change mine, but what I endeavor to do is to put up both sides of the topic, argued by dedicated advocates using reason, logic, and citations so that those still on the fence - the ignorant, as you style them - can be educated and decide for themselves which argument makes more sense on the evidence."
We'll see how dedicated an advocate he is, won't we?
Illuminating...thanks.
When I hear claims that the 2nd wasn't intended to protect an individual right, I look first to the calls from the States asking for a Bill of Rights, starting with the Pennsylvania Dissent:
"the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". The Right to Keep and Bear Arms clearly encompassed private ownership and private use for private aims.
There is no question at all that the passage ratification of the 2nd occurred in the context of a debate in which individual rights were a concern.
Next, I look at the amendments that were actually proposed. There was an amendment returning power over the militias to the states, and it was a different amendment than the one dealing with the right to keep and bear arms. Madison dropped the militia amendment from the list. The 2nd was clearly not primarily concerned with the militia, because there was another proposed amendment that was. The other amendment, if passed, would have clearly done exactly what the "collective rights" crowd claim the 2nd does. Except that the other amendment didn't pass.
Third, I look to the Senate debates. There was an amendment offered to add the words "in the common defense" to the language of what became the 2nd Amendment. These words would have clearly restricted the 2nd so as to not protect an individual right. The amendment was defeated. The words were not added. The 2nd was not so restricted.
I suspect any response you get will be little more than "You're still wrong".
To the best of my recollection, anti-gun(redundancy alert!)Hollywood friends of Charlton Heston telephoned him during the Rodney King riots, as the rioters came closer to their homes and assumptions. "Hello Chuck!? Uh, you have guns over there, don't you." "Um, yes, I do." "Err..well, could I borrow one of them?"
See also Baghdad Bob, "There are no Americans at the airport!!"
This is an excellent post. Thanks for doing all of the heavy lifting! The arguments and evidence you present are a huge assistance to folks like me who struggle to clearly explain reality to friends and family. The next time I am sputtering in near-impotent rage at some tossed off comment from one of my friends or neighbors, I will quickly scan my soon-to-be well worn copy of this post (the one in tiny, tiny print that I will keep in my wallet).
Good luck on getting any response though - I agree with the commenter who said that the likely reply will be "You're still wrong!"
No, the response Kevin would get would be "Youre wrong"
No, the response Kevin would get would be "Youre wrong"
ROFL.
Seriously. People actually pay this idiot to write? He'd have flunked out of our lower-level journalism class if all of his writing is as bad as what we've seen here.
Hmm, looks like my backquote didn't work.
Argument Refuted.
"irrefutable".
"You keep using that word. I do not think it means what you think it means."
-Inigo Montoya
My predictions:
Rubin will either ignore you completely or accuse you of playing dirty by bringing facts into the discussion.
Surely, you cannot be expecting any sort of coherent, rigorous rebuttal.
"Youre irrefutably wrong."?
I'll be surprised if he gives a coherent response; most of his ilk run scared and pout whenever someone spanks them with the facts.
Bravo, Kevin, well done, again!
It's an emotion-driven tic he's got, a simple spastic apostrophe - the crux of the biscuit.
It feels like you are beating a dead horse. I found the arguments well founded and persuasive.
But that doesn't address the "irrefutable" claims of the fanatical Marc Rubin. A fanatic has decided he *owns* the truth, and anything contrary is a sign of sickness or sin or manipulation by the Devil, at least, in the perspective of the fanatic.
I am sure that Rubin appreciates the traffic his diatribe is generating, and revels in opposition. Rather that considering that he might have erred, I am sure Rubin, like other bigots and fanatics, is rather delighted. He finds opposition not to be a sign of error, but of confirmation that idiots don't understand *his* truth.
Your post is impressive, in how it brings together the history and many players in the discussion of gun rights, how the 2nd Amendment was written, just like the rest of the Bill of Rights, to assure the states that the Federal Government would not be able to restrict their ability to oppose that Federal Government, in the event the Federal Government became tyrannical.
You, sir, suffer from the weakness of assuming that acting within the truth and with good will, acting respectfully with regard to a respectable opponent can result in a debate and discussion of ideas, with the object of reaching an agreement, a sorting out of doubts and flaws in thinking. The reality is that Marc Rubin, by his writing at least, is not such a respectable partner in a search for truth. He seems to be a fanatic, placidly content that his grasp of thought is superior to any argument.
"You, sir, suffer from the weakness of assuming that acting within the truth and with good will, acting respectfully with regard to a respectable opponent can result in a debate and discussion of ideas, with the object of reaching an agreement, a sorting out of doubts and flaws in thinking."
Nah - I don't know how long you've been following this blog, but generally the idea is to just put the arguments side by side in a rational light to at least let bystanders decide, based on the merits of the arguments themselves, what the truth is.
It's one of the reason some of those here still bother with Markadelphia.
Very well written. This goes into the archives. Thanks for taking the time to put all this together.
Well done, Kevin.
But don't hold your breath too long. "Nu-uhh!" is not worth waiting for.
In general, I think Copperud did very well insofar as he limited his analysis to his field of expertise: grammar. But in this case, he wandered off the grammatical reservation with an assertion about the desires of the writers, and confusion about what constitutes "the military."
It is accurate to assert that the Founders were concerned about civilian control of the military, albeit in varying degrees according to political philosophy and whether their party happened to control the military at the time. (Jefferson loathed the idea of a regular army, right up until he controlled one. Plus ça change, n'est-ce pas?.) But when we talk about civilian control of the military, we are referring to the regulars, i.e., the Continental Army. There was no reason to worry about civilian control of the militia because the militia were civilians. Their officers, almost exclusively, were the powerful men of the local community who would have been the ones exercising control in the first place. The militia, as envisioned in the immediate post-Revolutionary era, was the free citizenry in arms.
"Regulated" is a tricky word in the 2nd Amendment, because it really can be understood several ways. The good news is that it doesn't change the proscriptive meaning of the amendment, which forbids infringement regardless of how we understand "regulated." But still, we seek after meaning and truth whether applicable or not. One objection I have to Copperud's answer in this case is that "subject to regulations of a superior authority" isn't a concept that can be meaningfully modified by the word "well." That is, adding the word "well" to the phrase "subject to regulations of a superior authority" does not produce any modification in the phrase's meaning.
More likely, regulated means "made regular." Regularity is not well suited to modification by the word "well" either, except in a military context. "Regular" troops were professional troops, indicating both their employment status and their degree of training, equipment, and discipline. (The OED shows this etymology going back to 1705, and in current use at the time of the American Revolution.) Thus, any band of armed men can be placed on a scale of regularity, ranging from regular (represented at the time by the British Army, which was the gold standard for discipline and training) to irregular (represented by any armed rabble). Militia, being the armed citizenry, default to the far irregular side of this spectrum, and are only improved through effort. (Note that the term 'irregular' with respect to troops doesn't appear until the mid-19th C., though the concept certainly existed) When the ratifiers of the 2nd Amendment stated that the security of a free state is dependent on the militia being well regulated, they meant that American bodies of militia needed to be display a degree of proficiency more akin to the exemplars of the British army than to a disorganized rabble. And right they were, since the latter tended to do rather poorly in battle when compared to the former.
I think it would be more accurate to say that the term "well-regulated" encompasses all of Schulman's proposed meanings but the last. A well-regulated militia, being a militia that possesses the proficiency necessary to fight effectively, must necessarily be well-equipped, well-organized, well-trained, and especially well-disciplined.
There was no need to specify that the militia should be "subject to regulations of a superior authority," because militias had always been chartered by state governments in the American tradition. There was never a long-standing tradition of private armies, roaming the countryside, free from government oversight or charter. (See: Shays' Rebellion & Whiskey Rebellion for what happened when post-Revolutionary Americans tried it!)
---
What a uniquely cockamamie argument! No doubt the NGAUS would have been gratified to learn, back when they were fiercely lobbying to enshrine the National Guard as a deployable fighting force, that their efforts were in fact guaranteed by the Constitution. However that would mean that the specialization of National Guard units has been unconstitutional. Why does California get fighter planes at Fresno, while Arizona is stuck with tankers at Sky Harbor? They get fighters and we get great big explodey targets?
Sarcasm aside, Mr. Rubin clearly knows bugger-all about the structure and status of the National Guard. It is better to remain silent and be thought a fool...
---
Now, on to private ownership of artillery. This is an interesting one, and I'm tempted to research and write an article on the subject. Privateers are an oft-cited and appropriate example, although their applicability is limited. First, they operated on the high seas, where as a practical matter law was very different than on land. Second, privateers carried letters of marque legalizing specific offensive actions. This is perhaps very similar to a company of Volunteers with orders to make a punitive raid on an Indian village/French settlement/&c. I'd like to see a serious examination of the legal and practical similarities between privateers and militia/Volunteers on government orders. In the absence of such a comparison, I'd counsel debaters not to lean too heavily on the example of privateering.
Private ownership of cannon was relatively rare throughout American history for a number of reasons, none of which were about legality. Except in very specific circumstances, involving either battlefield conditions or fortifications, cannon are practically useless. They're just plain difficult to move, supply, and use. Unless you need to punch through a wall, hit massed troops, or break massed troops up to make them vulnerable to cavalry, you're better off leaving the cannon at home. Individuals generally didn't own cannon (with functional intent) because cannon are expensive and crew-served. Throughout the locally-raised militia/volunteer organizational period (roughly 1792-1903), federal planners tried to get the states to raise cavalry and artillery units. In true grassroots American style, communities ignored the planners and organized themselves as infantry. Infantry were cheaper (to equip, to train, and to pay), and infantry officers got more glory and respect, which heavily motivated the community leaders who raised the units. Artillery officers, in particular, were seen as egghead specialists--all that trigonometry was ungentlemanly.
And even if a local community was going to raise an artillery unit, the various members didn't go out and buy their own cannon. The locals would beg the cannon off the state. The state, in turn, would beg the cannon off the feds. The feds would provide the oldest, most useless cannon available. If it trusted the requesting citizens, the state would pass it along, though without half the required equipage. The locals would never bother actually training to a decent standard with the things, but would certainly have spiffy uniforms made when they fired the cannon off on the 4th of July. Eventually, a couple of the crew members would move, die, or lose hands in threshing accidents, the artillery unit would die, and the cannon would be relegated to a spot out in front of the courthouse.
Kevin - You need to fix your blockquote comment problem. I suggest by moving to a comment package that doesn't rhyme with FAIL-Oh-SCAM. ;)
(Robb, I currently have 33,789 comments on HaloScan, and they link pretty reliably to the correct posts and everything! Unfortunately, I don't think it's logistically possible to move those comments and keep the links intact, so I'm staying with HaloScan, which works acceptably well with the exception of blockquotes. - Ed.)
[...] Alien emails in a counter Bill of Rights [...]
Nicely done.
When you meet someone of that level of obtuseness, you'd think it should be visible, shouldn't it? I mean, you'd think Rubin would have a huge sign floating over his head that said "Obtuse". That level of obtuseness should be visible from space.
An incredibly detailed and well prepared fisk, lacking only the constant repetition of "Rubin, you anencephalic brat" to make it perfect.
Geez I wish I could write as well as you do.
Beautifully done!
Kevin just tee's it up on the first hole, I enjoy reading so many various Tigers, Phils, Ernies, and Vejays hit the long drive to the cup. Eagles all around - while Irrefutable is playing at the Arcade across the street, trying to putt across the bridge that goes to the mouth of the big Clown-Head.
Thanks for the effort Kevin. You certainly brought a JDAM to a knife fight this time.
How do you feel about this? http://www.flypmedia.com/issues/33/#2/1
As someone commented once, why would the Founding Fathers put a right delegated to a vague 'militia' between two distinctly individual rights?
Hell, the first seven other entries in the Bill of Rights cover individual rights, with the 9th and 10th being delegated to the States.
Sad. Rubin is like Bellesiles 2: Electric Boogaloo.
Well said, as usual! You obviously did NOT write this quickly and I, for one, appreciate the research you did on it!
Nice work, citizen Kevin.
"all very nice, but arguing with a fool is a fool's errand. you both end up covered in mud, and the pig has a grand old time."
In this case I disagree. I'd say arguing with a fool on a fool's terms is a fool's errand. That would describe, say, the Republican Party. Instead, Kevin comes out of this unscathed, looking nothing but scholarly.
Rubin; Thirty years ago I might have written a piece much like yours. As one who changed his mind based on both personal experience and new (to me) information, I invite you to join the club of We The People Who Advocate Freedom. It doesn't come with a membership card, or special rates on your insurance or anything like that. It only comes with the knowledge that you're supporting something very rare in the world and very precious. Turn from the Dark Side-- stop railing against liberty at the least. Do that and eventually, as one who comes to believe in it, you'll be more and more compelled to speak out in favor of that jewel, liberty, and against those who oppose it. There is a right and a wrong side to this, don't you know? Power and consensus are different matters altogether.
OK, I tried. At some point this push against shove comes to blows. History says it is so (irrefutably?). The thief in the night doesn’t often give up his ways just because someone says, "Stop!"
Opinions are like a-holes, everybody has at least one, and they usually stink; here are a few of mine:
- Use of the “militia” in the 2nd.
Article I, Section 8, (in part) “The Congress shall have Power…
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Article II, Section 2,
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;…
So, what Constitutional defect does the ‘National Guard’ interpretation of the 2nd correct?
- “A well regulated militia”
Just to be a little bit of an obtuse engineer geek – whatever the “militia” is, given the time, “well regulated” does not mean the modern “these are your limits and you will pay through the nose to get to it”, nor the quasi-military ‘well trained/equipped/disciplined’, it means “optimum execution across the board” over the several States, hence the lack of ‘Congress shall…’ vs. the free speech and religion of the 1st (I figure those old farts, esp. those who were engineers, architects, and surveyors, had reason to specify Congress in the 1st but not the 2nd).
- “right of the States to the same weapons as the Federal”
The most ignorant, nay, fence-post dumb argument EVER – Private entities make and sell weapons to the Fed. And if the Fed rejects delivery???
Would like to expand, but when one makes this argument they should be dismissed in disgust.
Good Post. I think I'll send it to all my gun-nut and minority co-workers in the morning.
Thanks, y'all. I can't tell you what it does to me when I spend a few hours writing one of these things and nobody comments.
Love it!
That was awesome. Every once in a while I run into someone as "uninformed" as this guy and your site is the best location on the web to get facts to counter the lies and misinformation out there. Great work as usual.
My only complaint is that I can't watch Mr. Rubin's head explode as his brain tries to process this.
Well done once again. Now, if only ONE person would come up and say how it helped them decide (versus confirming their views one way or the other).
Wait... Did he really say "[Citizens of DC] don't even have a say in the election of a the President"?
Am I the first commenter to notice this?
oh c'mon, y'all. you don't *really* think rubin's "head will explode as he processes this", because you know good and well from sad experience that there's no chance in hell he even gave an instant's thought to the words, if he even read them at all. you see it all the time in political discussions - and yes, those on the right are just as bad as those on the left - when a partisan runs up against an argument that runs counter to their dearly-held dogma, THEY IGNORE IT. tell a lefty pushing socialized medicine horror stories of VA incompetence, mixed in with post office efficiency/courtesy/cost control, *they won't hear a word you say*. tell a righty pushing 'no government interference in business' horror stories of 8-year-olds working in coal mines and orphans starving to death by the hundreds in 1880's new york city, *they won't hear a word you say*.
kevin, your argument was well-written, well-reasoned, 10,000 words of truth that must have taken you some hours to write and edit and post. but the net effect, at least for the guy you directed your arguments to, will be zero. like must humans, especially political humans, i guarantee you he stopped listening at "i disagree".
you argued with a fool. (as he's a leftist, he can be nothing less.) you spent precious time and resources doing it, and all for naught. it was a fool's errand. hell, even lyle, who said i was mistaken by saying 'don't argue with fools' earlier admits it: "the thief in the night doesn't often (more like 'almost never') give up his ways just because someone says 'stop!'"
why squander your talents?
Wow. I'm in awe. Reading your stuff is always very educational for me. If only it was for Mr. Rubin too - I suspect the only education he got from it was a sore backside, from an absolutely righteous spanking. Ouch.
"you argued with a fool."
Yup, he did.
"you spent precious time and resources doing it, ..."
Yup, he said so.
"... and all for naught."
No, that would be true if the fool were the only one who read it. I read it, as did lots of other people (witness the comments), and we got a lot out of it (again, witness the comments).
Now, do you s'pose any others of Rubin's ilk read it? If so, do you s'pose they learned something from it?
Kevin explained why he does this:
"Now, I don't expect to change your mind, or you to change mine, but what I endeavor to do is to put up both sides of the topic, argued by dedicated advocates using reason, logic, and citations so that those still on the fence - the ignorant, as you style them - can be educated and decide for themselves which argument makes more sense on the evidence."
I call it time and resources well spent. Fools should not be allowed to win by default, and their foolishness should be on display in the public square.
"Did he really say "[Citizens of DC] don't even have a say in the election of a the President"?"
Washington D.C. does not get any Electoral College votes. Nor do they have a Senator or Congressional Representative. Thus, they have no vote for President or Congress.
That's not to say that they have no influence, just no vote.
Does anyone know the exact reason for this? It sure sounds like the concept of "those who receive money from the Government must not have any control over the purse strings."
"The thief in the night doesn’t often give up his ways just because someone says, "Stop!"
He usually does if "Stop" is followed by bang. But woe to the man who shoots the thief without good justification or warning.
I see Kevin's posts such as this one as speaking for many of us who are trying to warn the government to "STOP!"
Ed: Little behind on your ConLaw? :)
D.C. doesn't have statehood (Article I, Section 8: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States), but they do get to vote on the President.I guess I am behind on that one. Thanks for correcting me U-J. ::embarrased::
'Course, I still think the omission in the original Constitution was deliberate.
Ed:
I don't think they ever foresaw the need for it.
Remember, the people who are in DC should only be there for short times - it was to be the center of government (and a small one!) not a city, much less one with a huge population.
DC's in the middle of a swamp - what would that many people do for a living in a swamp?
"DC's in the middle of a swamp - what would that many people do for a living in a swamp?"
Hey, I live in Florida. That's pretty much ALL swamp...
The thing that really stuck in my craw was that Mr. Rubin had the audacity to state that he *knew the intentions* of the framers when they wrote the text. Everything he said after that was obviously manure. I hope he's actually a columnist or commentator, because a journalist, he is pathetic.
Adam:
Tsk. Tsk.
The Everglades is a RIVER, dammit. RIVER! Don't make me set the eco-hippies on you!
Also note that at the time we're discussing, the Spanish held Florida - and the US had no want to take it from them.. Cause it was all swamp!
"The Everglades is a RIVER, dammit. RIVER!"
Ptah. You say, "river," I say, "extra deep swamp."
I mean, I've tried arguing before that the 23rd Amendment should be repealed (and pronto), but that's more impolitic than standing against the 17th.
Amazing. The only thing here more astonishing than what you fisked, Kevin, is his post afterward that you linked to in your update.
We've all seen what a person who cannot or will not learn is like, but running into him is like running into a brick wall at full throttle. Do they come any more stupid?
I directed 'em here in a comment, Kevin. I put it in twice because it won't let you put in a real URL. Let's see if they delete 'em.
I did too, DJ, with a TinyURL minus the "http://"
And thank you!
dropped in via Og, outstanding essay (Sheesh, what else should this thing of beauty be called?). Also much belatedly added you to the blogroll.
Keep your powder dry.
Read his article (and commented thereupon). Someone else here got it right-- He's saying, "you're still wrong".
Lyle, it's pronounced "Nu-uhh!".
Can you spot the real journalist in this article. Its the unpaid blogger, not the repor..the newspa...the writ...ah..the weirdo liar.
Kevin Baker - you, sir, are my hero.
You need to raise your standards! ;)
"The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent..., or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." -Thomas Jefferson
Clearly, old Tommy was just talking about States rights.
:-)
"So by your 'originalist' interpretation of the Second Amendment, Arizona can have its very own nuclear, biological and chemical weapons under the control of Gov. Brewer? Cool! Can we nuke California?
"Argument refuted."
Kevin -- this is your only stumble in that very long article. Here you are doing what Rubin does -- an idea is not to your liking, so you declare it, without further argument, "refuted".
I think the 2nd Amendment pretty much DOES say that people could have *any weapons* they want. True, Washington et al didn't imagine bombs that could level entire cities, but they also didn't write a law that restricted such weapons.
That is, "shall not be infringed" means "shall not be infringed", and I don't see any language in there that limits the *type* of "arms".
Still, great post overall.
Oh, and since these comments never link back to the article they apply to:
http://smallestminority.blogspot.com/2009/07/refuting-irrefutable.html
Stephen, his argument was that the 2nd Amendment allowed STATES to have any weapons they wanted. As far as the question of "what weapons" individuals could possess, that goes back to the "original understanding" legal interpretation.
MY understanding of that goes back to Tench Coxe: ""Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
"The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people."
"Their swords and every terrible implement of the soldier" in my understanding of the time extended to the weapons of infantry soldiers - the guys who hold the ground, and have since before Alexander conquered most of the known world.
Brought forward to today, and the intent would be for all small-arms, up to crew-served man-portable weapons. I think a reasonable (and legal) argument could be made that the "unorganized militia" as defined by USC Title 10, Subtitle A, Part I, Chapter 13, §311 could be further limited to weapons that are not crew-served, but we're not even close to that discussion, having been deflected away from automatic weapons in 1934 and even further with the "sporting use" restrictions in 1968.
The "shall not be infringed" as meaning "anything, anywhere, anytime" doesn't hold up under "original understanding" scrutiny because discussions over what type of weapons could legally be carried were going on even as the Bill of Rights were being ratified.
Rule of Law has rules of its own.
Kevin, suppose instead you simply told Stephen, "You're wrong, dude! Go see for yourself!" Would he do so? How many times would you have to say it before he tried? If he tried to see for himself, how far would he get, and would he get it right?
Kevin -- didn't you first argue that the *intent* didn't matter, but the actual law they wrote matters? Original understanding vs. original intent?
Because your response to my comment argues original *intent*.
I'm looking at the law they actually wrote, not the literature preceding it. Surely if they meant to limit the type of arms, they could have done so. They did not; they did the exact opposite.
...sort of. The 2nd Amendment protect an (understood) pre-existing right, and they do not specify the bounds of that pre-existing right, except to say that it shant be infringed.
So I'm not arguing that the 2A protects the right to have a nuke, but the "refutation" you made via "can California have nukes" was a weak argument: basically "That's crazy talk -- so that can't be what it says," which is exactly what your opponent does.
I see your point, but you missed mine. Original understanding means "how was it interpreted by the courts." Tench Coxe's statement reflects that. (I didn't feel like digging out Clayton Cramer's "For Defense of Themselves and the State" for the legal citations. I could just as easily quoted St. George Tucker and Joseph Story, but Coxe said precisely what needed saying.)
How the courts interpreted the words in the law is what matters. Problem is, there's not a lot of law on the Second Amendment prior to the Civil War. Kentucky's Bliss v. Commonwealth is the earliest one I'm aware of:
"In truth, the right of the
citizens to bear arms, has been as directly assailed by the
provisions of the act, as though they were forbid carrying guns on
their shoulders, swords in scabbards, or when in conflict with an
enemy, were not allowed the use of bayonets; and if the act be
consistent with the constitution, it cannot be incompatible with
that instrument for the legislature, by successive enactments, to
entirely cut off the exercise of the right of the citizens to bear
arms. For in principle, there is no difference between a law
prohibiting the wearing concealed arms, and a law forbidding the
wearing such as are exposed; and if the former be unconstitutional,
the latter must be so likewise."
Bliss said that the law protected weapons that can be carried.
I suppose it's possible to make a man-portable nuke, but you see my point?
What I was ridiculing about Rubin's position was that he was making the "any weapon, anywhere, anytime" argument, but stating that the States had that "right," enforceable against the Federal government.
My argument is that the right is individual, but "original understanding" limits weapons to those carried by infantry soldiers.
"I suppose it's possible to make a man-portable nuke, but you see my point?"
It is not only possible, it's been done.
A backpack nuke! Cool! (68kg, though - 150lbs.)
Still, I think you could argue from a legal basis that this is a "crew-served" weapon, since it's supposed to go out with two-man teams! ;)
No, it's a one-man portable nuke:
"The project, which involved a small nuclear weapon, was designed to allow one person to parachute from any type of aircraft carrying the weapon package and place it in a harbor or other strategic location that could be accessed from the sea. Another parachutist without a weapon package would follow the first to provide support as needed."
Thus, one man to carry it and place it, and another to carry his lunch and toilet paper "as needed."
And,