{"id":31797,"date":"2012-12-17T13:40:51","date_gmt":"2012-12-17T20:40:51","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/2012\/12\/17\/the-material-oddity-of-the-second-amendment.html"},"modified":"2012-12-18T19:10:56","modified_gmt":"2012-12-19T02:10:56","slug":"the-material-oddity-of-the-second-amendment","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2012\/12\/17\/the-material-oddity-of-the-second-amendment.html","title":{"rendered":"The Material Oddity of the Second Amendment"},"content":{"rendered":"

It seems to me that the Second Amendment to the US Constitution is unique in terms of having a very material aspect to it lacking in the other rights guaranteed to the people. \u00a0It gives you the right (as currently defined by the Supreme Court) to bear arms<\/i> — in other words, again as SCOTUS has defined it, to own firearms.<\/p>\n

There are restrictions that have, more or less and so far, withstood judicial scrutiny as not overly infringing on those rights. \u00a0There are restrictions on certain classes of weapons. There are restrictions on where I can carry weapons (varying by state and municipality). There are restrictions on where I can buy them, what background checks they need to run, etc. (again, sometimes varying by state, and often with odd loopholes, like internet purchases). There are restrictions on concealed carrying of weapons (again, varying by state and municipality). \u00a0There are restrictions on who can own guns — the mentally ill and former felons face various restrictions (again, with variations).<\/p>\n

But, fundamentally, the Second Amendment provides all citizens in good standing a right to own a thing<\/i>. \u00a0That makes it different from all those other rights, which are about intangibles, the right to do something, or protection from the government regarding religion or the justice system, or protection from certain impositions such as slavery.<\/p>\n

There is no Constitutional Right to own anything<\/i> … except for firearms.<\/p>\n

And that has complicated dealing with guns and gun violence in this country in a variety of ways.<\/p>\n

Set aside the question of why<\/i> that right was considered sufficiently important to codify in the Constitution — as protection for hunters, or as a way for states to protect themselves from invaders, or for individuals to protect themselves (from criminals or tyrants), any restrictions or regulations on guns must face that uphill battle against that fundamental right.<\/p>\n

Take the "firearm insurance" thing I mentioned earlier. \u00a0All practical considerations (is what it seeks to do good, will it actually accomplish its ends), if the effect of such a law is to unduly burden people from possessing a firearm, then it will get tossed out. That's the double-edged sword of "make it to expensive for folks to own guns": you end up letting just the rich own them (and, really, is that what you want?) and<\/i> you open yourself up to a court challenge.<\/p>\n

Consider a parallel case of a right. \u00a0It is possible to harm people through your free speech, by defaming them. We have laws about slander and libel to reflect that. But what if someone said, "Perhaps we should require people who are publishing things — be they journalists, or boggers, or tweeters, or whatever — to get defamation insurance, to cover them in case they do harm to someone \u00a0and get sued."<\/p>\n

I think most folks would consider that outrageous and unworkable. \u00a0And, yes, there is a difference between a school massacre and a someone's reputation being ruined. \u00a0But the general principle applies.<\/p>\n

That said, no right is absolute. As noted, we do<\/i> allow some restrictions on \u00a0speech (both those civil laws as well as limited cases of criminal law regarding national security, as well as direct incitement to violence, criminal conspiracy, etc.). Similarly, we have some restrictions on firearm ownership. But they are required to be of a limited nature, since the fundamental right to bear arms (as interpreted) remains.<\/p>\n

No particular conclusions here. It just occurred to me that, in some ways, the Second Amendment is unique in the sort of thing it does, very different from all the other amendments.<\/p>\n

Google+:<\/strong> View post on Google+<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

It seems to me that the Second Amendment to the US Constitution is unique in terms of having a very material aspect to it lacking in the other rights guaranteed to the people. \u00a0It gives you the right (as currently defined by the Supreme Court) to bear arms — in other words, again as SCOTUS … Continue reading “The Material Oddity of the Second Amendment”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_seopress_robots_follow":"","_seopress_robots_imageindex":"","_seopress_robots_snippet":"","_seopress_robots_primary_cat":"","_seopress_robots_breadcrumbs":"","_seopress_robots_freeze_modified_date":"","_seopress_robots_custom_modified_date":"","_seopress_robots_canonical":"","_seopress_social_fb_title":"","_seopress_social_fb_desc":"","_seopress_social_fb_img":"","_seopress_social_fb_img_attachment_id":0,"_seopress_social_fb_img_width":0,"_seopress_social_fb_img_height":0,"_seopress_social_twitter_title":"","_seopress_social_twitter_desc":"","_seopress_social_twitter_img":"","_seopress_social_twitter_img_attachment_id":0,"_seopress_social_twitter_img_width":0,"_seopress_social_twitter_img_height":0,"_seopress_redirections_value":"","_seopress_redirections_enabled":"","_seopress_redirections_enabled_regex":"","_seopress_redirections_logged_status":"","_seopress_redirections_param":"","_seopress_redirections_type":0,"_seopress_analysis_target_kw":"","_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[106,298],"tags":[],"class_list":["post-31797","post","type-post","status-publish","format-standard","hentry","category-plusposts","category-guns"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":132902,"url":"https:\/\/hill-kleerup.org\/blog\/2017\/02\/22\/gun-ownership-rights-are-not-absolute.html","url_meta":{"origin":31797,"position":0},"title":"Gun ownership rights are not absolute","author":"***Dave","date":"Wed 22-Feb-17 9:31am","format":false,"excerpt":"A federal appeals court has ruled that Maryland's laws banning \"assault weapons\" and large-capacity magazines was constitutional, opining that such weapons go beyond the Heller decision freedom of arms for self-defense, and that such restrictions were within the sphere of representative government to enact.\"Assault weapon\" tends to have a very\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":31799,"url":"https:\/\/hill-kleerup.org\/blog\/2012\/12\/17\/punishing-the-many-for-the-crimes-of-the-few.html","url_meta":{"origin":31797,"position":1},"title":"Punishing the many for the crimes of the few","author":"***Dave","date":"Mon 17-Dec-12 6:17pm","format":false,"excerpt":"The below post raises a valid point:'80,000,000 people did nothing wrong in Connecticut.80 million people haven't done anything wrong this week, won't do anything wrong next week and have done nothing wrong in the past.When did it become normal to suggest that the United States of America punish 80,000,000 of\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":45075,"url":"https:\/\/hill-kleerup.org\/blog\/2014\/09\/09\/its-a-horrifyingly-radical-change-to-the-way-things-were-before.html","url_meta":{"origin":31797,"position":2},"title":"It's a horrifyingly radical change … to the way things were before","author":"***Dave","date":"Tue 9-Sep-14 10:16pm","format":false,"excerpt":"The other day I blogged (https:\/\/hill-kleerup.org\/blog\/2014\/09\/08\/help-help-im-being-repressed.html) about a silly NRA press release nattering on about the current quixotic effort by Senatorial Dems to pass a constitutional amendment allowing for campaign finance limits, rolling back the clock to before the SCOTUS Citizens United ruling decreed that corporations are people, friend, when\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":45036,"url":"https:\/\/hill-kleerup.org\/blog\/2014\/09\/08\/help-help-im-being-repressed.html","url_meta":{"origin":31797,"position":3},"title":""Help! Help! I’m being repressed!"","author":"***Dave","date":"Mon 8-Sep-14 9:21pm","format":false,"excerpt":"The Daily Caller article manages to bury a single reference in the middle that makes it clear that what's being talked about is financial contributions, not \"free speech\" as most people (besides a slim majority on SCOTUS and corporate lobbying groups) recognize it. To be sure, the Senate Dems are\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4084,"url":"https:\/\/hill-kleerup.org\/blog\/2003\/02\/07\/mutter_mutter_m.html","url_meta":{"origin":31797,"position":4},"title":"Mutter, mutter, mutter …","author":"***Dave","date":"Fri 7-Feb-03 8:08pm","format":false,"excerpt":"Early drafts are leaking of the Domestic Security Enhancement Act of 2003, a\/k\/a Patriot Act II. Yeesh. Double yeesh. More Freedom of Information Act restrictions. DNA databases of \"suspected\" terrorists,...","rel":"","context":"In "Homeland Security"","block_context":{"text":"Homeland Security","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/homeland-security"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":26148,"url":"https:\/\/hill-kleerup.org\/blog\/2012\/02\/07\/money-is-speech.html","url_meta":{"origin":31797,"position":5},"title":"Money Is Speech","author":"***Dave","date":"Tue 7-Feb-12 1:21pm","format":false,"excerpt":"The author makes a persuasive argument that money, used for political expression, is protected by the First Amendment. But that doesn't rule out campaign finance restrictions, it just raises the bar for them. #ddtb Embedded Link Is Money Speech? If the critics of Citizens United want to be taken seriously,\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/31797","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/comments?post=31797"}],"version-history":[{"count":0,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/31797\/revisions"}],"wp:attachment":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/media?parent=31797"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/categories?post=31797"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/tags?post=31797"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}