How is the Second Amendment “in a constant state of infringement”? (Do you think there should be a formal well regulated militia? Do you think the existence of any restrictions on who can get and have what guns is an infringement on the 2A? Or what?)
I don’t know enough about US grand juries to comment on that one. I’ll take your word for it and add a note to that effect in the grandparent of this comment.
Putting people in jail for not fulfilling what the state holds to be their obligations to others seems to me like “a punishment for crime whereof the party shall have been duly convicted”. (Which is not to say that the thing in question should be a crime; that’s a separate question and has nothing to do with whether the US constitution is a “dead letter”.) Are you saying that this happens without criminal proceedings?
How is the Second Amendment “in a constant state of infringement”? (Do you think there should be a formal well regulated militia? Do you think the existence of any restrictions on who can get and have what guns is an infringement on the 2A? Or what?)
The amendment, as written, explicitly forbids any restrictions on the possession of guns; it gives militia as the justification for this, but doesn’t make it requisite. “the right of the people to keep and bear Arms, shall not be infringed” isn’t ambiguous at all.
Putting people in jail for not fulfilling what the state holds to be their obligations to others seems to me like “a punishment for crime whereof the party shall have been duly convicted”. (Which is not to say that the thing in question should be a crime; that’s a separate question and has nothing to do with whether the US constitution is a “dead letter”.) Are you saying that this happens without criminal proceedings?
Correct. It’s treated as “contempt of court”, which doesn’t require criminal proceedings. ETA: And the obligations in the first place don’t require criminal proceedings either.
The Takings clause is also routinely violated; property can be charged with a crime (and property isn’t entitled to a trial) and seized.
explicitly forbids any restrictions on the possession of guns
I don’t see that. Perhaps we have different ideas about what “well regulated” could mean, or about the meaning of “infringed” in the 2A. I’m aware that this is an issue on which feelings run (to me) surprisingly high in the US, so it’s with trepidation that I say any more, but: it seems to me that (1) it surely can’t be (or at least shouldn’t be) a constitutionally-guaranteed right for individuals to own hydrogen bombs or large quantities of sarin gas, so (2) there must in fact be restrictions on what Arms the people may keep and bear, and (3) one obvious way to choose what restrictions would be to look at the context provided in the 2A itself, and to ask: What do people need in order to form a well-regulated militia?
It’s treated as “contempt of court”
That sounds really broken. -- Still, on reflection I don’t see that this can possibly be what the people who wrote the 13th Amendment had in mind; if it were, they’d have added “or imprisonment” or something of the kind. Is any kind of forced labour required of people jailed for nonpayment of child support? I’m pretty sure it isn’t. And while I’m not a big fan of any kind of imprisonment without trial, it’s hard to see how the police could do their job if it were completely forbidden. (You catch someone robbing a bank at night. Do you have to convene a jury before you can put them in handcuffs or lock them in a cell? Surely not.)
property can be charged with a crime [...] and seized
Yeah, and that’s absolutely ridiculous and unjust, no question. But that happens not to be one of the bits in my random sample. I wasn’t claiming to list every provision in the US constitution; just a sample, to see what fraction could reasonably be said to be “a dead letter”. The answer appears to be: a very small fraction.
(I am curious about the downvotes my comments above have attracted. Is there something actually wrong with those comments? I’m having trouble seeing what, and I suspect I’m just getting hit by the disagreeing-with-neoreactionaries penalty again. But perhaps I’m wrong. … Er, for the avoidance of doubt I’m not claiming that you are a neoreactionary, though for all I know you may be. Only that it seems to me that my comments, at any given level of quality, are far more likely to attract downvotes if they are conspicuously in disagreement with NRx opinion.)
[EDITED twice shortly after posting, both times to clarify meaning.]
I don’t see that. Perhaps we have different ideas about what “well regulated” could mean, or about the meaning of “infringed” in the 2A. I’m aware that this is an issue on which feelings run (to me) surprisingly high in the US, so it’s with trepidation that I say any more, but: it seems to me that (1) it surely can’t be (or at least shouldn’t be) a constitutionally-guaranteed right for individuals to own hydrogen bombs or large quantities of sarin gas, so (2) there must in fact be restrictions on what Arms the people may keep and bear, and (3) one obvious way to choose what restrictions would be to look at the context provided in the 2A itself, and to ask: What do people need in order to form a well-regulated militia?
The militia is to be well-regulated; the right to bear arms is not. As for capital weapons, such a nuclear weapons and nerve gas, the Constitution has a separate provision which forbids individuals to own capital ships, which I think is reasonably extended to cover new capital weapons. (Although strictly speaking, it should be extended by amendment, not by pretending it already says what we want it to.)
That sounds really broken. -- Still, on reflection I don’t see that this can possibly be what the people who wrote the 13th Amendment had in mind; if it were, they’d have added “or imprisonment” or something of the kind. Is any kind of forced labour required of people jailed for nonpayment of child support? I’m pretty sure it isn’t. And while I’m not a big fan of any kind of imprisonment without trial, it’s hard to see how the police could do their job if it were completely forbidden. (You catch someone robbing a bank at night. Do you have to convene a jury before you can put them in handcuffs or lock them in a cell? Surely not.)
Child support under threat of imprisonment -is- forced labor.
Yeah, and that’s absolutely ridiculous and unjust, no question. But that happens not to be one of the bits in my random sample. I wasn’t claiming to list every provision in the US constitution; just a sample, to see what fraction could reasonably be said to be “a dead letter”. The answer appears to be: a very small fraction.
If one part of the Constitution is ignored, the entire Constitution is effectively a dead letter.
If one part of the Constitution is ignored, the entire Constitution is effectively a dead letter.
I wouldn’t say that. We live in an imperfect world, with especially imperfect governments.
But I do say that the current rejection of the 9th and 10th amendments does turn the constitution on it’s head, and fundamentally transforms what was a government of delegated and enumerated powers into a government that rules,and the peasants will take it and like it.
The militia is to be well-regulated; the right to bear arms is not.
It seems to me that part of the regulation of a militia would involve deciding who bears what arms. That’s certainly the case in an actual army. For the avoidance of doubt, I’m not saying that the words “well-regulated” mean that there should be restrictions on exactly who can bear what arms under what circumstances. Only that (1) “the right to do X shall not be infringed” doesn’t, to me, imply that there must be no restrictions at all on doing X, and that (2) the context of a “well-regulated militia” seems to make it particularly hard to claim that the 2A makes it illegitimate to have the sorts of regulation that a well-regulated militia might have.
provision which forbids individuals to own capital ships
I can’t find quite that; only a provision forbidding states to “own [...] ships of war in time of peace”. Have I missed something? In any case, it’s not clear to me what distinction you’re drawing between “capital” weapons and others (it seems like some reasonable interpretations of that term might justify some restrictions on ownership of guns, which AIUI you are opposed to).
Child support under threat of imprisonment -is- forced labor.
On the grounds that you have to work to get the money to pay? I’m not convinced. If you can get the money from savings, or by selling other assets, or by asking friends to make donations, the child support authorities will not mind. Again, I’m not defending the US child support system (not least because I don’t know enough about it to know what I think) but it seems about as obvious to me as anything can be that it isn’t the same thing as slavery, which is what the 13th Amendment was attempting to forbid.
If one part of the Constitution is ignored, the entire Constitution is effectively a dead letter.
I’m not sure what to say other than: No, I completely disagree, and that seems an obviously unreasonable position. By all means say that if any part of the Constitution is ignored, then the Constitution is no longer being given the authority it should have; but that is an entirely different thing from saying that the whole thing is a dead letter.
It seems to me that part of the regulation of a militia would involve deciding who bears what arms. That’s certainly the case in an actual army. For the avoidance of doubt, I’m not saying that the words “well-regulated” mean that there should be restrictions on exactly who can bear what arms under what circumstances. Only that (1) “the right to do X shall not be infringed” doesn’t, to me, imply that there must be no restrictions at all on doing X, and that (2) the context of a “well-regulated militia” seems to make it particularly hard to claim that the 2A makes it illegitimate to have the sorts of regulation that a well-regulated militia might have.
“Shall not be infringed” is pretty clear language. And you can -kind of- finagle the language to imply that regulation is acceptable, but it requires finagling, which doesn’t speak to an intent to faithfully interpret.
I can’t find quite that; only a provision forbidding states to “own [...] ships of war in time of peace”. Have I missed something? In any case, it’s not clear to me what distinction you’re drawing between “capital” weapons and others (it seems like some reasonable interpretations of that term might justify some restrictions on ownership of guns, which AIUI you are opposed to).
Hm. I misremembered that article. So apparently it didn’t forbid individuals from owning what were, at the time, weapons which posed significant threats to the government.
On the grounds that you have to work to get the money to pay? I’m not convinced. If you can get the money from savings, or by selling other assets, or by asking friends to make donations, the child support authorities will not mind. Again, I’m not defending the US child support system (not least because I don’t know enough about it to know what I think) but it seems about as obvious to me as anything can be that it isn’t the same thing as slavery, which is what the 13th Amendment was attempting to forbid.
For the poor, or poorly-connected, it amounts to the same thing.
I’m not sure what to say other than: No, I completely disagree, and that seems an obviously unreasonable position. By all means say that if any part of the Constitution is ignored, then the Constitution is no longer being given the authority it should have; but that is an entirely different thing from saying that the whole thing is a dead letter.
What makes it substantively different? If, from a practical perspective, we only do what it says when we agree with what it says in the first place, what does it substantively provide?
“Shall not be infringed” is pretty clear language.
It doesn’t seem to be, since to you it’s obvious that it implies “no regulation at all” and to me it’s obvious that it doesn’t! (Though we seem to be agreed that in fact there should be some regulation of individuals’ rights to own some kinds of weapons.)
So apparently it didn’t forbid individuals [...]
Apparently. Perhaps it never occurred to anyone at the time that there was a substantial possibility of individuals owning such dangerous weapons.
For the poor, or poorly-connected, it amounts to the same thing.
There are probably people for whom imposing a fine on them would leave them no option but to turn to prostitution. If so, does that mean that having laws that impose fines on people is the same thing as enforcing prostitution?
This all seems terribly overstated to me. If you and I enter into a contract that involves my doing some work for you, is that “forced labour”? I mean, it’s certainly labour I have to do, but it certainly isn’t slavery under normal circumstances. (Perhaps if the contract said “OrphanWilde will pay gjm $10, in return for which gjm will do whatever OrphanWilde requires for the remainder of his life”. Such contracts are usually considered invalid.) I don’t see that being required to pay child support is different in kind. It may be unjust or counterproductive, but it’s a far cry from being slavery. (Just as with my example of a contract, it’s possible to imagine cases so extreme that maybe they should be called slavery: e.g., someone is required to pay his ex-wife $1M/year for the next 30 years despite being neither very rich nor possessed of skills anyone wants to pay millions a year for. But I bet that, just as with my example of a contract, those are not realistic cases.)
(1) it surely can’t be (or at least shouldn’t be) a constitutionally-guaranteed right for individuals to own hydrogen bombs or large quantities of sarin gas
For mental hygiene it’s very useful to distinguish can’t be and shouldn’t be.
But perhaps I should expand on my thought processes there. There are two reasons for my linking “shouldn’t” and “isn’t” here, neither of which is as stupid as being unable to distinguish between them.
First: There shouldn’t be such a right, and it seems really obvious and not very controversial that there shouldn’t be such a right, and I’m pretty sure most people (gun-rights advocates included) would agree. Leaving aside what the authors of the Second Amendment might have had in mind (they obviously couldn’t have considered my specific examples), if the 2A were commonly understood to require individuals to own stockpiles of nerve gas and nuclear warheads then (if I’m right in expecting that almost everyone thinks that would be crazy) it would likely itself have been amended; but it hasn’t been. Or at least there would have been serious attempts to argue for it to be amended; but I’ve never heard of such a thing. I conclude that most likely the 2A is not widely held to grant such a right.
Second: OrphanWilde appears to be arguing the “should” side at least as much as the “is” side (“the current state of the law is getting slightly better”), and the more interesting and important question seems to me to be whether totally unrestricted weapon ownership should be permitted rather than whether it is, and if I am successful in convincing OW that it shouldn’t be then I don’t really mind that much whether OW decides that the Constitution doesn’t require it to be or that the Constitution isn’t perfect. (Or, for that matter, chooses to hold inconsistent opinions.) Similarly with the question originally at issue. Murray says that the US Constitution has been being ignored for decades and that’s terrible; rebuttals beginning “No, actually the US Constitution hasn’t been being ignored” and “There’s no particular reason why the US Constitution shouldn’t be ignored, in the ways you say it has been” are—if equally well supported by evidence and argument—about equally effective. (The latter might be more difficult to support well since there’s an obvious reason why a nation’s constitution shouldn’t be ignored. But, e.g., perhaps one might argue that in a document so old there are bound to be things that are just out of date now, and that in some cases it’s better to deal with that by a tacit agreement to ignore those bits or reinterpret them rather than going through all the bother of explicit amendments. That might in fact be a good approach if it were widely agreed that the Second Amendment was originally intended to permit ownership of absolutely any weapons, but wouldn’t have been if its authors had been able to foresee how destructive some modern weapons can be.)
[My apologies if this ends up posting twice: either HN or something else between HN’s servers and me is having some problems.]
This debate is about whether the constitution is dead paper.
If you just define the constitution as a document who obviously says the right thing and then you will never come to the conclusion that it’s broken.
[My apologies if this ends up posting twice: either HN or something else between HN’s servers and me is having some problems.]
This debate is about whether the constitution is dead paper.
Mostly. But (as I already said) what actually provoked it is a book saying not only “the constitution is a dead letter” but “and that’s a really bad thing that we should fix”—and in that context, if we find some bit of the constitution that’s allegedly being ignored, it’s then worth asking whether it’s better ignored or not ignored.
If you just define the constitution as a document who obviously says the right thing
I don’t think anyone here is doing that.
I don’t know what you mean with HN.
I mean that at the time I was writing that, attempts to view HN pages were frequently timing out for me, and my first attempt at posting that comment resulted in an endlessly spinning please-wait animation, so I tried again. I wasn’t certain whether my first attempt might belatedly succeed, leaving two copies of my comment.
and in that context, if we find some bit of the constitution that’s allegedly being ignored, it’s then worth asking whether it’s better ignored or not ignored.
Of course that’s a worthwhile question, but it’s different from the question of whether it’s ignored.
How is the Second Amendment “in a constant state of infringement”? (Do you think there should be a formal well regulated militia? Do you think the existence of any restrictions on who can get and have what guns is an infringement on the 2A? Or what?)
I don’t know enough about US grand juries to comment on that one. I’ll take your word for it and add a note to that effect in the grandparent of this comment.
Putting people in jail for not fulfilling what the state holds to be their obligations to others seems to me like “a punishment for crime whereof the party shall have been duly convicted”. (Which is not to say that the thing in question should be a crime; that’s a separate question and has nothing to do with whether the US constitution is a “dead letter”.) Are you saying that this happens without criminal proceedings?
The amendment, as written, explicitly forbids any restrictions on the possession of guns; it gives militia as the justification for this, but doesn’t make it requisite. “the right of the people to keep and bear Arms, shall not be infringed” isn’t ambiguous at all.
Correct. It’s treated as “contempt of court”, which doesn’t require criminal proceedings. ETA: And the obligations in the first place don’t require criminal proceedings either.
The Takings clause is also routinely violated; property can be charged with a crime (and property isn’t entitled to a trial) and seized.
I don’t see that. Perhaps we have different ideas about what “well regulated” could mean, or about the meaning of “infringed” in the 2A. I’m aware that this is an issue on which feelings run (to me) surprisingly high in the US, so it’s with trepidation that I say any more, but: it seems to me that (1) it surely can’t be (or at least shouldn’t be) a constitutionally-guaranteed right for individuals to own hydrogen bombs or large quantities of sarin gas, so (2) there must in fact be restrictions on what Arms the people may keep and bear, and (3) one obvious way to choose what restrictions would be to look at the context provided in the 2A itself, and to ask: What do people need in order to form a well-regulated militia?
That sounds really broken. -- Still, on reflection I don’t see that this can possibly be what the people who wrote the 13th Amendment had in mind; if it were, they’d have added “or imprisonment” or something of the kind. Is any kind of forced labour required of people jailed for nonpayment of child support? I’m pretty sure it isn’t. And while I’m not a big fan of any kind of imprisonment without trial, it’s hard to see how the police could do their job if it were completely forbidden. (You catch someone robbing a bank at night. Do you have to convene a jury before you can put them in handcuffs or lock them in a cell? Surely not.)
Yeah, and that’s absolutely ridiculous and unjust, no question. But that happens not to be one of the bits in my random sample. I wasn’t claiming to list every provision in the US constitution; just a sample, to see what fraction could reasonably be said to be “a dead letter”. The answer appears to be: a very small fraction.
(I am curious about the downvotes my comments above have attracted. Is there something actually wrong with those comments? I’m having trouble seeing what, and I suspect I’m just getting hit by the disagreeing-with-neoreactionaries penalty again. But perhaps I’m wrong. … Er, for the avoidance of doubt I’m not claiming that you are a neoreactionary, though for all I know you may be. Only that it seems to me that my comments, at any given level of quality, are far more likely to attract downvotes if they are conspicuously in disagreement with NRx opinion.)
[EDITED twice shortly after posting, both times to clarify meaning.]
The militia is to be well-regulated; the right to bear arms is not. As for capital weapons, such a nuclear weapons and nerve gas, the Constitution has a separate provision which forbids individuals to own capital ships, which I think is reasonably extended to cover new capital weapons. (Although strictly speaking, it should be extended by amendment, not by pretending it already says what we want it to.)
Child support under threat of imprisonment -is- forced labor.
If one part of the Constitution is ignored, the entire Constitution is effectively a dead letter.
I wouldn’t say that. We live in an imperfect world, with especially imperfect governments.
But I do say that the current rejection of the 9th and 10th amendments does turn the constitution on it’s head, and fundamentally transforms what was a government of delegated and enumerated powers into a government that rules,and the peasants will take it and like it.
It seems to me that part of the regulation of a militia would involve deciding who bears what arms. That’s certainly the case in an actual army. For the avoidance of doubt, I’m not saying that the words “well-regulated” mean that there should be restrictions on exactly who can bear what arms under what circumstances. Only that (1) “the right to do X shall not be infringed” doesn’t, to me, imply that there must be no restrictions at all on doing X, and that (2) the context of a “well-regulated militia” seems to make it particularly hard to claim that the 2A makes it illegitimate to have the sorts of regulation that a well-regulated militia might have.
I can’t find quite that; only a provision forbidding states to “own [...] ships of war in time of peace”. Have I missed something? In any case, it’s not clear to me what distinction you’re drawing between “capital” weapons and others (it seems like some reasonable interpretations of that term might justify some restrictions on ownership of guns, which AIUI you are opposed to).
On the grounds that you have to work to get the money to pay? I’m not convinced. If you can get the money from savings, or by selling other assets, or by asking friends to make donations, the child support authorities will not mind. Again, I’m not defending the US child support system (not least because I don’t know enough about it to know what I think) but it seems about as obvious to me as anything can be that it isn’t the same thing as slavery, which is what the 13th Amendment was attempting to forbid.
I’m not sure what to say other than: No, I completely disagree, and that seems an obviously unreasonable position. By all means say that if any part of the Constitution is ignored, then the Constitution is no longer being given the authority it should have; but that is an entirely different thing from saying that the whole thing is a dead letter.
“Shall not be infringed” is pretty clear language. And you can -kind of- finagle the language to imply that regulation is acceptable, but it requires finagling, which doesn’t speak to an intent to faithfully interpret.
Hm. I misremembered that article. So apparently it didn’t forbid individuals from owning what were, at the time, weapons which posed significant threats to the government.
For the poor, or poorly-connected, it amounts to the same thing.
What makes it substantively different? If, from a practical perspective, we only do what it says when we agree with what it says in the first place, what does it substantively provide?
It doesn’t seem to be, since to you it’s obvious that it implies “no regulation at all” and to me it’s obvious that it doesn’t! (Though we seem to be agreed that in fact there should be some regulation of individuals’ rights to own some kinds of weapons.)
Apparently. Perhaps it never occurred to anyone at the time that there was a substantial possibility of individuals owning such dangerous weapons.
There are probably people for whom imposing a fine on them would leave them no option but to turn to prostitution. If so, does that mean that having laws that impose fines on people is the same thing as enforcing prostitution?
This all seems terribly overstated to me. If you and I enter into a contract that involves my doing some work for you, is that “forced labour”? I mean, it’s certainly labour I have to do, but it certainly isn’t slavery under normal circumstances. (Perhaps if the contract said “OrphanWilde will pay gjm $10, in return for which gjm will do whatever OrphanWilde requires for the remainder of his life”. Such contracts are usually considered invalid.) I don’t see that being required to pay child support is different in kind. It may be unjust or counterproductive, but it’s a far cry from being slavery. (Just as with my example of a contract, it’s possible to imagine cases so extreme that maybe they should be called slavery: e.g., someone is required to pay his ex-wife $1M/year for the next 30 years despite being neither very rich nor possessed of skills anyone wants to pay millions a year for. But I bet that, just as with my example of a contract, those are not realistic cases.)
For mental hygiene it’s very useful to distinguish can’t be and shouldn’t be.
I’m glad you approve of my doing so.
But perhaps I should expand on my thought processes there. There are two reasons for my linking “shouldn’t” and “isn’t” here, neither of which is as stupid as being unable to distinguish between them.
First: There shouldn’t be such a right, and it seems really obvious and not very controversial that there shouldn’t be such a right, and I’m pretty sure most people (gun-rights advocates included) would agree. Leaving aside what the authors of the Second Amendment might have had in mind (they obviously couldn’t have considered my specific examples), if the 2A were commonly understood to require individuals to own stockpiles of nerve gas and nuclear warheads then (if I’m right in expecting that almost everyone thinks that would be crazy) it would likely itself have been amended; but it hasn’t been. Or at least there would have been serious attempts to argue for it to be amended; but I’ve never heard of such a thing. I conclude that most likely the 2A is not widely held to grant such a right.
Second: OrphanWilde appears to be arguing the “should” side at least as much as the “is” side (“the current state of the law is getting slightly better”), and the more interesting and important question seems to me to be whether totally unrestricted weapon ownership should be permitted rather than whether it is, and if I am successful in convincing OW that it shouldn’t be then I don’t really mind that much whether OW decides that the Constitution doesn’t require it to be or that the Constitution isn’t perfect. (Or, for that matter, chooses to hold inconsistent opinions.) Similarly with the question originally at issue. Murray says that the US Constitution has been being ignored for decades and that’s terrible; rebuttals beginning “No, actually the US Constitution hasn’t been being ignored” and “There’s no particular reason why the US Constitution shouldn’t be ignored, in the ways you say it has been” are—if equally well supported by evidence and argument—about equally effective. (The latter might be more difficult to support well since there’s an obvious reason why a nation’s constitution shouldn’t be ignored. But, e.g., perhaps one might argue that in a document so old there are bound to be things that are just out of date now, and that in some cases it’s better to deal with that by a tacit agreement to ignore those bits or reinterpret them rather than going through all the bother of explicit amendments. That might in fact be a good approach if it were widely agreed that the Second Amendment was originally intended to permit ownership of absolutely any weapons, but wouldn’t have been if its authors had been able to foresee how destructive some modern weapons can be.)
[My apologies if this ends up posting twice: either HN or something else between HN’s servers and me is having some problems.]
This debate is about whether the constitution is dead paper. If you just define the constitution as a document who obviously says the right thing and then you will never come to the conclusion that it’s broken.
I don’t know what you mean with HN.
Mostly. But (as I already said) what actually provoked it is a book saying not only “the constitution is a dead letter” but “and that’s a really bad thing that we should fix”—and in that context, if we find some bit of the constitution that’s allegedly being ignored, it’s then worth asking whether it’s better ignored or not ignored.
I don’t think anyone here is doing that.
I mean that at the time I was writing that, attempts to view HN pages were frequently timing out for me, and my first attempt at posting that comment resulted in an endlessly spinning please-wait animation, so I tried again. I wasn’t certain whether my first attempt might belatedly succeed, leaving two copies of my comment.
It turns out that there was some large-scale network problem in the eastern US around then.
Of course that’s a worthwhile question, but it’s different from the question of whether it’s ignored.
Good to see we’re in agreement again. (I didn’t at any point say that the two questions are the same.)