Dave Kopel is an attorney, a Second Amendment scholar and a tireless advocate for the right to keep and bear arms. He has published an article this week, In Liberty’s Two Arms, exploring the historical philosophical roots of liberty and their relevance to the language of the Second Amendment. Of even more interest is Kopel’s use of a well known book written by Justice Stephen Breyer, big macher of the liberal wing of the U.S. Supreme Court. Using Breyer’s own research and words, Kopel finds foundation for the individual right to own and keep personal firearms. This is a timely piece given the current landmark case before our Supreme Court, District of Columbia v. Heller. Kopel writes:
Active Liberty reminds us of the original meaning of “liberty” in the Greek city-states: the right of citizens to participate in their government. At the best periods in ancient Greece, as in New England town meetings, important public decisions were made democratically at assemblies of the people.
Active liberty, by itself, provides democracy, but it does nothing to protect minorities from the tyranny of the majority. Thus, Enlightenment philosophers articulated a principle of negative liberty: That a person has certain rights that even a majority cannot infringe.
And continues later with this:
Likewise, the Reconstruction Congress, when passing the Freedmen’s Bureau Act and, later, the 14th Amendment, explicitly affirmed the right of former slaves to own guns in their own homes for protection against the likes of the Ku Klux Klan. This was important for the freedmen personally and also for preventing the Klan from destroying the right of freedmen to participate in the political process.
Later, during the 1950s and 1960s, many civil rights activists in the South (including Eleanor Roosevelt, on a speaking tour in Tennessee) had guns to protect themselves while they campaigned against segregation laws and in favor of voting rights.
As they say, read the whole thing.
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And yet you have this administration spewing this…
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=59674
Public ‘threatened’ by private-firearms ownership
Government argues gun restrictions ‘permitted by the 2nd Amendment’
Posted: January 14, 2008
1:00 a.m. Eastern
Since “unrestricted’ private ownership of guns clearly threatens the public safety, the 2nd Amendment can be interpreted to allow a variety of gun restrictions, according to the Bush administration.
The argument was delivered by U.S. Solicitor General Paul D. Clement in a brief filed with the U.S. Supreme Court in the ongoing arguments over the legality of a District of Columbia ban on handguns in homes, according to a report from the Los Angeles Times.
#1 DJ — I think you just took the worst out of that article. It also said this
Clement is the Bush administration’s chief lawyer before the court, and submitted the arguments in the case that is to determine whether the D.C. limit is constitutional. He said the 2nd Amendment, “protects an individual right to possess firearms, including for private purposes unrelated to militia operations,” and noted the D.C. ban probably goes too far.
You make it sound like Clement is against the 2nd Amendment.
Gun ownership in such a target rich environment… man. Tempting
I wanted to own one of these:
http://en.wikipedia.org/wiki/M102_howitzer
But the reloading equipment was just too much.
And the recoil is really hard on the shoulder at this age - maybe not when I was younger.
DJ spin? Nah! This wouldn’t be the first time WND distorts a story. Clement also said this:
http://www.kansascity.com/news/politics/story/443501.html
We see what we want to see.
I see more gov regulations coming from this not less.
It is backed by the Brady folks..Paul Helmke.
Daniel, let me ask you this: are laws banning convicted felons from gun ownership constitutional in your opinion?
Lawyers, Politicians, and Democrats that want to ban guns do it not for public safety as they oft proclaim, but for the power that it affords them. A disarmed people are a people easily controlled. The 2nd is truly “Liberty’s Teeth”
unConstitutional.
If a man is unfit to be armed via the 2nd amendment I submit he must be unfit to walk the streets.
I do take issue with violent crimes but again if they arent fit to carry they arent fit to walk amongst us and can not be trusted in society.
Prior to 1968 this wasnt an issue.
http://en.wikipedia.org/wiki/Gun_Control_Act_of_1968
Under the GCA, firearms possession by certain categories individuals is prohibited.
1)Anyone who is under the age of 18, except with the written permission of their parent or guardian.
2)Anyone who has been convicted in a federal court of a crime punishable by imprisonment for a term exceeding 1 year, excluding crimes of imprisonment that are related to the regulation of business practices.
3)Anyone who has been convicted in a state court of a crime punishable by imprisonment for a term exceeding 2 years, excluding crimes of imprisonment that are related to the regulation of business practices.
4)Anyone who is a fugitive from justice.
5)Anyone who is an unlawful user of or addicted to any controlled substance.
6)Anyone who has been adjudicated as a mental defective or has been committed to a mental institution.
7)Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa.
8)Anyone who has been discharged from the US Armed Forces under dishonorable conditions.
9)Anyone who, having been a citizen of the United States, has renounced his or her citizenship.
10)Anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner.
11)Anyone who has been convicted of a misdemeanor crime of domestic violence.
DJ — I am very pro-gun, but agree that the government should be able to take the guns from the bad guys. I know, you will have this argument that soon the government will put restrictions on everyone. Give them an inch and they will take a mile. That is not always the case.
I don’t know DJ, I don’t see where keeping convicted felons from owning guns is a bad thing. You can’t keep them all in jail for life. But going back to Clement’s argument, I think what he was arguing was that the decision was based on only the 2nd amendment and took nothing else into consideration. If the SCOTUS upheld that, without a “flexible standard of review” by the lower court, it could be interpreted that ANY person has the right to bear arms without regard to their criminal past. Dangerous precedent to set, I think. BTW, I believe the DC gun ban to be unconstitutional.
There are also methods for convicted felons to have their civil rights restored, including gun ownership.
6)Anyone who has been adjudicated as a mental defective or has been committed to a mental institution.
Does this include Congress?
Hey, we normally don’t let convicted felons vote. We don’t allow them do adopt kids. We don’t allow them to do alot of things. Loss of those rights, including firearms possession, is a sanction we have put on them because of their past behavior. If you want to avoid losing those precious rights, then obey the law. If you don’t like the law, work your butt off to get it changed. If it’s repugnant to the Constitution, it need not be obeyed….at your own risk.
Dang it Bigs. I am starting to agree with you more and more.
Thats a problem.
hamous
What is a civil right?
Can you bright, intelligent and historical people tell me how it came to be that guns were banned in DC?
DJ, I’m confused. Do you or don’t you agree that government has the right to take away certain rights, including gun ownership, from some convicted felons?
AW a welfare mentality citizenry willing to do anything their ordained overseers told them to do.
#15 AW
I believe it came about because 1 out of 3 persons in DC is a politician, a retired one or aspires to be one. They may fear citizens being armed, but they are most scared of each other with a gun in hand.
hamous
I do not agree. Most gun laws have not made this country safer. DC is a perfect example. Violent criminals have guns, knives, bats, etc. Maybe the laws and sentences dealing with violent criminals needs to be revisited.
I am tired.
So you are indeed an anarchist. All this time I thought you were joking.
Well, there’s always Larry Kilgore ; - )
Saying that a man is free to walk the streets is saying he is not a menace to society, that he is a free man with the rights, responsibilities, and privileges that are part of being a citizen.
Denying one set of free man the right and the ability to defend himself while saying other free men do have the right to defend themselves is illogical.
Nat - So you’re saying that the homeless guy standing on the corner of Irvington and Cavalcade shaking and swatting his fist at the invisible banshees only he can see should be able to carry a gun?
I would not say a delusional, hallucinating person, unable to discriminate what is reality, or support himself should be free to walk the streets.
Thank you NAT
Thats what I have been trying to argue with no luck. Maybe I dont articulate myself well but you said it exactly as I think it.
hamous
Are you aware that in the state of Texas a felon is allowed to posses a gun in his own home?
I understand the concept you’re both alluding to but I just don’t think it will work. We used to lock crazy people up. They didn’t get better and it cost a bunch of money. Now we let them out on their own. They usually aren’t a menace to others, only themselves, but I don’t think they should be owning guns.
So you guys are sahying that it’s an expression of Freedom of Speech if someone yells “FIRE!” in a crowded theater when there is none, and the government cannot make laws restricting that kind of speech?
What about people convicted of felonies who have completed thier incarceration and/or are out on parole. do they get to own guns?
Remember—we have already laws that they can’t vote.
hamous
OMT, I am not an anarchist. I just dont believe the gov has the right (note I said right…they do have the power) to do as they please under the guise of laws. A free people should enjoy their Constitutional rights unmolested. If you are a danger to society you should not be free.
We will never see eye to eye on this.
Live free or die! Just say no!
OH yeah….Before you get a chance to gloat about Wesley Snipes’ loss (his trial is under way)…he should have hired Pete Hendrickson.
Sarge
I think you are wrong about voting atleast in Texas.
What’s up with Wesley Snipes? I haven’t heard anything about him. Whenever a Hollywood type person is mentioned my brain automatically turns off all auditory signals.
DJ, many states have laws that take away voting rights for convicted felons. There are means to have your voting rights, and 2nd Amendment rights, restored, In the case of 2nd amendment rights you have to petition at a federal level.
First let me tell you why you have heard nothing. The media is mum so if by a long shot he wins it wont be big news. If he loses it will be everywhere. FOX will eat him alive.
His tax trial started Monday. He will likely lose since he has some nobody defending him and they are defending him on mostly tired old losing arguments. Its a shame cause a celeb win would have brought the issue front and center..
Ya never know…he may win like but my hopes arent high.
In a perfect world criminals and lunatics would be rehabilitated and could be released. If they weren’t they would be kept in prison or Rusk. But you’re putting a lot of subjective decisions in the hands of government again. I think it’s a fair compromise to have a certain category of felons or loonies who are determined to pose little danger to society but have given up some rights. If they feel they have been completely rehabilitated they can petition to have their rights restored.
#33 hamous
Fair enough.
But the DC gun ban is ridiculous and has been around way too long. My bet is the SCOTUS upholds the lower court’s decision to overturn it.
What about the children, a felon has done his time with no infractions is released, marries and has children, should he not have the right to defend his family or should he be denied the right to have a family?
DJ, who was the tax protester guy in Shreveport?
Oh no, Nat. A “what about the children” defense? He can always petition to have his rights restored. Of course his best tactic would be to not commit a felony to begin with.
The attorney that won? Tommy Cryer. Thats who Snipes should have hired.
The anti-gun laws remind me of just more government prohibitions that failed.
As NAT points out not only can the felon not defend his family his offspring we be brought up anti-gun.
What a lose lose for a free society.
hamous is afraid of the .0009% of very bad people and for good reason.
Ollie North cant own a gun but his wife has one hell of a collection.
The people ought to be thinking about the consequences of thier actions before they go an commit a felony.
Are either of you guys for consequences and personal responsibility?
#39 - Yeah, that’s the one. And you are correct, he was not convicted of tax evasion. But guess what? He still had to pay the taxes and penalties! So did he really “win”?
Ollie’s convictions were overturned. Why can’t he own guns?
A petition to have rights restored is this concept or reality, I’ve never heard of that possibility. I have heard that until the Fed took more oversight that a Texas felon could possess a shotgun in his home (no traveling) for protection only.
DJ is remembering a famous quote maxde by G. Gordon Liddy.
which only proves that Mr. Liddy’s fambkly is protected, even though he can’t own guns.
NOW, we have to hear the sob stories about the children who have BOTH parents convicted of felonies not being protected.
He still had to pay the taxes and penalties! So did he really “win”?
He is a man of principles.
DJ, was referring to G.G. Liddy.
Was it Liddy?
NAT
Yes. Texas law felon has gun…feds you are doing five years. So much for individual or state rights.
#45 sarge
Yes and if Liddy does the shooting to save his family he is likely doing five to ten years.
What about “take the guns from honest citizens and only the criminals will have them”, agree with that concept is saying the “bad felons” will have a gun and those not wishing to repeat their error will be vulnerable.
Man you are good NAT. All great points.
Good night folks
#44 Nat, looks like it WAS reality:
Sorry if I can’t get all teary eyed about muggers, rapists, drug dealers, wife beaters, and child molesters not being able to protect themselves and their families because all the did was mug somebody, rape somebody, sell some drugs, beat thier wife, or molest a child, but I kinda think that that at the very least they ought to think about losing a right or two before they go out and mug somebody, rape somebody, sell some drugs, beat thier wife, or molest a child, and that in addition to sending the to jail for mugging somebody, raping somebody, selling some drugs, beating thier wife, or molesting a child.
It’s a character flaw on my part, I guess.
That, and the fact that most of them are likley to go back and mug somebody, rape somebody, sell some drugs, beat thier wife, or molest a child, and having a gun will make it easier to do and make sure there are no witnesess to send them back to jail for mugging somebody, raping somebody, selling some drugs, beating thier wife, or molesting a child is something we, as a society ought to be considering when we think about who gets to won guns and who doesn’t.
And if you keep advocating that the Second Amendment means that people who go out and mug somebody, rape somebody, sell some drugs, beat thier wife, or molest a chil get to own guns, you’re going to do more harm than good for the cause.
That indicates a recidivism rate of 0.0094 if my formula is correct, and 0.0094 is a percentile smaller than the population as a whole, reducing felonious activity to this percent of the population would be a shining point of light.
I have it from authority that the wild west of the 18th and 19th century a time of the gun on the hip was actually a safer period in the U.S. than now.
And the population density was less than one perso per square mile.
Give it up.
You are never going to convince people that the Constitution gives everybody rights without consequences if you abridge the right of another.
Thomas Jefferson made the famous
Yelling FIRE! in a crowded theater analogy to explain governments role and responsibility in insuring that one persons exercise of his rights does not infringe on the rights of others.
The Constution allows for the Government to deny rights to citizens, but only through “Due process.”
In the case of felons and the insane owning guns, that due process was completed long, long ago.
Perhaps something you should think about when you say felons shouldn’t be allowed guns is the fact that sometimes what is concidered a “Felony” is rediculous. Here’s a situation for you. My wife is a “Felon”. Simply because her employer’s paycheck bounced, causing her house payment check to bounce. She now has a conviction for “felony” bad check, and cannot own a firearm. I have no problems at all keping guns from VIOLENT criminals, but the current law is overbroad. The definition needs to be rewritten, as some crimes listed as felonies arent in any way violent, nor are the people convited of them any danger to anyone.
Some of the above arguments could have been avoided or improved if all the commenters had actually read the full article. Kopel’s discussion of active liberty, negative liberty and the inherent tension between them is at the core of the debate of if and how to restrict personal firearms.
ampdoc - I find it hard to believe that your wife falls into any of the categories of the GCA (see #9) for bouncing a check. Did she fall under a state law?
Check over $500.oo is a class D felony under TN law.
texpat
Thanks.
As Thomas Jefferson wrote in his model constitution for Virginia: “No freeman shall be debarred the use of arms in his own lands or tenements.”
More broadly, the republican philosophers worried that citizens who did not participate in the protection of their communities would become passive and dependent, and thereby lose virtues necessary to the survival of a free society.
Likewise, the active liberty principle of the Second Amendment’s opening clause teaches us about more than just formal militias. It looks to the role of citizens in helping to carry out the government functions of a free state — particularly the essential governmental function of suppressing predatory violence.
ampdoc - TN does have methods for restoration of rights. Since it was a state conviction and she didn’t fall under the federal statute, it seems like she would be able to have them restored. I’d look into it.
http://library.findlaw.com/2003/Mar/1/189956.html
#61 texpat - I read and understood the arguments of active/negative liberty and generally agree that in the case of the 2nd Amendment the two reinforce each other. But looking at Jefferson’s quote, I would argue that a certain class of convicted felons are not considered “freemen” by the nature of their crime, that their freedom has been restricted.
hamous
The war on drugs had ravaged this nation in more ways than I can count.
Hence this…”the republican philosophers worried that citizens who did not participate in the protection of their communities would become passive and dependent, and thereby lose virtues necessary to the survival of a free society.”
IMHO this is not by accident.
Daniel, I don’t disagree.
Hamous:
I am aware TN has a procedure for restoration of rights. I’m also aware that lawyers cost money, and so do court costs.