The Liberal Gun Club Forum

http://dailykos.com/story/2011/2/1/9403 ... Experiment

What would happen with a semi auto ban that actually passed?

A nation wide ban on semi automatic firearms pases the House, the Senate, is signed by a President and is declared Constitutional by SCOTUS. Yes, I know, nothing even remotely close to this is going to happen with the current elected federal Representatives/Senators and the SCOTUS. The ban would include all semi-automatic firearms, from double action revolvers to semi-auto pistols up to any semi-automatic shotgun or rifle. (I picked this gun control measure since I've heard it proposed before.)

Nothing like this is going to happen in our lifetime regardless of the makeup of the courts.

Where have you heard an argument to ban double action revolvers as 'semi-automatic'?

But to play along, you ask 1) how would it be enforced and 2) who would follow it.

1) It could not be enforced - this is a scenario that would require jack booted thugs coming to your house. Not happening.
2) NO ONE would follow it who currently owns a handgun. I know of no gun owner who would give up their gun if the government said 'hey, your guns are now illegal, give em up'

Ok, so I agree with the overall point: If a ban comes about, who is going to remain armed? Do you really want that? Etc.

There's one thing which bugs me though and now is as good a time as any to point it out. The argument contains a claim that the 2nd amendment is a right to revolution.

I'd like to know what role exactly the 2nd amendment played in dealing with the confederates during the civil war. Because if there ever was a test of some putative "right to revolution" during American history, the civil war was it. It is also relevant to how domestic terrorists are being handled in more recent history. Did McVeigh have a "right to revolution?"

Moreover, if the right to revolution were a right in the same way the right of assembly is a right or the right to free speech is a right, then there ought to be examples of actions which in no way could be punished by the government without the supreme court declaring such punishment unconstitutional. So I'd like to know which kind of revolution precisely would be such that the government would not be able to act against it without this act being unconstitutional.

To avoid problems of equivocation, let me specify that the revolution discussed here is of the violent kind. No flower revolution, no symbolic revolution or no revolution of the soul. The argument in favor of the 2nd amendment as right to revolution takes the declaration of independence as evidence: what they were talking about there was nothing short of using weapons against the government.

Now, if someone wants to argue that the 2nd amendment has for effect to make the possibility of revolution a real risk for the government, and that the framers saw this as a desirable effect, then I would not object.

lemur wrote:Ok, so I agree with the overall point: If a ban comes about, who is going to remain armed? Do you really want that? Etc.

There's one thing which bugs me though and now is as good a time as any to point it out. The argument contains a claim that the 2nd amendment is a right to revolution.

I'd like to know what role exactly the 2nd amendment played in dealing with the confederates during the civil war. Because if there ever was a test of some putative "right to revolution" during American history, the civil war was it. It is also relevant to how domestic terrorists are being handled in more recent history. Did McVeigh have a "right to revolution?"

Moreover, if the right to revolution were a right in the same way the right of assembly is a right or the right to free speech is a right, then there ought to be examples of actions which in no way could be punished by the government without the supreme court declaring such punishment unconstitutional. So I'd like to know which kind of revolution precisely would be such that the government would not be able to act against it without this act being unconstitutional.

To avoid problems of equivocation, let me specify that the revolution discussed here is of the violent kind. No flower revolution, no symbolic revolution or no revolution of the soul. The argument in favor of the 2nd amendment as right to revolution takes the declaration of independence as evidence: what they were talking about there was nothing short of using weapons against the government.

Now, if someone wants to argue that the 2nd amendment has for effect to make the possibility of revolution a real risk for the government, and that the framers saw this as a desirable effect, then I would not object.

Crookshanks had a good comment on this. He was more eloquent than I was on this topic.

The framers obviously felt that the power to govern came from those governed and that if the government was tyrannical then the people obviously had the right to get rid of that government. There is no doubt about that. But the second amendment is there to protect the state, not to provide for means of uprising - although it would obviously allow that as well.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

It doesn't say anything about the ability to shed tyrannical powers or anything of that nature. Not that I don't think we have that right, I just don't see where its provided for in the 2a.

mark wrote:The framers obviously felt that the power to govern came from those governed and that if the government was tyrannical then the people obviously had the right to get rid of that government. There is no doubt about that. But the second amendment is there to protect the state, not to provide for means of uprising - although it would obviously allow that as well.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

It doesn't say anything about the ability to shed tyrannical powers or anything of that nature. Not that I don't think we have that right, I just don't see where its provided for in the 2a.

How do you define free state?

If the government is tyrannical, doesn't that mean an end to the free state you're trying to secure?

KVoimakas wrote:
How do you define free state?

If the government is tyrannical, doesn't that mean an end to the free state you're trying to secure?

A free State has sovereignty and is not at the mercy of external political entities.

North Korea is a free State. It is not,however, a State which allows its people freedom.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

This is not referencing a 'state of unhappiness' but an independent political entity that is free from the bonds of other states.

mark wrote:

KVoimakas wrote:
How do you define free state?

If the government is tyrannical, doesn't that mean an end to the free state you're trying to secure?

A free State has sovereignty and is not at the mercy of external political entities.

North Korea is a free State. It is not,however, a State which allows its people freedom.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

This is not referencing a 'state of unhappiness' but an independent political entity that is free from the bonds of other states.

Didn't this lead to the Articles of Confederation? Notice how they say independent states, in reference to the original states. The Constitution was written, what, 13 years after the Declaration if Independence?

The Free and Independent States mentioned above went by the wayside when the Articles of Confederation were replaced with the Constitution and a federal government that could actually do something. Now, there's a Free and Independent federal government (well, free as in sovereign anyway) but the multitude of free and independent states left the building.

When I view the different things that the Second Amendment was supposed to protect against (the Declaration vs Constitution part of the article I wrote), it strikes me that these same arguments could be made against a tyrannical federal government. Obviously I hope that this never happens and I think you're more likely to see it with the neocons (corporate rule anyone?) but the possibility is there.

Or maybe I'm just being paranoid.

KVoimakas wrote: Crookshanks had a good comment on this. He was more eloquent than I was on this topic.

I'm cutting and pasting his comment here:

Read some of the literature that's available on the right of revolution before you start assuming that Timothy McVeigh was exercising that right.

Start with the New Hampshire Constitution:

Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

The US constitution is the US constitution. The New Hampshire constitution is the New Hampshire constitution. For sure, there is value in looking at one to interpret the other but let us not import wholesale recognition of rights from one into the other, shall we? Case in point regarding the limits of cross-interpretation: I checked the New Hampshire constitution and found that it seems pretty consistent in using "the people" to refer to the collectivity and talks about "individuals" when talking about individuals. The US constitution does not display this same consistency.

Still, the same questions I originally asked must be answered by someone who would like to assert that this bit of the New Hampshire constitution is paying more than lip service to the idea of revolution. How does such right concretely play out?

Even if McVeigh had a legitimate beef he skipped the "other means of redress" part. He made no attempt to use any of the available means of redress (the courts, the ballot box, the 1st amendment, etc) before he resorted to killing people.

Argument void. The US constitution is not the New Hampshire constitution.

You'll also note that it says "the people", not "the individual". McVeigh needed to convince others that his cause was just before he started killing people. The Founding Fathers reached for the quills before they reached for the muskets.

None of this matters, except the argument that "the people" is not "the individual." Again, talking about the US constitution, SCOTUS has recognized that the second amendment talks about an individual right. Individual, as in "one person can exercise it."

(Even if numbers mattered, McVeigh had at least two accomplices. At which point does "the people" magically appear?)

McVeigh was a common criminal who fancied himself a revolutionary. Read my signature. He skipped over the first three boxes and went right for the fourth. Nobody here is going to defend that sort of behavior. As far as I'm concerned justice was served when the Feds put the needle into his arm and put him out of our collective misery.

What rights may or may not be recognized by the US constitution is a legal question. If the US constitution forbids the government to infringe on a right of revolution but there is a legally valid distinction between McVeigh and a revolutionary then this distinction is articulable in legal terms. None of the above constitutes such articulation.

This is what due process and equal protection are all about: people are to be treated differently by the judicial system insofar as there is an legal, rational, articulable distinction which can be made.

In any case, why are we talking about this? Oh, that's right, I forgot, you'd rather lump every RKBA'er into McVeigh's box with insults and stereotyping than address any of the arguments that are made in rebuttal to your tired old talking points.

The question of how McVeigh or any other domestic terrorist fit relative to a putative right of revolution is a legitimate one. (I realize that was part of a discussion on DKos.)

Again, I ask these two questions:

1. What is the case history surrounding the 2nd amendment as a right of revolution? I mentioned the civil war and McVeigh as very prominent examples were it could have played a role.

2. What specific acts does the 2nd amendment as right of revolution prohibit?

I managed to partially answer my own question regarding the right of revolution and the civil war. I found the following article:

Bullets and Ballots: Lincoln and the "Right of Revolution"
Author(s): Thomas J. Pressly
Source: The American Historical Review, Vol. 67, No. 3 (Apr., 1962), pp. 647-662

Reading the article, I noticed a few things:

1. Some confederates did appeal to a "right of revolution" but not all of them. I'd be curious to know how it was discussed among confederates.

2. In the article, there is no mention of "right of revolution" being linked to the second amendment. It seems supporters of such right went back to the Declaration of Independence for their justification.

3. The Union did not seem to ever entertain the idea that the confederates had a "right of revolution". Did the Union act unconstitutionally? (I'm sure some people in the South would argue that it is the case.) If the Union did not act unconstitutionally, then what is the legal argument as to why the "right of revolution" did not apply to the confederates?

4. Lincoln struggled with the idea of "right of revolution." Before becoming president he did applaud revolutions in other countries. At the same time, he spoke against taking up arms in a democracy. He himself was called a revolutionary by his opponents when he was campaigning but he denied the charge and kept insisting that the correct way to effect change was through the democratic institutions. When the civil war came, he had to clarify his position because some confederates appealed to this right of revolution. Here is what Lincoln said:

The right of revolution, is never a legal right. The very term implies the breaking, and not the abiding by, organic law. At most, it is but a moral right, when exercised for a morally justifiable cause. When exercised without such a cause revolution is no right, but simply a wicked exercise of physical power.

When he says "never a legal right", he implies that the constitution does not recognize that right because any right recognized by the constitution is by definition a legal right. I find myself in agreement with Lincoln. The moral right is not the same as a constitutional right. Heck, just about every week I find myself having to point out to someone that what is legal is not necessarily ethical and what is ethical is not necessarily legal.

As to the "right of revolution" in the NH constitution or the constitution of any other state, I see such rights being there for rhetorical effect as a reminder that the government will be forcibly deposed by the populace if it makes their life unbearable. If and when the revolution does come, there will be one of two outcomes:

1. The revolutionaries fail. The right of revolution won't save them. I can't see the day when a state court is going to say "oh, yes this violence you inflicted upon the government and your fellow citizens is alright because you have a right of revolution."

2. They succeed. In which case they won't go to court, which as part of the newly deposed government was corrupt anyway, to ask whether what they did was right. No, no. As good revolutionaries, they are going to declare their own actions to be right. Which is what all good revolutionaries do. It would be strange indeed for revolutionaries who win the fight to say "Oops! Sorry. We did not have a good reason for our revolution."