state rights vs gun rights

this should be interesting.

i think the gun rights lobby may be shooting itself in the foot with this one, however unlikely it is that their efforts will succeed. they're pushing to remove local and state control of gun laws... putting such laws firmly in the hands of the federal government. if they do succeed, dollars to dirt within a year they'll be screaming about how the federal government now has even more power to take their guns away. i mean, do they not see the irony, here? one of the major arguments that is used to defend gun ownership is keeping the potential to resist the federal government!

Since the second amendment is separate from the tenth amendment, that tells me that that right is protected at the federal level, just as no state can take away your first amendment rights. However, I believe the decision which upheld gun ownership as an individual right also upheld the right of the government to subject it to reasonable regulations.

The ability to resist the federal government if necessary is about the only sensible argument I've ever heard for the average punter to own a gun.

as much as the gun rights side would like to demonize the current administration and supreme court, i really don't feel like obama or the justices are willing to start this fire. both sides have too much on their collective plates, too much already in the game, and neither of them is willing to risk it all for what would be, at best, a really lopsided 'victory' as far as gun control is concerned.

but, as in all things, we shall see.

I'm sure there are exceptions, but individuals can't resist the federal government (in the US) even if they are armed. The balance of power is overwhelmingly in the hands of the government.

Yeah, there was an incident in Waco, TX a long time ago that demonstrated that point.

Also, the other day I read a story about bar and restaurants in Arizona becoming concerned over a new law where people with gun carrying permits can bring them into bars and restaurants.

Stupid, stupid law.

What could possibly go wrong when mixing alcohol and guns?

That's how my family hunts . . . well, we wait until something is dead, then we drink.

that's what's interesting to me. gun rights and states' rights tend to be advocated by the same groups of people, right? and to some extent, the reverse positions also tend to share advocates--my impression is that if you polled a bunch of gun control lobbyists about states' rights, most of them would not be in favor of handing power off to the states.

This is less about states rights and more about incorporation. Like it says on Wikipedia (at the moment, anyway), incorporation "is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment... beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to 'incorporate' most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments."

For example, the First Amendment, which guarantees freedom of religion, freedom of speech, freedom of the press, and some other good stuff, applies to state and local governments, not just the federal government. Now the Supreme Court is going to rule on whether or not the same is true for the Second Amendment.

Last year the Supremes ruled that the Second Amendment protects the right of an individual, not just a militia, to possess firearms. In that case they ruled that Washington D.C.'s handgun ban was unconstitutional. But in the same case they also said that the government could put lots of restrictions on gun ownership. So, no, the new case doesn't mean that state and local gun laws would be invalid. It just means that they couldn't go too far in restricting gun ownership. Of course, the next big question would be, how far is too far? But last year's decision seemed to suggest that most current gun laws would still be valid.

Not true, if Vietnam, Afghanistan, Israel, Ireland and Iraq have shown anything it is that high tech conventional warfare based armies are incapable of stopping an insurgency that has the support of the people.

We have had that for a while down here in Atlanta I don't think it changed anything, the people who carried secretly can just now do it legally, it's not like there was a huge upswing of people strapping on their guns.

There was a shooting at one of the bars here a few years ago; a patron shot the bouncer after the bouncer threw him out. There was a big deal made about how the patron had a concealed carry permit. However, he actually left and came back with the gun later.

Not that mixing alcohol and guns is a good idea, of course. It's just a story I thought of where the permit was irrelevant.

The key thing there is the support of the people in resistance to the federal government. In order for anyone to be able to resist the federal government, they would need a really really really large number of people willing to fight on their behalf against their own government. That's not a luxury that the average gun owner in the US enjoys.

Besides, all of the examples that you listed are of a determined population resisting a foreign occupation (Ireland is the possible exception), not of a federal government being unable to put down resistance from an armed public. In those cases, nationalism in the face of foreign occupation provides the crucial contribution of public support. Waco is a much clearer parallel to the situation in which the average gun owner in the US would find himself if he confronted the federal government.

Note: I'm not arguing against gun ownership. I'm just arguing that buying a gun to ward off the US government is probably not very rational behavior. If someone comes into conflict with the US government, they would probably be better served by hiring a lawyer, writing to an elected official, or voting than they would be by buying a gun. Hobby-collecting, hunting, recreation, or home security (under certain circumstances) are probably much more defendable motives for wanting to purchase a gun.

Individuals? Maybe not. Recent military history suggests that armed groups stand a slightly better chance resisting the US military.

Bullshit.

The most powerful military in the world can't occupy and govern a tiny third world nation, crippled by 11 years of medieval siege like sanctions, where there are only 50,000 armed "insurgents." There is no chance they could do so in a country with 150 million gun owners. Even if only 10 % chose to fight that would still be five times more than the entire US military has in uniform.

If the federal government ever decided to attempt to use force to subdue the citizenry - military members would abandon their post and refuse orders, local police and sheriffs would refuse jurisdiction, the public wouldn't support or pay for the crackdown.

In short, enforcement without public support would expose Federal huff and bluster for what it is - empty in the face of a non-compliant populace.

That would be a horrible and entirely unnecessary scenario, but any American insurgency would not have to win decisive battles or conquer cities - it would merely have to survive and persist long enough for the government to collapse under its own weight and inability to quell a sustained conflict and the ensuing chaos.

I just hope it never comes to something like that.

Two minor quibbles: first, you're presupposing that they will find in favor of incorporating the Second Amendment. There is no guarantee that the Supreme Court will do that; indeed, the first post suggested a powerful conservative reason why they ought not. Until they decide, in the words of Justice Frankfurter, that the individual right to bear arms is a right that is fundamental to our conception of ordered liberty and whose deprivation shocks the conscience, then the decision of DC v. Heller applies only to the Federal government, not the states.

The second quibble is that if they did so decide, the dicta of DC v. Heller won't mean much since Congress will essentially be granted the power to regulate firearms at a federal level. Heller will only apply insofar as they use their power to blanket ban firearms; that would be clearly illegal. But it's really murky exactly what standard of review they would apply to government regulation of firearms, or for that matter how they would view, say, selective bans such as banning stripped-down semiautomatic versions of military-grade automatic weapons like the AR-15.

You are missing the point: the US federal government will not need to occupy a nation of 150 million gun owners! There are no likely scenarios in which the government will provoke the population so fundamentally that 15 million people will take up arms against it. When was the last time than any insurrection had a chance to topple the US government? 1865 maybe? Even the widespread discontent of the Great Depression didn't create a mass uprising.

I know that you are fond of non-sensical doomsday scenarios, but think this through. Please. Think what the bare minimum circumstances would need to be for the population to unite in armed uprising sufficient to defeat the US military. Then decide how likely that scenario is to play out. I'm guessing it's really fucking small. Now ask yourself if someone is formulating their plans based on that possibility is really acting rationally?

Yes, individuals. That's the case that XobelQlari brought up and to which I responded. My argument is that the average gun owner cannot resist the federal government, despite the fact that they own guns. The federal government will win the confrontation every single time.

Colonism brought up a different possibility: what if large numbers of people tried to resist the federal government? I argue that this scenario is unlikely to unfold in any way that would favor the rebels. In order for gun owners to resist the federal government, they would need really really wide public support (that is frankly unlikely to materialize in the levels they would need). Consequently, if an individual is walking into a gun store in the hopes that they will be able to ward off the federal government by rallying 15 million armed men, then they are living in a fantasy world.

To bring the discussion back to the issue XobelQlari brought up, I am going to still side with my argument. Given the multitude of reasons that someone could want a gun, I don't think that hoping for military backing from millions of people so that you can defend yourself from the federal government is going anywhere near the top of the list. Buying a gun to spend a day enjoying oneself at a firing range is a more defensible position than buying a gun to ward off the government because one plan (hint: not the second plan) is likely to be successful. The other (hint: the second plan) is not even remotely likely. The necessary conditions that would have to be in place for an individual to hope to resist the federal government through armed force (i.e. the backing of millions of people) is just a pretty remote possibility.

To clarify further: I am not saying that the US government could never be overthrown by force. Instead, I am arguing that it's really fucking unlikely. If someone is making their plans based on that hope, then they are not acting rationally.

I'm all for the holding in Heller to be incorporated to the states. It probably wouldn't be what I would have ruled myself and the application of the holding could have used some work, but the holding itself was tempered and reasonable from my reading.

Regardless, the votes on this will be FASCINATING. We'll see who exactly is an "originalist" and who is a full of shit hypocrite.

Don't constitutional rights always trump state and federal laws? Otherwise, what's the point?

The short answer is no. No constitutional right is absolute.

The question that they're deciding here is whether the individual right to bear arms that was found by the court a year or so ago applies to the states.

There was an amendment presented to the senate called the Thune amendment about two months ago. The Thune amendment would have made a law allowing there to be one national carry permit that would apply to all state. i.e. I have my New Hampshire carry permit. It would allow me to carry in Chicago where there is no carry permit at all. It only lost by two votes which blew me away. So that in a sense is similar to this. I will just say that states that have the strictest gun laws tend to have the highest crime. This country was founded on "bringing your guns to the party" and I think it should carry over to the states. Besides what am I going to do if there is a zombie Apocalypse or communism takes over South and Central America and the Russians parachute into my town?