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It very well may be.

I'm glad you agree Ahtman. One of the most vociferous, and commonplace arguments I hear for gun control use these people as examples of "how easy it is for people to get guns that will kill you!" when the situation just isn't what they characterize it as.

Frazzled wrote:
We have freedom of speech, press, assembly, due process. Do you have a guarantee of freedom of speech, press, assembly, due process, religion? Any of these? Whats to keep the government from taking those away from you with a new law?

All those are available by common law. A constitution does not actually of itself protect the citizen, the legislative debate protects the citizen, many nations have constitutions and violate them or shift the goalposts as to who they apply to. This is happening right now.

Frazzled wrote:
EDIT: I'm not trying to be disrespectful, but what protections do you have to keep a judge from changing his mind, or a new law being made. After all stare decisis only matters up to that court case, then everything can change.

Mind you, these amendments came about because the British government did not have them.

No offense taken.

Frazzled wrote:
We have freedom of speech, press, assembly, due process. Do you have a guarantee of freedom of speech, press, assembly, due process, religion? Any of these? Whats to keep the government from taking those away from you with a new law? .

Yup, as much as you do anyway:

Human Rights Act
The Human Rights Act 1998 gives legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR). These rights not only affect matters of life and death like freedom from torture and killing but also affect your rights in everyday life: what you can say and do, your beliefs, your right to a fair trial and many other similar basic entitlements.

The rights are not absolute – governments have the power to limit or control them in times of severe need or emergency. You also have the responsibility to respect the rights of other people – and not exercise yours in a way which is likely to stop them from being able to exercise theirs.
Your human rights are:

the right to life
freedom from torture and degraded treatment
freedom from slavery and forced labour
the right to liberty
the right to a fair trial
the right not to be punished for something that wasn't a crime when you did it
the right to respect for private and family life
freedom of thought, conscience and religion
freedom of expression
freedom of assembly and association
the right to marry or form a civil partnership and start a family
the right not to be discriminated against in respect of these rights and freedoms
the right to own property
the right to an education
the right to participate in free elections
If any of these rights and freedoms are abused you have a right to an effective solution in law, even if the abuse was by someone in authority, for example, a policeman.

We'll have to respectfully disagree reds8n, and that may be continental difference. I put no faith in something protected by law only, especially if derived from international treaty. We are the country that coined the phrase "trust but verify."

In the US the Constitution is used as a brake to prevent Congress/judges/President from overstepping their bounds. Sure it doesn't always work and the standards can slip, but on the whole its an effective method to stop the government from going to far. Fighting SCOTUS is usually (Washington DC and exception) a seriou no-no that usually loses over time.

I think it is largely continental difference. Western Europe has pretty effectively kept prosperity and peace for decades with our various systems. A lot of the Euros are well tooled up -- the French and Italians for birds, the Finns etc for reindeer, and the Swiss for whoever might want to invade them. It doesn't mean they want their weapons so they can overthrow their own government.

What do they French have? Thos gallic cigarettes are pretty strong. Those and week old french bread could probably stave off another German invasion indefinitely...

Plenty of shotguns and hunting rifles.

But when the French get seriously angry with their government, they just stage a huge strike.

The Germans are the French's biggest pals nowadays.

I thought the French rioted and burned cars. What do they have against cars? what did Peugot ever do to them?

I've always considered the Constitution as something that existed outside of the law; a series of ideals that any law passed must agree with. Not quite the same thing as a law, and while a law can simply be retracted by a legislature, the entire country(through our senators and HOR members) must reach a 2/3's(or was it 3/4's?) majority to change.

A law is traditionally subservient to the goverment, while a government must be subservient to the Constitution.

The Rule Of Law is that everyone including the government is subservient to the law. Thus the constitution is a law but it is also a set of ideals rather like the UN Declaration of Human Rights. IMO.

The Constitution, not to be confused with constitutions in general, is not 'a law', but from where all Laws emanate. It is not "above the law", it is what gives created laws their justification and limit. It is the groundwork for government and the rule of law, and where rule of law gains its authority. Now, it can be interpreted in different ways, such as loose and strict construction, which is where all the fun comes in.

Ahtman wrote:

warpcrafter wrote:The gun industry has their lobbyists too.

It is a little more complicated than that. Even if you took away the gun lobby it is not as if suddenly people would give up their firearms.

It should be pointed out that rights do not emanate from the Constitution but rather are protected. You are allowed to own a firearm not because the Constitution says you can, but rather because the Constitution says that the Government can not take that right away. Most of the Bill of Rights are a list of what the Government can not do, not what it can do. The right of free speech is inherent and the government is held at bay from trampling that by the First Amendment. There are of course limits as no limits at all would not be rule of law.

I wasn't expressing an opion there, just pointing out that it would be impossible at this point to get rid of guns in the U.S. However, like a lot ot artifacts of modern culture, the love of guns is believed to be an 'American thing'. It's the same with serial killers, who by the way rarely use guns. Most murders are commited by someone who was a relative, friend or co-worker of the victim who believed that the victim had it coming or sought revenge without thinking. Without guns, most of them would not be murders, just assaults. Us Americans are actually more orderly than the majority of Europe and Asia, where rioting is a national sport.

I don't like to call it a law; it isn't really the same to me. America is America because of it's Constition, not because of its laws.

I should make a quick note to point out that rights and laws are not the same thing which is why The Constitution does not grant rights, but does lay the foundation of the legal system. Laws emanate from the Constitution, rights do not, they are considered inherent. The First Amendment does not give a person the right to Freedom of Speech, it is inherent in the individual. What it does is protect that right.

This may be an unfair question... Would you argue that the right to bear arms is inherent in the individual?

I ask this because free speech is recognised to have proper limits, which are laid down in other laws such as Libel.

The 2nd amendment seems to indicate that the right to bear arms is inherent not in the individual but in collective action (the necessity of forming militias.)

The US law generally speaking grants the rights to bear arms without the necessity of joining a militia, I believe.

I think that it is an inherent right on an individual basis. Its a right that "scales up" with the level of society you are talking about. It recognizes that competent self-defense in the world requires arms, otherwise you are at the mercy of which ever oppressing force is after you, be it a grizzly bear, or a corrupt goverment out to stifle a religion.

So an individual has a right to personal defense, and in the case of a large, corrupt goverment on the attack, we have the right to form militias to defend ourselves. The "militia" clause is likely designed to prevent a goverment from outlawing lawful, organized resistance to policies or actions. Sort of an extension of the right to assembly.

warpcrafter wrote:

Ahtman wrote:

warpcrafter wrote:The gun industry has their lobbyists too.

It is a little more complicated than that. Even if you took away the gun lobby it is not as if suddenly people would give up their firearms.

It should be pointed out that rights do not emanate from the Constitution but rather are protected. You are allowed to own a firearm not because the Constitution says you can, but rather because the Constitution says that the Government can not take that right away. Most of the Bill of Rights are a list of what the Government can not do, not what it can do. The right of free speech is inherent and the government is held at bay from trampling that by the First Amendment. There are of course limits as no limits at all would not be rule of law.

I wasn't expressing an opion there, just pointing out that it would be impossible at this point to get rid of guns in the U.S. However, like a lot ot artifacts of modern culture, the love of guns is believed to be an 'American thing'. It's the same with serial killers, who by the way rarely use guns. Most murders are commited by someone who was a relative, friend or co-worker of the victim who believed that the victim had it coming or sought revenge without thinking. Without guns, most of them would not be murders, just assaults. Us Americans are actually more orderly than the majority of Europe and Asia, where rioting is a national sport.

Would you say that your orderliness is because you have so many guns?

Heinlein wrote that an armed society is a polite society.

I'd imagine that violent crime is commited when the offender feels secure and "in control". Take that control away with the knowledge that any one person around you, including your victim, is capable and willing to shoot and possibly kill an attacker, and an attack is discouraged.
Although I don't know how much that actually occurs in the United States. You certainly never see anyone walking around with a firearm that isn't concealed, and I'd guess that most people do not even have a concealed carry license. Even I don't. Interestingly enough, we have a large "non-lethal" weapon industry(tasers n such). Many people just aren't comfortable with a firearm, so while Heinlein expresses an entirely valid thought, it is not the only reason a society may be polite.

I don't know for sure if the Heinlein quote is applicable, but it does seem that the only ones who seem to think they have a stake in keeping their guns are those who as a hobby decide to go out in the woods and kill something, and those fundamentalist wackos who think that the end is near and will kill anyone who tries to stop them from being fundamentalist wackos no matter how many laws they've broken. I myself have no desire to own a gun, even though I live in a neighborhood where I occasionally hear gunshots in the distance. However, if a store clerk believes he needs one to defend himself against robbers, that's an unfortunate necessity. Maybe the way to reduce the danger of the guns would be to stop the robbers. That's a subject for a different thread.

This is an interesting discussion, and I'm going to make a few points before I go to bed.

1) The constitution is the law of the land. It does more than check the power of government, it actually is the source of power for government as well. If you look at articles 1,2 and 3, they actually spell out the powers of congress, the president and the courts. While some powers have expanded (congress can legislate nearly anything under the commerce clause now), if the constitution doesn't allow a branch to do something, it can't do it! The government creates laws that it hands down to the people, the constitution is seen as the laws written by the people and thus government is created. In Con Law, the constitution is the highest source of law for exactly that reason: it is seen as the will of the People.

2) The right to bear arms is inherent in the right to self defense, which is generally an accepted right, and is certainly one here in the US. There is actually some very interesting historical notes on the nature of "militia", as well, which tend to state that all able bodied men were considered members of the milita. To this day, that idea is kept as a last ditch plan for national defense. This militia can and should be "well regulated," but the idea that Americans can and should be armed to defend themselves, their rights, and the US isn't as archaic as many people think.

3) Finally, those that think that the arms in this country would do little against an occupying force have very little appreciation for modern history. No occupying force has ever outlasted a dedicated citizen resistance. Algeria, Viet Nam (twice), Afghanistan (against the soviets), and most likely Iraq are all nations with a dedicated, armed citizenry that have stymied powerful, western nations trying to control them. Remember that there are 300 million people in the US, while only 1 or 2 million military members. Most of those aren't ground forces, and even fewer are actual infantry. Remember that many, if not most, would desert in the case of a tyrannical regime. Suddenly you have a few hundred thousand trying to control hundreds of millions. Everybody in the US has a car and a gun. Yes, the tanks could do lots of damage, but no place is safe and everybody is a potential insurgent. No power, up to and including the US itself, could take and hold our territory and our people without doing massive damage to the population and infrastructure.

@Polonius - I think the problem with your first point is that is that the Constitution is not the will of the people. Rather, its an expression of what the framers believed the will of the people was at the end of the 18th century shortly after a violent insurrection against a percieved tyranny.

I know I'm not the first to quote the West Wing on this thread, but I'm thinking of a conversation between Toby Ziegler and his Rabbi, where the Rabbi states that in the days that the Torah was written:

'...a rebellious child could be taken to the city gates and stoned to death. It says that men could be polygamous and slavery was acceptable. For all I know, that thinking reflected the best wisdom of its time. But its just plain wrong by any modern standard...'

In a similar vein, its fair to argue that had the US constitution been written at a different point in history, then different values would have been expressed.

This is my main problem with those that say that bearing arms is an absolute right. I would say that there are only two absolute rights - Life and Freedom.
Even then we accept restrictions (in the vast majority of cases on our freedom, although in the cases of capital punishment, euthanasia, suicide and abortion on life as well) on these rights as the price of living in a society.

No society can exist without placing restrictions on the absolute free will of its citizens in order to avoid anarchy and chaos.

Yes, a very interesting discussion.

British law holds that self defence must be proportional -- in other words, if a guy comes at you with a cricket bat you do not have the right to use a gun on him. I can see that since the USA is filled with guns, the possession of guns by law abiding citizenry is merely proportional. Whether it actually works to reduce crime is another matter.


I would like to address Railguns's point.

>>I'd imagine that violent crime is commited when the offender feels secure and "in control". Take that control away with the knowledge that any one person around you, including your victim, is capable and willing to shoot and possibly kill an attacker, and an attack is discouraged.

This is an attractive "common sense" theory though it needs some evidence to support it.

I would advance the theory that violence is most often used by people who are insecure and lack control in their lives -- it is a means for establishing control and security.

This would explain why we see a lot more violent crime in poverty-stricken, insecure places such as Brazilian favelas, Somalia and council sink estates than in places like Oslo, prosperous suburbs and market towns.

Chimera_Calvin wrote:In a similar vein, its fair to argue that had the US constitution been written at a different point in history, then different values would have been expressed.

It has already been pointed out that there are different ways of interpreting the Constitution. Besaides if we cared about what the British thought of us we wouldn't have opened a big can of whoop-ass on them in Yorktown.

Thank you Leo McGarry....

Ahtman wrote:

Chimera_Calvin wrote:In a similar vein, its fair to argue that had the US constitution been written at a different point in history, then different values would have been expressed.

It has already been pointed out that there are different ways of interpreting the Constitution. Besaides if we cared about what the British thought of us we wouldn't have opened a big can of whoop-ass on them in Yorktown.

It's precisely because the Americans disliked the British idea of America as a tax farm that they opened a can of whoop-ass.

Ahtman wrote:

Chimera_Calvin wrote:In a similar vein, its fair to argue that had the US constitution been written at a different point in history, then different values would have been expressed.

It has already been pointed out that there are different ways of interpreting the Constitution. Besaides if we cared about what the British thought of us we wouldn't have opened a big can of whoop-ass on them in Yorktown.

And New Orleans! (big salute to my great great great, er whatever he was)

Chimera_Calvin wrote:@Polonius - I think the problem with your first point is that is that the Constitution is not the will of the people. Rather, its an expression of what the framers believed the will of the people was at the end of the 18th century shortly after a violent insurrection against a percieved tyranny.

I know I'm not the first to quote the West Wing on this thread, but I'm thinking of a conversation between Toby Ziegler and his Rabbi, where the Rabbi states that in the days that the Torah was written:

'...a rebellious child could be taken to the city gates and stoned to death. It says that men could be polygamous and slavery was acceptable. For all I know, that thinking reflected the best wisdom of its time. But its just plain wrong by any modern standard...'

In a similar vein, its fair to argue that had the US constitution been written at a different point in history, then different values would have been expressed.

This is my main problem with those that say that bearing arms is an absolute right. I would say that there are only two absolute rights - Life and Freedom.
Even then we accept restrictions (in the vast majority of cases on our freedom, although in the cases of capital punishment, euthanasia, suicide and abortion on life as well) on these rights as the price of living in a society.

No society can exist without placing restrictions on the absolute free will of its citizens in order to avoid anarchy and chaos.

There is a lot there, and some of it's good, and some if it I'm going to have to disagree with. That the constitution was written in a very different time is undeniable. In fact, most people don't realize this, but the rights guaranteed by the Constitution only protected people from Federal action, not state action, until the 20th century. They have since been nearly fully incorporated (under the 14th amendment, passed in the 1860's but not really used for that for decades), but in 1820 Maryland, for example, could have passed a law banning certain speech. Of course, most if not all State constitutions had Bills of Rights that generally went even farther than the Federal one....

We also need to figure what we mean when we say an absolute right. I think that's a more European concept, because in the US, there are Rights and there are Privileges, but no Absolute or Partial rights. In application, however, I think you see a pattern of cases that generally holds some rights to be far more difficult to impinge than others. For example: The United States, nor any state, could not ban use of the word F--k, as held in Brandenberg v. California. The idea was that no matter how offensive a word was, it cannot be removed from public discourse by government action. A line of cases going back forever has held that "Time and place" restrictions, meaning when and where one can speak (as a protest or whatever), are usually ok. Gun Control laws, as in requiring registration and/or restricting severely what weapons may be owned, have all been upheld. The recent Heller case, in DC, held that an absolute ban on handguns is too far. So, the law in the US basically says: there is a right to own weapons for personal defense, target shooting, and hunting, and while that right can be regulated, it cannot be completely denied."

To say that there is an absolute right for any person to own any firearm is ridiculous. We don't want the deeply insane owning machine guns. This is where we learn about the concept of Strict Scrutiny. In places where a law conflicts with the constitution in such a way that it's a restriction on personal rights, the court requires the government show three things: 1) a compelling state purpose, 2) that the law was narrowly tailored, and 3) that it no more restrictive than it need to be. Banning machine guns is pretty compelling: they're incredibly dangerous and destructive. The current law prohibits selling or buying those particular weapons, not all weapons in general, and the law doesn't even cover those already owned or certain exemptions. That's a fine law. The DC ban on handguns had a pretty wishy washy state purpose: to prevent gun deaths. DC lost, I'm assuming, because they couldn't show how banning handguns was more effective than regulating handguns through permits.

It's very cynical to say that the constitution no longer expresses the will of the people. I mean, the current way it's applied would be totally foreign to many of those that ratified it in the first place. I think if you polled most americans, they would say they have the right to own a gun, and thus it reflects the values of today.

If you really think it doesn't reflect contemperary America's values, what do you think would be added or deleted? I would like to see a general right of privacy and control over one's body added as a specific amendment, ending many of the silliness current law has to undergo.

I guess i'm also a little shocked at how few rights you feel a person has. Freedom is pretty ill defined, but what good is a right to life if one cannot protect it? What good is a right to freedom if cannot be protected, through the courts or at absolute worst through arms?

The one aspect of the constitution people do forget is that most people didn't think it would last. Foreign powers, internal dissension, the issue over slavery: the US could easily have ended up like France, with 5 republics over the last 200 years. Napoleon's rise in Europe following the revolutionary wars distracted the European powers, quite simply brilliant statesmanship kept the free and slave states playing nicely, the industrialization of the North coupled with mass immigration allowed the North to win the civil war when it was finally fought, and the emergence of nationalism in the late 19th and early 20th century led to a realization of a national identity, one that no longer viewed the constitution as a blue print laid down by the people, but as one that defined not only America, but Americans. I mean, all the time when you hear somebody tell another to shut up, you hear "I can say what I want, it's a free country." Americans, even if not aware of the text of their rights, now that they can speak, and read the news, and worship however they please, and own a gun, and enjoy legal protection in the courts. They know also that this isn't like a Social Security Check or a tax credit for tuition or being able to drive on nice highways, something that can be taken away as easily as it's given. These things are granted by the government, they are older and deeper than the government. I think that the constitution still speaks for the People.

If you go and read the text of the Universal Declaration of Human Rights, the same basic concepts are covered as in the US Constitution though in a somewhat more prolix style.

Kilkrazy wrote:Yes, a very interesting discussion.

British law holds that self defence must be proportional -- in other words, if a guy comes at you with a cricket bat you do not have the right to use a gun on him. I can see that since the USA is filled with guns, the possession of guns by law abiding citizenry is merely proportional. Whether it actually works to reduce crime is another matter.


I would like to address Railguns's point.

>>I'd imagine that violent crime is commited when the offender feels secure and "in control". Take that control away with the knowledge that any one person around you, including your victim, is capable and willing to shoot and possibly kill an attacker, and an attack is discouraged.

This is an attractive "common sense" theory though it needs some evidence to support it.

I would advance the theory that violence is most often used by people who are insecure and lack control in their lives -- it is a means for establishing control and security.This would explain why we see a lot more violent crime in poverty-stricken, insecure places such as Brazilian favelas, Somalia and council sink estates than in places like Oslo, prosperous suburbs and market towns.

Thats basically what I was getting at in other terms. How can I prove it? I can't, I'm not a psychologist. But I think from what I've observed in other people that it is a logical idea.

Respectfully, I agree but so what? Criminals like to establish control. Rapists are all about control. Its the chick with a gun that creates limits to that control.