Thanks for you comment Mr. Rose.

I'll be examining the issue of gun violence and control next week. My analysis will contradict yours. It is true that simple correlations do not establish a clear link between something like the rate of gun ownership and gun violence. However gun violence and violence per se are not the unique issue for the United States. Our issue is mass shooting by one or two gunmen using assault weapons. We have more mass shootings and killings than any other nation that is not at war or in the midst of violent political or social instability. Over-all violence in society and even gun violence are certainly complex issues. However the vast majority of our mass shootings would simply not have been possible were it not for the introduction of military style assault weapons into civilian hands starting in the early 60s. Since we have never effectively controlled these weapons no one can make the claim that such control would be unproductive or counterproductive. The fact is that Lanza could not have killed 28 people with any other kind of gun. Therefore, if he had not had those guns, he could not have committed that massacre.

It's always funny when the so-called and self described experts on guns suddenly lose all capacity to understand what a gun a actually is and how it works. Yes Steve, the Marine's in Afghanistan could be armed with two handguns instead of assault rifles, I wonder why they don't that?

Sir William Blackstone's Commentaries on the Laws of England have long been regarded as the definitive source of English common law by United States courts. To put it another way, when the Supreme Court looks for authority on the common law, they turn to Blackstone, not Bogus.

Here is what Blackstone tells us about the rights of Englishmen:

"... the fubjects of England are entitled, in the firft place, to the regular adminiftration and free courfe of juftice in the courts of law ; next to the right of petitioning the king and parliament for redrefs of grievances ; and laftly to the right of having and ufing arms for felf-prefervation and defence. And all thefe rights and liberties it is our birthright to enjoy entire; ..."

As can plainly be seen, it is indisputable that there was a common law right to "have" (i.e. keep) and "use" (i.e. bear) arms for individual self-defense. Furthermore, all of the enumerated rights are natural rights (they are each a "birthright"). They are not, as you claim, bestowed by Parliament. As I will shortly demonstrate, the rest of your arguments fall like dominoes once these indisputable facts are recognized.

It is commonly agreed and understood that the U.S. Bill of Rights does not create any new rights; the rights it enumerates predate the Constitution (most, if not all, are natural rights) and they do not depend on the Constitution for their existence. The Bill of Rights merely makes explicit that government violation of those pre-existing rights is prohibited (see, e.g., United States v. Cruikshank 92 U.S. 542 ¶ 17 [1875]). To be clear, this is uncontroversial consensus.

Armed (no pun intended) with this knowledge, we can now begin our analysis of the Second Amendment. The Second Amendment doesn't create "the right to keep and bear arms". That right already existed. Furthermore, the existing right was an individual right to have and use arms for self-defense. The Second Amendment cannot be interpreted in such a way that it would restrict or otherwise diminish the pre-existing right. Such an interpretation would be fundamentally incompatible with the purpose of the Bill of Rights, which was to ensure that the people's existing rights were protected from encroachment by the federal government. Therefore we cannot interpret the prefatory clause, "A well regulated militia, being necessary to the security of a free state", in any way that diminishes the pre-existing right. Nor can we assert that the prefatory clause is the justification, or purpose, behind the right. Natural rights, by definition, need no justification or purpose; they just *are*.

Now we have the proper frame of reference from which to interpret the Second Amendment. The prefatory clause does not, indeed cannot, define the purpose of "the right to keep and bear arms". Instead it defines the purpose behind the explicit prohibition against the right's infringement. In other words, the government is prohibited from infringing the people's right, because infringement of the right would be detrimental to the maintenance of the militia. This is in stark contrast to your preferred (and incorrect) interpretation, that the people have a right to keep and bear arms because that right is necessary for the maintenance of the militia.

Under your interpretation, the Second Amendment doesn't protect a right at all -- it eviscerates it. It takes the broad individual right to self-defense and narrows it down to a right only to serve in the military. It also transforms it from a right into a privilege. A right is something that people have by default (although no right is absolute; they may be suspended or revoked under certain circumstances). A privilege is something that people do not get by default, but must obtain by taking some form of action to earn the privilege. Under your interpretation, the privilege of keeping and bearing arms is not earned until one takes the action of joining some formal, organized military entity. It is clear that your interpretation is fundamentally at odds with the purpose behind the Bill of Rights and is inconsistent with the common law rights that American citizens inherited from the English common law. As an aside, I'll also add that it is pure folly to continue to promote the "collective right" theory of the Second Amendment when the entire Supreme Court -- all nine justices -- agreed that the Second Amendment protects an "individual right" (see District of Columbia v. Heller, 554 U.S. 570 [2008]; while the decision was ultimately a 5 to 4 split, on the question of "individual right" versus "collective right" the justices were unanimous).

Under the correct interpretation of the amendment, that is to say, the interpretation that the Framers of the Constitution had in mind when they drafted it, the prefatory clause does not diminish the pre-existing right to keep and bear arms -- it fully protects it -- which comports with the purpose of the Bill of Rights. Instead, the prefatory clause explains why infringement of the right is explicitly prohibited. The holding in District of Columbia v. Heller is in complete agreement with this interpretation of the amendment.

P.S. I apologize for the cross-post. But I was concerned that my post at the Thoughtful Bastards blog would not get any visibility.

Wow Steve. I had no idea that assault rifles are so useless as combat weapons. I wonder why so many people buy these pieces of junk when they could get a shotgun for a fraction of the price? And the Pentagon, my god the Pentagon spends billions on this things? Only a gun expert could bring us this level of insight. Thank you.

I stand corrected, there were 26 fatalities not 28 at Sandy Hook. However that's a mistake I made in the comment no in the article.

The pentagon does in fact buy assault rifles. The fact that those rifles may have some features not available on the civilian versions does not make them completely different weapons. Much is made for instance of the fact that civilian versions don't have full-automatic capability. This is a fatuous distinction. Historically assault rifles have not all had full automatic capability. The majority of Viet Nam era M-14s that preceded the M-16s had their full-auto selector switches permanently disabled. The British L1-A1 assault rifle was semi-automatic and had no selector switch at all, . Some assault rifles have 3 round burst capacity but no full automatic option. The idea that a single feature or a group of select features makes the difference between an assault rifle and not an assault rifle is simply ridiculous. This is a class of weapon that came into existence during WWII, not a feature of a weapon like a selector switch or a flash suppressor. Sure, some people like to use the current Pentagon definition that requires full-auto capability because that make is impossible to classify any rifle in civilian hands as an assault rifle. That's a neat trick but it's all done with mirrors. A rose is a still a rose.

The effect of carrying a weapon designed for combat into a theater or a school is obvious at this point. I think those who try to deny that effect are only embarrassing themselves.

Mr. Udstrand. Thank you for taking the time to read my counter-arguments. Herein lies the error in your thinking: there is a crucial difference between legal rights and natural rights. If we are to understand the intent of the Framers when they crafted the Bill of Rights, we must first be aware that they firmly believed in this important distinction. When you say, “You cannot argue that a ‘right’ of some kind existed, be it enumerated or not, when that right was explicitly denied by law”, what you refer to are legal rights. Such legal rights, of course, do exist. Copyright, something you, as a photographer, are sure to be familiar with, is a good example of such a legal right. The law explicitly gives you the exclusive right to make copies of your original creative works, denying all others that right.

But the Founders and Framers also believed that all people are endowed, by nature — by our mere existence — with “unalienable” rights. I’m sure you have read the following passage before:

"We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men"

Declaration of Independence (1776). Note well that the Founders believed that these unalienable rights were not endowed by government, and hence, not endowed by law. The rights do not exist because government declares so; quite the opposite: government exists because of these pre-existing rights (so that they may be protected).

That Parliament restricted ownership of firearms, or otherwise denied the right to have and use arms, is merely evidence that no legal right existed. It says exactly nothing about any unalienable, or natural, right. Indeed, the impetus behind the Declaration of Independence and the American Revolution was precisely that the colonist’s believed that their unalienable rights were being denied, i.e. not legally recognized, by the Crown and by Parliament.

So what of the rights mentioned in the Bill of Rights? Are they legal rights or natural rights? You make the error of assuming some (free speech, freedom of religion) didn’t exist prior to the Bill of Rights because they weren’t theretofore legally recognized. You fail to account for the possibility that the Framers considered these to be unalienable rights, which it so happens, they did. Witness, the Constitution of Pennsylvania (1776):

"That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding …"

And, as evidence that this idea that the Bill of Rights didn’t create any rights isn’t just some right-wing ultra-conservative conspiracy, here is the ACLU’s take on it:

"The rights that the Constitution’s framers wanted to protect from government abuse were referred to in the Declaration of Independence as “unalienable rights.” They were also called “natural” rights, and to James Madison, they were “the great rights of mankind.” Although it is commonly thought that we are entitled to free speech because the First Amendment gives it to us, this country’s original citizens believed that as human beings, they were entitled to free speech, and they invented the First Amendment in order to protect it. The entire Bill of Rights was created to protect rights the original citizens believed were naturally theirs …"

As I already stated in my earlier post, this concept is uncontroversial consensus. Arguments to the contrary are pure denialism.

As for Blackstone, I think you dismiss his work far too casually. The adage, “Don’t judge a book by its cover” is applicable here. While titled, “Commentaries on the Laws of England”, his books were not regarded as mere opinions of one man. This work of his was the only comprehensive treatise on the laws of England that was available at the time. Blackstone was a contemporary of the Founders and Framers. Many of them, particularly the ones who were lawyers, studied his work extensively. Samuel Adams, among the most highly regarded Framers, directly quoted, in his essay Right of Revolution, the passage from Blackstone’s Commentaries that I presented in my previous comment. Another one of the Framers, James Otis, regarded the Commentaries as an “accurate and elegant analysis of the laws of England”. Blackstone’s commentaries were cited and quoted during the Constitutional Convention as well as in the Federalist Papers. It is not by mere coincidence that the federal courts of the United States, at all levels, have extensively cited the Commentaries. The very first Supreme Court decision of significant impact, Chisholm v. Georgia, cites Blackstone. Literally thousands of other federal courts have cited the Commentaries since, and doubtless many tens of thousands more depend upon the precedents set by those courts. To argue that Blackstone’s Commentaries did not have an impact on those who originally formed the United States is, again, pure denialism.

Even if we should, against our better judgement, disregard Blackstone entirely, we still have other evidence that the Founders and Framers understood “the right to keep and bear arms” was a right that pre-existed the United States Constitution’s Bill of Rights, and that the right included a personal right to self-defense. Both the Constitution of Vermont and the Constitution of Pennsylvania contained the following declaration:

"That the people have a right to bear arms for the defence of themselves and the State"

These states subsequently ratified the United States Constitution, to include the Bill of Rights. It would be difficult to defend the position that these states gave up their broad pre-existing right to bear arms for self-defense, for a much more restrictive right to bear arms only in service of the militia, when they ratified the Bill of Rights.

Actually the first thing one needs to understand about the Constitution and the Bill of Rights is that they're function is to establish law, not merely lay out a set of ideas. The founders intended this to be a nation of laws, actual "legality" isn't irrelevant. One can establish that Blackstone had an idea, but to hang that idea on the Second Amendment you have to establish that it was recognized as law. I have demonstrated that it was not so. It takes more than a decontextualized quote from the ACLU to convert this theory into a basis for the Second Amendment.

As for natural rights, if we want to have that argument we can have it. There's nothing natural about owning a gun. Unlike life, liberty, and happiness, most human beings can get through life just fine without a gun. I'm not saying one cannot make an argument for owning a gun, but guns are not essential for life nor have they ever been. Any argument attempting to establish a natural right to own an assault weapon will face even more onerous challenges. If you want argue that taking away someones assault rifle is the equivalent of taking ones life, or liberty, I await your argument.