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Mike Honcho

The Second Amendment - Discuss

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27 words: Deconstructing the Second Amendment

 

It's only a sentence long; 27 words that barely take up a full line on the Bill of Rights.

 

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.

 

And yet, for years, those 27 brief words have been the source of contentious debate -- seen by some as an inalienable protection against tyranny; by others as a dangerous anachronism.

 

Earlier this week, retired Supreme Court Justice John Paul Stevens called for a repeal of the Second Amendment, to which President Trump tweeted "NEVER."

 

Here's a look at the Second Amendment, its phrases parsed and placed in legal and historical context.

Our guides will be Constitutional experts Jeffrey Rosen and Jack Rakove.

 

A well regulated Militia,

 

What is a militia?

 

At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns, colonies, and eventually states. "[When the Constitution was drafted], the militia was a state-based institution," says Rakove. "States were responsible for organizing this."

 

What did it mean to be well regulated?

 

One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge.

"Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined," says Rakove. "It didn't mean 'regulation' in the sense that we use it now, in that it's not about the regulatory state. There's been nuance there. It means the militia was in an effective shape to fight."

In other words, it didn't mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.

 

being necessary to the security

 

What type of security was referred to here?

 

To get to that, consider the climate of the United States at the time. The country had just fought a war, won its independence and was expanding west. There were plenty of reasons to feel unsafe, and so "security" had a very palpable meaning.

 

"You have an expanding country, and the principle defense use of the militia would be to protect local residents from attack and invasion," Rakove says.

It also meant physical protection from government overreach.

 

"The idea of a state militia would also be attractive because it serves as a deterrent against national tyranny," says Rakove. "At the time, if government forces tried to take over land or overstep their boundaries, you'd have an institution in place -- the militia -- that would outnumber any army."

 

Of course, with the size and scope of the modern United States military, and the fact that militias as we know it no longer exist, that notion is hard to imagine today.

 

In the debate over the Second Amendment, this phrase, "a well regulated militia," remains one of the most cited and argued parts of the sentence.

 

of a free State,

 

What did a free state mean?

 

It may seem obvious, but Rosen and Rakove agree the Constitution bore a lot of contemporary moralism and not every word is well-defined.

 

In this case, the meaning of "state" is what it appears to be.

 

"This is referring immediately to 'state' as in one of the states of the original colonies," Rosen says. "James Madison had the 1777 Virginia Declaration of Rights by his side when he wrote the Bill of Rights and he essentially copied and pasted language from it."

 

But it could also speak to a larger understanding of liberty.

 

"So here," Rosen continues, "George Mason (the author of the Virginia Declaration of Rights) is talking about not only the free state of Virginia." He is also talking about a broader state of freedom.

 

the right of the people

 

What kind of rights?

 

This is another highly-contested area where it helps to know more about how the framers of the Constitution thought about complex ideas like "rights."

 

"When we think about 'rights,' we think of them as regulations and exemptions," Rakove says. "Back at the birth of our nation, they had a different quality. They were more moralistic."

Rosen says this viewpoint is reflected in the Declaration of Independence:

 

"The framers definitely believed in natural rights -- that they are endowed by a creator," Rosen says. "They believed we are born into a state of nature before we form governments, and that we are endowed with certain fundamental rights."

 

These natural rights included the right to religious expression, free speech, property and more. But they did not, Rosen says, specifically include the tenets of the Second Amendment.

 

"The framers did not talk about the right to bear arms as one of the set of natural rights," he says. "But it is fair to say that the right to alter and abolish government -- to the degree that modern people claim they have that right -- the framers certainly believe it."

 

"In that sense, it is historically accurate to say that the framers did recognize a natural right of self-defense."

 

Who are the people?

 

Even the term "people" -- the most basic catch-all -- has limitations.

 

"You say people, you mean individual persons," says Rakove. "But, if you go to Article I, Section 2 of the Constitution, it says the House of Representatives will be chosen by the people -- who are the persons? Who are entitled to exercise that suffrage? You see, you can use the term 'people' to imply a collective mass, but there are some categories of people that can be excluded."

 

After all, when the Constitution was written, slaves were considered property and women were not allowed to vote.

 

In addition, there is a more basic question of semantics: By "the people," is the Second Amendment referring to people as private entities, or as participants in the militia?

 

The legal consensus is that the Second Amendment applies to individual rights, within reasonable regulations. More on that below.

 

to keep and bear Arms,

 

What are Arms in this context, and what is the scope of bearing Arms?

 

In the "District of Columbia v. Heller," the Supreme Court decided the rights outlined by the Second Amendment did apply specifically to possession of firearms for purposes of self-defense.

The decision struck down the Firearms Control Regulations Act of 1975, which heavily regulated owning and keeping firearms in the District of Columbia.

 

In the above excerpt(at link), we can see the Court considered the awkward phrasing of the Amendment. The Justices divided the Amendment into an operative clause: "right of the people to keep and bear arms," and a prefatory clause: "A well regulated Militia, being necessary to the security of a free State." The court determined the relationship between these phrases, as well as the historical context of the Constutition's creation, clearly provided an individual right.

 

The term "arms" is also an ever-changing one, and there are ongoing debates about assault weapons and emerging firearm technologies.

 

"One thing people disagree about is whether assault weapons bans are constitutional," says Rosen. "They also disagree about how we should interpret the constitution in terms of history or in light of new technologies."

 

shall not be infringed.

 

What does it all mean?

 

For modern applications and purposes, Rosen agrees that we must turn to how the Second Amendment is presented in a court of law. For the most part, these applications have remained consistent since the Heller decision in 2008 and a similar case, McDonald v. City of Chicago, which was decided in 2010.

 

"It's really striking that since these Supreme Court decisions... lower courts have upheld almost all of the gun regulations they have asked to review," he says.

 

Rakove thinks the framers of the Constitution would be surprised at the conversations we are having today.

 

"While there is a common law right to self-defense, most historians think that it would be remarkable news to the framers of the Second Amendment that they were actually constitutionalizing a personal right to self-defense as opposed to trying to say something significant about the militia," he says.

 

Words like "militia" and "rights" are loaded with historical context and nuance that can act as a Rorschach test, leading even the best-intentioned interpreters to different conclusions. If there were any clear answers, these 27 words wouldn't be so incendiary.

 

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A brief history of the Second Amendment

 

“The current situation,” Saul Cornell, a historian at Fordham University, told me, “is kind of anomalous.

 

During the Constitution’s drafting and ratification, there was some concern that the federal government would have far too much power to dismantle state-run militias, because the Constitution gave the federal government power over “organizing, arming, and disciplining, the Militia.” This worried states, which relied on militias for law enforcement and defense. In particular, Carl T. Bogus, a researcher at the Roger Williams University School of Law, argues that Southern states were concerned that the federal government could use this power to go after slavery, since militias were often used as slave patrols at the time.

 

After the Constitution was ratified, the founders took to writing a Bill of Rights to assuage the concerns raised by anti-federalists. Aware of criticisms about the federal government’s powers over state militias, they included the Second Amendment in this context.

 

“With this background, now listen to the Second Amendment fresh and anew,” Bogus told me, reciting the law: “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.”

 

The historical record reflects this. In The Second Amendment, author Michael Waldman goes back to the creation of the Bill of Rights for answers. He found that the Second Amendment was among the least debated provisions by Congress. In the House, he wrote, “Twelve congressmen joined the debate. None mentioned a private right to bear arms for self-defense, hunting, or for any purpose other than joining the militia.”

 

In fact, guns were well regulated at the time. Legal scholar Adam Winkler wrote for the New York Review of Books:

 

What the NRA doesn’t like to admit is that guns were regulated in early America. People deemed untrustworthy — such as British loyalists unwilling to swear an oath to the new nation — were disarmed. The sale of guns to Native Americans was outlawed. Boston made it illegal to store a loaded firearm in any home or warehouse. Some states conducted door-to-door registration surveys so the militia could “impress” those weapons if necessary. Men had to attend musters where their guns would be inspected by the government.

 

As for what constitutes a militia, the founders were purposely vague, leaving it to Congress to define. In the past, these were organizations of all or most able-bodied men that states and the federal government armed for security and law enforcement. In modern terms, the militia is, essentially, the National Guard.

 

Much of this, Cornell said, came out of a Cincinnatus view toward guns and defense — a reference to the legendary Roman general who, according to the story (and possibly myth), went back to farming instead of attempting to seize more power after he led the Romans to victories. This kind of republican value was embedded in American values at the time, so the founders made sure to enshrine it in the Constitution. But it only preserved the collective right to own firearms insofar as able-bodied men needed the weapons to help defend their state and country.

 

This was the perspective of legal scholars and courts for most of US history. As Bogus noted in a 2000 law review article, “from the time law review articles first began to be indexed in 1887 until 1960, all law review articles dealing with the Second Amendment endorsed the collective right model.”

 

“The collective rights model holds that the people only have a constitutional right to keep and bear arms within the militia,” Bogus said. So Americans collectively had legal access to guns to take part in the militia, but the Second Amendment didn’t protect any rights beyond that.

 

The individual rights model, meanwhile, “puts the Second Amendment on par with other fundamental rights of individuals (speech, liberty, association) and raises the bar of protection from state and local governments looking to regulate the right to bear arms,” Amanda Hollis-Brusky, a constitutional law expert at Pomona College and author of Ideas With Consequences, told me. In short, it makes it much harder to regulate guns — because now every single individual, not just the collective (or militia), has a right to bear arms.

 

America has effectively shifted from the collective rights to individual rights model in recent years. That shift, however, did not come out of nowhere; it was decades in the making.

 

How the NRA shifted the conversation

 

From the late ’70s on, it became increasingly difficult to pass federal gun laws. Some measures, like the Firearm Owners’ Protection Act of 1986 and the Brady Handgun Violence Prevention Act, still made it through. But these policies faced much stiffer opposition than they would have in the past, as now-common arguments over self-defense, the ability to use firearms to stand for liberty in the face of tyranny, and the futility of gun control began to spread.

 

And, crucially, the NRA worked to push the idea that the Second Amendment protects individual rights, giving constitutional firepower to supporters of gun rights.

 

This caught on. Before 1970, Bogus wrote, “a total of three [law review journal] articles endorsed the individual right model and twenty-two subscribed to the collective right view.” He added, “From 1970 to 1989, twenty-five articles adhering to the collective right view were published (nothing unusual there), but so were twenty-seven articles endorsing the individual right model.” At least 16 of the individual rights model articles “were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations, although they did not always so identify themselves in the author’s footnote.”

 

Congress got in on the action. In 1982, the Senate Subcommittee on the Constitution, led by Sen. Orrin Hatch (R-UT), issued a report, “The Right to Keep and Bear Arms.” It argued, “What the Subcommittee on the Constitution uncovered was clear — and long lost — proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.”

 

Then came “The Embarrassing Second Amendment,” a landmark article by Sanford Levinson. The article itself didn’t make a new argument or explicitly take a side in the collective versus individual rights debate, but it was notable because the author — a well-known liberal scholar — urged readers to take the individual rights model of the Second Amendment seriously, giving the idea more credibility. It was a huge deal at the time, gaining coverage across media outlets and widespread promotion by gun rights groups.

 

The NRA stepped up its efforts in the ’90s, helping fund a new group, Academics for the Second Amendment, and launching its annual “Stand Up for the Second Amendment” essay contest with a cash prize. According to Bogus, “At least fifty-eight law review articles endorsing the individual right view would be published during the 1990s (compared to twenty-nine favoring the collective right position).”

 

It can be easy to underestimate the impact of these kinds of journal articles. Many people may wonder who even reads law review journals. The answer, however, is legal scholars, lawyers, judges, and politicians — and these people then permeate their ideas in popular media and in their day-to-day work. Over time, that can lead to a big shift in public opinion and policy.

 

Public polling certainly suggests that’s what happened: In 1959, when Gallup asked if the law should ban handguns except for the police and other authorized persons, 60 percent of Americans said yes. By 1980, that had dropped to 38 percent. As of the latest survey, in 2016, it’s 23 percent.

 

It also led to a big shift in the Supreme Court — with the District of Columbia v. Heller decision in 2008. Before that, the Court had reviewed just three cases related to the Second Amendment, Bogus said, and those decisions took the view that it was about protecting states’ ability to maintain militias.

 

For example, the Supreme Court unanimously ruled in 1939’s United States v. Miller that Congress can ban sawed-off shotguns because that weapon was of no use in a well-regulated militia, making it clear that the right to bear arms was inseparable from the role of a militia.

 

Justice James McReynolds wrote in the majority opinion, “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

 

That changed with Heller, when Justice Antonin Scalia concluded in the Court’s opinion that “the Second Amendment conferred an individual right to keep and bear arms.”

 

Hollis-Brusky called this an example of “popular constitutionalism,” or “the concept that the meaning of the Constitution can develop outside the courts by political and popular movements.”

 

She explained: “Driven in large part by the National Rifle Association and its campaign to frame the Second Amendment as an individual right, coupled with its lobbying efforts and increased influence on Republican Party platforms and legislators, most Americans already believed that the Second Amendment was more robust in its guarantees and protections than the Supreme Court (or any court) had interpreted it to be for well over 100 years.”

 

So Republicans, to match shifting popular opinion, changed their platform to take on a more pro-gun view, and Republican presidents from Ronald Reagan on down appointed justices that reflected this perspective. That culminated in Heller, when there were, after years of efforts, five justices on the bench ready to cement the interpretation of the Second Amendment that had circulated in law journals and political discussions for decades.

 

Historians and experts point to other factors that also contributed to new views of the Second Amendment, including America’s historically high levels of gun ownership, the proliferation of cheaper guns, the rise of Jacksonian democracy and individualism, the replacement of militias with a professional army, and Reconstruction. But the change in the NRA’s public mission is the one element that came up again and again in my discussions and readings — and seemed to have the biggest impact on modern history.

 

 

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The whole constitution does not consider what USA circa 2018 would look like. A lot could be rewritten.

 

Rewrite this one and anyone whom commits a crime of a certain level (felony for instance) is never allowed to own a firearm. Punishment met with harsh prison sentences.

 

But if we are rewriting this one, then we rewrite the one about rights as a citizen. If you are not a citizen you have NO rights in this country. NONE. Commit a crime of a certain level and you lose all rights permanently. Then of course we enact a real 3 strikes and you are out. I mean you are planted 6 feet under. No years of appeals. We create an appellate court that only handles these cases, runs the losers appeals in minutes, sent out back and processed. You got 3 fockin chances to get your together so no one is getting executed that was innocent. Ya already focked up twice.

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Written at a time when black people were 3/5 human and women couldn't vote.....but somehow it's viewed as relevant today.

 

Woof.

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Written at a time when black people were 3/5 human and women couldn't vote.....but somehow it's viewed as relevant today.

 

Woof.

 

I use to think you were a good American. :doh:

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A (singluar) well regulated militia (singular) being necessary to the security of a free state (singular). This assumes they are referring to the entire US, so I think the whole "individual states militia" idea is out the window. They are referring to a federal militia outside of the standing army. "Well regulated" = federal laws, IMO, which should not only apply to weapons, but training, and documentation.

 

I don't subscribe to the belief that ANY amendment applies to the masses. They apply to individuals, IMO. But certainly you cannot cherry-pick the ones that apply to one or the other. I also feel that the 1st amendment is worthless without the 2nd. Give up the 2nd and you give up both.

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I also feel that the 1st amendment is worthless without the 2nd. Give up the 2nd and you give up both.

I think this is borderline delusional. But i think its a fantasy thats been propped up as a vehicle of political control. Just as the left props up the fantasy of the federal government having the capacity to solve poverty as a vehicle of political control

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I think this is borderline delusional. But i think its a fantasy thats been propped up as a vehicle of political control. Just as the left props up the fantasy of the federal government having the capacity to solve poverty as a vehicle of political control

Not as delusional as you think. Read where people in places like Germany and the UK are getting arrested for Facebook posts

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Repeal the 2nd amendment and pass a law allowing ownership of 18th century muskets. No rights taken away and we can be done with the nonsense justification for people to stockpile instruments of war

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Not as delusional as you think. Read where people in places like Germany and the UK are getting arrested for Facebook posts

And you believe owning a gun stops that? Correlation does not equal causation

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And you believe owning a gun stops that? Correlation does not equal causation

I believe there is a slippery slope when it comes to these things. Especially with the people in America today. So lets say they get the 2nd amendment repealed. Think they are gonna stop there? Nope. We all know they wont. Next I guarantee would be the 1st amendment. They already get upset over things people say or their beliefs and try to ruin that person life over it. So you dont think they would want to outlaw speech they dont agree with? Cause I certainly believe they would.

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Written at a time when black people were 3/5 human and women couldn't vote.....but somehow it's viewed as relevant today.

 

Woof.

this new snuff like "woof" thing you do is wicked gay.

HTH

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Same old argument comes up. For those that are against owning guns put a sign in front of your yard saying no guns on the premises and keep it there for 30 days.

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Repeal the 2nd amendment and pass a law allowing ownership of 18th century muskets. No rights taken away and we can be done with the nonsense justification for people to stockpile instruments of war

The narrative that the removal of guns will stop violence is wholly delusional. Once you remove them and the violence persists, then what? Bully socialist girl was right to bully that kid, because he was weird. In her new world order the weird kids get taken in. No bullying needed.

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this new snuff like "woof" thing you do is wicked gay.

HTH

So

Is callling people sweetie and pudding. Just sayin

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I believe there is a slippery slope when it comes to these things. Especially with the people in America today. So lets say they get the 2nd amendment repealed. Think they are gonna stop there? Nope. We all know they wont. Next I guarantee would be the 1st amendment. They already get upset over things people say or their beliefs and try to ruin that person life over it. So you dont think they would want to outlaw speech they dont agree with? Cause I certainly believe they would.

Spot on

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So

Is callling people sweetie and pudding. Just sayin

Hah...like how the second I go left on one issue for the first time in a decade... I hear from you two about name calling (irony).

 

Guess how many focks I give. You'll survive

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Hah...like how the second I go left on one issue for the first time in a decade... I hear from you two about name calling (irony).

 

Guess how many folks I give. You'll survive

Nah man, that's not it at all. I'm no gun humper if you hadn't noticed. It's just those words are ghey. Thats all

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Nah man, that's not it at all. I'm no gun humper if you hadn't noticed. It's just those words are ghey. Thats all

Ha ok man. I can't quit you HT.

 

I'm gonna come up with random shiit

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he does that too ? :doh:

You ran out wicked and gay.

 

Calm down pumpernickel. (How was that? I'm working on new ones)

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You ran out wicked and gay.

 

Calm down pumpernickel. (How was that? I'm working on new ones)

never go snuff

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The whole constitution does not consider what USA circa 2018 would look like. A lot could be rewritten.

 

Rewrite this one and anyone whom commits a crime of a certain level (felony for instance) is never allowed to own a firearm. Punishment met with harsh prison sentences.

 

But if we are rewriting this one, then we rewrite the one about rights as a citizen. If you are not a citizen you have NO rights in this country. NONE. Commit a crime of a certain level and you lose all rights permanently. Then of course we enact a real 3 strikes and you are out. I mean you are planted 6 feet under. No years of appeals. We create an appellate court that only handles these cases, runs the losers appeals in minutes, sent out back and processed. You got 3 fockin chances to get your ###### together so no one is getting executed that was innocent. Ya already focked up twice.

We can debate what should be written but if getting all 2018 on the 2nd we should get 2018 on all of em.

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I believe there is a slippery slope when it comes to these things. Especially with the people in America today. So lets say they get the 2nd amendment repealed. Think they are gonna stop there? Nope. We all know they wont. Next I guarantee would be the 1st amendment. They already get upset over things people say or their beliefs and try to ruin that person life over it. So you dont think they would want to outlaw speech they dont agree with? Cause I certainly believe they would.

I think thats a really far stretch. Fire arms are regulated now, and should be regulated more, regulation isn't unconstitutional.

 

 

And lets remember that all this is about people keeping their toys. Just doesn't carry any weight to an argument

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It's not about keeping toys. It's about freedom to protect yourself from criminals (who will still have guns), and protection against a tyrannical Government.

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It's not about keeping toys. It's about freedom to protect yourself from criminals (who will still have guns), and protection against a tyrannical Government.

What type of man outsources the safety of himself and his family to people he doesn’t even know when it has been proven that local police, the FBI, the CIA, etc. can be and have been politically compromised?

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What type of man outsources the safety of himself and his family to people he doesn’t even know when it has been proven that local police, the FBI, the CIA, etc. can be and have been politically compromised?

 

:thumbsup:

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We can debate what should be written but if getting all 2018 on the 2nd we should get 2018 on all of em.

If we were to bring back to life the guys that wrote this and asked them what to do with Nicolas Cruz among others, they would ask where the gallows are and then ask for a pen and paper to revise what they wrote.

# 2 would just be firmed up as I stated earlier.

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If we were to bring back to life the guys that wrote this and asked them what to do with Nicolas Cruz among others, they would ask where the gallows are and then ask for a pen and paper to revise what they wrote.

How do you know this?

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What type of man outsources the safety of himself and his family to people he doesnt even know when it has been proven that local police, the FBI, the CIA, etc. can be and have been politically compromised?

/thread.

 

FOCKING CRUSHED IT.

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What type of man outsources the safety of himself and his family to people he doesnt even know when it has been proven that local police, the FBI, the CIA, etc. can be and have been politically compromised?

My friends brother had a heart attack at cross fit. It took the ambulance 15 minutes to get there. Thankfully there were two nurses working out that did CPR. The place didn't have an AED machine. People should be allowed to protect themselves. The cops aren't always around. But I will say, that if the NRA doesn't budge on some things, they are going to get run over at some point. They need to come to the table, if only for their own self interest. It's too easy for freaks and bad guys to get a gun, that much is obvious. There has to be a way to regulate it better and protect people's right to arm and defend themselves. I would start with anyone on anti-depressants shouldn't get one.

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2nd Amendment going nowhere. End of discussion.

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It's not about keeping toys. It's about freedom to protect yourself from criminals (who will still have guns), and protection against a tyrannical Government.

Ya this is what im talking about. You don't have protection from a tyrannical government at this point. I just shake my head when i read this stuff. Regulations to protect people (background checks, outlawing certain weapons, etc) are not mutually exclusive with being able to protect yourself in a home robbery.

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For the most part, whether you are pro 2nd amendment or pro gun regulation, I believe that you are so because you believe that your position makes the world safer. If 10,000 people each year die each year due to fire arms, pro 2nds say thank god, without guns that number would be 100,000, pro regulation say without guns that number would be 0. Just giving an opinion there with exaggerations to show the point. I don't know the right answer. I also don't think the 2nd amendment is going anywhere soon, but it will be regulated immensely in the future. Really, right now, everyone on some level believes in regulation with regard to arms. What always needs to stop is bad arguments, for example, I need my guns to fight against a tyrannical govt. You're losing that fight..stop it.

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What type of man outsources the safety of himself and his family to people he doesn’t even know when it has been proven that local police, the FBI, the CIA, etc. can be and have been politically compromised?

Life is all cost/benefit. Your safety is a product of a number of factors. Probably the biggest is where you live. Probably the least of which is whether you have a gun. If you live in a safe area, the cost/benefit equation of keeping a gun in your home with small children around is alot different than living in a hellhole, with only adults in the household.

 

In my mind the costs by orders of magnitude outweight the benefits, so keeping guns out of the house IMO greatly increase the safety of the family.

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Life is all cost/benefit. Your safety is a product of a number of factors. Probably the biggest is where you live. Probably the least of which is whether you have a gun. If you live in a safe area, the cost/benefit equation of keeping a gun in your home with small children around is alot different than living in a hellhole, with only adults in the household.

 

In my mind the costs by orders of magnitude outweight the benefits, so keeping guns out of the house IMO greatly increase the safety of the family.

This. Well put.

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