> However in the US it is your constitutional right to bear arms.

Only established by the supreme court in 2008.

Abortion is a "constitutional right" likewise. And the american right see no issues with extreme restrictions.

There is no amendment saying either people have an individual right to possess a firearm, nor an individual right to have an abortion. These are inferences.

What the second amendment says is that because the US needs defence (given no contemporary standing army), the right to bear arms is necessary in general.

An individual right in the time of standing armies is not written anywhere in the constitution and was derived, by interpretation, only in 2008.

My point is that what counts as a "constitutional right" is a matter of history, precedent and agreement -- they are conventional not just written in some stone tablet. And it is quite reasonable to contest these conventions.

>Only established by the supreme court in 2008.

It was established when the Bill of Rights was ratified. The Supreme Court never held that there was no individual right to bear arms.

>There is no amendment saying either people have an individual right to possess a firearm, nor an individual right to have an abortion. These are inferences.

I'd argue it is the only reasonable interpretation. Interpreting "people" as some sort of collective right is absurd in view of the other uses of "right of the people" in the Bill of Rights, such as the first amendment. Nobody would argue the "right of the people . . . to petition the Government for a redress of grievances" is limited to some collective right. Or the 4th amendment, certainly, you wouldn't say that is a collective right. And the 10th literally distinguishes between the states and the people.

Though I don't agree with it, there is a decent argument that it's an individual right defined in scope in relation to a well-regulated militia. United States v. Miller, the only case before Heller that really discussed the second amendment, seems to take this view. Short barrel Shotgun bans were okay because it wasn't related to a well-regulated milia. But that doesn't imply you have no right to bear arms that are relevant to a milia like handguns and battle rifles.

Early precinct was that only the federal government was limited. https://caselaw.findlaw.com/us-supreme-court/92/542.html

In other words people did not have individual right to bear arms as the states could take it away. Which is perfectly reasonable in this context as a state could decide to limit some weapons to it’s specific state militia, or have some other laws that provided for mutual defense while limiting weapon ownership.

Early precedent was that only the federal govt was limited for all of the bill of rights. For example in 1876 United States v. Cruikshank found that the 1st and 2nd amendments only applied to the federal govt.

Over time the supreme court has begun applying the bill of rights to states as well in a process known as Incorporation: https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...

The issue I am bringing up is Incorporation is not a neutral stance. The 2nd amendment was in effect keeping the states armed not individuals. It’s a reinterpretation to say that it applies to people rather than as a limitation on just the federal government.

I am not saying it’s unjustified, just new.

Incorporation doesn’t say anything either way. The fact that the first amendment didn’t apply to the states until it was incorporated via the 14th says nothing about whether it was initially viewed as a collective right or a personal right. Same for any other right in the bill of rights.

Most evidence points to the fact that the second amendment was viewed from inception as an individual right. Especially if you look at the state proposals for the second amendment, which allow exceptions for things like individual circumstances (e.g. people who had participated in a rebellion).

McDonald said nothing new, or what wasn’t already obvious.

Considering how concise the constitution’s language is, the second amendment’s wording is clearly representing something.

What that is and why it’s there is debatable. But, plenty of evidence exists that many states did not want this to be unlimited, the language was not direct, and the implementation gave states the option to limit things. That is plenty of room for debate, and in fact this topic has seen plenty of them over time.

This argument is just as applicable to the first amendment. Which is to say that with what we know now about the protection of civil liberties, the idea of the Bill of Rights not being individual rights is as ridiculous as the idea that only men have the right to vote.

Suggesting all of the Bill or Rights just applies to people is incorrect.

The tenth amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Is not about individual freedom, it’s about what freedom the states have and the limitation on the federal government.

What it actually says is that a militia is necessary to protect a free state. Then and now, “militia” generally refers to those non-professional soldiers that may be called upon in times of great need. This would seem to at least cover everyone subject to the Selective Service Act, which is a large percentage of the male population.

There’s also an argument that the 2nd amendment envisages a potential need for the populace to defend themselves from the government, as was considered necessary only a few years prior to its enactment.

You should really read Scalia's decision in Heller. Scalia's decision in Heller did not establish the 2nd as an individual right, it carefully explained why it always meant that.

Your belief about what the second amendment means and what it was meant to mean when written is incorrect and thoroughly debunked in that decision.

> Scalia's decision in Heller did not establish the 2nd as an individual right, it carefully explained why it always meant that.

That's what every decision that established a particular interpretation of the Constitution as the official one does, so the “did not establish” part is not only unnecessary, but incorrect.

No, it's exactly correct.

The fourteenth amendment has been interpreted to mean all sorts of things that weren't actually in it. That's establishing new rights based on inferences about what maybe was supposed to be but didn't quite make it into the document.

The 2nd is a very clear piece of writing. There's no ambiguity about it, and Scalia carefully deconstructs all of the BS that other people have written and tried to make it out to be, in explaining how it has always meant exactly what it said.

@mjburgess

I think the debate on abortion is/was on when a life begins.

And not, whether a doctor has a right to perform medical procedure, killing a child at request of a mother.

To make the comparasing work for the debate on 2nd amendment, I would the suggest, a comparable question should be:

Can a person end somebody else's life in an act of self-defense, within the framework of existing legal system?

If the answer is 'No', the rest of the debate on 2nd amendment would have to rest on decision for its next argument:

This is a completely separate argument made for 2nd amendment: is that it is a deterrent against an unconstitutional tyranny of government. But that discussion, does not have an analog in the abortion argument, at least in my view.

Were individual gun ownership restrictions or even considerations of restrictions ever done in any manner in colonial America? Not that I've ever heard. Which makes me believe the 2nd amendment was not about individual gun ownership as you say.

Yes, colonial British subjects had restrictions on ownership of weapons. They had soldiers quartered in their homes. They had taxes without representation. They had their right of free assembly restricted. They had their religious freedoms restricted.

The founding fathers wrote the bill of rights specifically to cover these things that British rule had done to the people who left Britain.

Some colonial Americans had armed ships. "No standing army" is hard to overemphasize; the defenders of the country were merely good citizens rather than a small class of professional full-time soldiers.

Free speech was explicitly mentioned as being protected, yet it has been curtailed in many ways. Constitutional protection is inherently limited, with a constantly shifting definition of what it entails.

Consider rifling was invented and society made a choice was that allowed? Yes. Various types of ammunition for example have failed this test. Explosives similarly evolved over time and have been curtailed even if people can significant amounts of black powder.

fair enough, I still think it is good to deny a person a gun, especially when theres red flags going off, but I agree that there should be an appeals process. I guess the reason there isn't (if there isn't, what do I know) is because authorities do not want suspicious people to find out why they are suspicious... but that should mean either nobody gets the right to own a gun, or everyone, ... unless authorities do disclose why some person should be denied a gun...

Who decides who should take away the guns, and how do you prevent them abusing that power?

We already have a fairly robust* process for deciding that someone's fundamental day-to-day freedom should be taken away -- i.e., for deciding to put them in prison. Is there any inherent reason we couldn't have a similar process for gun ownership?

*Not flawless, of course, but what is?

If you're talking about the U.S. prison-industrial system, you answered your own question.

More people are imprisoned in the United States than were in the Soviet gulags or Nazi Germany.

More black people are in the prison/parole system than were enslaved before the passage of the 13th Amendment.

How is taking away guns different from sending someone to prison or executing them? The legal system and due process is already what protects people from the government.

Temporary detainment for example is perfectly legal for a wide range of things, as long as an appeals process exists it’s not seen as a major issue.

It's different because bearing of arms is protected by the Constitution. Imprisonment and capital punishment are not, as long as !(cruel && unusual).

Why is the bearing of arms protected? Because the founders sought distributed defense instead of centralized authoritarianism.