This is the type of conversation I come here for.
That's actually the thread I agreed with you on. Demented people--those who cannot accurately perceive threats--cannot safely handle guns. They are inherently incapable of competently bearing arms.
We are, in essence, inserting a caveat into the Second Amendment that says "the right of the people to keep and bear Arms <as long as they can do so without endangering other people's actual life and property rights> shall not be infringed".
I agree with the gist of this paragraph, but not its entirety. "We" are not inserting the caveat; it was always there. I will illustrate what I mean using the First Amendment. (I am not implying that the means to kill is easily comparable with the freedom to communicate or to worship, but that the means of interpreting one part of the Constitution is easily comparable to the means to interpret another portion.):
The First Amendment says in part;
Congress shall make no law... abridging the freedom of speech....
This does not protect:
- The "right" of a military officer to order the assassination of his romantic rival
- The "right" of a con-artist to practice verbal fraud
- The "right" of a traitor to divulge the battle strategies and troop positions of American forces
- The "right" of a witness to commit perjury
These are not caveats of my invention; they were always there.
I daresay that not one of the founders, not one person who participated in the debates, not one layman reading the newspaper accounts, probably not even one participant in a tavern debate on the subject, thought that any one of the above were protected.
Constitutions cannot be exhaustive in their language: "Congress shall make no law... abridging the freedom of speech.... except for illegal orders, fraud, treason, perjury, disturbing the peace, libel, criminal conspiracy, etc., etc."... That would be a long Constitution indeed.
There were insane and severely retarded people in the founder's days. They were not permitted the use of guns. They were legitimately prevented from conducting their own affairs, and for the same reasons as they are today. The same was true of 5 year olds. We are not inserting anything; anyone who understands the historical context knows that the caveats were there all along.
Now to where we agree:
the Second Amendment that says "the right of the people to keep and bear Arms <as long as they can do so without endangering other people's actual life and property rights> shall not be infringed".
Exactly. (Except, of course, for those who have demonstrated that they cannot be trusted with arms by their behavior and have consequently been stripped of the right to keep and bear arms through due process of law.)
People who are capable of bearing arms without endangering the rights of others can do so; it is unconstitutional to infringe on their rights. I totally agree.
But thus begins the slippery slope. Because there is now nothing logically preventing me from interpreting that to mean that 20-round magazines enable someone to "endanger other people's actual life and property rights", as well as laying claim to that being a "well-justified societal presumption". What in fact we've done is tear A2 wide open to anyone's version of of not only what "to bear arms" means, but also what "endanger" means, what a "right to life" means, etc etc etc. A real can of worms.
...We're left with the necessary and proper conclusion that although the Second Amendment places no restrictions, it most certainly does allow them, the scope of which is entirely up to lower courts to determine.
Here is where we part ways. In my view, you've made some unjustified leaps of logic (regardless of how honest and sincerely you may have made them). First, there's the change in approach to limiting rights. Compare and contrast:
the Second Amendment that says "the right of the people to keep and bear Arms <as long as they can do so without endangering other people's actual life and property rights> shall not be infringed".
vs
...there is now nothing logically preventing me from interpreting that to mean that 20-round magazines enable someone to "endanger other people's actual life and property rights", as well as laying claim to that being a "well-justified societal presumption".
See the difference? The first standard says that the liberty to exercise a right is protected if the person can--is capable of--exercising it safely. The second standard says that the right can be infringed if it enables someone to act unsafely.
The second standard is only ever applied to weapons. No one would dream of applying it anywhere else. It is totally illegitimate in a non-totalitarian society.
Another problem with this standard is that ANY weapon enables its bearer to "endanger other people's actual life and property rights"--any weapon at all. Let's insert that principle into your legitimate first standard and see what we get:
"the right of the people to keep and bear Arms <as long as they can do so without being enabled to endanger other people's actual life and property rights> shall not be infringed".
That protects nothing.
Your principle is, IMO, illegitimate. It is a unique principle, applicable to the Second Amendment alone. Applied logically, it reduces part of the Bill of rights to meaninglessness.
I do not doubt your sincerity or honesty, but I think you have made some serious logical errors (like forgetting to carry the 2 when adding a column of numbers) that have led you to a false conclusion:
...the scope of which is entirely up to lower courts to determine....
I disagree in the strongest (polite) way possible. No court can legitimately reduce the exercise of a right to the level where it no longer
enables you to violate others' rights. Any court that did so would (or at least should) be quickly and severely reversed. That way lies totalitarianism.
The same is true of reducing an enumerated right to nothingness. What if a court ruled that you have the right to remain silent (Fifth Amendment) only after a full and complete confession? That would be equivalent to your treatment of the Second.