Illegal, no, but a massive overreaction. This is why the Swedish model (of telling people to take reasonable steps like not getting too close, and staying home when sick, and away from old people) is proving so successful. They've even started to see a flattening of the curve alongside the rest of the world without lockdowns. [1, 2]
Let's not lose sight of the reason why lockdowns were advised in the first place.
Absent the data from widespread testing, the spread of the disease was consistent with two epidemiological models -- low-contagion/high-mortality and high-contagion/low-mortality. In the latter model, there's not much to be done to stop the disease from infecting the population at large, and not that much that needs to be done, since the vast majority of people will emerge unscathed. But in the former model, it matters tremendously -- doing nothing will slowly but surely result in vast loss of life but quarantines can stop the disease dead in its tracks.
Therefore the most cautious course of action, from a public health perspective, was to assume the former and proceed with a regime of extreme social distancing. Unfortunately doing so had dire economic consequences.
What if the swedes are trying to find out how to live with this virus? Like..what if there were no cure and no immunity? Unlike other governments who are betting that there will be a resolution in the near future?
What explains the difference between NY and CA if it isn't lockdowns? The difference in death per capita between the two is staggering (nearly 30x more people per capita have died in NY than CA).
The stay-at-home order can't itself have made a 30x difference, because New York only imposed it 3 days later than California. California started social distancing in general earlier and better, but I don't think anyone would dispute that social distancing in general matters. (In fact I think that's the obvious explanation, that due to the nature of NYC many people can't social distance to a useful degree.)
To be fair, the US engaged in lockdowns well after the situation had run its course in China so we had the data. It feels much more like a panic reaction than a question of which epidemiological model it best fit.
No way. China did an even more intense lockdown. If anything, the data from China indicated we should have done more, sooner. And that’s assuming you can even trust the data from China. Which you can’t.
The answer to "what is the correct action to take in the face of uncertainty" is not "whatever people say we should've done after we gain full information." That's nonsense, it assumes that next time you should just know the future.
Something that you might consider looking at when comparing countries or areas is the ratio of active cases to recovered. A higher ratio suggests that the epidemic is in an earlier stage.
Sweden has about 23 active cases for each one recovered. The US is about 10:1, Europe overall is about 2:1, so is Italy, and Spain is close to 1:1. Asia as a whole is about 1:1.
That likely has to do with availability of tests, who's getting tested, where and when. With Sweden not attempting to stop the spread, I doubt they've done wide-spread population testing. They're likely limiting it to hospitals, so the fact it's flat its really what matters until they kick off their wide-spread serological study in the works.
[edit] I misread, disregard, but preserving for posterity.
There is random sampling being done. 2,5% had an ongoing infection in Stockholm in late Mars.[1]
Now, 11/100 blood givers in Stockholm who has not been sick in the last two weeks have antibodies according to researchers.
That gives you a naive mortality rate of 0,4% per infection, assuming the spread among bloodgivers is the same as the population in general and just dividing the death count by 11% of the population. It is a high eastimate as I guess many wont get traceable antobodies and mostly asymptotic people give blood.
Active vs. recovered is a metric related to the people who are tested and confirmed. It cannot be changed by testing fewer people, only by rapidly ramping the number of tests up or down.
Part of the reason why lockdowns were resorted to in the first place is that Americans are, for various reasons, not likely to listen to official guidance about staying apart. See: all those panic articles about various people who knew they were at high risk and continued to go about their daily lives, or take flights or other forms of transporting masses of people, etc.
In fact, the general take is that Americans have been pretty good at following distancing rules with or without hard rules but some were slow to do so (and most government was in retrospect slow to strongly recommend doing so) but, to a first approximation, few will do so over an extended period.
This isn't even close to true. The Houston Livestock Show and Rodeo. Spring Break. Florida beaches. Evangelical churches.
Just because a majority of people do sensible things doesn't matter. The actions of the irresponsible and sociopathic minority still create the epidemic.
Quarantining the sick is legal but otherwise the freedom of assembly clause in the 1st amendment does not say "except when there is a pandemic or other fear". If you don't believe that should be the law fine, but since it is law and is incorporated to the states via the 14th amendment it qualifies as illegal.
Freedom of assembly, like the other 1st amendment freedoms, can be regulated by government so long, per prior SCOTUS decisions. They key is that restrictions must be content-neutral and can only pertain to "time, place, and manner," additionally surviving strict scrutiny (which, in plain English, means "there's no other way to do it"). This is bread-and-butter First Amendment court case stuff; any US government class that's at least halfway competent ought to have covered this.
The coronavirus bans on public gathering are fairly clearly permissible under SCOTUS precedent.
I would argue the second amendment doesn't explicitly say you can't own a nuclear warhead for personal amusement, but I would argue nobody's going to challenge the validity of such impositions.
"Arms" in the context used by the second amendment is AFAIK generally understood to mean "small arms" and by implication would exclude such weapons by matter of definition.
> "Arms" in the context used by the second amendment is AFAIK generally understood to mean "small arms"
No, it isn't. In the time period in which the Second Amendment was passed, privately owned warships of similar capability to the ones in national navies were common enough to play a pivotal role in two wars (the American Revolution and the War of 1812).
I'm aware of privately owned warships by privateers. It is true and a good counterargument.
However, the colloquial use at the time of the phrase "arms" almost certainly referred to small arms, but would have included knives and swords (State v. Kessler 1980[1]) which are paradoxically much more heavily regulated than firearms in most states. See also "To Bear Arms"[2], by which the modifier "to bear" suggests arms that could be carried.
Perhaps one counter argument to this point was the desire by the framers to include a conscientious objector clause obviating military service for people who had specific objections, which may support the view that "arms" was anything in use by the military of the day, but the clause was stricken from the constitution for fear that the second amendment may be interpreted by later generations as a right that could not be enjoyed by the people and was intended to encompass military service.
There is also the argument that the framers opposed the idea of a standing army, which would support your viewpoint, and there is an excellent essay[3] that makes a fair and reasonable argument to this end.
My personal opinion is that this isn't clear, but it is obvious that--at a minimum--the interpretation of "to bear arms" would suggest that the 1986 ban is unconstitutional, as is the 1934 NFA tax act that required registration. I'm not convinced "to bear arms" includes other weapons that could not be "beared," such as warships, but perhaps this will clarify my thought process for you.
> the colloquial use at the time of the phrase "arms" almost certainly referred to small arms
Perhaps it did, but whether it did or not, I don't think its use in the Constitution can be reasonably described as "colloquial". Since no specific restrictions were set out by the framers, I think they intended a broad right, not one restricted to small arms. Of course my opinion is an extreme outlier given current jurisprudence on this topic, to say the least. :-)
> it is obvious that--at a minimum--the interpretation of "to bear arms" would suggest that the 1986 ban is unconstitutional, as is the 1934 NFA tax act that required registration.
I agree.
> I'm not convinced "to bear arms" includes other weapons that could not be "beared," such as warships
Currently that question is moot in a practical sense, since nobody appears to be in the market for privately owned warships. And I will cheerfully admit that if we could get to a point where it was generally accepted that people had a right to bear small arms, and the arguments were over other categories, I think that in itself would be huge progress from where we are today. If that happened, I wouldn't spend a lot of time complaining that everyone recognized my right to keep and bear an AR-15 but I was being given grief about wanting to buy an aircraft carrier or a nuclear submarine. :-)
> I don't think its use in the Constitution can be reasonably described as "colloquial"
"Arms" was used in colloquial speech and legal use at the time which converged on approximately the same definition. It's late, but there are some resources on guncite that support this argument. They're all worth reading beyond this reason, mind you, and there are plenty of arguments there that disagree with mine.
Either way, it makes for good reading should you find a topic there you're not already familiar with, and even if you are, there are some interesting twists. I don't necessarily agree with all of them.
> Of course my opinion is an extreme outlier given current jurisprudence on this topic, to say the least.
Suffice it to say that I understand where you're coming from, but in my definition a broad application of "military small arms" is probably more accurate according to my understanding of what was intended. The problem is that I don't know, nor will we ever know for certain, since the militia (rather, the people) were to act as the nascent US' standing army. I rather wish this point were discussed in civics classes, but it's not. So, the younger generations are woefully unaware of history, much to no one's surprise...
Anyway, while I also wish we could undo some of the impingement on our rights by legal challenges made in the 20th century, I'm afraid that would be an uphill battle (as you also allude) given how panicked the general public is on loosening firearms restrictions thanks in large part to the unnecessarily excessive coverage of mass shootings that seem focused primarily on stoking fear.
But, if you allowed me, I'd probably rant all night about this subject which wouldn't do either of us much good by the sounds of it, other than reaching continued agreement and probably upsetting other readers.
> since nobody appears to be in the market for privately owned warships
...admittedly a shame!
> I think that in itself would be huge progress from where we are today.
Agreed. Somewhat surprised to have this conversation on HN of all places, TBH.
> ...that everyone recognized my right to keep and bear an AR-15
I live in an open carry state and sometimes exercise that right, particularly since I live in an area sometimes subject to wild animals. But while I would love to do the same with an AR, I suspect that would probably get me called in to the local sheriff's office. Not that they would care, but I would be disappointed if someone thought it apropos to waste their time.
It almost certainly shouldn't be covered. It states "being necessary to the security of a free State". What part of a nuclear warhead wielded by a militia contributes to the security of a free State? Nuclear weapons are rather unique in that they're essentially useless in a civil war. What are you going to do? Nuke the very land that you're fighting over?
Biological and nuclear weapons should not fall in the scope of the 2nd amendment. They're useless for guaranteeing your liberties against a tyrannical government, and the consequences for storing them improperly are severe.
> What part of a nuclear warhead wielded by a militia contributes to the security of a free State?
Depends on who's attacking and what might deter them.
> They're useless for guaranteeing your liberties against a tyrannical government
Which is only part of "the security of a free State", not all of it. The militia was also for repelling foreign invasions.
Given our current modern world, I would agree that weapons of mass destruction (nuclear, biological, and chemical) shouldn't be available to anyone who wants them; but the correct legal way to make that happen in the U.S. would be to amend the Constitution to explicitly add that exception to the Second Amendment. As the Second Amendment is currently written, it does not admit of any exceptions. As I noted in another comment upthread, privately owned warships were significant at the time the Second Amendment was passed, and the framers of the Amendment did not exempt them from the category of "arms".
The fact that legal realism--which says that the law is whatever judges say it is, even when what the judges say is patently ridiculous when compared to the actual words of the Constitution or statute--is the mainstream viewpoint in today's legal environment does not make it right.
If you read the federalist papers you'll note that the intention was literal, not to be reinterpreted for the times. That also makes the thousands of gun laws illegal. If you start reinterpreting the constitution that is how you go full banana republic, and everyone knows you never go full banana republic. You are supposed to change the law not reinterpret.
It's pretty funny to watch people try to justify "literal" readings of the text, since they often focus on interpreting just one piece of text and ignore the effects of the analysis on the rest of the text.
The First Amendment veryclearly binds only Congress in its literal reading: it begins "Congress shall make no law..." And there is no literal text in any subsequent amendment that might cause incorporation to the states--the Fourteenth Amendment only literally incorporates the Fifth Amendment, and that by literal repetition of the text.
[1] https://fee.org/articles/sweden-s-top-epidemiologist-covid-1...
[2] https://aatishb.com/covidtrends/?location=Canada&location=Sw...