"A well regulated militia, being necessary to the security of a free State . . . "
Oxford English Dictionary: Militia - A military force that is raised from the civil population to supplement a regular army in an emergency.
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
Ya, there should be no law prohibiting any speech what so ever. That doesnāt mean there shouldnāt be consequence if you yell āfireā maliciously and someone dies.
[/quote]
Also, as an aside, the 1A is fundamentally about sanction of speech. āConsequence if youā is exactly ā exactly ā what it prohibits. If you think there should be consequence, then you admit outright that the unqualified right enumerated in the First is open to reasonable restriction, and this vitiates your view of the Second.[/quote]
Ya, noā¦ there being consequences if you yell āfireā and someone dies does not restrict your ability to yell āfireā. You should be free to tell āfireā and there be no consequences unless there are negative consequences to others. That does not restrict the 1st in any way.
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
The brotherās actions are not necessary to the security of a free state. I will just keeping saying it, that phrase is equally as important as the others even though it is often overlooked.
[/quote]
No, it isnāt. The prefatory material has been, by the courtās conservatives, divorced from the operative material. You canāt claim a textualist reading, as youāve done, and then find some implied-by-association limitation on the unqualified textual meaning of the operative clause: right - keep - bear - arms - not - infringed.
Or the divorce is illegitimate, and this conversation can end immediately: the enumerated right hinges explicitly on a well-regulated militia. It is not an individual right.
If you believe the last sentence to be false, then you can take another look at my examples without referring to anything other than the operative clause. [/quote]
Letās just assume you are right that the right to bear arms is not an individual right, I disagree and my understanding is that SCOTUS does too, but whatever. Iām no legal scholar. Surely a militia armory can have portable nuclear devices then, no?
[quote]pushharder wrote:
[quote]smh_23 wrote:
[quote]pushharder wrote:
[quote]smh_23 wrote:
ā¦for example, none of us sees a violation of a Constitutional right in the sanction of a person who, with malice aforethought, shouts āfireā in a crowded theater. You havenāt answered that point because there is nothing to answer: such sanctions do not violate the First Amendment under any reasonable personās interpretation of the First Amendment, its cause, its aim, and its spirit.
[/quote]
Iāve addressed this ad nauseum and I know youāve read my posts regarding it. Do I have to do it again? Really?
[/quote]
To my knowledge I have never once seen you address this or argue anything material about it. Give me the two sentence summary and it will ring a bell.[/quote]
OK, Iām going to do this for you and you alone. Bookmark this page.
Passing laws that prohibit and penalize shouting āFire!ā in a crowded theater where there is no fire is not ā and I repeat Is Not ā akin to passing a law requiring you to register your gun or pay a special tax to own a particular weapon.
Passing laws that prohibit and penalize shouting āFire!ā in a crowded theater where there is no fire IS akin to passing laws prohibiting the use of a firearm to facilitate a bank robbery.
Passing laws that restrict the ownership and appropriate bearing of a weapon before a crime has ever been committed is akin to passing laws that require you to prove you are a safe risk not to shout āFire!ā in a crowded theater where there is no fire.
Passing laws that require you to pay a special tax to the Treasury Dept in order to obtain a āvery effective weapon for mass shootingsā is akin to passing laws that require you to pay a special tax to the Treasury Dept in order to buy a computer and hook up to the internet because the combination is a very effective tool for mass speech. (Right now I am reaching potentially thousands of people with my words. I could commit all kinds of speech transgressions from threatening the life of the president to committing fraud or libel or slander. Shouldnāt I have to get a permit FIRST before I engage in this āfree speech?ā After all, it could be a public safety issue, right?)
The facts of the matter are we punish speech transgressions when they have been committed; we should punish arms transgressions likewise. We donāt infringe on speech by requiring BEFOREHAND that the speaker fill out forms, get background checks, wait three days, register our fingerprints, or pay a special tax. We donāt limit the capacity of the speech by disallowing so many words over a certain number. We donāt tell him that he canāt use a particular type tool to do his speaking. We donāt tell him, āWell, the framers of the Constitution could never envision the incredible power of the internet therefore itās appropriate that the government require you to apply for a permit before you begin speaking on the internet.ā
Speech or guns, itās simple ā we place restrictions on their use based on the behavior of the exerciser of those rights. Itās the behavior of the speaker that needs restricting; itās the behavior of the gun owner that needs restricting. The basic right of either should not be restricted.
We as a society donāt/wonāt (so far) tolerate restrictions on our speech rights similar to the ones we have on our gun rights. We donāt make speakers jump through the same type hoops we do gun owners. It shouldnāt be that way. Tell you why: one day (not that far off, looks like) our society will start applying the lessons it learned about restricting gun rights and start doing similar things with speech rights. Betcha. Donāt take my bet if youāre smart because weāre seeing it on college campuses already.
Savvy?
Edited[/quote]
Completely agree
[quote]Bismark wrote:
[quote]usmccds423 wrote:
Every single arm they can procure. Every one of them. If they can find the uranium, figure out fission or fusion or whatever, build a missile system, etcā¦ then they can have a nuclear weapon.
Thatās how the second reads to me. [/quote]
The state is by definition an organized human community that has successfully claimed a monopoly on the legitimate use of force. Law and order depend upon this. You are staunchly opposed to the Iran nuclear deal but donāt bat an eye at the prospect of private nuclear forces? To what end? Do you understand the calamitous international outcomes such a laissaz faire attitude toward nuclear proliferation would inspire? [/quote]
Lol, read this and the other thread. I do not support private nuclear forcesā¦
Cornell disagrees with you smh. āIt guarantees freedom of expressionĆ by prohibiting Congress from restricting the press or the rights of individuals to speak freely.ā
I love how the founders used phrases like āshall not be infringedā and āCongress shall make no lawā¦prohibiting the free exercise thereof; or abridging the freedom of speechā¦ā
Yet a little over 200 years later weāve somehow gotten to a point where what the framers actually meant was that the government can actually restrict the free exercise of speech. Or they really didnāt mean militiaās could keep and bear all arms. I thought words matter.
[quote]smh_23 wrote:
Law against āfireā in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you donāt believe unqualified BOR protections are ipso facto protected from restriction.[/quote]
Is it actually illegal to shout āfireā in a crowded theater? If I stand up in a crowded theater and yell āFire!ā as loudly as I can and the other patrons laugh, have I committed a crime? How about an actor shouting āfireā in a crowded theater? Is that also a crime? I wonderā¦could it be that my speech will only be punished if it causes harm or creates a situation in which damage is done, while the possession of certain arms is illegal and punishable even in the absence of damage or harm?
[quote]smh_23 wrote:
The quotation above ā the one about the government and people having something close to military parity ā simply doesnāt apply in the real world circa 2015. [/quote]
How would it not apply in 2015 and beyond? Is tyranny different now? If King Obama oppressed you smh would it somehow be better than King George? If King Bush put a tax on the Press, $1 per letter to print, would that somehow be better than the Tea Act?
[quote]Chushin wrote:
Curious: Those of you advocating ālimits;ā Where and how does that line get drawn? Nuclear weapons is a rather extreme example, but what about other, less extreme weaponry?[/quote]
Obviously the entity the 2nd is specifically designed to protect against should decide where the line isā¦
[quote]NickViar wrote:
[quote]smh_23 wrote:
Law against āfireā in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you donāt believe unqualified BOR protections are ipso facto protected from restriction.[/quote]
Is it actually illegal to shout āfireā in a crowded theater? If I stand up in a crowded theater and yell āFire!ā as loudly as I can and the other patrons laugh, have I committed a crime? How about an actor shouting āfireā in a crowded theater? Is that also a crime? I wonderā¦could it be that my speech will only be punished if it causes harm or creates a situation in which damage is done, while the possession of certain arms is illegal and punishable even in the absence of damage or harm?[/quote]
Exactly.
[quote]pushharder wrote:
[quote]thunderbolt23 wrote:
ā¦the most conservative jurists whoāve ever written on the subject.
[/quote]
That doesnāt mean that much when you consider that John Roberts, a āconservative jurist,ā ruled the Obamacare fine was a tax despite the governmentās attorneys, who were defending the lousy law, desperately argued otherwise.
This isnāt meant to be a sidetrack, just an asterisk that āconservative juristsā might not be all that conservative.[/quote]
The field isnāt limited to John Roberts. Go read up.
[quote]Chushin wrote:
Curious: Those of you advocating ālimits;ā Where and how does that line get drawn? Nuclear weapons is a rather extreme example, but what about other, less extreme weaponry?[/quote]
I donāt think there is a black and white answer, i.e., there is no absolute law. Iām a little late to the show, but Iāve argued before, as others here have, that I do think some reasonable regulations are permissible under the Constitution. My opinions mirror those of SMH and TB, and Iāve articulated this in other threads.
That having been said, the answer to the question, for me, would be that this is why you have a legislature and a judiciary. There needs to be a balance between preserving individual rights to ownership of small arms and protecting public safety and maintaining order. I do think that, in general, this is perfectly doable. It may mean that some weapons are prohibited for matters of public safety, such as nuclear armaments, but that doesnāt have to mean that all forms of individual ownership are restricted or curtailed to the point of oblivion. This is exactly what the courts have always had to, for all of the amendments. You have a democratic legislative process, and if that process oversteps what the courts have interpreted to be reasonable and prudent within the framework of a working interpretation of the COTUS, they can exercise judicial review to nullify certain legislative acts. I think the framers knew this, hence the past two centuries of judicial review.
http://www.constitution.org/2ll/2ndschol/89vand.pdf
http://www.valpo.edu/law/about-us/full-time-faculty/david-e-vandercoy
The paper is 27 pages, but well worth the read. If you donāt want to read the history start on pg 13.
