Right to Arms in the 21st Century

Off Topic Politics & World Issues
81

[quote]JR249 wrote:
It did not rescind the ability of states to “restrict the right to marriage” carte blanche. As of right now, there are other types of arrangements that are excluded from that narrow ruling, recognizing the right of states to infringe on that fundamental right, e.g., the “right” to plural marriage
[/quote]

So what restrictions the federal level will allow the states to play with, sure. And all over a “fundamental right” not once mentioned in the same document in which the 2nd actually is found.

82

[quote]usmccds423 wrote:

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[quote]smh_23 wrote:
Edited twice. I don’t really care what the point is – this is Constitution 101, and I am not going to spend any more time on it.[/quote]

Lol, okay…[/quote]

Came off much pricklier than intended. I had asked questions about what you were getting at, but then I decided that I didn’t have the time. It is true, though, that the content of those posts is basic, uncontroversial, text-intent-spirit 1A meaning/operation. I wish I had said like that, rather than “I don’t really care.” I apologize for that – it wasn’t intentional, it was almost like a conversation with myself, via edits. Stupid. Anyway I am on my way out the door, unprepared for my meeting because I’ve been arguing in this thread for 24 hours, yadda yadda.[/quote]

No worries.

I am simply trying to argue from the layman’s perspective anyway. I’m just reading what was written and when a phrase like “shall not be infringed” or “shall make no law… prohibiting the free exercise thereof; or abridging the freedom of speech” I don’t understand how we’ve gotten to a point where yelling “fire” is a crime in and of itself or that the framers really mean’t to limit the right to keep and bear arms even though they specifically, after much debate, wrote the right “shall not be infringed”. It says “shall not” it doesn’t say, “shall not except when new technology arise deemed too deadly for individual ownership” or “shall not except for military weaponry” or “shall not be infringed except at the discretion of the federal government or states governments”.

I get it though, Heller and all that, but SCOTUS isn’t infallible. Just read the Dredd Scott decision. [/quote]

OK, one last one haha.

Yes, the SCOTUS is not infallible. I alluded to Heller only to show that the absolutist 2A interpretation is a fringe theory, not to show that it’s wrong (though Scalia’s invocation of the historicity of restrictions, “from Blackstone thru 19th-century cases,” does get at right/wrong vis-a-vis intent, common understanding, and so on).

Instead, I argue, the absolutist view of the 2A is wrong because we already know (and intuitively accept) that unqualified rights protected by the Constitution are not ipso facto illimitable. There is no question about this – Brandenburg proves it, commercial speech restrictions prove it. It is unarguable. And it is good and reasonable: the alternative would be ludicrous absurdity. Given the absence of phrases like “any conceivable” or “all circumstances” from the BOR, it is for us to choose which rights are limited where, how, and why. Given that we can assume, correctly, that spirit and intent never involve ludicrous absurdity, we even have something of an originalist guide, at least in general.

Anyway, off to underperform at work!

83

[quote]smh_23 wrote:

It applies because it proves without question or controversy that a textually-unqualified Constitutional right – in this case, the right to free speech – is not ipso facto unrestrictable or illimitable. [/quote]

Right, but the problem is that by default me yelling “fire” in a crowded theater directly and actively interferes with the lives of others. I doubt anyone is arguing that aren’t rights aren’t restricted at all. Obviously they’re restricted when we interfere with the rights of others around us. But how does that apply to the ownership of firearms? Waving a gun around in public, sure. But owning/carrying?

84

[quote]usmccds423 wrote:
No. A person standing up and yelling “fire” has ZERO effect in and of itself on others in the audience.[/quote]

Uh, what? That’s absolutely absurd. Not a personal attack, but that’s just completely oblivious to reality. Of course it does.

First, you’ve infringed upon the rights of the property owner. Secondly, you’ve used the threat of physical harm to alter the actions/attention of the audience who just made a voluntary transaction with the theater in order to view a movie. People seem to forget that in the fire example there is actually an infringement upon others.

85

[quote]Sloth wrote:

[quote]smh_23 wrote:

It applies because it proves without question or controversy that a textually-unqualified Constitutional right – in this case, the right to free speech – is not ipso facto unrestrictable or illimitable. [/quote]

Right, but the problem is that by default me yelling “fire” in a crowded theater directly and actively interferes with the lives of others. I doubt anyone is arguing that aren’t rights aren’t restricted at all. Obviously they’re restricted when we interfere with the rights of others around us. But how does that apply to the ownership of firearms?[/quote]

It applies because it shows us that unqualified BOR rights are not ipso facto illimitable (referred to below as P). That’s it – a plain, obvious refutation, as I said earlier, of the “I’ll just keep saying shall not be infringed” school of argument (the absolutist’s only crutch, referred to below as Q).

If P, not Q. P. Therefore, not Q. It’s as simple as that.

What you’re looking for is analogical correspondence. There is some – name of public safety, e.g. – but none is necessary, because this isn’t an analogy. It merely proves a maxim that in turn vitiates an absolutist line of argument.

86

Let me make this even clearer. There’s two rational reasons to stand up and shout fire.

  1. You want people to think they’re in physical danger so they can then remove themselves from said danger.
  2. You want people to think they’re in danger simply to alter their behavior when in reality there is no fire danger.

1 is a warning. 2 is fraudulent and coercive.

Edit: This is from the audience. As someone else noted, an actor may use, even shout, “fire!” during some scene while in a theater. So “fire!” is limited to when it actually infringes upon others.

87

[quote]smh_23 wrote:

It applies because it shows us that unqualified BOR rights are not ipso facto illimitable [/quote]

That’s not my argument, though. My argument is that they’re always subject to limitation when they interfere with the rights of others. Such as shouting fire. Speaking over the teacher in a class room. etc. Might as well have just asked if an individual has to right to stay on your property and continue to verbally threaten you.

None of these are the same as simply owning arms due to the absence of the “infringement upon others” limitation.

88

If PUSH owns a truck mounted turret of some sort it is nothing like shouting fire in a theater. Perhaps if he drove into town and began pointing it at people (but not firing), sure.

89

[quote]thunderbolt23 wrote:
Push wanted to talk about this in a different thread since it was a tangent to his automatic weapons court challenge thread.

For those that subscribe to the theory that the Second Amendment codifies the right of citizens to keep and bear arms to protect themselves from a tyrannical government, what arms are citizens entitled to as a matter of right?

All of them?

If not all of them, what is on the list, and what is not allowed? And what is the basis for the legal restriction if a citizen is not entitled to all of them?

(And ignore any modern precedents that might impact the analysis. In this thread were all operating under a theory that the Second Amendment is about protecting the right to resist government tyranny by arms, not private self-defense or hunting or anything like that.)[/quote]

All guns should be legal.

90

[quote]Sloth wrote:
First, you’ve infringed upon the rights of the property owner. Secondly, you’ve used the threat of physical harm to alter the actions/attention of the audience who just made a voluntary transaction with the theater in order to view a movie. People seem to forget that in the fire example there is actually an infringement upon others.
[/quote]

YES! I tried to hit on that in either this or the other thread. It is NOT a limitation on speech.

91

[quote]Sloth wrote:

[quote]smh_23 wrote:

It applies because it shows us that unqualified BOR rights are not ipso facto illimitable [/quote]

That’s not my argument, though. My argument is that they’re always subject to limitation when they interfere with the rights of others. Such as shouting fire. Speaking over the teacher in a class room. etc. Might as well have just asked if an individual has to right to stay on your property and continue to verbally threaten you.

None of these are the same as simply owning arms due to the absence of the “infringement upon others” limitation. [/quote]

This isn’t about your argument. It’s a response to the absolutist textualist insistence – already offered by many – that an unqualified BOR right is by that fact illimitable. This insistence is false, unarguably. That’s the utility of Brandenburg, and it’s enormous.

As an aside – again, this is just an aside, because my argument is not an analogy – there is nothing in the BOR about limitation on enumerated rights when and only when a person infringes on what you suppose to be rights of others. This is your framework, a distinction you’re drawing with no basis in Constitutional law, and it certainly isn’t in the Bill of Rights. One can very easily observe that Brandenburg allows for limitation in the name of public safety and extrapolate to nuclear devices vis-a-vis the Second Amendment. Nobody has to get hurt for an incitement of imminent lawless action law to obtain – likeliness of such is sufficient. Nobody has to get vaporized by a nuclear weapon in order for the government to have a public safety interest in keeping them out of random dudes’ basements – likeliness of such is sufficient. Any number of other speech examples can illuminate this: true threats (Watts) don’t have to be carried out in order to be unprotected, this on the justification that it is in the state’s interest to minimize fear, social turmoil resulting from fear, and likelihood of violence. A Constitutional right limitable under those three criteria – the 2A and nuclear weapons, e.g., correspond exactly.

92

[quote]NickViar wrote:

[quote]Sloth wrote:
First, you’ve infringed upon the rights of the property owner. Secondly, you’ve used the threat of physical harm to alter the actions/attention of the audience who just made a voluntary transaction with the theater in order to view a movie. People seem to forget that in the fire example there is actually an infringement upon others.
[/quote]

YES! I tried to hit on that in either this or the other thread. It is NOT a limitation on speech.[/quote]

No, it is a limitation on (syn: legal proscription of) speech, according to the SCOTUS ruling that decided it and created the relevant legal test; every examination or explanation of it I’ve ever seen (including the one linked previously, from Cornell LI); the meaning of words in the English language; logic and reason. See my last post to Sloth.

93

[quote]smh_23 wrote:

[quote]Sloth wrote:

[quote]smh_23 wrote:
Law against “fire” 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 don’t believe unqualified BOR protections are ipso facto protected from restriction.[/quote]

I mean, doesn’t the fire example already deal with one individual infringing upon the rights of the rest of the audience? The point is that one individual fraudulently alters the behavior of others. But what if there truly was a fire? Surely it’s not illegal to call out “fire” when there actually is one. But the first circumstance, where there is no fire, seems like a straight up case of actively infringing upon the rights of others (the rest of the audience, the theater owner, etc.).

I don’t see how applies to owning, carrying arms. Maybe firing over people’s heads. Pointing the weapon at them so there is a reasonable expectation of a threat.[/quote]

It applies because it proves without question or controversy that a textually-unqualified Constitutional right – in this case, the right to free speech – is not ipso facto unrestrictable or illimitable. It isn’t an analogy, and no analogical correspondence is necessary. It is simply irrefutable evidence of the fact that a textually-unqualified Constitutional right is not ipso facto unrestrictable or illimitable. Were the previous sentence untrue, no law could proscribe any kind of speech whatsoever, under any circumstances, by any speaker – ever. My post a couple slots above goes into more detail.[/quote]

Speech is not being punished!!! The damage done by such speech is! If there is no damage, then “fire” can be screamed all day long in a crowded theater. The fact that the right to keep and bear arms does not give me the right to bear a knife right through the heart of my neighbor does not mean that there is not an absolute right to keep and bear arms; it means that I have no right to stab my neighbor in his heart.

94

[quote]smh_23 wrote:

[quote]NickViar wrote:

[quote]Sloth wrote:
First, you’ve infringed upon the rights of the property owner. Secondly, you’ve used the threat of physical harm to alter the actions/attention of the audience who just made a voluntary transaction with the theater in order to view a movie. People seem to forget that in the fire example there is actually an infringement upon others.
[/quote]

YES! I tried to hit on that in either this or the other thread. It is NOT a limitation on speech.[/quote]

No, it is a limitation on (syn: legal proscription of) speech, according to the SCOTUS ruling that decided it and created the relevant legal test; every examination or explanation of it I’ve ever seen (including the one linked previously, from Cornell LI); the meaning of words in the English language; logic and reason. See my last post to Sloth.[/quote]

Right, but it’s due to the reasons I’ve outlined. The act of yelling “fire!” in a crowded theater ACTUALLY DOES infringe upon the rights of others. The only alternative is that the justice system simply doesn’t like the word. And if that’s cause enough, then THAT is the best argument for the private citizen to own military grade weaponry.

But no, we move against the act of yelling “fire!” precisely because it directly and actively impacts the rights of others. It is coercive through a threat of physical harm. It is the very definition of “your rights end where mine begin.” Push owning a machine gun isn’t remotely like this.

Hell, I support amending the constitution. Surely the founders weren’t aware of the atomic bomb, and would likely have worded things a bit differently had they. But they didn’t. And all the try-hard re-interpretation of the 2nd is just so cheesy when its so damn clear. I’m sure we can elect enough representatives to get an amendment to ban the private-ownership of nuclear weaponry. Could probably do it tomorrow, in fact. Privately owned bombers and cluster bombs, probably done in the same day. As far as Push being able to own an automatic weapon, well…

Let’s actually have that debate and decide legislatively. I can’t stand this rule by what the definition of “is” is. This kind of clever reading of clear words is offensive. Debate it, and amend it, if we can.

95

A burglar enters my home and proceeds to remove everything I own. I try to stop him, but he shows me that he’s carrying a gun. I realize that he is perfectly within his rights to do everything he’s done because #secondamendment. This is obviously absurd-the fact that he’s carrying a gun does not mean that anything he does while carrying said gun is legal; and the fact that he can be punished for his actions while carrying said gun is not an infringement on his absolute right to keep and bear arms.

99

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[quote]smh_23 wrote:
Edited twice. I don’t really care what the point is – this is Constitution 101, and I am not going to spend any more time on it.[/quote]

Lol, okay…[/quote]

Came off much pricklier than intended. I had asked questions about what you were getting at, but then I decided that I didn’t have the time. It is true, though, that the content of those posts is basic, uncontroversial, text-intent-spirit 1A meaning/operation. I wish I had said like that, rather than “I don’t really care.” I apologize for that – it wasn’t intentional, it was almost like a conversation with myself, via edits. Stupid. Anyway I am on my way out the door, unprepared for my meeting because I’ve been arguing in this thread for 24 hours, yadda yadda.[/quote]

No worries.

I am simply trying to argue from the layman’s perspective anyway. I’m just reading what was written and when a phrase like “shall not be infringed” or “shall make no law… prohibiting the free exercise thereof; or abridging the freedom of speech” I don’t understand how we’ve gotten to a point where yelling “fire” is a crime in and of itself or that the framers really mean’t to limit the right to keep and bear arms even though they specifically, after much debate, wrote the right “shall not be infringed”. It says “shall not” it doesn’t say, “shall not except when new technology arise deemed too deadly for individual ownership” or “shall not except for military weaponry” or “shall not be infringed except at the discretion of the federal government or states governments”.

I get it though, Heller and all that, but SCOTUS isn’t infallible. Just read the Dredd Scott decision. [/quote]

OK, one last one haha.

Yes, the SCOTUS is not infallible. I alluded to Heller only to show that the absolutist 2A interpretation is a fringe theory, not to show that it’s wrong (though Scalia’s invocation of the historicity of restrictions, “from Blackstone thru 19th-century cases,” does get at right/wrong vis-a-vis intent, common understanding, and so on).

Instead, I argue, the absolutist view of the 2A is wrong because we already know (and intuitively accept) that unqualified rights protected by the Constitution are not ipso facto illimitable. There is no question about this – Brandenburg proves it, commercial speech restrictions prove it. It is unarguable. And it is good and reasonable: the alternative would be ludicrous absurdity. Given the absence of phrases like “any conceivable” or “all circumstances” from the BOR, it is for us to choose which rights are limited where, how, and why. Given that we can assume, correctly, that spirit and intent never involve ludicrous absurdity, we even have something of an originalist guide, at least in general.

Anyway, off to underperform at work![/quote]

Do you feel this way about the other amendments of the Bill of Rights? For example, is it ever okay for a jury to not be impartial?

100

[quote]Sloth wrote:

[quote]usmccds423 wrote:
No. A person standing up and yelling “fire” has ZERO effect in and of itself on others in the audience.[/quote]

Uh, what? That’s absolutely absurd. Not a personal attack, but that’s just completely oblivious to reality. Of course it does. [/quote]

There is no inherent effect on others. There can be an effect, but it isn’t automatic.

[quote]
First, you’ve infringed upon the rights of the property owner. [/quote]

I’m referring to rights specific to the Bill of Rights since that is what we have been discussing.

Only if they believe me. Again, what specific right(s) have been infringed upon?

*Edited