Right to Arms in the 21st Century

[Bismark]

[quote]usmccds423 wrote:

[quote]Bismark wrote:

[quote]usmccds423 wrote:

[quote]smh_23 wrote:

[quote]usmccds423 wrote:
Because that doesn’t explain how it doesn’t apply. You don’t like nuclear armed individuals or militiamen, fine, neither do I, but that doesn’t change the wording and intent of the second.[/quote]

Doesn’t apply, as in “is impossible/absurd/stupid/fatuous.” Which is why I said we should revisit the Second Amendment. [/quote]

Okay, then we’ve already agreed on that then…

[quote]

[quote]
Once again, a weapon in a courtroom is not in keeping with the keeping and bearing of arms necessary to the security of a free state. Bearing arms in a court room, per your example, has exactly ZERO to do with the rights guaranteed and intent of the second. [/quote]

No. Already answered. I don’t have time to repeat myself. Operative clause, Heller and all that. If the prefatory clause suddenly alters the literal meaning of the text that follows it, then we can finish this discussion here and now, because the 2A entails no necessary individual right.[/quote]

So a militia can have a nuclear weapon then, right?[/quote]

Why would a civil supplement to the regular armed forces be permitted access to weapons that could potentially bring about great power war and human extinction? Because your reading of a document written in the 18th century says so?[/quote]

Militia’s aren’t just civil supplements to the regular armed forces. That is too simplistic a view and, ya, because the Constitution says so…

What the fuck does that even mean, “Because your reading of a document written in the 18th century says so?” So, what, do we not get jury trials now because my reading of a document written in the 18th century say we do.

Words either matter or they do not. “shall not be infringed”. Either individuals have a right to keep and bear all arms un-infringed or militia’s do. [/quote]

Explain what they are beyond the OED definition, then.

The practice of law hasn’t changed dramatically since the founding. The practice of war has. Had the fathers’ known of the potentiality and implications of nuclear weapons, they surely would not have been ambivalent toward their possession by private actors or supplemental military forces called up in times of emergency. To advocate for the opposite is the height of folly.

[Sloth]

[quote]usmccds423 wrote:

[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.

Further, I can walk into a movie, right this second, and yell fire. Nothing is stopping me. Even further still, what right of others is yelling “fire” infringing upon? The right to not be disturbed in a movie? I missed that one in the Bill of Rights.

[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.

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.

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

*Edited[/quote]

I have no idea how you can not understand that that yelling “fire!” in a theater will induce the fear of physical harm in people. Not to be an ass, but I don’t even want to debate it. Besides fear of judicial punishment a repercussion…lain common sense and empathy for fellow man should inform us not to shout “fire” in a crowded theater.

[smh_23]

[quote]Sloth wrote:

[quote]smh_23 wrote:

The Amendment doesn’t say “keep and bear all conceivable forms of arms.” It says “arms.”[/quote]

Well it says “arms,” not “some arms.”[/quote]

Right, and not “all arms.” Hence: interpretation, application in accordance with reason, which dictates that private citizens not be allowed to procure, enrich, and weaponize nuclear material. Pretty simple: the lines are left for us to draw. This is the purpose of the Constitution and SCOTUS.

[quote]
It doesn’t “federally approved arms subject to revision.” It doesn’t say “rifles.” And it could very easily simply have said “rifles.” [/quote]

Indeed: as it could very easily have said “all conceivable arms.” As the 1A could have said “every conceivable form of speech.” Neither did. Thus the lines are left for us to draw.

Had they simply said this, rifles, we would understand they were excluding artillery (for instance). But, again, they didn’t. Not “rifles.” Not “some arms.” Not “federally approved arms.” Etc. Flat out, no caveats, arms.

Yes, no caveats, no qualifications. Like “all,” or “every,” or “always.”

[anon50325502]

[quote]Bismark wrote:

[quote]usmccds423 wrote:

[quote]Bismark wrote:

[quote]usmccds423 wrote:

[quote]smh_23 wrote:

[quote]usmccds423 wrote:
Because that doesn’t explain how it doesn’t apply. You don’t like nuclear armed individuals or militiamen, fine, neither do I, but that doesn’t change the wording and intent of the second.[/quote]

Doesn’t apply, as in “is impossible/absurd/stupid/fatuous.” Which is why I said we should revisit the Second Amendment. [/quote]

Okay, then we’ve already agreed on that then…

[quote]

[quote]
Once again, a weapon in a courtroom is not in keeping with the keeping and bearing of arms necessary to the security of a free state. Bearing arms in a court room, per your example, has exactly ZERO to do with the rights guaranteed and intent of the second. [/quote]

No. Already answered. I don’t have time to repeat myself. Operative clause, Heller and all that. If the prefatory clause suddenly alters the literal meaning of the text that follows it, then we can finish this discussion here and now, because the 2A entails no necessary individual right.[/quote]

So a militia can have a nuclear weapon then, right?[/quote]

Why would a civil supplement to the regular armed forces be permitted access to weapons that could potentially bring about great power war and human extinction? Because your reading of a document written in the 18th century says so?[/quote]

Militia’s aren’t just civil supplements to the regular armed forces. That is too simplistic a view and, ya, because the Constitution says so…

What the fuck does that even mean, “Because your reading of a document written in the 18th century says so?” So, what, do we not get jury trials now because my reading of a document written in the 18th century say we do.

Words either matter or they do not. “shall not be infringed”. Either individuals have a right to keep and bear all arms un-infringed or militia’s do. [/quote]

Explain what they are beyond the OED definition, then. [/quote]

Start on page 13.
http://www.constitution.org/2ll/2ndschol/89vand.pdf

[quote]
The practice of law hasn’t changed dramatically since the founding. The practice of war has. [/quote]

Tools of war have changed and new tactics have been developed, but the essence of war is basically unchanged.

[quote]
Had the fathers’ known of the potentiality and implications of nuclear weapons, they surely would not have been ambivalent toward their possession by private actors or supplemental military forces called up in times of emergency.[/quote]

Damn, another crystal ball… Where do you guys keep getting these things?

Edit: added link

[Sloth]

[quote]usmccds423 wrote:

[quote]Sloth wrote:
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.

[/quote]

2 is only true if there is a response from the audience.

Edit

3. No one cares, just ignores me, and nothing happens.[/quote]

2 is true regardless of if the audience responds. Just because the audience doesn’t bite on the bait doesn’t mean you didn’t attempt to use the threat of physical harm to get a reaction.

3 is the same as 2

[anon50325502]

[quote]Sloth wrote:

[quote]usmccds423 wrote:

[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.

Further, I can walk into a movie, right this second, and yell fire. Nothing is stopping me. Even further still, what right of others is yelling “fire” infringing upon? The right to not be disturbed in a movie? I missed that one in the Bill of Rights.

[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.

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.

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

*Edited[/quote]

I have no idea how you can not understand that that yelling “fire!” in a theater will induce the fear of physical harm in people. Not to be an ass, but I don’t even want to debate it. Besides fear of judicial punishment a repercussion…lain common sense and empathy for fellow man should inform us not to shout “fire” in a crowded theater.[/quote]

I understand that it can induce fear, but I also understand that it does not automatically induce fear in people.

No where have I said it is okay to yell “fire” in a theater. It is not. we are specifically discussing, in this case, what is protected by the first and if certain things are not. Not whether yelling “fire” is a good idea or whether it is a dick move. Both can be true.

[NickViar]

[quote]smh_23 wrote:

[quote]NickViar wrote:

[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.[/quote]

No. Investigate before you opine. The Brandenburg test requires intent, likelihood, and temporal imminence (i.e., not advocating for something at some later, indefinite time). These are necessary and sufficient, and, anyway, what we’re talking about is not a punishment after the fact but law proscribing a certain kind of speech…which directly contravenes an unqualified absolutist reading of the First Amendment’s protection of free speech. The speech and speaker are themselves restricted irrespective of “damage” – i.e., not protected by the First Amendment. Again: The speech and speaker are themselves restricted irrespective of “damage” – i.e., not protected by the First Amendment. It is a limitation on free speech, according, again, to the SCOTUS, authoritative commentators, the meaning of words in the English language, and reason. So, too, with true threats (the threats themselves, not their being carried out), which, per Watts, constitute proscribed speech – that is, restriction on a Constitutional right – on justifications already given (and exactly applicable, mutatis mutandis, to nuclear weapons and the 2A).[/quote]

The prohibition of threats actually does depend upon actual harm being done-the threat must place another in reasonable fear. The words are not prohibited. If I say to my best friend, “I’m going to kill you for saying that!” I have not committed a crime unless my words put him in fear(i.e., cause harm).

The Brandenburg test allows the punishment only of speech that is the equivalent of brandishing a firearm.

[Sloth]

[quote]smh_23 wrote:

[quote]Sloth wrote:

[quote]smh_23 wrote:

The Amendment doesn’t say “keep and bear all conceivable forms of arms.” It says “arms.”[/quote]

Well it says “arms,” not “some arms.”[/quote]

Right, and not “all arms.” Hence: interpretation, application in accordance with reason, which dictates that private citizens not be allowed to procure, enrich, and weaponize nuclear material. Pretty simple: the lines are left for us to draw. This is the purpose of the Constitution and SCOTUS.

It doesn’t “federally approved arms subject to revision.” It doesn’t say “rifles.” And it could very easily simply have said “rifles.” [/quote]

Indeed: as it could very easily have said “all conceivable arms.” As the 1A could have said “every conceivable form of speech.” Neither did. Thus the lines are left for us to draw.

Had they simply said this, rifles, we would understand they were excluding artillery (for instance). But, again, they didn’t. Not “rifles.” Not “some arms.” Not “federally approved arms.” Etc. Flat out, no caveats, arms.

Yes, no caveats, no qualifications. Like “all,” or “every,” or “always.”

This is absurd. In essence, you’re arguing the founders gave the federal government the power to define arms as “a dull butter knife kept in a child-proof safe.”

I have no idea why so many people are willing to let judges and lawyers practice such absurdities. Amend the thing if you don’t like it. I don’t like it, in fact. It should be amended in light of modern technology. We have a legislative branch for a reason. Use them for something besides raising debt ceilings, for crying out loud.

[anon50325502]

[quote]Sloth wrote:

[quote]usmccds423 wrote:

[quote]Sloth wrote:
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.

[/quote]

2 is only true if there is a response from the audience.

Edit

3. No one cares, just ignores me, and nothing happens.[/quote]

2 is true regardless of if the audience responds. Just because the audience doesn’t bite on the bait doesn’t mean you didn’t attempt to use the threat of physical harm to get a reaction.

3 is the same as 2[/quote]

Okay, well whatever. I think what you just wrote is absurd and there is no way in hell that was the intention of the founders regarding the 1st. Agree to disagree I guess.

[anon50325502]

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It doesn’t say all unreasonable searches and seizures so I guess some unreasonable searches and seizure are perfectly acceptable.

[anon50325502]

BLM can chant repeatedly, “pigs in a blanket fry like bacon” no issue what so ever.
usmccds423 says, “fire” in a movie theater, no one cares, and it’s a crime.

Does not compute.

[smh_23]

[quote]usmccds423 wrote:

I think the phrase “shall not be infringed” does protect the individual or militia’s right to keep and bear all conceivable arms. Why add the phrase “shall not be infringed” otherwise? [/quote]

Why add the phrase? It wouldn’t even be a sentence without the phrase. That phrase simply establishes the protection, like “make no law…abridging” in the First. What’s protected is left general, unqualified, open to interpretation. If all conceivable arms were protected, exactly as much would be said. If all conceivable forms of speech were protected, exactly as much would be said. Neither was, and wisely. This is the function of the SCOTUS vis-a-vis Constitution – to use reason in order to apply general pronouncements (text, letter, and spirit) to specifics, penumbrae, and changing circumstances.

[quote]
Do you really think the founders having just defeated an oppressive government would have written the Bill of Rights in such as way as to give a centralized government the authority to determine what is a “reasonable limitation”? I do not. [/quote]

The wrote the Bill of Rights in such a way as to ensure that it would withstand vagaries of time and circumstance without trapping us in absurdity. They left the lines for their inheritors and a mechanism by which to draft and draw them.

[Bismark]

[quote]usmccds423 wrote:

Tools of war have changed and new tactics have been developed, but the essence of war is basically unchanged.

[/quote]

That’s patently false given the systemic and strategic implications of nuclear weapons. They aren’t simply an improved version of conventional air power, which itself has been dubbed “flying artillery”. Nuclear weapons writ large are not tactical, they are inherently strategic. Anyone versed in the basics of strategy can attest to that.

[smh_23]

[quote]Sloth wrote:
I have no idea why so many people are willing to let judges and lawyers practice such absurdities.[/quote]

This is a common refrain. In fact that is exactly what judges were designed to do – to interpret the law, and, WRT the Constitution, to apply its general protections, in accordance with reason and consideration, to specific problems, and change, and penumbra. This is literally the point. And it is necessary.

There is exactly as much textual basis iwthin the Second Amendment for “some arms” as for “all conceivable arms”: none. Whatsoever.

[anon50325502]

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

I think the phrase “shall not be infringed” does protect the individual or militia’s right to keep and bear all conceivable arms. Why add the phrase “shall not be infringed” otherwise? [/quote]

Why add the phrase? It wouldn’t even be a sentence without the phrase. That phrase simply establishes the protection, like “make no law…abridging” in the First. What’s protected is left general, unqualified, open to interpretation. [/quote]

I meant why add the phrase as written. “shall not be infringed” is an absolute:

“Shall” 1. (in the first person) expressing the future tense. 2.expressing a strong assertion or intention.

“not” 1.used as a function word to make negative a group of words or a word 2.â??used as a function word to stand for the negative of a preceding group of words

“infringed” 1. actively break the terms of (a law, agreement, etc.).
Synonyms: contravene, violate, transgress, break, breach; More 2.act so as to limit or undermine (something); encroach on.

You are correct though, it does establish the protection, the government cannot infringe on the keeping and bearing of arms. It isn’t open to interpretation. We know what these words mean: Shall, not, be, and infringed.

[quote]
If all conceivable arms were protected, exactly as much would be said. [/quote]

That’s how it reads to me. You are inferring it only means some arms.

If all conceivable forms of speech were protected, exactly as much would be said. Neither was, and wisely. This is the function of the SCOTUS vis-a-vis Constitution – to use reason in order to apply general pronouncements (text, letter, and spirit) to specifics, penumbrae, and changing circumstances.

Again, I doubt the founders intent to set the new government up in such as way as to allow the centralized government to decide what is reasonable.

[quote]

[quote]
Do you really think the founders having just defeated an oppressive government would have written the Bill of Rights in such as way as to give a centralized government the authority to determine what is a “reasonable limitation”? I do not. [/quote]

The wrote the Bill of Rights in such a way as to ensure that it would withstand vagaries of time and circumstance without trapping us in absurdity. They left the lines for their inheritors and a mechanism by which to draft and draw them.[/quote]

So you believe they wrote the BOR to give centralized government the authority to determine what is a “reasonable limitation”?

It hasn’t withstood vagaries apparently because “shall not be infringed” seems pretty straight forward to me as does the term “arms” yet here we are arguing about it 200 year later.

[anon50325502]

[quote]Bismark wrote:

[quote]usmccds423 wrote:

Tools of war have changed and new tactics have been developed, but the essence of war is basically unchanged.

[/quote]

That’s patently false given the systemic and strategic implications of nuclear weapons. They aren’t simply an improved version of conventional air power, which itself has been dubbed “flying artillery”. Nuclear weapons writ large are not tactical, they are inherently strategic. Anyone versed in the basics of strategy can attest to that. [/quote]

And I’m sure you, having never put a uniform on, are versed in said strategy, right?

[Sloth]

[quote]smh_23 wrote:

[quote]Sloth wrote:
I have no idea why so many people are willing to let judges and lawyers practice such absurdities.[/quote]

This is a common refrain. In fact that is exactly what judges were designed to do – to interpret the law, and, WRT the Constitution, to apply its general protections, in accordance with reason and consideration, to specific problems, and change, and penumbra. This is literally the point. And it is necessary.

There is exactly as much textual basis iwthin the Second Amendment for “some arms” as for “all conceivable arms”: none. Whatsoever.[/quote]

The intent wasn’t for them to “interpret” the clear language of the 2nd into the federal government’s enumerated power to decide if the citizen will be left with a dull butter knife. Which is what the “it doesn’t say ‘all’ arms” arguments basically means. And only the butter knife, because hey, who know, maybe that militia thing might be needed again. Use the legislative branch.

[Sloth]

More stretched interpretations than most holy books lol.

[anon50325502]

[quote]smh_23 wrote:

[quote]Sloth wrote:
I have no idea why so many people are willing to let judges and lawyers practice such absurdities.[/quote]

This is a common refrain. In fact that is exactly what judges were designed to do – to interpret the law, and, WRT the Constitution, to apply its general protections, in accordance with reason and consideration, to specific problems, and change, and penumbra. This is literally the point. And it is necessary.

There is exactly as much textual basis iwthin the Second Amendment for “some arms” as for “all conceivable arms”: none. Whatsoever.[/quote]

If I had a pile of apples and I said to you, “smh, you have a right to eat the apples,” left, came back an hour later, you had eaten all of the apples, and I got pissed of at you because I didn’t mean you had a right to all of them do you feel that would make sense?

[JR249]

[quote]usmccds423 wrote:
BLM can chant repeatedly, “pigs in a blanket fry like bacon” no issue what so ever.
usmccds423 says, “fire” in a movie theater, no one cares, and it’s a crime.

Does not compute. [/quote]

I think hairs are getting split here. Be sure to read the quote in its entire context, from Holmes, in the Schenck case:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

I’ve never actually seen a law explicitly stating that uttering “fire” in a crowded movie theater was illegal in and of itself. However, if you do, AND it causes panic, you may be prosecuted for uttering those words. Oliver Wendell Holmes Jr. merely used this a metaphor for a situation where one’s speech might not be protected by the First Amendment. If someone at a BLM rally was actually urging people to take imminent lawless action, and they did, and it was tied directly to that speaker in that time or place, in similar fashion, it’s possible to get a successful prosecution.

As always, the details matter. Circumstances, intent, actions and so forth are play in to whether or not speech is criminal. It’s not exactly black and white. Every case is unique, hence the need for a judiciary. The same is true of BLM speech, protests, etc. There are cases where, conceivably, speech or actions associated with a BLM protest, rally, or Facebook post, for example, MIGHT be grounds for criminal charges.