Right to Arms in the 21st Century

Off Topic Politics & World Issues
141

[quote]NickViar wrote:

[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.[/quote]

In what way you think this alters the fact that a limitation on an unqualified right proves unarguably that such rights can be subject to limitation is entirely unclear. That’s all I need, and I have it. Case closed.

But let’s look at the Brandenburg test, because true threats are subject to a variety of tests (one being a reasonable person test – no evidence of material, or even emotional, damage required). The former requires three conditions: imminence, likelihood, and intent. These are specifically and entirely functions of the speech and its content. They don’t hinge on anything evoked or elicited in a separate party (not, again, that there is any Constitutional basis for the fantasized axiom that BOR protections are subject to limitation only by way of some “other people’s rights” or “second party” test). Again: imminence, likelihood, and intent are specifically and entirely functions of the speech and its content, which are thus prohibited in themselves.

142

[quote]usmccds423 wrote:
You are inferring it only means some arms.
[/quote]

No, I am observing, correctly, that it does not specify whether some or all conceivable arms are protected. This is evidenced by the fact that neither the word “some” nor the pair of words “all conceivable” appear in the Amendment.

143

[quote]JR249 wrote:

[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, conceivable, speech or actions associated with a BLM protest, rally, or Facebook post, for example, MIGHT be grounds for criminal charges.
[/quote]

This is basically what I have been trying to argue so thanks for posting.

144

[quote]usmccds423 wrote:

[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? [/quote]

Here’s why argument by analogy doesn’t work:

If I said to you, “I’m going to give you money for all the time you’ve spent teaching me about how and why very smart people can still somehow get very confused about the Bill of Rights as long they have an emotional reading of it,” would I mean that I was going to give you all the money I have now, and all the money I will ever make in my life? Doubtful.

145

[quote]smh_23 wrote:

[quote]usmccds423 wrote:
You are inferring it only means some arms.
[/quote]

No, I am observing, correctly, that it does not specify whether some or all conceivable arms are protected. This is evidenced by the fact that neither the word “some” nor the pair of words “all conceivable” appear in the Amendment.[/quote]

Well, then the second amendment means nothing. It is useless if it hinges on the definition of “arms” to be defined by the central government. It protects only what the government allows it to protect under your interpretation. Again, we just ignore the phrase “necessary to the secuirty of a free state”.

So muskets only I guess, if we’re so lucky.

146

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[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? [/quote]

Here’s why argument by analogy doesn’t work:

If I said to you, “I’m going to give you money for all the time you’ve spent teaching me about how and why very smart people can still somehow get very confused about the Bill of Rights as long they have an emotional reading of it,” would I mean that I was going to give you all the money I have now, and all the money I will ever make in my life? Doubtful.[/quote]

What I posed and what you posed are not the same thing. I have to go this time…

147

I’ve got it! Why don’t we drop the whole incorporation doctrine B.S. and go back to applying he Constitution only to the federal government(and let’s remove all extra-Constitutional powers from it while we’re at it). Those who fear inanimate objects will be able to group together and get those objects out of their state. Those who fear giving others absolute power can group together in other states. Even those who want to carry around backpack nukes all night after spending all day raping their prepubescent daughters at home may be able to take over a state’s government(I seriously doubt it, but I’m throwing smh a bone here).

148

[quote]usmccds423 wrote:

[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? [/quote]

I suppose you’ve never heard of the likes of Benard Brodie? Which means you really don’t have an informed opinion on the matter. ^ doesn’t change that you’re very incorrect in this instance. They teach the nuances of nuclear strategy at MRCD or in your MOS training? I’m literate enough to understand that they are not merely an improved version of existing weapon systems. By the way, the existence of civilian strategists are not only commonplace, but a necessity, as strategy is the bridge between military means and political ends. This is widely taught at the staff level at the war colleges. Refer to Elliot Cohen’s Supreme Command.

149

[quote]JR249 wrote:
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, conceivable, speech or actions associated with a BLM protest, rally, or Facebook post, for example, MIGHT be grounds for criminal charges.
[/quote]

And if the speech is criminal under the Brandenburg test, it is so in and of itself. As speech. And it is therefore an unqualified Constitutional right, restricted. And therefore unqualified Constitutional rights are not by that fact illimitable.

150

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[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? [/quote]

Here’s why argument by analogy doesn’t work:

If I said to you, “I’m going to give you money for all the time you’ve spent teaching me about how and why very smart people can still somehow get very confused about the Bill of Rights as long they have an emotional reading of it,” would I mean that I was going to give you all the money I have now, and all the money I will ever make in my life? Doubtful.[/quote]

Doesn’t work for me. The money scenario is a question of quantity. The second has nothing to do with quantity. Is a machine gun “arms?” That’s all there is to it. It is or isn’t. If yes, not infringement. If no…well, then we’ve slid off into absolute absurdity.

151

So, here’s the actual test. Is a large magazine fully automatic rifle, “arms?” We all said yes, since we don’t want to be silly.

152

[quote]Sloth wrote:

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[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? [/quote]

Here’s why argument by analogy doesn’t work:

If I said to you, “I’m going to give you money for all the time you’ve spent teaching me about how and why very smart people can still somehow get very confused about the Bill of Rights as long they have an emotional reading of it,” would I mean that I was going to give you all the money I have now, and all the money I will ever make in my life? Doubtful.[/quote]

Doesn’t work for me. The money scenario is a question of quantity. The second has nothing to do with quantity. Is a machine gun “arms?” That’s all there is to it. It is or isn’t. If yes, not infringement. If no…well, then we’ve slid off into absolute absurdity.
[/quote]

Oh, OK. Well then:

“We just started letting little Jimmy watch TV shows.” (This is a sentence I heard, with the name changed, about 24 hours ago.) All TV shows? Do they put porn on for little Jimmy? They didn’t say they didn’t, so…lucky Jimmy, he gets to see some interesting things.

“I don’t think he’s into Sheryl because he’s attracted to men.” Men – all men? Is there not one kind of man – fat, thin, tall short, murderous, homeless, psychotic – that he isn’t attracted to? Is he attracted to every man alive?

Anyway, the point is that this kind of argument by analogy does not work. Ever.

The simple fact is that neither “some” nor “all conceivable” appear in the amendment. According to Scalia, and everyone who is alright with the Brandenburg test (i.e., everyone in this thread), this does not default us to absolutism. Sorry, but it’s the case – historically, logically. I am fresh out of ways to communicate this.

Edited.

153

[quote]Bismark wrote:

[quote]usmccds423 wrote:

[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? [/quote]

I suppose you’ve never heard of the likes of Benard Brodie? Which means you really don’t have an informed opinion on the matter. ^ doesn’t change that you’re very incorrect in this instance. They teach the nuances of nuclear strategy at MRCD or in your MOS training? I’m literate enough to understand that they are not merely an improved version of existing weapon systems. By the way, the existence of civilian strategists is not only commonplace, but a necessity, as strategy is the bridge between military means and political ends. This is widely taught at the staff level at the war colleges. Refer to Elliot Cohen’s Supreme Command. [/quote]

P.S., a uniform doesn’t convey strategic insights. I’ve heard hard-boiled special operators advocate that the US should have undertaken a “pincer invasion” of Iran after Saddam was deposed via Iraq and Afghanistan. Qualified civilian policymakers can and should question military strategy. After all, the military is civilian led and war is merely the continuation of politics by other means. Don’t confuse that with civilians interjecting when it comes to the operational or tactical level, however.

154

[quote]smh_23 wrote:

The simple fact is that neither “some” nor “all conceivable” appear in the amendment. [/quote]
You didn’t even try to answer my question. Is the above, my last post, “arms” or not?

155

[quote]usmccds423 wrote:
I’d like to here your (smh) and TBs take on the paper I posted if you have the time. [/quote]

I plan on it, and hopefully will have time tonight. Thanks for digging it out and posting it.

156

[quote]Sloth wrote:
So, here’s the actual test. Is a large magazine fully automatic rifle, “arms?” We all said yes, since we don’t want to be silly. [/quote]

It is one of many things that fall under the category of arms: six-shooters, shotguns, MANPADS, pipe bombs, nuclear weapons.

Which of these things are protected under the 2A?

All of them? Where does it say this? Nowhere. OK.

Again, the words “every conceivable”: find them in the amendment, or it doesn’t protect them. As, too, with the 1A: find “every conceivable,” or the Brandenburg test is Constitutional.

Edited.

157

[quote]usmccds423 wrote:

[quote]smh_23 wrote:

[quote]usmccds423 wrote:

[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? [/quote]

Here’s why argument by analogy doesn’t work:

If I said to you, “I’m going to give you money for all the time you’ve spent teaching me about how and why very smart people can still somehow get very confused about the Bill of Rights as long they have an emotional reading of it,” would I mean that I was going to give you all the money I have now, and all the money I will ever make in my life? Doubtful.[/quote]

What I posed and what you posed are not the same thing. I have to go this time…[/quote]

You mean like how “eat the apples” implies that you’re only limited to the apples in the pile in question, while “I’m going to give you money for all the time you’ve spent…” implies that a limited amount of money will be exchanged in return for a limited amount of time?

Usmc: I sure like eating steak.
Smh: I can’t believe you like the taste of Mad Cow Disease.
Usmc: I wouldn’t eat a diseased cow.
Smh: Why wouldn’t you eat Kobe beef at Ruth’s Chris?

158

[quote]smh_23 wrote:

[quote]Sloth wrote:
So, here’s the actual test. Is a large magazine fully automatic rifle, “arms?” We all said yes, since we don’t want to be silly. [/quote]

It is one of many things that fall under the category of arms: six-shooters, shotguns, MANPADS, pipe bombs, nuclear weapons.

Which of these things are protected under the 2A?

All of them? Where does it say this? [/quote]

You just said they all were Arms. Therefore, all are protected.

159

And of course these arms must be powerful enough so they we may ensure the very SECURITY OF THE STATE. Think about that for a minute. Not just powerful enough to defend yourself from a knife-wielding burglar, but powerful enough to be seen in the defense of the VERY SECURITY of the state. That is, weaponry that would be expected to match an actor that poses a threat to the very life of the nation.

160

[quote]smh_23 wrote:
“We just started letting little Jimmy watch TV shows.” (This is a sentence I heard, with the name changed, about 24 hours ago.) All TV shows? Do they put porn on for little Jimmy? They didn’t say they didn’t, so…lucky Jimmy, he gets to see some interesting things.[/quote]
Just like the Second Amendment says: Having just started allowing the people to keep and bear arms…the people will be given arms. Lucky homeless dude…he gets a $1,000 AR15.

I love the idea that the federal government is the equivalent of parents.

-Well, why is he into Sheryl, then?