[quote]JR249 wrote:
[quote]pushharder wrote:
Post a few examples.
[/quote]
In his context as presented, there are several. No rights are really absolute. There is a litany of case law here, on essentially the entire Bill or Rights, including the Second Amendment, that some regulation is allowable. The debate always has been how to balance individual or group liberty with the state or federal government’s reasonable necessity to maintain order and protect safety. Though a free speech case, the issue (of rights not being absolute) was notably well-phrased by Justice Robert Jackson in the Terminiello case: “This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” In other words, the Bill of Rights isn’t a suicide pact and no rights or liberties therein are ever considered absolute.
I think it’s worth noting that more recent legislation, including then Heller case, actually affirms this as it pertains to the Second Amendment:
“Although we (SCOTUS) do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
So while some may personally believe that any form of gun control whatsoever is inconsistent with the “shall not be infringed” terminology found in the operative clause of the Second Amendment, the courts have never seen it that way, and even the SCOTUS has allowed a lawful pathway for some forms of “reasonable” regulation. It’s no different than say, for example, if a battered wife is screaming for help inside of her home and the neighbors can hear it and many of them dial 911, you don’t have to be anti-Fourth Amendment to believe that, in an emergency scenario like this, the responding officers do not need to secure a warrant to enter the premises without permission if no one at first answers the door.
With that having been said, I agree that gun control, like any restriction on civil liberties, must be tempered with caution due to concerns over “foot in the door” or “door in the face” regulation mentality, but I don’t think having some reasonable regulations or restrictions has to be be inherently a black and white, you are for or against the Second Amendment proposition either.[/quote]
Good post, especially the last paragraph. And that’s why the history of the Second Amendment and its lack of application to states is important, even for policy reasons.
The Fourteenth Amendment was ratified in 1868, and that is the earliest anyone can say they had a universal (nation) right to keep and bear arms. Prior to 1868, states had varying and burgeoning versions of “common sense” legislation (some more restrictive, others less).
There is no credible claim that 1869 - the first year post-Fourteenth Amendment - functioned as a Year Zero for a universal right to arms, where every existing law is effectively erased from the books because the new right demands a new from-scratch regime. There’s just no way. There is no argument that the drafters and r atifiers (the states themselves) thought this was happening, or would have ever agreed to ratify the amendment if that were the case.
But modern Second Amendment fetishists argue as if this were true, as if yes, the Year Zero theory is correct and the Fourteenth Amendment “corrected” the Framers’ failure or mistake to enact a universal right through the Constitution back in the late 1700s. It’s not. And the fact that it’s not supports the principle that supporting “common sense” legislation isn’t inconsistent with supporting the Second Amendment. It would only be inconsistent if you believe in the Year Zero theory.
Of course, I get it - “common sense” is a moving target, isn’t objective, and can provide so many exceptions that they swallow the rule. But that’s a question of politics, not law.
Now, recognizing that these are (or should be) the rules of the road in enacting firearm regulation isn’t a de facto claim that you support heavy-handed gun control. Arguing what a state can do is not tantamount to arguing what the state should do. That confuses the Pushes of the world, but then again, so does basic logic and coloring between the lines and I don’t have a solution for that.
Example, I don’t think assault weapons should be banned, but I don’t think constitutional carry is a great idea, especially in dense urban areas (much like the cops I talked to, I mentioned earlier). I could be talked out of the latter position, but on policy/practical grounds, not on “not being as to constitutional carry is an infringement of much rights, the ones the Founding Fathers gave me!!!” (Clearly, they didn’t.) (And if believing that constitutional carry makes me a statist, I guess I’ll have cast my lot with al those like-minded left-wing statists in Western cattle towns that restricted carrying in city limits for public safety reasons. You know, real cowboys, not the pretend kind we see on PWI.)
As is, and as I said earlier, the only people who think “common sense” legislation is inconsistent with the Second Amendment are people who don’t know much about the Second Amendment.
Nice.