SCOTUS to rule on 2nd Amendment

[Ecofarm]

My guess is that all 9 Justices will prove they aren't strict constructionists. The clause is "shall not be infringed", but I bet they will allow the states to infringe to some extent. Anyway, if the majority does give true meaning to "shall not infringe", I've already got an ex-felon lined up as a client to challenge one of Texas' infringing laws.

I hope they will give true meaning to this too:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I want to be able to sacrifice virgins, yell fire in a theatre and be immune from slander law.

 

[Souron]

"Shall not be infringed" sounds pretty absolute to me - the 2nd doesn't have any sort of language that would support a reasonableness test. Maybe a rewrite to the 2nd would be in order assuming the so-called strict constructionists on the Court have the guts to, you know, actually strictly construe.

As somebody else pointed out, "shall not be infringed", in the strictest sense could mean that anybody -- even felons have a legal right to own guns. If you admit that some restrictions may apply, then you have to start looking at purpose. The purpose of the second amendment is outline in the previous line "A well regulated Militia, being necessary to the security of a free State". So the right to bare arms is only necessary to allow for well regulated militia. Now based on previous rulings, such a militia only has a right to exist if it is sanctioned by the state and/or Union. If a citizen is not part of any militia, then him owning a gun does not serve the purpose of the second amendment.

If it were up to me I would uphold the DC gun ban.

Note: I have little problem with people owning guns, but I object to it being considered a basic right on par with the right to habeas corpus.

 

[Chazumi]

Okay, but you intend to shoot at cops if they try to enforce an anti-gun law?

As long as I remain in the United States (which is several months at best) I expect the right to own the gun to protect my family and myself. So yes, they will be killed attempting to infringe on that right. I can always blame PTSD I suppose.

Police officers with a warrant supersede that. They're not trespassers effectively. So in order to have things your way, you'd have to break the law and kill innocent law enforcement officers.

Knowing America as I do, I would claim (after I shot the lot of them to death of course) that I wasn't aware of the law due to being away, and hopefully serve a light sentence (3-5 years) before I was released on good behavior. It would at the very least send a strong message to the government. America is indestructible as long as it has this right, Iraq is hard enough to stabilize, imgaine America (as an invaded country) with how many people own weapons.

Isn't the military supposed to screen the crazies out?

In a sense, though if you send them to the frontline of your war what does it matter? Are you referring to me as crazy?

 

[emzie]

In a sense, though if you send them to the frontline of your war what does it matter? Are you referring to me as crazy?

Yes I think you're bat-. .. .. .. . insane.

 

[Elrohir]

"Shall not be infringed" sounds pretty absolute to me - the 2nd doesn't have any sort of language that would support a reasonableness test. Maybe a rewrite to the 2nd would be in order assuming the so-called strict constructionists on the Court have the guts to, you know, actually strictly construe.

But wouldn't you agree that no right should be infringed upon by the government? Just because it's explicitly stated in the Second doesn't make it any more sacred than any of the others. I don't think the First Amendment should be infringed upon either - I just don't think reasonable laws restricting it really do that. (For instance, I don't think you have a First Amendment right to print an ad selling crack cocaine or looking for a hitman.) No right is absolute.

So the government can declare someone a criminal and then take away their guns?

I disagree with felons losing voting rights for that reason: political opponents can be declared felons to take away their vote.

Declare someone a felon? You're a felon if you've been convicted of a felony. It's not a matter of a government bureaucrat making a proclamation; you have to have a trial first.

There are two reasons why I don't support thinks like taking away voting, 1st amendment or 2nd amendment rights from convicted felons:

1. I believe a right cannot be taken away.

I'm mostly going to focus on this point.

To put it simply, I disagree - rights can be taken away. However, they can only be taken away as a result of your own actions. I would argue that to sentence someone to life in prison without the possibility of parole is tantamount to a permanent loss of their right to liberty. (As well as other rights, of course) Even a "temporary" prison sentence, say five years, is a temporary loss of their rights.

By refusing to respect the rights of others by committing serious crimes, you give society the right to take away your rights in order to protect itself. Now it may be that some felons shouldn't be deprived of certain rights like owning guns or voting after they've served their terms - may be. But others I don't think should. (I'd have less of a problem with a white collar criminal being allowed to buy a gun than a man who raped and murdered several people) And yes, that's taking away their rights. All the more incentive not to commit felonies, I guess.

 

[Chazumi]

Yes I think you're bat-. .. .. .. . insane.

Then you should have no concern over my wellbeing, and thus no conflict with what the American Army does with it's personell, especially being from Canada.

 

[GoodGame]

So the government can declare someone a criminal and then take away their guns?

I disagree with felons losing voting rights for that reason: political opponents can be declared felons to take away their vote.

True there's always that grey area that justice might be abused for the convenience of the ruling party, but theoretically that's the check the judicial branch provides.

On that point it would be interesting if being convicted of specific crimes was prescribed as grounds for denying gun possession, to avoid the potential problem of abuse of political opponents..

 

[JollyRoger]

I hope they will give true meaning to this too:



I want to be able to sacrifice virgins, yell fire in a theatre and be immune from slander law.

"Congress shall make no law" is softer than "Shall not infringe". Even if Congress can't make a law, it doesn't mean that the Court can't enforce the Common law that existed at the time of the Constitution or that the States couldn't make such laws.

 

[JollyRoger]

But wouldn't you agree that no right should be infringed upon by the government? Just because it's explicitly stated in the Second doesn't make it any more sacred than any of the others. I don't think the First Amendment should be infringed upon either - I just don't think reasonable laws restricting it really do that. (For instance, I don't think you have a First Amendment right to print an ad selling crack cocaine or looking for a hitman.) No right is absolute.

Well, only one right has the phrase "shall not be infringed", so you go with the Constitution you have, not the one you wish you had. If you want to go down the reasonablenes road, then that opens up the DC gun ban as arguably reasonable since the Court generally gives great deference to letting legislatures decide what is reasonable - no legislating from the bench and all that jazz.

 

[Elrohir]

Well, only one right has the phrase "shall not be infringed", so you go with the Constitution you have, not the one you wish you had. If you want to go down the reasonablenes road, then that opens up the DC gun ban as a arguably reasonable, since the Court generally gives great deference to letting legislatures decide what is reasonable - no legislating from the bench and all that jazz.

JR, do you really think any right is absolute? That the Second gives anyone, at anytime, the right to purchase any weapon? That the First gives anyone, anywhere, for any reason the right to say anything? I don't think you do.

They can argue that it's a reasonable measure, of course. But I don't see how a blanket ban of handguns is reasonable in any way, shape, or form.

 

[JollyRoger]

JR, do you really think any right is absolute? That the Second gives anyone, at anytime, the right to purchase any weapon? That the First gives anyone, anywhere, for any reason the right to say anything? I don't think you do.

They can argue that it's a reasonable measure, of course. But I don't see how a blanket ban of handguns is reasonable in any way, shape, or form.

A right that says "shall not be infringed" is pretty absolute. If you are not going to give the full meaning to the phrase, then it is pretty empty and it is going to take all sorts of judicial activism gymnastics to strike down the DC ban on one hand while letting ex-felon-can't-possess laws stand on the other. After all, DC allows you to bear arms. Its just places certain arguably reasonable restrictions on the right. An outright ban on a certain weapon is not an absolute ban on all weapons after all.

 

[holiday_hawk]

A right that says "shall not be infringed" is pretty absolute. If you are not going to give the full meaning to the phrase, then it is pretty empty and it is going to take all sorts of judicial activism gymnastics to strike down the DC ban on one hand while letting ex-felon-can't-possess laws stand on the other. After all, DC allows you to bear arms. Its just places certain arguably reasonable restrictions on the right. An outright ban on a certain weapon is not an absolute ban on all weapons after all.

Exactly even though i don't hunt, or own a gun for any reason whatsoever that whole shall not be infringed means that the SCOTUS can't say nope no more guns for citizens

 

[Berzerker]

Does the Second Amendment guarantee an individual´s right to bear arms?

Of course, its the only right mentioned in the 2nd Amendment and ALL the people who wrote it said the right exists in their other writings.

SCOTUS will tell us next week.

yippee

JR

The clause is "shall not be infringed", but I bet they will allow the states to infringe to some extent.

Yup, ever since the 14th Amendment the SCOTUS has applied the BoR piecemeal and inconsistently. The separation of Church and State is enforced, religious freedom is not, and gun rights have become more of a privilege. That'll continue, we'll still need permission to own a gun...

 

[Elrohir]

A right that says "shall not be infringed" is pretty absolute. If you are not going to give the full meaning to the phrase, then it is pretty empty and it is going to take all sorts of judicial activism gymnastics to strike down the DC ban on one hand while letting ex-felon-can't-possess laws stand on the other. After all, DC allows you to bear arms. Its just places certain arguably reasonable restrictions on the right. An outright ban on a certain weapon is not an absolute ban on all weapons after all.

JR, do you believe it to be an unconstitutional infringement of inmate's Second Amendment rights to not allow inmates currently in prison to possess firearms? (And on their person, not locked up at their house or anything like that) If so, you're insane. If not, then you're accepting that Second Amendment rights, like all rights, are not absolute. Reasonable restrictions are not an infringement.

The thing is, you know this. I'm not sure why you're pushing this so hard, when I'm pretty sure you don't really disagree with me as much as you're pretending.

 

[JollyRoger]

JR, do you believe it to be an unconstitutional infringement of inmate's Second Amendment rights to not allow inmates currently in prison to possess firearms? (And on their person, not locked up at their house or anything like that) If so, you're insane. If not, then you're accepting that Second Amendment rights, like all rights, are not absolute. Reasonable restrictions are not an infringement.

The thing is, you know this. I'm not sure why you're pushing this so hard, when I'm pretty sure you don't really disagree with me as much as you're pretending.

Felons should be able to possess arms while incarcerated, but not necessarily in their cells or prison yards. The government could have them checked in upon incarceration with the inmate's other possessions or the inmate could have them stored offsite with their family or a storage facility. Part of their punishment is restricted access to their possessions, but not absolute dispossession in the case of arms.

My question to you is where you are reading a reasonableness standard into the 2nd Amendment? You might as well be a Stevens or a Breyer if you are willing to read one in.

 

[Berzerker]

JR, they've been deprived of their freedom...and you think they still have gun rights? Thats what due process is all about, depriving people of their rights. Your argument equates us with felons...

 

[Elrohir]

Felons should be able to possess arms while incarcerated, but not necessarily in their cells or prison yards. The government could have them checked in upon incarceration with the inmate's other possessions or the inmate could have them stored offsite with their family or a storage facility. Part of their punishment is restricted access to their possessions, but not absolute dispossession in the case of arms.

So if the government were to say to you "You can own any gun you like, but you have to store it where you cannot access it," would you consider that an infringement of your Second Amendment rights?

I would, assuming you aren't a felon. But see, that's the difference: by committing a felony, you give up some of your rights, at least some of the time. There's no other sane way of running a society.

My question to you is where you are reading a reasonableness standard into the 2nd Amendment? You might as well be a Stevens or a Breyer if you are willing to read one in.

I think every Constitutional right has to be interpreted reasonably. Few would argue that the Second Amendment gives the individual the right to possess nuclear weapons, or the First the right to print death threats. The Sixth Amendment provides the right to a speedy and public trial - but what counts as speedy? I'd say a reasonable judgment is needed there, too. The Eighth Amendment prohibits excessive bail or fines, or cruel and unusual punishment - but what determines what is "excessive," much less "cruel and unusual"? Again, a reasonable judgment is necessary.

It's not so much that I see a standard of reasonableness explicitly stated in the Second Amendment, as I see the necessity for a reasonable interpretation of the entire Constitution. Without such a reasonable standard, the Constitution serves not as the shield of the People, but as a shield for those who would deprive Them of Their rights. The Constitution exists to protect the rights of the People. Unreasonable interpretations, either 'conservative' or 'liberal,' endangers those same rights either by direction government action, or indirectly through government inaction. A reasonable interpretation of every right is the only way that the People can be truly protected.

 

[Chazumi]

Constitution serves not as the shield of the People, but as a shield for those who would deprive Them of Their rights.

Wait another minute. Can't you see what this pain has ****ing done to me.
I'm alive and still kickin'. What you see I can't see and maybe
you'll think before you speak.

Perhaps patriotism hasn't died and those who are deeemed "crazy" at least by those who participate in OT CivFanatics will sacrifice themselves for those who once deemed them so, will perish at the request of the masses and continue the heroism that distinguishes America as a country.

 

[JollyRoger]

JR, they've been deprived of their freedom...and you think they still have gun rights? Thats what due process is all about, depriving people of their rights. Your argument equates us with felons...

Felons are deprived of their freedom . . . after all, they can't travel or access their guns while incarcerated. I see no reason to dispossess them of their arms . . . just access to their arms during their period of incarceration. If all felons are not immediately executed, does that equate us with felons because they are not deprived of life? I think not.

So if the government were to say to you "You can own any gun you like, but you have to store it where you cannot access it," would you consider that an infringement of your Second Amendment rights?

You answer your own question here:

I would, assuming you aren't a felon. But see, that's the difference: by committing a felony, you give up some of your rights, at least some of the time. There's no other sane way of running a society.

You give away your access, but not ultimate possession of your arms during your period of incarceration.

I think every Constitutional right has to be interpreted reasonably. Few would argue that the Second Amendment gives the individual the right to possess nuclear weapons, or the First the right to print death threats. The Sixth Amendment provides the right to a speedy and public trial - but what counts as speedy? I'd say a reasonable judgment is needed there, too. The Eighth Amendment prohibits excessive bail or fines, or cruel and unusual punishment - but what determines what is "excessive," much less "cruel and unusual"? Again, a reasonable judgment is necessary.

It's not so much that I see a standard of reasonableness explicitly stated in the Second Amendment, as I see the necessity for a reasonable interpretation of the entire Constitution. Without such a reasonable standard, the Constitution serves not as the shield of the People, but as a shield for those who would deprive Them of Their rights. The Constitution exists to protect the rights of the People. Unreasonable interpretations, either 'conservative' or 'liberal,' endangers those same rights either by direction government action, or indirectly through government inaction. A reasonable interpretation of every right is the only way that the People can be truly protected.

So there we are . . . arguing reasonableness with a clause like "shall not infringe." Don't complain then when "reasonable" is that a municipality can severely restrict handguns or you need to pay for the privilege and take a test to possess certain arms or if there are certain firearms you can't possess at all. Don't complain about judicial activism, legislating from the bench, or judicial failure to strictly construe the Constitution.

 

[Elrohir]

You answer your own question here:

You give away your access, but not ultimate possession of your arms during your period of incarceration.

I'm not entirely sure why you shouldn't have to give up ownership as well, as least for violent felons.

So there we are . . . arguing reasonableness with a clause like "shall not infringe." Don't complain then when "reasonable" is that a municipality can severely restrict handguns or you need to pay for the privilege and take a test to possess certain arms or if there are certain firearms you can't possess at all. Don't complain about judicial activism, legislating from the bench, or judicial failure to strictly construe the Constitution.

Oh come on JR. We have reasonable limits on the First Amendment - why not the Second? And yes, there'd be arguments over what's "reasonable," which is fine. Discourse is healthy. But I'll take a reasonable understanding over an unreasonable one anytime.


I have two questions for you, which I'd appreciate answers to. First, do you agree that some rights may be taken away from someone if they commit a felony? (In general - we can argue about specifics and what's actually needed later)

Second, do you believe in unlimited Constitutional rights? Or do you believe that the others can be safely infringed upon, because they don't have the phrasing "shall not be infringed" in the actual Amendment? If you don't believe in unlimited Constitutional rights, then what standard do you use to draw the line? (Hint: It has to do with reason ) If you do, how do you reconcile a belief in unlimited rights with a real world society?