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Thread: Constitutional restrictions on gunsd?

  1. #21
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    Re: Constitutional restrictions on guns?

    Quote Originally Posted by Goobieman View Post
    This is mostly for the anti-gun/pro-gun control members of this forim, but please feel to chime in even if you aren't among that group. Note that this is aimed at a REAL discussion of the issue, as opposed to the troll/flame farce started recently by another member of this forum.

    ----

    Its clear from the text of the 2nd, and especially from the SCotUS interpretation of that text, that the 2nd amendment protects an individual right to keep and bear arms, with the exercise of same being independent of any relationship to any militia.

    The question then becomes what sort of regulation can be placed on the right to arms without conflicting with the Constitutional imperative that the right to keep and bear arms shall not be infringed? That is, what regulations can the government lay on the exercise of the right to keep and bear arms without infringing upon that right?

    It seems to me that we have a rather broad set of examples to look to for guidance -- the jurispridence surrounding the various rights protected by the 1st amendment, specifically the right to free speech, the freedom of the press, and the freedom to assemble.

    Without going into detail, the general direction of this jurispridence is that these rights do not include actions/expressions that cause direct harm to others, or place others in an immediate position of clear and present danger -- you may freely express your opinion of someone, so long as you do not slander them or commit libel; you can advocate individual or collective action so long as said action does not include things like inciting a riot, and you can make public proclimations/exclamations, so long as you do not directly endanger others by doing something like yelling 'Fire!" in a theater.

    These conditions placed on your first amendment rights create excellent analogues for constitutionally acceptable conditions for the exercise of the right to keep and bear arms -- you may freely exercise your right to keep and bear arms so long as you do not cause harm to others (outside the obvious exercise of the right during the exercise of right to self-defense) or place them in an immediate position of clear and present danger; any restrictions above and beyond these create infringements on the right to arms and thus violate the Constitution.

    Agree?
    Disagree?
    Why/Why not?
    The question then becomes what constitutes a "clear and present danger." Surely owning a nuclear weapon would be a clear and present danger. I think the same case could be easily made for grenade launchers and the like. As far as "guns," it's hard to tell. If the guns in question have some sort of useful purpose aside from causing chaos and crime, then I would argue that they clearly do not constitute clear and present danger. If they don't have any useful purpose...it becomes much more difficult to determine.


    I should add that although "clear and present danger" is an example of a limitation on freedom of speech, it isn't the only limitation. There are civil limitations as well as criminal limitations; you can't slander someone, infringe on their copyrights, etc.

    Furthermore, I don't think you can neatly substitute the limitations on one right for the limitations on another right. Courts have traditionally given the government much more leeway on, say, infringing on the right to a speedy trial than they have on infringing on the right to free speech.
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  2. #22
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by disneydude View Post
    I'm not calling anyone dumb. I'm saying that a lot of people think that they understand how the SCOTUS process works but they actually don't.
    That's why I'm hesitant to even engage myself in these discussions. Don't get me wrong...I'm not a Constitutional scholar but I have studied Conlaw and understand the process. This gives me enough insight to know that there are a lot of armchair quarterbacks out there who like to talk like they know what they are talking about when they really don't. That's not calling people "stupid" its calling them on their arrogance and ignorance.
    Armchair quarterbacks? But I own the government, it's mine. It works by my consent and wields my power and sovereignty. Should I not have a say? Should I be unable to express my opinions? The founders knew well the course of government and what it seeks to do once established. The basis for the acknowledgment of our rights and the limitation of the government to those rights is fundamental. In that, rights aren't some arbitrary thing brought upon by the government, owned and defined through it, but rather an innate power of the People by which the government must be constrained. I think claiming that my opinion is invalid and I'm full of arrogance and ignorance based upon that opinion or being unable to regurgitate "facts" you demand is in itself highly arrogant and condescending.
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  3. #23
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by Ikari View Post
    Armchair quarterbacks? But I own the government, it's mine. It works by my consent and wields my power and sovereignty. Should I not have a say? Should I be unable to express my opinions? The founders knew well the course of government and what it seeks to do once established. The basis for the acknowledgment of our rights and the limitation of the government to those rights is fundamental. In that, rights aren't some arbitrary thing brought upon by the government, owned and defined through it, but rather an innate power of the People by which the government must be constrained. I think claiming that my opinion is invalid and I'm full of arrogance and ignorance based upon that opinion or being unable to regurgitate "facts" you demand is in itself highly arrogant and condescending.
    I never said that you were not entitled to your opinion. Certainly you are...we all are. And I wasn't speaking directly to you...but to the actions of many.

    Its fine to express your opinions about the way you think things should be. However, to pretend that you know the process underwhich the SCOTUS analyzes cases and then to post as if you understand the process when it is obvious when people don't....that isn't just expressing an opinion. I think O'Reilly would call it "bloviating".
    <font size=5><b>Its been several weeks since the Vegas shooting.  Its it still "Too Early" or can we start having the conversation about finally doing something about these mass shootings???​</b></font>

  4. #24
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by disneydude View Post
    You should know Eth.....in our history of jurisprudence, the levels of scrutiny under which all Constitutional issues are analyzed has existed since the inception of the Court.
    I am aware of them, I simply disagree with their application and reasoning. I thought I already explained that.

  5. #25
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by disneydude View Post
    I never said that you were not entitled to your opinion. Certainly you are...we all are. And I wasn't speaking directly to you...but to the actions of many.

    Its fine to express your opinions about the way you think things should be. However, to pretend that you know the process underwhich the SCOTUS analyzes cases and then to post as if you understand the process when it is obvious when people don't....that isn't just expressing an opinion. I think O'Reilly would call it "bloviating".
    PERHAPS, Ikari does not agree with the manner in which the SCOTUS "analyzes cases." The mainstream legal doctrines you are so enamored with are not the only theories and constructs in existence.

  6. #26
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by disneydude View Post
    Its fine to express your opinions about the way you think things should be. However, to pretend that you know the process underwhich the SCOTUS analyzes cases and then to post as if you understand the process when it is obvious when people don't....that isn't just expressing an opinion. I think O'Reilly would call it "bloviating".
    Then cut to the chase. What's this grand process by which all of us are too dumb to know? Enlighten us so we may better engage in debate over our rights and the restrictions upon the SCOTUS (I maintain that the largest problem with the Constitution is that it did not properly restrain the SCOTUS and that it has taken too much power, power it was never meant to have as the founders didn't believe that such gain in power and tyranny could be gained through the judicial branch).
    You know the time is right to take control, we gotta take offense against the status quo

    Quote Originally Posted by A. de Tocqueville
    "I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it."

  7. #27
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by Ikari View Post
    Then cut to the chase. What's this grand process by which all of us are too dumb to know? Enlighten us so we may better engage in debate over our rights and the restrictions upon the SCOTUS (I maintain that the largest problem with the Constitution is that it did not properly restrain the SCOTUS and that it has taken too much power, power it was never meant to have as the founders didn't believe that such gain in power and tyranny could be gained through the judicial branch).
    You're missing the point Ikari....you are asking me to take at a minimum, a one year law school course, and reduce it to a paragraph post.
    Just like I would never expect to learn how to plumb a house in a one paragraph post, I certainly would never expect anyone to understand Constitutional analysis in one.

    As far as your second contention. The way our government was set up was for there to be three distinct branches of government, each with checks and balances. The SCOTUS has exactly the level of power that was intended at the inception of our system.
    <font size=5><b>Its been several weeks since the Vegas shooting.  Its it still "Too Early" or can we start having the conversation about finally doing something about these mass shootings???​</b></font>

  8. #28
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by disneydude View Post
    You're missing the point Ikari....you are asking me to take at a minimum, a one year law school course, and reduce it to a paragraph post.
    Just like I would never expect to learn how to plumb a house in a one paragraph post, I certainly would never expect anyone to understand Constitutional analysis in one.

    As far as your second contention. The way our government was set up was for there to be three distinct branches of government, each with checks and balances. The SCOTUS has exactly the level of power that was intended at the inception of our system.
    So you won't tell us what we should know to reach the level which is acceptable to you to be able to discuss the SCOTUS and its policies. It's too complicated huh? Particle physics sort of thing going down. You asked a question to define a few things for you earlier. Were you expecting a 1 year law school course not reduced to a few paragraphs? Remember this?

    Quote Originally Posted by disneydude View Post
    If its so easy ethereal....explain the way the SCOTUS undergoes Constitutional Analysis. Discuss what they mean by "Strict Scrutiny" and describe the other levels of Constitutional analysis which the Court undertakes.

    If you can do it....I will eat my words.

    Why don't you start there? You wanted to know something before we could be "acceptable" in your eyes to be "worthy" of debate over as system we own. Tell us what it is, if you expected us to answer then help us out and answer the question.

    It seems that maybe what's acceptable keeps changing. And in the end all I keep hearing from you is the Rumsfeld excuse.
    Last edited by Ikari; 09-02-09 at 07:47 PM.
    You know the time is right to take control, we gotta take offense against the status quo

    Quote Originally Posted by A. de Tocqueville
    "I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it."

  9. #29
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by Ikari View Post
    So you won't tell us what we should know to reach the level which is acceptable to you to be able to discuss the SCOTUS and its policies. It's too complicated huh? Particle physics sort of thing going down. You asked a question to define a few things for you earlier. Were you expecting a 1 year law school course not reduced to a few paragraphs? Remember this?




    Why don't you start there? You wanted to know something before we could be "acceptable" in your eyes to be "worthy" of debate over as system we own. Tell us what it is, if you expected us to answer then help us out and answer the question.

    It seems that maybe what's acceptable keeps changing. And in the end all I keep hearing from you is the Rumsfeld excuse.
    You are still missing the point. Let me spell it out.

    The question/challenge I posed was satirical because you cannot reduce volume upon volume of jurisprudence into a one paragraph post.
    Again...using the example I've been using, its like asking a plumber to explain how to plumb a house in a paragraph. The only answer you are going to get from that will be extremely basic and probably of little value to assist you in undertaking the process.

    Suffice it to say, Constitutional rights are not...and have never been absolute. They are "sacred" in the sense that restrictions placed on them will be viewed with the highest levels of scrutiny, much higher than limitations which the state seeks to place on rights that are not Constitutional in nature.
    But even Constitutional rights can have restrictions placed upon them as long as the restrictions are based on a "compelling" state interest. If the state gives justifications for the restrictions that are "legitimate"...that is not enough. That would be enough to withstand "standard" scrutiny for limitations placed on rights not deemed Constitutional in nature. If the state gives justifications for the restrictions that are "important" state interests. THAT is also not enough. That would be enough to withstand the intermediate level of scrutiny to rights that are determined by the court to be quasi-Constitutional, but not inalienable. For a restriction on Constitutional rights to withstand Strict Scrutiny, the interest of the state must be compelling. THAT is the highest level of scrutiny. But there are some interests of the state that are "compelling" enough that limitations are allowed. Protection and safety of the community are usually the areas where the court has found the most "Compelling" state interests.

    That is Constitutional analysis in a nutshell...but it leaves out a lot of areas that can also influence the level of scrutiny involved. For instance, restriction on a non-constitutional right that targets an insidious group for discriminatory purposes also triggers "strict scrutiny", where it would otherwise only trigger "standard scrutiny".
    <font size=5><b>Its been several weeks since the Vegas shooting.  Its it still "Too Early" or can we start having the conversation about finally doing something about these mass shootings???​</b></font>

  10. #30
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by Ikari View Post
    Why don't you start there? You wanted to know something before we could be "acceptable" in your eyes to be "worthy" of debate over as system we own. Tell us what it is, if you expected us to answer then help us out and answer the question.
    I already know what he's referring to; I understand it perfectly well. The point he continually misses is that I do not recognize the legal doctrines of strict/intermediate scrutiny and rational basis review as being Constitutional.

    Essentially, they are excuses for the government to violate and belittle individual rights.
    Last edited by Ethereal; 09-02-09 at 08:08 PM.

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