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Constitutional restrictions on gunsd?

Do you agree with the premise stated in the OP?

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Goobieman

Goobieman

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Constitutional restrictions on guns?

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.

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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?
 
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OxymoronP said:
They can do the ol narcotic trick and create non existant licences.
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No more than you can be required to obtain a license to express an opinion, publish an internet blog, or go to church (or to get an abortion, but that's outside the parameters of the 1A argument posed in the OP).
 
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I believe the one limitation to our rights is that we may not infringe upon the rights of others. So long as we're not doing that, I believe people should be free to do as they like.
 
Having a discussion on Constitutional Law is difficult because most people do not understand the analysis that goes into it.

Constitutional Rights are not 100% absolute. The way the analysis works is that any limitation/restriction placed upon a right undergoes analysis by the court.

The level of "justification" that the government must show for the restriction will vary according to the level of right involved and the classification of the people the restriction is placed on.

When dealing with enumerated Constitutional rights, any restriction placed upon them will be stricken as "unconstitutional" Unless the government can support the restriction with a "compelling state interest".

Things such as "licenses" are most likely not unconstitutional because there is a compelling state interest in record keeping and knowing who has guns.

Things such as bans on felons having guns, probably not unconstitutional because the state has a compelling interest in reducing crime by keeping guns away from known criminals.

Other restrictions will fall within the gray areas....flat out bans would violate the Constitution.
 
disneydude said:
Having a discussion on Constitutional Law is difficult because most people do not understand the analysis that goes into it.

Constitutional Rights are not 100% absolute. The way the analysis works is that any limitation/restriction placed upon a right undergoes analysis by the court.

The level of "justification" that the government must show for the restriction will vary according to the level of right involved and the classification of the people the restriction is placed on.

When dealing with enumerated Constitutional rights, any restriction placed upon them will be stricken as "unconstitutional" Unless the government can support the restriction with a "compelling state interest".
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Seems to me the OP recognize all of this, rather well.

Things such as "licenses" are most likely not unconstitutional because there is a compelling state interest in record keeping and knowing who has guns
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This in only your opinion. Alone, it is meaningless.

Note that you do NOT need a license to express an opinion, publish an internet blog, or go to church (or to get an abortion, but that's outside the parameters of the 1A argument posed in the OP), and any such thing would be rejected as unconstitutional, for obvious reasons -- all of which apply to the right to keep and bear arms.

Things such as bans on felons having guns, probably not unconstitutional because the state has a compelling interest in reducing crime by keeping guns away from known criminals.
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No, it is not uncostutitional because the 5th amendment allows for the state to remove the rights once the person in question has enjoyed 'due process'. Convicted criminals are given due process, and as a result of their crime, have various -even all- rughts removed, one of which is the right to keep and bear arms.
 
Goobieman said:
Note that you do NOT need a license to express an opinion, publish an internet blog, or go to church (or to get an abortion, but that's outside the parameters of the 1A argument posed in the OP), and any such thing would be rejected as unconstitutional, for obvious reasons -- all of which apply to the right to keep and bear arms.
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What you fail to recognize and address in your argument is that the state interest in regulating "expression of an opinion" or "publishing an internet blog" is not the same as the state interest in regulating weapons.

You are trying to apply one interest to another which is exactly what I was talking about in my post....the problem of trying to debate Constitutional Law with most people.

In analyzing whether a restriction violates Constitutional Law the court undergoes a process of "strict scrutiny" and will strike down the restriction unless the state has a "compelling" interest in the restriction.

What you are attempting to do is argue apples and oranges....applying the same state interest to each.
 
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disneydude said:
What you fail to recognize and address in your argument is that the state interest in regulating "expression of an opinion" or "publishing an internet blog" is not the same as the state interest in regulating weapons.
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The interest of the state in all cases is to protect the rights of the people, by restricting or prohibiting actions that violate those rights.

Said interest is therefore the same in both cases, and as such, there are neither apples or oranges, but only cherries.
 
Goobieman said:
The interest of the state in all cases is to protect the rights of the people, by restricting or prohibiting actions that violate those rights.

Said interest is therefore the same in both cases, and as such, there are neither apples or oranges, but only cherries.
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Constitutional analysis is not that "simplisitic". Its actually a very complicated process....

This reiterates my original point, that it is difficult to discuss this topic unless you have a grasp of process. Not dissing you Goobie, most people don't get it. Its also why Conlaw in law school is a year long course unlike many which are only 1 semester.
 
disneydude said:
Constitutional analysis is not that "simplisitic".
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No, it's pretty simple. You read the words and apply them. If there is any ambiguity in the wording simply look to the Founders and how they viewed rights and government power.

Its actually a very complicated process....
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Anything can be complicated after decades of distortion. Historically, the courts have existed to affirm government authority over individual rights. Many of the precedents you cite arose as a consequence of these tortured legal analyses.

This reiterates my original point, that it is difficult to discuss this topic unless you have a grasp of process. Not dissing you Goobie, most people don't get it. Its also why Conlaw in law school is a year long course unlike many which are only 1 semester.
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I don't need a Conlaw class to know what words mean. I read the Constitution, I understand what rights are and what they aren't, and I understand the system of governance as the Founders envisioned it. That's how you read the Constitution. Not hard.
 
disneydude said:
This reiterates my original point, that it is difficult to discuss this topic unless you have a grasp of process. Not dissing you Goobie, most people don't get it. Its also why Conlaw in law school is a year long course unlike many which are only 1 semester.
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Nice, the Rumsfeld excuse.
 
Ethereal said:
No, it's pretty simple. You read the words and apply them. If there is any ambiguity in the wording simply look to the Founders and how they viewed rights and government power.



Anything can be complicated after decades of distortion. Historically, the courts have existed to affirm government authority over individual rights. Many of the precedents you cite arose as a consequence of these tortured legal analyses.



I don't need a Conlaw class to know what words mean. I read the Constitution, I understand what rights are and what they aren't, and I understand the system of governance as the Founders envisioned it. That's how you read the Constitution. Not hard.
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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.
 
Ikari said:
Nice, the Rumsfeld excuse.
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Same Challenge to you Ikari.


The fact of the matter is...just like home plumbing....everyone wants to think that they are qualified to engage in it. Sometimes its simple, but most of the time you need to call someone who knows what they are doing.
Doesn't stop most of us from pulling out the wrench from time to time and thinking that we are "Joe the plumber".
 
disneydude said:
Same Challenge to you Ikari.


The fact of the matter is...just like home plumbing....everyone wants to think that they are qualified to engage in it. Sometimes its simple, but most of the time you need to call someone who knows what they are doing.
Doesn't stop most of us from pulling out the wrench from time to time and thinking that we are "Joe the plumber".
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What challenge? You're just calling us all dumb because our opinions aren't the same as yours. Thanks Rumsfeld.

Oh, and many home plumbing things I can do myself. I can do a lot of automotive things on older cars as well. I can take my motorcycles apart in my sleep...or drunk. Not that the last one there ever happened *coughs*.
 
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Ikari said:
What challenge? You're just calling us all dumb because our opinions aren't the same as yours. Thanks Rumsfeld.

Oh, and many home plumbing things I can do myself. I can do a lot of automotive things on older cars as well. I can take my motorcycles apart in my sleep...or drunk. Not that the last one there ever happened *coughs*.
Click to expand...

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.
 
disneydude said:
If its so easy ethereal....explain the way the SCOTUS undergoes Constitutional Analysis.
Click to expand...

Because the precedents as affirmed by previous courts were typically the consequence of big government favoritism on the part of the judiciary. The tortured legal doctrines and constructs which arose as a consequence of these perverted precedents were merely tools in the dismantling of individual rights and the validation of illegitimate government authority and collectivist ideology.

The Founders wrote the Constitution so that the average citizen could read and comprehend it without any formal legal training or education. Now I have a liberal telling me that only the smartest most awesomest folk can analyze it properly. What's changed?

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.
Click to expand...

What's to discuss? I do not consider the "strict scrutiny" litmus test to be valid. I prefer Jefferson's litmus test:

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual."

Jefferson on Politics & Government: Inalienable Rights
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Ethereal said:
Because the precedents as affirmed by previous courts were typically the consequence of big government favoritism on the part of the judiciary. The tortured legal doctrines and constructs which arose as a consequence of these perverted precedents were merely tools in the dismantling of individual rights and the validation of illegitimate government authority and collectivist ideology.

The Founders wrote the Constitution so that the average citizen could read and comprehend it without any formal legal training or education. Now I have a liberal telling me that only the smartest most awesomest folk can analyze it properly. What's changed?



What's to discuss? I do not consider the "strict scrutiny" litmus test to be valid. I prefer Jefferson's litmus test:
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As I thought....an exercise in futility.

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.
 
Re: Constitutional restrictions on guns?

Goobieman said:
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?
Click to expand...

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.
 
disneydude said:
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.
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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.
 
Ikari said:
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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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".
 
disneydude said:
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.
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I am aware of them, I simply disagree with their application and reasoning. I thought I already explained that.
 
disneydude said:
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".
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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.
 
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