View Poll Results: Do you agree with the premise stated in the OP?

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Thread: Constitutional restrictions on gunsd?

  1. #1
    Banned Goobieman's Avatar
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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.

    ----

    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?
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    Last edited by Goobieman; 09-02-09 at 02:36 PM.

  2. #2
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    Re: Constitutional restrictions on gunsd?

    They can do the ol narcotic trick and create non existant licences.


    THE GREATEST FREEDOM IS THE FREEDOM TO OPPRESS OTHERS

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    Banned Goobieman's Avatar
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by OxymoronP View Post
    They can do the ol narcotic trick and create non existant licences.
    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).
    Last edited by Goobieman; 09-02-09 at 02:35 PM.

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    Re: Constitutional restrictions on gunsd?

    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.
    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."

  5. #5
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by Ikari View Post
    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.
    I agree but the problem of that is: WHO DECIDES?


    THE GREATEST FREEDOM IS THE FREEDOM TO OPPRESS OTHERS

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    Banned Goobieman's Avatar
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by OxymoronP View Post
    I agree but the problem of that is: WHO DECIDES?
    The decisions have already been made, they just need to be applied.

  7. #7
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    Re: Constitutional restrictions on gunsd?

    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.
    <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. #8
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by OxymoronP View Post
    I agree but the problem of that is: WHO DECIDES?
    I'll do it. Just don't interrupt me during raid times.
    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. #9
    Banned Goobieman's Avatar
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by disneydude View Post
    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".
    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
    .
    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.
    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.

  10. #10
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    Re: Constitutional restrictions on gunsd?

    Quote Originally Posted by Goobieman View Post
    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.

    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.
    Last edited by disneydude; 09-02-09 at 05:34 PM.
    <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>

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