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Constitutional restrictions on gunsd?

Do you agree with the premise stated in the OP?

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disneydude said:
No concession. It just provided the insight I needed to support the conclusion that I had already surmized.
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You’ve already demonstrated your ignorance of judicial review, so any conclusions you’ve reached based upon your understanding of the process are similarly ignorant.
 
The wording of the 2nd amendment is not difficult to interpret, but those who wish to allow the federal government to infringe upon this particular right have a vested interest in obfuscating the issue behind arguments concerning interpretation, practical application, etc. I am against the arbitrary reinterpretation (or manipulation) of any legal contract, most especially the constitution.

If the right is to be infringed, it may only legally and properly be infringed through either an amendment to the constitution or for a new constitution to be drafted altogether (via convention), both of which I would oppose as unnecessary.

In the meantime, the 2nd amendment holds equal weight to all other amendments, there is no reason to believe it deserves any special consideration or additional scrutiny in comparison to any other part of the constitution.
 
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disneydude said:
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.
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I had 3 semesters of Con law. Does that count as more or less than a year?

Rather than trying to get away with just telling me I dont know what I'm talking about, tell me, exactly, how I am wrong.
 
Goobieman said:
I had 3 semesters of Con law. Does that count as more or less than a year?

Rather than trying to get away with just telling me I dont know what I'm talking about, tell me, exactly, how I am wrong.
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He can't, because he has an agenda.


And much like a typical liberal.. he'll sneer at those who disagree with him as "stupid"..

Much like they're doing in the healthcare thread right now.
 
Re: Constitutional restrictions on guns?

Kandahar said:
The question then becomes what constitutes a "clear and present danger."
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That can certainly be discussed, but there is plenty of existing matrial to draw upon.

Surely owning a nuclear weapon would be a clear and present danger.
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Nuclear weapons ar enot 'arms' as the term is used in the amendment and therefore any discussion of them is meaningless.

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.
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Are you discussing the use of these weapons, or their simple posession?

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.
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I believe this was included in the OP.

Furthermore, I don't think you can neatly substitute the limitations on one right for the limitations on another right.
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What about the 2nd amendment negates the validity of the tests regarding restrictions on the exercise of the rights found under the 1st amedment that do not violate the 1st amendment?
 
Parallels to the first amendment are tenuous, because they prosecute you for the speech, they do not cut out your tongue, or ban you from acquiring a new tongue.
 
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Voidwar said:
Parallels to the first amendment are tenuous, because they prosecute you for the speech, they do not cut out your tongue, or ban you from acquiring a new tongue.
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I think I understand this, but I'm not sure.
Can you clarify?
 
Restrictions on free speech, do not restrict the apparatus, they restrict behavior.

It is illegal to yell fire in a theater, but it is not illegal to bring your tongue into a theater.

Actions, not possesion. The two rights are infringed on in very different ways, thus parallel arguments become tenuous.
 
Voidwar said:
Restrictions on free speech, do not restrict the apparatus, they restrict behavior.

It is illegal to yell fire in a theater, but it is not illegal to bring your tongue into a theater.

Actions, not possesion. The two rights are infringed on in very different ways, thus parallel arguments become tenuous.
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That's what I thought you meant.

Yes. This is very much my point, though there has been no opportunity to discuss it, as there has been very little actual discussion of the issue.

The -potential- to harm others and the -potential- to create an immediate condition of clear and present danger to others is not the same as -actually- causing these things. The restrictions on the rights protected by the first amendment are based on the -actions- of people, not their -potential- to commit those actions.
 
So when people try to justify gun laws with speech laws, their whole attempt at parallel is rendered impotent by the fact that no one cuts out the tongue of a slanderer.
 
Voidwar said:
So when people try to justify gun laws with speech laws, their whole attempt at parallel is rendered impotent by the fact that no one cuts out the tongue of a slanderer.
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Well, I think the point is more that the 2nd doesnt protect someone when the assault/attempt to murder/murder someone with a gun (cause direct harm, like libel/slander), if they use a gun to threaten/intimidate someone (creating an immediate condition of clear and present danger) or fire a gun up into the air while inside town (yelling 'fire!' in a theater). These prohibitions are based on exactly the same reasoning as their 1st amendment parallels included in () and should be no-brainers. No one disagrees that these restrictions are constitutional.

Simple posession of a firearm, however, does not cause harm to anyone, nor does it create an immediate condition of clear and present danger, and as such, there is no argument that supports the cnstitutional regulation or restriction of that action -- the exercise of rights are only restrcited when they interfere with the rights of others, and so if the action on question does NOT interfere with anyone elses' right, it cannot be restrcited w/o violating the Constitution.

The USE of the firearm MAY be constitutionally resticted, but only in terms of when it causes harm to others and/or creates that condition of danger.
 
Re: Constitutional restrictions on guns?

Goobieman said:
Nuclear weapons ar enot 'arms' as the term is used in the amendment and therefore any discussion of them is meaningless.
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How are you defining "arms"?

Goobieman said:
Are you discussing the use of these weapons, or their simple posession?
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Well, obviously the use of ANY kind of weapon is a "clear and present danger." I think possession might or might not be...depending on the type of weapon. Surely the really heavy stuff like bombs, grenade launchers, etc. would be a clear and present danger, since they have no legitimate purpose and can cause mass destruction at any moment. The same is somewhat true (to a lesser extent) for certain types of guns...it's just a question of where you draw the line.

Goobieman said:
What about the 2nd amendment negates the validity of the tests regarding restrictions on the exercise of the rights found under the 1st amedment that do not violate the 1st amendment?
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I'm just saying that each right is different. Traditionally the courts have been more lenient with certain rights than others, so I don't think just substituting the restrictions on free speech for the restrictions on arms would fly in a court of law.
 
Strict scrutiny is applied to restrictions on any fundamental right.
 
Re: Constitutional restrictions on guns?

Kandahar said:
How are you defining "arms"?



Well, obviously the use of ANY kind of weapon is a "clear and present danger." I think possession might or might not be...depending on the type of weapon. Surely the really heavy stuff like bombs, grenade launchers, etc. would be a clear and present danger, since they have no legitimate purpose and can cause mass destruction at any moment. The same is somewhat true (to a lesser extent) for certain types of guns...it's just a question of where you draw the line.



I'm just saying that each right is different. Traditionally the courts have been more lenient with certain rights than others, so I don't think just substituting the restrictions on free speech for the restrictions on arms would fly in a court of law.
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The definition of arms is pretty clearly what the "soldier" back then could carry... translated into what the soldier today could carry.

Considering their army consisted of Citizen based Militias... and Well.. Citizens.

Again, we're at the negative right issue.. My possession of an inanimate object poses no safety risks to society at large.

My actions with said inanimate object, could.
 
Re: Constitutional restrictions on guns?

Kandahar said:
How are you defining "arms"?
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"As the term is used in the context of the 2nd amdment".
The SCotUS did this in US v Miller. To paraphrase, in order for a weapon to be protected by the 2nd it must be of a kind 'in common use at the time' by the regular armed forces, 'part of the ordinary military equpiment' of those forces, and have some legitimate application for use in the service of the militia.

And so, while this might include grenade launchers and light mortars, it -certialy- inclused all firearms, and just as certainly exclused nuclear weapons and laser giuded 2000lb bombs.

Obviously, the real concern here is firearms, and so there really be need no discussion of the other weapons.

Well, obviously the use of ANY kind of weapon is a "clear and present danger."
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That's not at all necessarily the case. Some uses of some do, some uses of some do not. Presumung that you aren't being negligent, you can use any firearm without endangering anyone. Remember that the danger must be "immediate", "clear" and "present", as opposed to "potential", "possible" and "situational".

I think possession might or might not be
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Simple posession -- that is, simple ownership - of a -firearm- cannot harm anyone or put anyone in danger. Only USE can do that.

depending on the type of weapon. Surely the really heavy stuff like bombs, grenade launchers, etc. would be a clear and present danger, since they have no legitimate purpose...
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"No legitimate purpose" isnt the qualifier here -- the nature of the use of the weapon is, and is what determines the degree of clear and present danger to others.

I'm just saying that each right is different. Traditionally the courts have been more lenient with certain rights than others, so I don't think just substituting the restrictions on free speech for the restrictions on arms would fly in a court of law.
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Rights are rights, and the test for the 1st amendment is a perfectly legitimate test for the rest as the basis for that test is the obvious notion that 'your right to swing your fist ends at my nose'.
You may try to show otherwise, if you like
 
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Re: Constitutional restrictions on guns?

Kandahar said:
Surely the really heavy stuff like bombs, grenade launchers, etc. would be a clear and present danger, since they have no legitimate purpose and can cause mass destruction at any moment.
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This reasoning does not hold water.

Having a legitimate (acc'd to who ?) purpose or not, or having potential to cause mass destruction or not, does not constitute a clear and present danger. A farmer with dynamite to clear a stump is not a clear and present danger, yet meets both the above criterion if the stump is small and he also has a chainsaw :)
 
Re: Constitutional restrictions on guns?

stevenb said:
The definition of arms is pretty clearly what the "soldier" back then could carry... translated into what the soldier today could carry.
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I strenuously disagree. The most powerful military vehicles on this continent when the document was written were privately owned and cannon armed merchantmen. With that a known fact, can you produce any facts that support your "what a soldier could carry" position ? I do not mean to be too jerkish, but what exactly is that assumption based on ? How is the Cannon on a merchantman not "arms" ?
 
Re: Constitutional restrictions on guns?

Voidwar said:
I strenuously disagree. The most powerful military vehicles on this continent when the document was written were privately owned and cannon armed merchantmen. With that a known fact, can you produce any facts that support your "what a soldier could carry" position ? I do not mean to be too jerkish, but what exactly is that assumption based on ? How is the Cannon on a merchantman not "arms" ?
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Given the topic (Constitutional restrictions on guns), there's no need to consider cannon-armed merchentmen.
 
This is my Rifle and This is my Gun.
 
Re: Constitutional restrictions on guns?

Voidwar said:
This reasoning does not hold water.
Having a legitimate (acc'd to who ?) purpose or not...
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Ths is, of course, only part of the error.

He might argue that 'assault weapons' have no 'legitimate' purpose, but (aside from being demonstrably wrong) that's no more compelling than arguing that burning the flag has no 'legitmate' purpose, and is therefore open to regulation beyond those that prohibit causing direct harm and/or create an immediate condition of clear and present danger.

The other part of the error has been touched on by myself and others.
 
Re: Constitutional restrictions on guns?

Goobieman said:
Given the topic (Constitutional restrictions on guns), there's no need to consider cannon-armed merchentmen.
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Of course there is.

stevenb said:
The definition of arms is pretty clearly what the "soldier" back then could carry... translated into what the soldier today could carry.
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This notion flies in the face of the facts in Boston Harbor in 1789, and thus needs to be challenged as untrue, or an old wives tale.

When the Founders allowed private ownership of Military Grade Vessels and Arms, and we all know it, then there is obviously no line to be drawn with regards to whether a soldier can carry something or not.
 
Re: Constitutional restrictions on guns?

Voidwar said:
Of course there is.
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You can, but you'd go off topic. I'm kinda hoping that doesnt happen any more than it already has.
 
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".

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.
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Good post... except. :mrgreen:

You wrote:

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

Exactly why would the Government need to know who owns what? They don't now and have no need to in the future.... unless they want a list so they can confiscate them.

Also, I think it would be an "infringement" as I would need the Governments permission to own a gun.... that would violate my second amendment rights.
 
Also, there being a "compelling state interest" is not enough. The restriction implemented must be the least possible restriction to accomplish the state interest, and only that interest.

But the government knowing who has guns is not a compelling state interest, any more than the government knowing who has a computer would be.
 
Crunch said:
Also, I think it would be an "infringement" as I would need the Governments permission to own a gun.... that would violate my second amendment rights.
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Yes. Any prior restraint is inherently an infringement. That, too, is settled Constitutional law -- apart from just being obvious.
 
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