THE most significant flaw in the militia-only interpretation of the 2nd Amendment is...

Discussion in 'Gun Control' started by BryanVa, Jul 12, 2017.

  1. TOG 6

    TOG 6 Well-Known Member

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    The legal bar is set at "compelling state interest".
     
    Last edited: Oct 13, 2017
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  2. BryanVa

    BryanVa Well-Known Member

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    I disagree, Alexander. The two situations are not remotely comparable.

    I know registration and permits have been deemed necessary and constitutional when dealing with the right of assembly and petition in public venues controlled by the government. But this is not because the right itself permits this registration, rather, it is the venue itself which requires it. In other words, freedom of assembly and petition—because they are constitutional rights—are not themselves subject to prior registration and permits. But when the right is sought to be exercised in a government controlled public venue then notice to the government of the intent to use that venue is constitutional.

    The reason for this is simple. The government is charged with providing for the safety of those at these venues. In addition, the limited nature of the space means that all who want to use it on a particular day may not be able to. A system of determining which opposing group gets to use the public space today for their rally by having them show up in the morning and declaring the winner as the group that won the massive brawl between them and routed their opponents from the park is not the way to do things. Therefore, it falls upon the government which controls the space to devise a system that fairly rations the use of the space to ensure that everyone has an equal opportunity. For these reasons a prior restraint of providing notice to the government of the intent to use that venue is constitutional—so long as the government does not discriminate against anyone and deny them their fair share of use because the official does not like their views (indeed, this is where most of the constitutional litigation on public space permits comes from—where the permit system is set up to allow a racist official the ability to deny a march or a rally permit because he does not like the group or message involved).

    In that sense, the prior restraint is not about restricting these rights at all. Instead, these permits are required because the public venue setting renders governmental assistance necessary to ensure the free exercise of the right at that particular location. The permit system, albeit a prior restraint, is simply the best way to ensure everyone has an equal opportunity to exercise their right at these limited public venues.

    Beyond this specific circumstance, however, registration and permits are universally seen as unconstitutional prior restraints. For example, when prior restraint permit systems are attempted upon the same right of free assembly in private settings they are universally declared unconstitutional because the government does not have the same special duty to ensure safe, fair, and equal use (see the Watchtower case I have previously cited as an example).

    The same applies to the RKBA. Notice to the government is not necessary for me to have a safe venue or to ensure an adequate supply of guns when I go to the gun store. Firearm registration is therefore not about a need for governmental involvement to help me freely exercise a right, it instead becomes a direct prior restraint on my free exercise of that right.
     
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  3. 6Gunner

    6Gunner Banned

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    Since there hasn't been a single restrictive firearms law ever passed that was successful in any way in "increasing public safety" I guess your argument is moot.
     
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  4. An Taibhse

    An Taibhse Well-Known Member

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  5. Xenamnes

    Xenamnes Banned

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    Every state with a prohibition on so-called "assault weapons" qualifies.

    Then why has such not occurred with felons? Why is it they continue to possess firearms, despite it being illegal under all circumstances, and carrying a ten year prison sentence?

    Except for the fact that it cannot. A permit to utilize city owned and operated property is not the same thing as a license to legally exercie a constitutionally recognized and protect right.

    What nonsense are you going on about now? Who is giving firearms to those that have legally been classified as being mentally ill?
     
  6. Xenamnes

    Xenamnes Banned

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    According to the Heller ruling itself:

    JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interestbalanced
    answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the
    constitutionality of the handgun ban. QED.

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would
    not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

    In short, constitutional rights cannot be subjected to judicial interest-balancing tests.
     
  7. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    Was that the majority opinion?
     
  8. Xenamnes

    Xenamnes Banned

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    Correct. The above, stating that constitutional rights are not subject to judicial interest balancing, was part of the majority ruling of the Heller case.
     
  9. An Taibhse

    An Taibhse Well-Known Member

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    I posted the text of the decision in my previous post you obviously didn't read
     
  10. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    Once again more support for the idea that the 2nd Amendment has to go.
     
  11. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    Sorry, I read it but didn't realize that's what it was, though you did clearly say so. I will try to be more attentive in the future.
     
    Last edited: Oct 13, 2017
  12. Ronstar

    Ronstar Well-Known Member Past Donor

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    2nd Amendment recognizes the right to keep guns at home to protect yourself, family and property.

    it does not recognize any right to carry guns in public outside of militia service
     
  13. Xenamnes

    Xenamnes Banned

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    Incorrect. Heller said absolutely nothing about militia service being required to bearing firearms outside the home. Read what the ruling had to say carefully:

    Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

    There was absolutely no reason for this to even be mentioned in the ruling, unless the second amendment did indeed protect a right to keep and carry at least some weapons, in some manner, for some purpose.
     
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  14. upside222

    upside222 Well-Known Member Past Donor

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    Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Taking the 2nd Amendment out of the Bill of Rights does *NOT* remove our right to keep and bear arms. The Constitution does *not* give us our rights. Taking out an Amendment does *not* take away or suppress any of our rights.

    All that would happen if the 2nd is abrogated in some manner is that the courts would be immediately clogged with lawsuits requesting clarification of our right to keep and bear arms.

    The precedences already set by the Supreme Court would still exist and would have to be considered.
     
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  15. An Taibhse

    An Taibhse Well-Known Member

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    The Second Amendment places an prohibition on what the government can do to infringe on a pre-existing right... it is not a grant of that right; that right exists independently of the Constitution and BOR.
     
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  16. An Taibhse

    An Taibhse Well-Known Member

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    Yes, and as noted in the Heller majority opinion, and the scope before the court as presented in the Writ of certiorari did not include a broad review of the entire scope of the 2nd Amendment, but the majority opinion did a fairly good discussion regarding the 2A referring to an individual, not a collective right. Until overturned or amended, their interpretation stands. Anyone wanting to argue the 2A's meaning and scope must first argue against the majority opinion in which the minority opinion was rejected.

    https://www.law.cornell.edu/supct/html/07-290.ZO.html

    I find few people still arguing on the 2A have not carefully read and unstood the decision or the Majority opinion that formed the basis for the decision, unfortunate because it is unfruitful to keep walking around the hamster wheel when the majority opinion has done an excellent job of discussion of the rational of that decision.
     
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  17. TOG 6

    TOG 6 Well-Known Member

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    You haven't heard or read someone suggest a regulation and thought "this violates the constitution"?
     
  18. TOG 6

    TOG 6 Well-Known Member

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    More correctly: An admission from you that the 2nd keeps you from implementing the restrictions you seek, because said restrictions violate the constitution.
     
    Last edited: Oct 14, 2017
  19. 6Gunner

    6Gunner Banned

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    Then feel free to advocate for such. Knock yourself out. Then look at the number of states that might actually vote for such a thing and ask yourself if there's even a chance in Hell of it happening. I'll wait....
     
  20. 6Gunner

    6Gunner Banned

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    That's not what it says; but then gun control advocates seem to possess consistently poor reading comprehension abilities.
     
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  21. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    I do. There have been many things in American history which many people believed would never come about, but they did. This has the tacit support of the majority now and will only grow as time goes on
     
  22. TOG 6

    TOG 6 Well-Known Member

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    You haven't heard or read someone suggest a regulation and thought "this violates the constitution"?
     
  23. TOG 6

    TOG 6 Well-Known Member

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    Not really -- you know there's no chance of a repeal.
    But, as you don't believe any of the restrictions you want or have ever heard of, including a total ban, violate the 2nd, why does it need to be repealed?
     
  24. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    I am talking of a de facto repeal. The 2nd as it is written is moot at present, glad to see you understand that point of my assertion.
     
  25. 6Gunner

    6Gunner Banned

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    I see this argument again and again put forth by gun control advocates as if it was some meritorious, last word position. It is not.

    The 2nd Amendment is NOT "moot." It is, in fact, even more relevant today than it was 229 years ago. Sadly, because of people like you, the core values that make the Constitution work are being undermined and marginalized. Freedom is, at its core, about having the Right to Take Responsibility for yourself. People need to comprehend that it is their responsibility to understand their rights and freedoms and to know how to exercise them responsibly and effectively in the modern age. Too many people, such as yourself, reject that idea and want to transform rights into privileges, to be parceled out at the whim of an all-powerful government. You find the Constitution an imposition; a roadblock to the micromanaged, controlled, and responsibility-free society you want to live in, so you struggle to find whatever rationalizations you can to explain away the Constitution and its principles of responsible self-governance. Well, it doesn't work that way. If you want to strip people of their rights and license the exercise of the privileges you want to have the ability to control, then you will need to pursue a Constitutional Amendment to make it happen, or you will need to call for a Constitutional convention to scrap our system and create a new one that enables you to have the authoritarian, contrarian society you so clearly pine for.
     
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