Author Topic: SCOTUS thinks that stun guns come under the 2nd Amendment  (Read 2508 times)

230RN

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #25 on: March 25, 2016, 09:45:32 PM »
From Ben:

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Quote from: MechAg94 on March 23, 2016, 07:16:37 AM
Well, self defense IMO was one of those things the Founding Fathers would have considered a natural right and would probably think anyone insane for restricting it.


Indeed.

I really have to apologize for not pointing that out.  I guess I've been partially brainwashed since the "self defense" aspect has been the most "Politically Acceptable/Correct" aspect of the 2A debate lately.  

The other part(s) of it,  with respect to guaranteeing freedom from tyranny, has been kind of "soft-pedaled" to make it more acceptable to the gimme-gimme segment of the voting population.  (That is, those who don't recognize the fact that a government which has the power to give you everything also has the power to take it all away.)

Mea culpa.

Terry
WHATEVER YOUR DEFINITION OF "INFRINGE " IS, YOU SHOULDN'T BE DOING IT.

MechAg94

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #26 on: March 26, 2016, 12:15:56 AM »
That is one reason I hate to see gun owners getting too in love with the nuances of the law and criticizing people from news stories if they stepped on some imaginary legal line.  There is what is right and what is legal and they are not always the same.  We should keep the difference in mind.
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Hawkmoon

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #27 on: March 26, 2016, 09:55:44 AM »
Another problem is that the law (in this case the 2A) says what it says, and most principles of legal construction hold (I believe) that if you can read the plain language of the law, the gubmint can't then argue that the law says the opposite. Unfortunately, the gubmint doesn't seem to believe this with respect to the 2A. The language is clear: "The right of the People to keep and bear arms shall not be infringed." Grammarians and Justice Scalia's Heller opinion agree that the prefatory militia clause is nothing but window dressing, that does not in any way bind, limit or affect the operative clause of the 2A.

All of which means that the operative language of the 2A does not establish any reason or purpose for the right, it simply (supposedly) guarantees the right. Then the gubmint comes along and says, "But all Constitutional rights have always been subject to reasonable regulation."

Well, okay -- but that's in reference to the other rights in the Bill of Rights. And none of the other rights clearly state "shall not be infringed." For example, the 4A says we are to be safe from "unreasonable" searches and seizures. Obviously, if we are protected against "unreasonable" searches and seizures, the government must be allowed to conduct "reasonable" searches and seizures. What's the difference? That's why we have courts -- to determine where that line gets drawn. So the 4A right is subject to reasonable regulation -- but (IMHO) not the 2A. Regulation, no matter how the government tries to explain it or define it, IS infringement, and the 2A says they can't infringe (regulate) the 2A.

To bad Obama won't nominate me to replace Justice Scalia.
« Last Edit: March 26, 2016, 09:35:57 PM by Hawkmoon »
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Perd Hapley

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #28 on: March 26, 2016, 12:21:35 PM »
Another problem is that the law (in this case the 2A) says what it says, and most principles of legal construction hold (I believe) that if you can read the plain language of the law, the gubmint can't then argue that the law says the opposite. Unfortunately, the gubmint doesn't seem to believe this with respect to the 2A.

Or the Affordable Care Act.


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The language is clear: "The right of the People to keep and bear arms shall not be infringed." Grammarians and Justice Scalia's Heller opinion agree that the prefatory militia clause is nothing but window dressing, that does not in any way bind, limit or affect the operative clause of the 2A.

All of which means that the operative language of the 2A does not establish any reason or purpose for the right, it simply (supposedly) guarantees the right. Then the gubmint comes along and says, "But all Constitutional rights have always been subject to reasonable regulation."

Well, okay -- but that's in reference to the other rights in the Bill of Rights. And none of the other rights clearly state "shall not be infringed." For example, the 4A says we are to be safe from "unreasonable" searches and seizures. Obviously, if we are protected against "unreasonable" searches and seizures, the government must be allowed to conduct "reasonable" searches and seizures. What's the difference? That's why we have courts -- the determine where that line gets drawn. So the 4A right is subject to reasonable regulation -- but (IMHO) not the 2A. Regulation, no matter how the government tries to explain it or define it, IS infringement, and the 2A says they can't infringe (regulate) the 2A.


I see a lot of problems with your analysis. First, let's look at the first amendment:

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Why would "shall make no law...prohibiting the free exercise," or "shall make no law...abridging the freedom of..." allow for any more infringement or regulation than "shall not be infringed"? In both cases, though rights are, by nature, absolute, we still have to know to what those rights entitle us. Otherwise, we're left saying that a law against the broadcasting of child porn is an abridgement or infringement of the right to free speech; but it's OK, because the right to broadcast child porn has to be regulated, and it's not in the same category as the second amendment. Or instead of child porn, we could be talking about speech that incites "imminent, lawless action," or that violates intellectual property laws, etc. Whichever one we're talking about, what is the point of saying that something is a right, but it's a right upon which we can infringe? The whole essence of rights is that they are things that rightfully belong to us, that no one should be allowed to take away (which is another way of saying that rights are absolute). So it can't be a question of some rights being infringeable. It doesn't make sense to talk about a two-tiered system in which the right to bear arms is uninfringible, but the right to be secure against unreasonable search and seizure, or the right to unabridged freedom of the press is subject to regulation.

It's useless for us to prattle on about, "What part of 'shall not be infringed' don't you understand?" if people don't see "common sense" regulation as an infringement. There's no getting around the fact that "the right to bear arms" is an ambiguous phrase. It certainly means that people have a right to carry guns around, but that doesn't tell us everything we need to know. It says nothing about whether I can carry my guns with my into a prison cell. It doesn't tell me whether I have a right to carry my guns with me onto someone else's privately-owned property, even when they say my guns aren't welcome. It also doesn't tell us what kind of weapons to which we have a right. (The militia clause helps with that, though I agree, it's not an operative clause.)
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KD5NRH

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #29 on: March 26, 2016, 05:24:50 PM »
It doesn't tell me whether I have a right to carry my guns with me onto someone else's privately-owned property, even when they say my guns aren't welcome.

Does freedom of speech or religion allow you to practice those in another person's home over their objections?  You have no inherent or granted right to enter another's private property, so they should be allowed to set any conditions they want.

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It also doesn't tell us what kind of weapons to which we have a right. (The militia clause helps with that, though I agree, it's not an operative clause.)

If it were meant to be limited as to type, it would have been.  Paper wasn't the easiest thing to make, but there was still plenty of room on the page if they'd wanted to use it.

T.O.M.

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #30 on: March 26, 2016, 06:34:27 PM »
And ghis is the thought that has been running through my head every time I hear a De talk about an AWB.  They're going to call it a reasonable restriction.  Go to court and make arguments like New York did with the SAFE act...go for EBRs, push for a 10 round mag limit, require the NICS check for ammo purchase, call it a reasonable restriction given the gvernmental interest in crime prevention, stopping mass shootings, etc.  Judge in the SAFE appeal shot down the 6 round mag limit, but then upheld the 10 round limit.  Who knows what a federal judge might rule as reasonable, and it might be anyone's guess should a case getbto SCOTUS...
No, I'm not mtnbkr.  ;)

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Hawkmoon

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #31 on: March 26, 2016, 09:40:58 PM »
I agree with this statement:

It's useless for us to prattle on about, "What part of 'shall not be infringed' don't you understand?" if people don't see "common sense" regulation as an infringement.

I don't agree with this one:

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There's no getting around the fact that "the right to bear arms" is an ambiguous phrase.

I don't think it's ambiguous at all. Discussions of private property are irrelevant -- the Constitution doesn't address private property, the Constitution establishes limitations on the powers of the government.
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Perd Hapley

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #32 on: March 26, 2016, 09:49:09 PM »
Does freedom of speech or religion allow you to practice those in another person's home over their objections?  You have no inherent or granted right to enter another's private property, so they should be allowed to set any conditions they want.

Correct.


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If it were meant to be limited as to type, it would have been.  Paper wasn't the easiest thing to make, but there was still plenty of room on the page if they'd wanted to use it.

It's limited by what the right includes. It doesn't say "the people can have whatever they want." It says, "the right to keep and bear arms shall not be infringed." So the question is, what is covered by that right? The militia clause suggests that it covers (at minimum) the weaponry of use to a militia: real-deal assault rifles, obviously. That hasn't stopped the bad guys from attacking that right, though.
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Perd Hapley

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #33 on: March 26, 2016, 09:54:07 PM »
I don't think it's ambiguous at all. Discussions of private property are irrelevant -- the Constitution doesn't address private property, the Constitution establishes limitations on the powers of the government.

That's just an example. And if you hadn't noticed, there are plenty of gun-rights supporters that think the 2A forbids a business owner from infringing the "right" to take guns onto his property, against his wishes. People have all kinds of funny ideas about imaginary rights, and about real rights they don't want to respect.
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AJ Dual

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #34 on: March 27, 2016, 11:52:31 PM »
That's just an example. And if you hadn't noticed, there are plenty of gun-rights supporters that think the 2A forbids a business owner from infringing the "right" to take guns onto his property, against his wishes. People have all kinds of funny ideas about imaginary rights, and about real rights they don't want to respect.

Well, to play Devil's advocate here, there is a distinction between private/private space and private/public spaces into which the public at large is welcome. And there is a host of things a business owner or his/her employees can't do to an individual just because they're on their private property. They can't strip-search you for instance.

And is what's on my body or under my clothes my private space/property? Does it cease to be just because I'm standing in/on someone else's private property or establishment, especially one where it's customary for the public at large to enter and leave at will unhindered? Is a prohibition on weapons fair or meaningful when the posted location has no way to enforce or check for such violations, and where the criminal element is not so encumbered?

I'm not saying I agree with those who think the 2A "magically" trumps private property rights, especially because it would require the government to be even more intrusive to come down in favor of the otherwise law-abiding to enforce this over private property or business owners. However, I don't think those who feel this way are barking mad, and have zero basis for their belief either.

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Perd Hapley

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Re: SCOTUS thinks that stun guns come under the 2nd Amendment
« Reply #35 on: March 28, 2016, 12:35:38 AM »
Well, to play Devil's advocate here, there is a distinction between private/private space and private/public spaces into which the public at large is welcome. And there is a host of things a business owner or his/her employees can't do to an individual just because they're on their private property. They can't strip-search you for instance.

Isn't the distinction largely a fig leaf to hide the fact that we've subverted property rights to the imagined right of everyone to be treated equally by everyone else?

In your home, you certainly have a right to subject visitors to a strip search, so long as they also have the option of just leaving. Why shouldn't this also be true for your business?
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