Does the 2A really matter?

[TheFriendlyMarksman]

Let's do a thought experiment. Imagine there was no 2A. How much would gun laws be different in America? My guess is not very much. Pro-RKBA states would continue to be permissive, and anti-RKBA states would continue to be restrictive. There have been a few cases where courts have forced states and the federal government to be more permissive, but these cases are the exception, not the rule. Most of the time, the courts simply refuse to hear an appeal in a 2A case unless it is coming from the government's side.

Furthermore, having the right to bear arms on paper--either in the statute books or in the Constitution--means very little if those rights are not enforced on the ground. The government almost never polices itself. If a policeman confiscates your guns or otherwise abuses you for being a gun owner, in theory, you can take him to court and have him punished. In practice, it will be extremely difficult and expensive for you to do so, and the policeman will probably suffer little or no punishment. Even those who loudly declare their support for the RKBA rarely advocate consequences for those who violate the 2A.

 

[JoeSixpack]

Interesting point, I guess it would be hard to say.. some of the politicians do actually believe in the constitution and not just pay lip service or support it in abstract.

Such politicians might have been motivated to vote a certain way based on those words on paper.

Obviously there have been, and currently are enough politicians who believe the constitution is an outdated document, don't respect it or the 2A and would tell you those words mean nothing.

If you're speaking about the infringement the 2a has suffered over the years.. would we be any worse off had the 2a never been put to paper? I can't answer that definitively but my guess is yes.. we would be in worse shape then we are today.

How much worse? That's an even tougher question I think.

 

[TXAZ]

I expect without a 2A we wouldn't be having this conversation, much less own anything bigger than a .22.

 

[Frank Ettin]

Let's do a thought experiment. Imagine there was no 2A. How much would gun laws be different in America? My guess is not very much.....

And that's all that is -- a guess. Guessing is a waste of time and energy.

...Furthermore, having the right to bear arms on paper--either in the statute books or in the Constitution--means very little if those rights are not enforced on the ground....

You think it doesn't mean much because it's not being applied the way you think it should. But that's not your call, and we'll get to that later.

But for now, let's note that the reality is that we live in a pluralistic, political society, and not everyone thinks as we do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give us to promote our vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.

We can't expect everyone to agree with us.

And as for your opinion that the Constitution isn't being applied correctly, no one really cares. The opinions of courts on matters of law, including the meaning and application of the Constitution, affect the lives and property of real people in the real world. Your opinions on such matters and $2.00 will get you a cup of coffee at Starbucks.

What our Constitution means and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

The Founding Fathers assigned the role of deciding what the Constitution means and how it applies to the federal courts (Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about the meaning or application of the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

...It is emphatically the province and duty of the judicial department to say what the law is.....

It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

• Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
  
  
• If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
  
  
• Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

    ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

    
    
  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

    ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

  ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

  
  
• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

 

[TheFriendlyMarksman]

some of the politicians do actually believe in the constitution and not just pay lip service or support it in abstract

Those people usually don't get very far in politics. The system is set up so that the people who rise to the top are almost always manipulative sociopaths who tell you what you want to hear just to get your vote. Read Martha Stout's book The Sociopath Next Door. It explains very well how these people think.

 

[Frank Ettin]

..The system is set up so that the people who rise to the top are almost always manipulative sociopaths who tell you what you want to hear just to get your vote....

Provide evidence to support your conjecture.

...Read Martha Stout's book The Sociopath Next Door. It explains very well how these people think....

Her book is not evidence supporting your conjecture. She discusses the psychology of the sociopathy, but show us exactly where and how she demonstrates that:

...the people who rise to the top are almost always manipulative sociopaths...

 

[TheFriendlyMarksman]

I expect without a 2A we wouldn't be having this conversation, much less own anything bigger than a .22.

There are many countries that do not have a 2A and yet have a thriving industry in civilian arms.

And that's all that is -- a guess. Guessing is a waste of time and energy.

Not if that guess can be supported by facts and evidence. The courts have had dozens of cases about speech and privacy rights, but only a handful about gun rights, despite the fact that gun laws have existed since before the Civil War. As you said, 2A case law is in its infancy. Why do you think that is, 200+ years after the 2A was created? It is because the court has shown a manifest reluctance to hear 2A cases unless there is a possibility of upholding the government's side.

You think it doesn't mean much because it's not being applied the way you think it should. But that's not your call, and we'll get to that later.

But for now, let's note that the reality is that we live in a pluralistic, political society, and not everyone thinks as we do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give us to promote our vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.

We can't expect everyone to agree with us.

And as for your opinion that the Constitution isn't being applied correctly, no one really cares. The opinions of courts on matters of law, including the meaning and application of the Constitution, affect the lives and property of real people in the real world. Your opinions on such matters and $2.00 will get you a cup of coffee at Starbucks.

It's not about what I want the law to be. It's about rule of law given what the law already is. Even in cases where the Constitution, statute, and case law are all in total agreement, even when the law is very well established and clear, it is still very difficult for the private citizen to enforce his civil rights on the ground. Police and bureaucrats are often ignorant of the law, and in many cases, they just don't care. Even if a policeman acts in flagrant violation of established law, as many have when they murdered peaceful gun owners and their families in cold blood (there are well documented cases of this), he is unlikely to ever face charges for it. Laws are not laws unless they apply equally to all members of society. If one class in society is exempt from the law, then what you have is not rule of law at all, but arbitrary rule.

 

[TheFriendlyMarksman]

Provide evidence to support your conjecture.

Sure. Here are a few examples.

Sociopaths have little to no conscience, but they are adept at pretending they do. Politicians love to make insincere emotional appeals to the public. How do we know these appeals are insincere? Because they have made selective criticism an artform. American politicians love to point to "human rights abuses" in [insert country they don't like] while having maintained an alliance with Saudi Arabia for decades. If that isn't selective criticism at its finest, then I don't know what is.

Sociopaths are remorseless. They do not accept responsibility when things go wrong. When was the last time you saw a politician take the blame when he could have passed the buck? Notice that when there is a crisis--take federal debt as an example--both sides finger the other.

Sociopaths love spreading nasty rumors about their enemies. Remember the rumor about Dan Quayle not being able to spell potato, or the rumor about Al Gore claiming the invention of the internet? And don't even get me started on what they say Donald Trump likes Russian ladies to do to him in hotel rooms.

Sociopaths have no concept of loyalty. They change sides at the drop of a hat. As Bob Dylan said, "You just want to be on the side that's winning." Remember how Obama flipflopped on homosexual marriage? Does anyone seriously think that was sincere? Or how about when Bernie Sanders, after being against Hillary so much, all of the sudden told his supporters to vote for her. Notice the constant infighting and shifting alliances we see in Washington.

Sociopaths are vindictive. What people who haven't spent much time in Washington may not know is that Congressmen are notorious for long grudges. Oh, so you didn't vote for my district's pork-barrel spending bill? Well, I'm not going to vote for your bill then.

 

[zukiphile]

If you believe that a written bill of rights really makes no difference, follow your 1st Am. comparison.

In Canada, you've state bodies, commissions, that explicitly limit some kinds of speech. In Germany and Austria, some forms of expression are explicitly verbotten by the state due to their content. Some religions are poorly tolerated by the state.

If politics here draw the insincere, it would also draw the insincere in europe, so that can't be the distinguishing difference.

It is certainly true that there are practical obstacles to an individual claiming these protections against the state, but those obstacles can be, and frequently are, overcome. You might not agree with the current state of case law in these matters; I don't agree with all of it. However, not agreeing with all facets of the case law should not get you to a conclusion that the judicial system is useless or broken.

 

[Aguila Blanca]

If not for the 2A, the United States would probably already be as disarmed as Australia and the U.K. Yes, the 2A matters.

 

[Frank Ettin]

...Not if that guess can be supported by facts and evidence....

But you can't support your guesses with facts and evidence.

...The courts have had dozens of cases about speech and privacy rights, but only a handful about gun rights, despite the fact that gun laws have existed since before the Civil War.....

But that's not evidence. The mere fact that something is the case doesn't tell us anything about why it is the case.

...It's not about what I want the law to be. It's about rule of law given what the law already is. Even in cases where the Constitution, statute, and case law are all in total agreement, even when the law is very well established and clear, it is still very difficult for the private citizen to enforce his civil rights on the ground. ....

And that drivel is simply circular argument. The law includes enforcing the law and the remedies available.

Sure. Here are a few examples....

Those value judgments and anecdotal expositions aren't evidence that:

...the people who rise to the top are almost always manipulative sociopaths...

Nothing you've said, even assuming that your statements are true, establishes that anyone is actually a sociopath. Sociopathy (technically Antisocial Personality Disorder) is a defined personality disorder identified by specific diagnostic criteria. It is not accurate to call someone a sociopath unless you can demonstrate with clinically appropriate evidence that he satisfies those criteria.

That you might not like someone and find certain behaviors of that person to be repugnant does not support calling that person a sociopath.

Your casual and inaccurate use of the term "sociopath" to describe certain people is unacceptable on TFL. It is defamatory unless you can establish the clinical diagnosis. If you continue to resort to this sort of cheap rhetorical trick, you will be subject to sanctions.

 

[44 AMP]

There are many countries that do not have a 2A and yet have a thriving industry in civilian arms.

Some examples would be nice...

And, lets be clear about something, an arms industry that is "thriving" because of military and export sales, NOT domestic, civilian sales is irrelevant to discussions about what effect a 2nd Amendment type law has.

Japan has a "thriving arms industry". Their arms industry production is almost exclusively for the US consumer market. NOT the domestic Japanese market, with is nearly completely closed by Japanese laws.

A similar situation, though a bit less restrictive, is found in Europe. As many of our members can tell you, from personal experience, legally obtaining a gun in European countries is more costly and more regulated than in the majority of the United States.

As to 2nd Amendment case law being thin on the ground, I think the main reason for that, compared to 1st Amendment law, is that First Amendment issues have been argued, and taken to court since the founding of our Republic, while 2nd Amendment issues didn't, because until the 20th century, there was very little for anyone to go to court, over.

yes, there were local gun control laws that predate the modern era, but the first national one I am aware of was the 1934 NFA. And, that law, was a TAX law (so they said) and was upheld by the Supreme Court, in what many of us today consider a seriously flawed decision.

And, I will admit it is difficult or very difficult for the individual citizen to prevail in our system today. However, nothing in the Constitution states that it must be easy. Only that it is possible, and that there be a mechanism in Government to allow the opportunity.

Stop whining!

 

[Aguila Blanca]

For those who might be interested, the M1911 Pistols Organization (M1911.org) has been running a series of articles on the gun laws and gun "culture" in various countries in its on-line magazine. The articles give readers a peak at what the gun laws are in a number of countries.

Link to the magazine:

http://ezine.m1911.org/

Click on "All volumes and issues" at the top, then scroll through the index for the gun laws articles.

 

[TheFriendlyMarksman]

In Canada, you've state bodies, commissions, that explicitly limit some kinds of speech. In Germany and Austria, some forms of expression are explicitly verbotten by the state due to their content. Some religions are poorly tolerated by the state.

Those are due to differences in public opinion in those countries. Canada and Germany have public opinion strongly in favor of censorship. At various points in American history, when American public opinion was more in favor of censorship, censorship was common in this land too. The courts really only started protecting dissent in the 1950s. Even today, there are documented cases of police arresting Americans for expressing views that are very clearly protected by the constitution and all relevant case law. An example from a few years ago was a policeman who arrested someone for flag burning. The Supreme Court has wholly rejected the idea that flag burning is prohibitable.

Your casual and inaccurate use of the term "sociopath" to describe certain people is unacceptable on TFL. It is defamatory unless you can establish the clinical diagnosis. If you continue to resort to this sort of cheap rhetorical trick, you will be subject to sanctions.

Yeah, well, you know, that's just like, your opinion, man. I find that the behaviors of nearly all high level American politicians match closely the symptoms of sociopathy.

And that drivel is simply circular argument. The law includes enforcing the law and the remedies available.

It's not a circular argument. The law says one thing, and the government does another. It's more of a cultural problem than a legal one. In theory, a policeman who murders a gun owner and his whole family in cold blood (there are well documented cases of this happening) may be prosecuted. In theory, he may be convicted. In theory, he may be sentenced to many years in prison for it. In really, he will probably never even be fired for it.

And, lets be clear about something, an arms industry that is "thriving" because of military and export sales, NOT domestic, civilian sales is irrelevant to discussions about what effect a 2nd Amendment type law has.

You want an example of a country that has civilian gun ownership but does not have a constitutional provision explicitly protecting it? Sure. Believe it or not, Nazi Germany had plenty of civilian gun owners. You can still find pictures of German gun advertisements from that era. Hitler loosened up some of the gun laws from the earlier Weimar Republic days.

For a more modern example, Scandinavian countries have a big hunting culture.

And, I will admit it is difficult or very difficult for the individual citizen to prevail in our system today. However, nothing in the Constitution states that it must be easy. Only that it is possible, and that there be a mechanism in Government to allow the opportunity

That sounds like a very hollow concept of liberty. What good is having rights on paper if you can still get arrested for doing something perfectly legal and only get vindicated after fighting a years-long courtroom battle (on your own dime)? Justice delayed is justice denied.

Stop whining!

It's easy to dismiss the problems of others until they happen to you. If, while you are sitting at your computer, browsing TFL, the police smash down your door and confiscate your guns without a warrant (this has actually happened before in America), how long do you think it would take to get those guns back? How much money would you have to spend on lawyers? Would it be cheaper to just buy new guns to replace those that were confiscated? Do you honestly think those policemen would ever spend so much as a single night in jail for doing something like that?

 

[zukiphile]

In Canada, you've state bodies, commissions, that explicitly limit some kinds of speech. In Germany and Austria, some forms of expression are explicitly verbotten by the state due to their content. Some religions are poorly tolerated by the state.

Those are due to differences in public opinion in those countries. Canada and Germany have public opinion strongly in favor of censorship. At various points in American history, when American public opinion was more in favor of censorship, censorship was common in this land too. The courts really only started protecting dissent in the 1950s. Even today, there are documented cases of police arresting Americans for expressing views that are very clearly protected by the constitution and all relevant case law. An example from a few years ago was a policeman who arrested someone for flag burning. The Supreme Court has wholly rejected the idea that flag burning is prohibitable.

That's the point. Here, the state can, and sometimes does, step out of line. POs search without warrants or PC. Police detain people for the content of their speech. Yet in each of those instances, the individual has a remedy in access to the courts.

In Canada, Germany and Austria, those restrictions on content are enforced by the state. That is not a trivial difference.

It can't be a mere difference in the populations either. Americans know that when someone asks about free speech we are supposed to agree about its importance with unreserved vigor. In practice, expressions that are popularly deemed offensive, like flag burning, are targets of popular legal prohibitions, even though those prohibitions run afoul of constitutional restrictions.

 

[TheFriendlyMarksman]

That's the point. Here, the state can, and sometimes does, step out of line. POs search without warrants or PC. Police detain people for the content of their speech. Yet in each of those instances, the individual has a remedy in access to the courts.

In theory, the individual has a remedy in the courts. In reality, the government is unable or unwilling to police itself. Do you really think police who "detain people for the content of their speech" ever see the inside of a jail cell for it? No. Most likely, they will never even see the inside of a courtroom for it. Prosecutors love to apply "prosecutorial discretion" for police. The only time the government prosecutes its own men is when not doing so risks creating a PR disaster.

One of the most vivid examples of the government not prosecuting its own agents comes not from the police, but the military. About 300 people were killed in the My Lai massacre. In theory, the soldiers who did it could have been court martialed and hanged. In reality, only one of them, William Calley, was ever punished, and he ended up serving only a few years of house arrest before being let off and later pardoned by President Nixon. Hugh Thompson, a helicopter pilot who tried to stop his fellow soldiers, was treated very harshly for it at the time. He was denounced by a Congressman and received regular death threats. Some people think that shooting civilians should be legal, but that's beside the point. The point is that even though the law was very clear in the matter, people at all levels of society chose to ignore the law.

 

[zukiphile]

In theory, the individual has a remedy in the courts. In reality, the government is unable or unwilling to police itself. Do you really think police who "detain people for the content of their speech" ever see the inside of a jail cell for it? No. Most likely, they will never even see the inside of a courtroom for it. Prosecutors love to apply "prosecutorial discretion" for police. The only time the government prosecutes its own men is when not doing so risks creating a PR disaster.

I believe you've confused a constitutional protection with government prosecution of state agents. They aren't the same.

If a PO detains you for the content of something you said, your counsel brings this to the attention of the court. If the court finds a constitutional violation, the prosecutor loses and the statute involved may itself be stricken. That's the protection.

That the individual PO isn't prosecuted is a different matter. Sometimes POs violate peoples' rights as a matter of government policy and doesn't make sense to prosecute an agent for following instructions. In other instances, a PO clearly isn't following policy and is prosecuted. Former PO Volpe is still serving his sentence for his assault of Abner Louima.

One of the most vivid examples of the government not prosecuting its own agents comes not from the police, but the military. About 300 people were killed in the My Lai massacre.

The UCMJ applied to actions of service members serving overseas is not a vivid example of how constitutional protections of individuals against the government serve to limit government authority. Prosecution by any military organization for conduct of its people during a conflict is historically rare and problemmatic, but one can barely imagine a subject further removed from constitutional protections of free people.

Moreover, contrary to your assertion, those involved in Mai Lai faced charges in a court-martial.

 

[TheFriendlyMarksman]

I believe you've confused a constitutional protection with government prosecution of state agents. They aren't the same.

One depends on the other. Constitutional protections are hollow indeed without rule of law and accountability for officials. Freedom cannot exist in any meaningful way except in an environment of order and predictability.

Former PO Volpe is still serving his sentence for his assault of Abner Louima.

Only because the police were, in that incident, perceived as being racist. Racism is the cardinal sin in American culture. Police can get away with anything they do as long as it is not perceived as racist. For example, compare the Abner Louima incident with the Kelly Thomas incident or the Justine Ruszczyk incident or the Andrew Thomas incident.

The UCMJ applied to actions of service members serving overseas is not a vivid example of how constitutional protections of individuals against the government serve to limit government authority.

I never said that it was. I said that it was an example of government agents being held to be above the law. I realize there are certain differences between the military and civilian legal environments, but the analogy is still valid. Authority must be tempered by accountability.

 

[rwilson452]

When in foreign countries, service members are covered under a "status of forces agreement". They can be quite complicated as to who gets to try them for what crime and a lot of other legal matters. Each countries agreement can be different.

 

[TheFriendlyMarksman]

When in foreign countries, service members are covered under a "status of forces agreement". They can be quite complicated as to who gets to try them for what crime and a lot of other legal matters. Each countries agreement can be different.

William Calley was tried by the United States. The fact that he was convicted of more murders than Jeffrey Dahmer and got off light, while all the other men involved got no punishment at all, speaks volumes about the degree to which selective prosecution insulates authority figures from accountability. Small wonder, then, why gun owners are at the mercy of the ATF and police.