Gun rights battle turns to state ballots

[Glenn E. Meyer]

http://www.nytimes.com/2015/01/03/u...shington-turn-attention-to-states.html?ref=us

The article describes a strategy change as federal legislation probably will not happen. Local initiatives on matters such as background checks may be more attractive as happened in WA.

I think this points out the dichotomy of gun views in the country that is rarely appreciated by the extreme views of the issue. The article mentions it somewhat.

Most people people:

1. Believe in private gun ownership and are against draconian bans. Thus, the harsh measures don't appeal except in specific demographic locations such as core major urban areas. These might dominate a state though when it comes to votes.

2. Those believing in gun rights don't want criminals and mentally unstable folks to have guns and are OK with measures they think will prevent such acquisitions. That's why background checks to close what are seen as loopholes are attractive.

It also demonstrates the dichotomy introduced into the current Constitutional debate by Heller. Yes, guns are protected but reasonable restrictions (which seem now to be fought state to state, district to district) are acceptable. I personally doubt a major SCOTUS progun decision to correct this will occur soon. Thus, to recall an older TFL debate, Scalia (called a wily old bird by some fanboy here) left a 'loophole' for new gun restrictions.

 

[Frank Ettin]

...Yes, guns are protected but reasonable restrictions (which seem now to be fought state to state, district to district) are acceptable....

There's no doubt in my mind that's the was things will work out. As I've noted before, it's well established that constitutionally protected rights are still subject to limited regulation. With regard to rights protected by the Second Amendment, the permissible scope and extent of regulation will need to be worked out in the courts. But anyone who believes that gun control laws will be swept away is fooling himself.

As I wrote some time ago:

...we live in a pluralistic, political society, and in the real world there is going to be some "gun control."

There are a bunch of people out there who don't like guns (for whatever reason). There are also a lot of people who are scared of guns or of people who want to have guns. Some think guns should be banned and private citizens shouldn't have them at all. Some may be willing to go a long with private citizens being able to own guns as long as they were regulated. And these people vote.

We may think these people are wrong and that they have no valid reason to believe the way they do. We might think that many of them are crazy (and maybe some of them are). Of course some of them think that we have no valid reasons to think the way we do, and some of them think that we're crazy. But they still vote.

Of course we vote too, but there are enough of them to have an impact. They may be more powerful some places than others. But the bottom line is there would always be some level of gun control.

Of course there's the Second Amendment. But there is also a long line of judicial precedent for the proposition that Constitutionally protected rights may be subject to limited governmental regulation, subject to certain standards. How much regulation will pass muster remains to be seen. But the bottom line, again, is that we are unlikely to see all gun control thrown out by the courts; and we will therefore always have to live with some level of gun control.

How much or how little control we are saddled with will depend. It will depend in part on how well we can win the hearts and minds of the fence sitters. It will depend on how well we can acquire and maintain political and economic power and how adroitly we wield it. It will depend on how skillfully we handle post Heller litigation.

So whether or not we like it, whether or not we think the Second Amendment allows it and notwithstanding what we think the Founding Fathers would have thought about it, we will have to live with some forms of gun control.

We're left with opportunities to influence how much. Some things will be doable and somethings will not be reasonably doable.

 

[Aguila Blanca]

There's no doubt in my mind that's the was things will work out. As I've noted before, it's well established that constitutionally protected rights are still subject to limited regulation. With regard to rights protected by the Second Amendment, the permissible scope and extent of regulation will need to be worked out in the courts. But anyone who believes that gun control laws will be swept away is fooling himself.

As much as I like and respect Frank, even he would (I think) have to admit that he views the law through the lens of a lawyer. I, however, do not. My lens is old, dusty, and scratched, but it's the lens of the layman who took an oath to support and defend the Constitution.

The problem with what Frank wrote about constitutional rights historically being subject to "reasonable" regulation is that he's correct. What's missing, however, is that all the precedents on which this view rests are for other parts of the Constitution. And I don't recall any other part of the Constitution or the Bill of Rights that comes right out and establishes a point-blank PROHIBITION AGAINST "reasonable" (or any other kind of) regulation. The simple words "shall not be infringed" quite simply do not leave any room for regulations, reasonable or unreasonable. Regulation = infringement. Period. "Shall not be infringed" = "Is not subject to regulation."

Consequently, because other constitutional rights have historically been subject to regulation, most people (including, it would appear, Mr. Justice Scalia) presume that the Second Amendment therefore also MUST be subject to regulation. It's a dangerous presumption, because the Second Amendment itself tells us the opposite.

We may never know why Scalia threw that little hand grenade into the Heller decision. My suspicion is that it was necessary (or he thought it was) in order to keep the fifth vote. Irrespective of the reason, that seemingly innocuous statement absolutely flies in the face of the intent and the explicit language of the second Amendment. Scalia did not do us any favors when he wrote that.

 

[hartcreek]

The fight is back on in Washington

http://www.ammoland.com/2015/01/saf-lawsuit-challenges-parts-of-i-594-in-wa-state/#axzz3NjTTuNiw

So I realy have to wonder how much iniative are going to be pressed in other states untill the courts have settled this mess.

 

[johnwilliamson062]

Most Supreme Court decisions I have read have equally frustrating loopholes in them. Places where the legislature and future courts are given leeway to make adjustments without overturning a decision.

This post combined with the gun restrictions map post really has me thinking about some of the political migrations and their effects in the US. I can't remember a time in US history, except possibly reconstruction when "carpetbaggers" were moving as much or more for financial gain, where I read of groups migrating for political reasons such as Free State Project, and there are several others. What kind of polarizing effect could these movements and the legislation that spawned them have in the long term?
"Six Californias" failed, but it was given more serious attention than I would have thought possible a few years ago.

 

[speedrrracer]

The simple words "shall not be infringed" quite simply do not leave any room for regulations, reasonable or unreasonable. Regulation = infringement. Period. "Shall not be infringed" = "Is not subject to regulation."

Consequently, because other constitutional rights have historically been subject to regulation, most people (including, it would appear, Mr. Justice Scalia) presume that the Second Amendment therefore also MUST be subject to regulation. It's a dangerous presumption, because the Second Amendment itself tells us the opposite.

I'm not sure this is true. Most words are used according to their dictionary meaning, and a meaning of "infringed" is "break".

"actively break the terms of (a law, agreement, etc.)." says Google.

So, the 2A could be read to say, "...shall not be broken". That reads very differently now, imo. So we can regulate the 2A, and just as long as we don't break your RKBA, we're GTG.

Now a given regulation could be viewed as a break -- it's entirely reasonable to conclude so, and the dictionary supports such a view. A break is, among other definitions, an "interruption". Well, if I have to go fill out a form or ask somebody's permission before I can have my RKBA, then this is an interruption, which is a break, which is an infringement.

So we go round and round and in the end we have still to wait on the courts.

 

[Aguila Blanca]

I'm not sure this is true. Most words are used according to their dictionary meaning, and a meaning of "infringed" is "break".

First, to arrive at the intent of the 2A we need to look at what a dictionary from 1776 would say the definition is, not a dictionary from today. Beyond that, as you say "A" definition of "infringe" is "break." There are other definitions, relating to terms such as limiting or encroaching.

Merriam Webster On-Line: http://www.merriam-webster.com/dictionary/infringe

in·fringe
verb \in-ˈfrinj\

: to do something that does not obey or follow (a rule, law, etc.) ( chiefly US )

: to wrongly limit or restrict (something, such as another person's rights)

in·fringedin·fring·ing

Oxford Dictionary On-Line:

Definition of infringe in English:
verb (infringes, infringing, infringed)

[with object]
1 Actively break the terms of (a law, agreement, etc.)
: making an unauthorized copy would infringe copyright

More example sentences Synonyms[/indent]

1.1 Act so as to limit or undermine (something); encroach on:
his legal rights were being infringed

[no object]: I wouldn’t infringe on his privacy

Another one: http://dictionary.reference.com/browse/infringe

infringe
[in-frinj]

Synonyms
Examples
Word Origin

verb (used with object), infringed, infringing.
1. to commit a breach or infraction of; violate or transgress:
to infringe a copyright; to infringe a rule.

verb (used without object), infringed, infringing.
2. to encroach or trespass (usually followed by on or upon):
"Don't infringe on his privacy."

And lastly, from a thesaurus site (synonyms): http://www.thesaurus.com/browse/infringe

breach
contravene
disobey
encroach
impose
intrude

meddle
offend
trespass
borrow
break
crash

entrench
infract
invade
lift
obtrude
pirate

 

[Frank Ettin]

...to arrive at the intent of the 2A we need to look at what a dictionary from 1776 would say the definition is, not a dictionary from today. Beyond that, as you say "A" definition of "infringe" is "break." There are other definitions, relating to terms such as limiting or encroaching...

And actually, looking at the Oxford English Dictionary (mine is the compact edition, but it is complete), the word "infringe" was used as far back as the 15th Century in ways consistent with the definitions you have cited and quoted.

Not all words drastically change meanings over time.

 

[gc70]

Samuel Johnson's Dictionary of the English Language (Sixth Edition, 1785) contains the following defintion that is roughly contemporaneous to the Second Amendment's proposal in 1789 and ratification in 1791:

To INFRI'NGE. v. a. [infringo, Latin.]
1. To violate ; to break laws or contracts.
(quotes from Shakespeare and Waller omitted)
2. To deftroy ; to hinder.
(quotes from Hooker and Waller omitted)

 

[NY'er]

"Quote:
To INFRI'NGE. v. a. [infringo, Latin.]
1. To violate ; to break laws or contracts.
(quotes from Shakespeare and Waller omitted)
2. To deftroy ; to hinder.
(quotes from Hooker and Waller omitted)"




Here in NYS I'm not even allowed to touch a handgun without a permit, which in my county (Nassau) would take 2 years to get and require personal references & interviews, and then if/when granted my "right" would be limited to my home or range. Concealed carry? Good luck getting that...

Would anyone deny that my right has been infringed, hindered, or reduced to a priveledge that I must ask and receive permission to exercise and which may be revoked at any time?!

When Scalia left that door open he may well have done so to secure the 5th vote, but I believe his version of restrictions would be along the lines of "You have the right to own and carry whatever the heck you like, though the government is allowed to criminalize the use of a firearm in the COMMISSION of a forcible felony (which of course includes "brandishing" or verbally threatening to use one) or to prohibit carrying in airports or courtrooms etc"