Poll: Mentally incompetent citizens have a right to arms.
- Thread starter Handy
- Start date
Because the purpose of the Constitution and it's corresponding amendments is to define the limits of "a law". If you don't want "mentally incompetent" people to own guns, you need to amend the Constitution and then pass a law, not just pass a law.
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed, except when adjucated mentally incompetent or convicted felons."
Just thought I would throw in my $.02. I think in the context of the time. Did the 2nd apply to slaves? Women? Both examples considered 2nd class citizens at the time. Then and now the mentaly handicaped/disabled/unstable/etc...are 2nd class citizens. On a tangent, criminals were branded(sometimes literaly) as a lower class.
Before we get too far into talking about amendments limiting other amendments and such, it's proper to remember that the Bill of Rights is a limit on the power of Government to restrict an individual's rights. It does not bestow rights. We are born with them.
And if it isn't specifically outlined in the Bill of Rights, it would also be useful to look up the Ninth Amendment.
I tend more to the Originalist (decided on original intent) than a strict abolutionist. You can't be an abolutionist (well you can, but it's hypocritical to do so) on one amendment and not on all the others. Problem is, you do so on the 2nd and then you have to do so on the 1st, and allow things like child porn and stuff. Nasty business that.
I'm thinking the framers intended all free persons to own firearms, but that those in prisons or deemed mentally unfit to do so would be excluded. That's good enough for me.
And if it isn't specifically outlined in the Bill of Rights, it would also be useful to look up the Ninth Amendment.
I tend more to the Originalist (decided on original intent) than a strict abolutionist. You can't be an abolutionist (well you can, but it's hypocritical to do so) on one amendment and not on all the others. Problem is, you do so on the 2nd and then you have to do so on the 1st, and allow things like child porn and stuff. Nasty business that.
I'm thinking the framers intended all free persons to own firearms, but that those in prisons or deemed mentally unfit to do so would be excluded. That's good enough for me.
It is entirely correct to say that the only way to APPEAL an amendment is with another, but I think you're out on a limb when you say that existance of due process IMPLIES incarceration which IMPLIES a loss of other uninfringeable rights. The Constitution does not say that.
You are taking a rather funny view in suggesting that the BoR is absolute and concrete in its guarantees, but that the meer mention of being "deprived of life, liberty, or property, without due process of law" immediately means that some, but not all, UNspecified amendments are voided.
So which is it? You're telling me that the Second Amendment contains no implied limits on itself, but the Fifth has implied limits on the Second, and only the Second???
Please explain.
You are taking a rather funny view in suggesting that the BoR is absolute and concrete in its guarantees, but that the meer mention of being "deprived of life, liberty, or property, without due process of law" immediately means that some, but not all, UNspecified amendments are voided.
So which is it? You're telling me that the Second Amendment contains no implied limits on itself, but the Fifth has implied limits on the Second, and only the Second???
Please explain.MeekAndMild
New member
Handy, this is a very good question and the right answer points out the problem with trying to micromanage local laws using a document which was designed as a trade agreement between soverign States. The right answer? Yes and no.
First of all there should be no more limitation of individual right to keep and bear arms under the US Constitution than what we would allow under NAFTA or the UN compact or any other treaty. Having said that I firmly believe that families have the right to protect their members from mentally ill relations by limiting their privilages and even their rights if need be. Communities and states have not only the right but the obligation to limit RKBA of individuals who are adjudged to be "a danger to self or others."
In other words there should be no Federal ruling on the matter but families, communities and States should act responsibly to protect themselves. My own past experiance as the person responsible for running a large residential treatment facility for the criminally insane convinces me that such individuals have deep and abiding problems which are real and which require that humane caregivers protect them from their own impulses.
Anyone who says they are equal with the rest of us in their ability to judge the proper use of firearms has my rhetorical invitation to spend one night amongst them. I respect XB's opinion but I believe that we don't need to re-invent the wheel individually a hundred thousand times to prove that it isn't a good idea to allow them the RKBA. Lycanthrope has the better perspective on the subject.
Now, the other side: The RKBA was guaranteed so the US would have a supply of citizen-soldiers who were familiar with arms. I would invite you all to read, "With the Old Breed" and "China Marine" by EB Sledge and "On Killing" by Dave Grossman to gain a perspective on the psychological cost of that guarantee.
First of all turn to the photos in the back of "With the Old Breed" and you will see a picture of Dr. Sledge at age (I believe) 19 as he sits on his bed recovering from the Battle of Okinawa. You will see what looks like a series of cigarette burns up and down his arms. Cigarette burns are a sign of deep dark depression. I never directly asked him but I suspect that during the experiance of enduring the seige of Okinawa he became so depressed that he burned himself time and again until his arms were a mass of open sores. In any regard he told of the utter hopelessness and despair he endured. In "China Marine" he discussed what sounds to me like a residual depression which lasted for decades.
(Having said that I would follow him into battle in a heartbeat. I don't think that his serious depression ever effected his judgement nor ability to perform whatever job needed to be done.)
Colonel Grossman was not a combat soldier. Rather he was a psychologist who discussed the fact that insanity is part of warfare. He has documented the fact that in prolonged battle 98% of the trooops become insane, at least for a long time after battle.
So would we ever dare to take the RKBA away from our 98% of our combat veterans? I believe the decision to do so should be one family, one community at a time and not some ruling passed down from Washington D.C.
First of all there should be no more limitation of individual right to keep and bear arms under the US Constitution than what we would allow under NAFTA or the UN compact or any other treaty. Having said that I firmly believe that families have the right to protect their members from mentally ill relations by limiting their privilages and even their rights if need be. Communities and states have not only the right but the obligation to limit RKBA of individuals who are adjudged to be "a danger to self or others."
In other words there should be no Federal ruling on the matter but families, communities and States should act responsibly to protect themselves. My own past experiance as the person responsible for running a large residential treatment facility for the criminally insane convinces me that such individuals have deep and abiding problems which are real and which require that humane caregivers protect them from their own impulses.
Anyone who says they are equal with the rest of us in their ability to judge the proper use of firearms has my rhetorical invitation to spend one night amongst them. I respect XB's opinion but I believe that we don't need to re-invent the wheel individually a hundred thousand times to prove that it isn't a good idea to allow them the RKBA. Lycanthrope has the better perspective on the subject.
Now, the other side: The RKBA was guaranteed so the US would have a supply of citizen-soldiers who were familiar with arms. I would invite you all to read, "With the Old Breed" and "China Marine" by EB Sledge and "On Killing" by Dave Grossman to gain a perspective on the psychological cost of that guarantee.
First of all turn to the photos in the back of "With the Old Breed" and you will see a picture of Dr. Sledge at age (I believe) 19 as he sits on his bed recovering from the Battle of Okinawa. You will see what looks like a series of cigarette burns up and down his arms. Cigarette burns are a sign of deep dark depression. I never directly asked him but I suspect that during the experiance of enduring the seige of Okinawa he became so depressed that he burned himself time and again until his arms were a mass of open sores. In any regard he told of the utter hopelessness and despair he endured. In "China Marine" he discussed what sounds to me like a residual depression which lasted for decades.
(Having said that I would follow him into battle in a heartbeat. I don't think that his serious depression ever effected his judgement nor ability to perform whatever job needed to be done.)
Colonel Grossman was not a combat soldier. Rather he was a psychologist who discussed the fact that insanity is part of warfare. He has documented the fact that in prolonged battle 98% of the trooops become insane, at least for a long time after battle.
So would we ever dare to take the RKBA away from our 98% of our combat veterans? I believe the decision to do so should be one family, one community at a time and not some ruling passed down from Washington D.C.
The issues that some courts decide on everday is based on the need of protection of individual rights vs. the need for public safety. Public safety is an issue when it comes to an incompetent person having a firearm that could endanger a fellow member of the public.
Maybe Im wrong but I think you may have the Due Process backwards..
Due process is a guarentee that the government will respect all individual rights and not be able to pick and choose. Due Process proctets those rights againt laws that would place limitations on them.
The Fifth Amendment - Federal Government
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The Fourteenth Amendment - the States
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So basically if the individual is given a competency hearing and found to be a danger his rights may be restricted to keep and other from harm. So that individual would have had his due process of law that decided he is not competent to excercise his 2A rights.
Maybe Im wrong but I think you may have the Due Process backwards..
Due process is a guarentee that the government will respect all individual rights and not be able to pick and choose. Due Process proctets those rights againt laws that would place limitations on them.
The Fifth Amendment - Federal Government
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The Fourteenth Amendment - the States
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So basically if the individual is given a competency hearing and found to be a danger his rights may be restricted to keep and other from harm. So that individual would have had his due process of law that decided he is not competent to excercise his 2A rights.
Are you implying that "liberty" is enough of a catch all to specifically proscribe the bearing of arms? How is this link made, since most of the BoR consistantly applies to those who have lost their liberty?
How is it that you can be stripped of arms and other "liberties" just by an arrest, despite due process being a future event?
How is it that you can be stripped of arms and other "liberties" just by an arrest, despite due process being a future event?
Due process IMPLIES that the aforementioned will not occur without due process, ie one shall not be incarcerated nor liened of uninfringeable rights without first suffering due process of law.
If you want a debate ask for a definition of "due process".
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."
Handy,
They don't say that at all, they merely outline the process by which you may affect the (amended) Constitution itself. Perhaps I misunderstood the question....[edit] Yes I was. I was answering the question about why a law cannot limit an amendment.[/edit]
Here's how the 5th affects everything else:
They don't say that at all, they merely outline the process by which you may affect the (amended) Constitution itself. Perhaps I misunderstood the question....[edit] Yes I was. I was answering the question about why a law cannot limit an amendment.[/edit]
Here's how the 5th affects everything else:
"John, "mentally incompetent" is in the title, and all examples are provided as ones that meet that criteria. "
Ah, but that's my point - mentally incompetent is not the same as legally incompetent. Mental incompetence does not prevent anyone from buying a firearm. Only individuals who have been judged (adjudicated) incompetent and/or involuntarily committed are prohibited. Simply having a medical/psychiatric/psychological diagnosis and a statement in a report that the person is unable to care for themselves and fully function vocationally, socially, etc. is not enough.
John
Ah, but that's my point - mentally incompetent is not the same as legally incompetent. Mental incompetence does not prevent anyone from buying a firearm. Only individuals who have been judged (adjudicated) incompetent and/or involuntarily committed are prohibited. Simply having a medical/psychiatric/psychological diagnosis and a statement in a report that the person is unable to care for themselves and fully function vocationally, socially, etc. is not enough.
John
Goslash,
That lack of specificity is a big problem when you consider that some of the BoR deals directly with what happens AFTER a legal conviction. If we regard the BoR as being "optional" in regards to a convict under sentence, how can he have any assurance of protection from "cruel and unusual punishment"?
John,
As you require very precise wording, here you are: "Judged legally incompetent due to diminished mental capacity." I know you're itching to find a problem with that, too. But as I think you understood the question in the first place, why don't you just make due?
That lack of specificity is a big problem when you consider that some of the BoR deals directly with what happens AFTER a legal conviction. If we regard the BoR as being "optional" in regards to a convict under sentence, how can he have any assurance of protection from "cruel and unusual punishment"?
John,
As you require very precise wording, here you are: "Judged legally incompetent due to diminished mental capacity." I know you're itching to find a problem with that, too. But as I think you understood the question in the first place, why don't you just make due?
A better question would be:
Why would any part of the BoR NOT remain in force?
You are taking the phrase "loss of liberty" and allowing that slim term to imply the entire penal code (a set of laws). Then you're taking those laws and imposing them back on the BoR.
The Constitution never describes "prison". If you want to be a strict constructionalist a better presumption is that the "loss of liberty" allowed by that Amendment refers to any liberty that ISN'T a guaranteed right under the BoR.
Our Penal Code deprives prisoners of protection from search and seizure. If a prison cannot be run any other way, the question you need to be asking is if prison is Constitutional.
But the way you're looking at it is that "loss of liberty" implies anything we want it to, including most (but strangely not all) UNinfringeable rights. And we define it by laws that are supposed to subservient to the BoR, not the other way around.
Why would any part of the BoR NOT remain in force?
You are taking the phrase "loss of liberty" and allowing that slim term to imply the entire penal code (a set of laws). Then you're taking those laws and imposing them back on the BoR.
The Constitution never describes "prison". If you want to be a strict constructionalist a better presumption is that the "loss of liberty" allowed by that Amendment refers to any liberty that ISN'T a guaranteed right under the BoR.
Our Penal Code deprives prisoners of protection from search and seizure. If a prison cannot be run any other way, the question you need to be asking is if prison is Constitutional.
But the way you're looking at it is that "loss of liberty" implies anything we want it to, including most (but strangely not all) UNinfringeable rights. And we define it by laws that are supposed to subservient to the BoR, not the other way around.
yup!!!
Theres alot of handicaped people who could responibly own, and operate a firearm. Autistic kids usually have a hidden skill that they excell at. Why not shooting? Can you, or anyone else decide for them? If some can play a piano like Mozart, whats to say they cant shoot like Wild Bill Cody? I know a few fully mentally competent people that shouldnt own firearms, but they do. Its not my job, or anyone elses, to take that opprotunity away from them. I believe that EVERYONE should have to pass a shooters safety class. You can start to weed out the reckless ones there. Everyone should be afforded the opprotunity to thier 2nd amnd. Whats next? If you dont go to college your not smart enough to get a gun? Its a slippery slope gents!
Theres alot of handicaped people who could responibly own, and operate a firearm. Autistic kids usually have a hidden skill that they excell at. Why not shooting? Can you, or anyone else decide for them? If some can play a piano like Mozart, whats to say they cant shoot like Wild Bill Cody? I know a few fully mentally competent people that shouldnt own firearms, but they do. Its not my job, or anyone elses, to take that opprotunity away from them. I believe that EVERYONE should have to pass a shooters safety class. You can start to weed out the reckless ones there. Everyone should be afforded the opprotunity to thier 2nd amnd. Whats next? If you dont go to college your not smart enough to get a gun? Its a slippery slope gents!