The Unlimited Right to Bear Arms

[Anchorblew]

This article is a crock of horse manure. I've yet to meet a single gun owner that feels that there should be no firearm regulations. The problem is that the firearm industry is already heavily regulated and what many gun control advocates claim to be sensible regulations are convoluted gun grabbing attempts.

I may sound half crazed making a statement like that, but when Ellis writes that James Madison intended the second amendment solely for militia use he fails to provide a single quote or shred of evidence to support that claim.

So here's a quote from James Madison... " I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."

The Unlimited right to Bear Arms by J. Ellis

 

[TXAZ]

I'm guessing TFL readers sitting at home surfing the web may fare better in a home burglary situation than the historian quoted in the article, in a similar situation..... (and wishing no ill will to any)

 

[Brian Pfleuger]

I guess it depends on what you mean by "no regulations".

If you mean that a non-violent citizen should have unbridled access to man-portable small arms, you can count me in the group.

You're absolutely right that Madison (and the other founders) never intended the 2A to be a restriction limiting arms to the militias.

That's a view 180 degrees out of line with the intentions of the Constitution. It is intended to limit government (the Federal government) not the people or the states.

 

[Tom Servo]

Regulations restricting access to felons and those with violent nature are fine, so long as they're written and applied judiciously. Anything else should be scrutinized very, very closely.

That said, I'm not aware of any civil liberty that runs completely unfettered. The 1st Amendment doesn't protect slander, conspiracy, or copyright infringement. Nor does the 4th render all warrantless searches invalid.

We will never have an unlimited RKBA. Not gonna happen. The trick is to knock out onerous and wrongheaded regulations that abridge the rights of the law-abiding and do no societal good.

...which is pretty much 99% of them.

 

[hogdogs]

I am with Brian and tom on this'n... I don't think all felony crimes should strip one's right to bear arms either...

Brent

 

[Frank Ettin]

...I don't think all felony crimes should strip one's right to bear arms...

Actually, under federal law, at least, all felonies don't. See 18 USC 921(a)(20):

...(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,​

...

 

[TDL]

That said, I'm not aware of any civil liberty that runs completely unfettered. The 1st Amendment doesn't protect slander, conspiracy, or copyright infringement.

NO!
Seriously and Respectfully Tom, those are all a) POST HARM sanctions b) applied soley to the individual who has done the harm.

the are no pre harm (or as Philip Dick termed it "Pre Crime") limits on access to methods of free speech. Nor are there blanket limits on classes of persons based on what a criminal or civil harmer has done

You cant kill someone's physical speech or access to the net because they are likely to slander someone, and you cant do it because someone else has slandered someone!

US pre harm speech limits are mutually consented and CONTRACTUAL (NDA, confidentially agreements) and only criminal in the case of government employees who have signed consented to secrecy agreements to get a job.

And conspiracy involves a CRIME or attempted crime. It isn't a speech issue.


----------------------
Now on Ellis' thesis:
The men who hammered out the Constitution, argued for its ratification and underlined our liberties with the Bill of Rights, would urge us to think about the issue this way: How do we balance the right to bear arms against the collective security of the American people?

So Ellis is talking about standard criminal violence when he says "collective security" (a term usually reserved for existential or war events events)


All we have to do understand the problem with Ellis is this:
How do we balance the right free speech against ...
How do we balance the right of freedom of religion against
How do we balance the right to jury trials against
How do we balance the right to miranda against
How do we balance the right to due process against
etc etc.


Shall we have CDC studies on the harm caused by the Fourth, Fifth, Sixth and Eighth amendments?
Persons on bail commit violent crime, including murder, at elevated rates. The right to due process and other protections causes the failure to convict or the earlier release of persons who go on to commit other crimes.
Other civil liberties organizations, and for that matter Justice Ginsburg when she was with the ACLU and the Appeals court argued we can't go down that road.

The difference in history between free societies and tyrannies is EXACTLY the claim of increased security and rights as "collective." It is precisely that assertion by governments and acceptance by societies that is the FULCRUM.

Intelligent Americans know that there is a graying of the line when it comes to existential threats. Say a nuclear strike. A 3% alleged increase in suicide rates due to guns, and about 2,000 murders per year in a country of 330 million) where the victims are not themselves criminals are not existential or even serious problems on which t lose one bit of liberty.

 

[Frank Ettin]

...the are no pre harm (or as Philip Dick termed it "Pre Crime") limits on access to methods of free speech. Nor are there blanket limits on classes of persons based on what a criminal or civil harmer has done...

You are wrong. for example:

• 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. In certain other businesses various types of advertising will require prior regulatory approval. These are also laws that abridge freedom of speech, and yet they are regular 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.

 

[TDL]

Frank I am not wrong. I dealt directly with First amendment issue professionally for years.

Tom's examples were post harm. There are already post harm sanctions up the wazzo arresting from USING a gun.

We ar enot talking about defense AFTER a crime. You and Tom fall into the same trap of equating using first or second amendment as a defense after a crime or civil harm, with criminalizing or regulating capability.

You examples are wrong as well. Drugs and medicines are regulated substances. Claims on drug efficacy or securities are not speech issues. They are like false advertising law which has to do with civil or criminal harms AFTER publication.

There is NO sanction before publication.
There is a HARM in false advertising securities or drugs, and it is in the same logical category as slander -- a harm occurs after.

False advertising is not a pre harm speech issue and any more than slander is.


And parade laws -- when upheld -- are not turned on speech issues. They are turned on assembly issues vs fire codes public safety etc.

EG Nowadays no one can ask you what you are going to say and deny a parade permit based on what you will say.

Sorry to be so strident, but this is like the "you can't yell fire in a crowded theater" refrain.

Yelling "fire" in a theater is an act, an action. The individual who does it cant be constrained before hand. And everyone in the theater can't be muzzled afterwards.
Claiming the first after a harmful act is like claiming the second after shooting someone. If you slander someone, or illegally advertise a security, you cant claim first amendment protection any more than you can claim second amendment protection because you used a gun in a robber.

You can't remove or restrict access to printed or electronic press of a drug or securities before a harmful act.

 

[TDL]

As the minority in the Heller decision argued, and more than a century of judicial precedent at the federal level established, the right to bear arms was not an inherent right of citizenship but rather a right that derived from service in the militia.

As you can see he is not arguing for a compromise. His central thesis is the right does not exist for the individual.

The anti gun rights people must do this because otherwise they subject all the rest of bill of rights to an impossible balance test as well.

 

[Frank Ettin]

...You examples are wrong as well. Drugs and medicines are regulated substances. Claims on drug efficacy or securities are not speech issues. They are like false advertising law which has to do with civil or criminal harms AFTER publication.

There is NO sanction before publication.
There is a HARM in false advertising securities or drugs, and it is in the same logical category as slander -- a harm occurs after...

Except publication may be enjoined. And whether or not any harm flows from the publication without approval is irrelevant. An actor subject to prior review will be penalized for failing to obtain it.

In any case, these are still abridgments to the freedom of speech.

I've dealt professionally with clients in heavily regulated businesses.

...And parade laws -- when upheld -- are not turned on speech issues. They are turned on assembly issues vs fire codes public safety etc.

EG Nowadays no one can ask you what you are going to say and deny a parade permit based on what you will say...

But they still constitute infringement of a rights protected by the First Amendment.

 

[TDL]

Except publication may be enjoined.

....WITH AN NDA or its govt equivalent.

And enjoinment in those cases does not remove capability. You distribute the enjoined material and then are in violation -- it is essentially a contract law issue. Someone has consented.

In any case, these are still abridgments to the freedom of speech.

The abridgements mentioned by Tom, in all respect, are not pre harm ones!

You guys are implying the US has prior restraint . It doesn't.

But they [parade laws] still constitute infringement of a rights protected by the First Amendment.

Only in the same way as shooting my gun on the sidewalk and claiming a second amendment privilege would be. Just because a firearm is involved does not mean a claim of second amendment is the real issue.
The parade is a thing in itself.

And look, I apologize to you and Tom for being so strident, but the libel and slander comparisons are frequently made and please PLEASE recognize they are not correct because they are post harm. It is like saying the second amendment is limited because if I shoot someone it doesn't protect me.

You have to understand that post harm sanction for a specific act or action of harm, is NOT the same thing as prior restraint and pre harm gun regulation applied to the general population

 

[Tom Servo]

I apologize to you and Tom for being so strident, but the libel and slander comparisons are frequently made and please PLEASE recognize they are not correct because they are post harm.

No need in my case. I ain't got a big-city law degree, so I'm learning something.

 

[Frank Ettin]

...And look, I apologize to you and Tom for being so strident, but the libel and slander comparisons are frequently made and please PLEASE recognize they are not correct because they are post harm...

Before I would consider taking your request seriously I would need to know your professional qualifications for your opinions in this regard.

But I agree that in general, libel and slander are generally "post act" matters. However, some of the other forms of restrictions on rights protected by the First Amendment aren't necessarily such.

...You guys are implying the US has prior restraint . It doesn't....

But we indeed can and do in some contexts. The regulated industry/business rules I discussed are one example. Time, place and manner restrictions through permit requirements are another.

See for example 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...

Note also that Near deals with the news media, and regulation of rights protected by the First Amendment has in that context been reviewed under strict scrutiny. But the regulation of rights protected by the First Amendment in many other contexts has been generally reviewed under intermediate scrutiny.

...You distribute the enjoined material and then are in violation -- it is essentially a contract law issue. Someone has consented...

Because one has chosen to engage in an activity subject to government regulation? Nonsense.

 

[44 AMP]

Now on Ellis' thesis:
The men who hammered out the Constitution, argued for its ratification and underlined our liberties with the Bill of Rights, would urge us to think about the issue this way: How do we balance the right to bear arms against the collective security of the American people?

Interesting question, but one so framed as to imply that the right to bear arms is somehow something opposed to the "collective security" of the American people. Any kind of response implying or agreeing that a balance needs be struck is falling into the trap.

also it tugs on our patriotic heartstrings by supposing what our Founders would "urge" us to do...

Well, based on all that I have read about, or by our founders, I believe they would approve of a slight change to the question as the proper answer.

Now on Ellis' thesis:
The men who hammered out the Constitution, argued for its ratification and underlined our liberties with the Bill of Rights, would urge us to think about the issue this way: the right to bear arms provides the collective security of the American people!

 

[Aguila Blanca]

Regulations restricting access to felons and those with violent nature are fine, so long as they're written and applied judiciously.

Even this is fairly recent. In the "old West," a person sent to prison was free to buy a gun as soon as he (or she) was released. There are any number of us today who either don't support making ALL ex-felons "prohibited persons," or think that anyone who can't be trusted to own a firearm probably shouldn't be allowed out on the streets at all.

 

[Brian Pfleuger]

Even this is fairly recent. In the "old West," a person sent to prison was free to buy a gun as soon as he (or she) was released. There are any number of us today who either don't support making ALL ex-felons "prohibited persons," or think that anyone who can't be trusted to own a firearm probably shouldn't be allowed out on the streets at all.

As much as I would agree with that sentiment, violent criminals in the old west were a lot less likely to ever see the light of day. The legend doesn't quite match reality but executions were undeniably far more common and for far more reasons than today.

I'd be quite pleased if folks committing violent crimes never saw freedom again but it's not a political reality. It should be, I wish it was, but we're not going to see it. As such, we have no choice but to limit violent felons legal firearms access.

I believe there should be a single prohibited category... those convicted of significant acts of violence. I'd rather they just never got out or better yet stopped breathing but that's not going to happen anymore.

 

[zukiphile]

Before I would consider taking your request seriously I would need to know your professional qualifications for your opinions in this regard.

That is not a valid standard for evaluation of an assertion.

There are any number of us today who either don't support making ALL ex-felons "prohibited persons," or think that anyone who can't be trusted to own a firearm probably shouldn't be allowed out on the streets at all.

I think it is worth noting that where the Second Amendment rights of an adjudicated felony are abridged, the individual has been afforded due process. I do not recall having read on these pages any protest against the idea that an individual may be disarmed or have other constitutional rights restricted as result due process afforded to a specific individual. The protest comes where a right or a portion of a right is effectively repealed indiscriminately, i.e. with respect to an entire population, with a legislative infringement or an executive policy.

And enjoinment in those cases does not remove capability.

I believe the distinction you draw generally has merit, but I can think of one area in which the law does remove or restrict the capability of one to speak, campaign finance limits. Buckley vs. Valeo gets in to some pretty awful balancing to conclude that well campaign contribution limits do limit speech, they do so permissibly.

While the more egregious portions of McCain-Feingold were successfully challenged in citizens United, the concept of prior regulation of political speech that runs through campaign finance regulation is a prior restraint on speech.

 

[Brian Pfleuger]

That is not a valid standard for evaluation of an assertion.



I think it is worth noting that where the Second Amendment rights of an adjudicated felony are abridged, the individual has been afforded due process. I do not recall having read on these pages any protest against the idea that an individual may be disarmed or have other constitutional rights restricted as result due process afforded to a specific individual. The protest comes where a right or a portion of a right is effectively repealed indiscriminately, i.e. with respect to an entire population, with a legislative infringement or an executive policy.

A persons education and experience aren't a valid measure on which to weigh the validity of their opinions? It's one thing if they're telling you that 2+2=5, quite another when the matter of discussion is an opinion that claims an expert basis. In the second instance, the person's expertise on the subject is incredibly relevant.


In regard to ex cons losing their rights, due process is a necessity but it is not, in and of itself, the litmus test. They could pass a law that said any offense from speeding tickets on up would result in lifetime firearms restrictions and when it happened you'd have had your "due process" but that doesn't make it right.

A lifetime ban on a person's constitutional rights should be based on some relation to the offense. (Note that no other right aside from freedom and arms can be denied for life). If a person is of such character that it is in the societal interest to permanently bar their access to arms, it is of societal interest to permanently bar their access to society. Particularly since the former becomes unenforceable if the latter isn't maintained.

 

[zukiphile]

In regard to ex cons losing their rights, due process is a necessity but it is not, in and of itself, the litmus test. They could pass a law that said any offense from speeding tickets on up would result in lifetime firearms restrictions and when it happened you'd have had your "due process" but that doesn't make it right.

A lifetime ban on a person's constitutional rights should be based on some relation to the offense. (Note that no other right aside from freedom and arms can be denied for life). If a person is of such character that it is in the societal interest to permanently bar their access to arms, it is of societal interest to permanently bar their access to society. Particularly since the former becomes unenforceable if the latter isn't maintained.

Certainly, there are some states in which one's right to vote is removed or suspended once he is an adjudicated felon. I find no fault with the principal that the punishment should fit the crime and that removing one's Second Amendment rights for a non-violent crime is problematic. However, that does follow an individualized adjudication and so is distinguishable from legislation or executive policy that applies to the population generally.

A persons education and experience aren't a valid measure on which to weigh the validity of their opinions? It's one thing if they're telling you that 2+2=5, quite another when the matter of discussion is an opinion that claims an expert basis. In the second instance, the person's expertise on the subject is incredibly relevant.

Since the assertion that,

... the libel and slander comparisons are frequently made and please PLEASE recognize they are not correct because they are post harm...

...does not rest on a claim of expertise, the credentials of the writer are not pertinent. Moreover, since Frank agrees that those examples involve post harm remedies, the claim to require knowledge of professional qualifications to take the point seriously is gratuitous.

I do agree that TDL makes his point too broadly, but even my example of a prior restraint on speech is quite a bit more narrow than the sorts of restraint we see on rights pertaining to the Second Amendment.

TDL, I would also differ with the sense that injunctive relief is not a prior restraint simply because there are consequences to violation of that relief. I do not believe it is necessary to argue against the concept of preventing an irreparable harm to note that in the area of speech the federal government operates under a constitutional restriction.