The Unlimited Right to Bear Arms

JerryM said:
There is no Constitutional right of the 2nd without limit, and I do not believe that if all the ramifications were explored any thoughtful person would want unlimited rights to firearms of any kind.
Jerry
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To the degree I have dragged 44AMP into more detailed explanation that he may have preferred, I may owe him a defense of his position as he has expressed it.

That they constitutionally explicit right may have adverse ramifications or even more generally just be a poor idea cannot itself be an argument against the right. One's opinion that there may be a substantial downside to the right described would not entitle one to interpret the amendment to read,

"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 unless the infringement is to prevent adverse ramifications and the infringement is supported by thoughtful people."
 
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[That they constitutionally explicit right may have adverse ramifications or even more generally just be a poor idea cannot itself be an argument against the right.]

True, but not necessarily the truth. Free speech is limited, for instance.
I am pretty sure that no one here would want any 9 yr old to be able to posses a fully auto weapon, or a mentally deranged individual to own any firearm. It is obvious that the 2nd was intended to be detrimental to the nation. There are trade offs, of course, and what these should be can be debated (not by me) but the point is that there is not an unlimited right to bear arm or should there be.

Jerry
 
JerryM said:
[That the[y] constitutionally explicit right may have adverse ramifications or even more generally just be a poor idea cannot itself be an argument against the right.]

True, but not necessarily the truth. Free speech is limited, for instance.
I am pretty sure that no one here would want any 9 yr old to be able to posses a fully auto weapon, or a mentally deranged individual to own any firearm. It is obvious that the 2nd was intended to be detrimental to the nation. There are trade offs, of course, and what these should be can be debated (not by me) but the point is that there is not an unlimited right to bear arm or should there be.
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I like the First Amendment analogy.

The free speech right is limited where an individual is afforded due process, i.e. as a result of a hearing on a preliminary injunction. We also have some limitation on free speech as a consequence of the decisions in Buckley v. Valeo. My guess is that 44AMP might be with me in taking exception to a federal law that limits one's ability to speak politically in light of the First Amendment prohibition that "Congress shall make no law...". It does not say that "Congress shall make no law abridging the freedom of speech unless the abridgment is minimal or wise."

We also have some parts of the Espionage Act remaining in federal code that would purport to criminalize disclosure of some kinds of information.

One should be able to admit the validity of the role of the US Supreme Court, while still taking exception to decisions of that court that skirt explicit constitutional prohibitions.

So, you are correct that restrictions on each liberty do exist, but that does not reach the issue of whether they should exist in light of current constitutional language.
 
zukiphile said:
...That they constitutionally explicit right may have adverse ramifications or even more generally just be a poor idea cannot itself be an argument against the right....
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Exactly right. In general to be upheld by the courts limitations of constitutional protected rights require significantly more than a showing that the exercise of the right might have adverse ramifications or that the right could be a bad idea.
 
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!
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Not quite true. "Free Speech" zones that herd protesters into areas away from the object or person the are protesting, is a form or prior restraint or "precrime" punishment.

When entering or leaving the US, any digital information you have can be seized without warrant or evidence of criminality. This has happened to journalists, both citizens and not.

In some cases prior restraint of the first amendment might be justified by appeals to the greater good, sometimes they are not. But "precrime" punishment of 1st amendment activity does happen.
 
JerryM said:
I am pretty sure that no one here would want any 9 yr old to be able to posses a fully auto weapon, or a mentally deranged individual to own any firearm. It is obvious that the 2nd was intended to be detrimental to the nation. There are trade offs, of course, and what these should be can be debated (not by me) but the point is that there is not an unlimited right to bear arm or should there be.
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Whether or not there should be limits to the 2A RKBA is a separate question from whether or not there ARE such limits. I acknowledge (in fact, I believe I did so earlier in this thread) that Justice Scalia's Heller decision said that the RKBA is subject to reasonable restrictions (i.e. limits), but I continue to be of the opinion that Mr. Scalia is wrong.

Where and in what way does the language of the Second Amendment in any way leave the door open even a crack for any limits ("infringements") whatsoever?
 
First off, I think this is a wonderful discussion.

I also think that references to children and firearms rights, while a valid topic for its own discussion, should not be in this discussion. Children do not have all the same legal rights and responsibilities as adults do. Never did, and (hopefully) never will. For good and sound reasons.

To the extent I can clarify my positions and opinions, I will gladly do so (although I may only wind up creating the opposite effect:D).

I believe in some rather old (and currently sometimes unfashionable) wisdoms. Expressed in some rather old language, they include things like "and ye harm no one, do as ye will", and "by their acts, shall ye know them", among others.

I believe that things should mean precisely what they say, particularly everything in the realm of governance. If you don't mean that, you should say something different.

I believe that stupid should hurt. I don't believe it is morally right to force me to pay for someone else's stupidity. And I particularly detest anyone reaching into my wallet, when no harm has occurred, to me or by me, because they feel I'm not safe enough.

There are some things that are legal, that I feel are immoral. There are a great many things that are illegal that I do not feel are morally wrong. I obey laws that I feel are wrong, because they are the law. But I still feel we shouldn't have them.

I believe we all have natural rights, but I also know that full, completely unlimited exercise of these rights by everyone is not possible in a structured society.

I believe there are a lot of people who should not have guns (again, "by their acts"...). I do not believe prior restraint is a good thing. I believe its an insult, and an automatic assumption of guilt by those who require you to prove you are neither evil nor incompetent.

I also believe that if you do something that proves you evil or incompetent that you should not be treated leniently.

I believe a lot of stuff, some of it is even true!:rolleyes:

Zuki, we are on the same page about some things, that is clear. If the law reads you can do something, that's what it says. It doesn't say "you can do it , if we all agree its a good idea".

I know the difference between what I believe we ought to have, what will work in the real world, and what we do have when it comes to our rights.

We ought to be left alone, to make prudent and reasonable choices, on our own. And to pay the cost if we don't.

We aren't, and haven't been for a long time. According to the history I have read, at one time, we seemed to get along well enough without any gun control laws. People did suffer from violence then, as they always have. Guess what, people still suffer from violence.

All that I see as changed is that today we have lots of laws that have not been, and likely cannot be proven to reduce violence, and also create criminals from the unwary due to their complex and arbitrary seeming regulations. '

(I got lots more, lets dance!:D)
 
It is obvious that the 2nd was intended to be detrimental to the nation.
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I'm unclear on this point. The Framers thought the Constitution through very carefully. I don't see why they would have wanted a sabotage clause, nor how such a thing could be snuck through.

Now, 9-year-olds with machine guns? Sure, as long as they're not hurting anyone. If they do, there are plenty of laws to deal with that.

I'm for restricting dangerous misuse of a right, but beyond that, I see no point to regulating its exercise.
 
The 2nd amendment clearly states "shall not be infringed." Any regulation on owning a firearm or how you carry is a violation of your rights. Whatever act you make that violates someone else's right is reason to punish the offender. It is simple, you can have your guns however you like, but if you violate someone else's right, then you will be punished.
It is frustrating to see people saying they believe in the 2nd and then they contradict it with saying they believe it is legal to infringe it. Hypocritical weirdos!
 
Vurtle said:
The 2nd amendment clearly states "shall not be infringed." Any regulation on owning a firearm or how you carry is a violation of your rights. ...you can have your guns however you like, ...
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Are you still trying to peddle this nonsense. It is, of course, not true.

The reality is --

  1. There are, and will be, laws regulating the RKBA.

  2. If you violate any one of these laws, you will be punished, unless the court invalidates the law.

  3. And courts are likely to uphold at least some of those laws.

  4. You might think it ought not be like that, but what you think doesn't change anything.

  5. There are most likely enough voters who don't like guns, are afraid of guns and are afraid of people who have guns to elect politicians who will enact gun control laws. And at least some of those laws will be upheld by courts.

  6. How much gun control we get stuck with will depend on how effective we are in the political arena and the litigation arena.

  7. Being effective in the political arena and the litigation arena requires a sound understanding of reality.

  8. Believing in fantasy won't help.
 
Very good points, as usual. But....
Any regulation on owning a firearm or how you carry is a violation of your rights
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I don't believe this is nonsense. I believe its almost true. And I say almost because these regulations are an infringement, not a violation, in my opinion.

Infringed, to me, means to tread or encroach on the edges of, and I think that the Founders used that word (and not another) with the idea that if they prevented the government from controlling the outer edges of our right the core would be safe.

I believe it is a matter of believe in the ideal (even if its called fantasy) but live and deal with the real world.

I think point #4 is particularly valid.
 
44 AMP said:
Any regulation on owning a firearm or how you carry is a violation of your rights
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I don't believe this is nonsense. I believe its almost true. And I say almost because these regulations are an infringement, not a violation, in my opinion.
.....

I believe it is a matter of believe in the ideal (even if its called fantasy) but live and deal with the real world...
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It becomes nonsense when one can not distinguish among a desired ideal, actual reality and achievable reality. You can and do make that distinction. Some others apparently can not.
 
Another for no regulation whatsoever for anyone not currently in state custody and maybe parole. If the person isn't safe with a gun they aren't safe with a score of other things bought off the shelf at your local walmart without any restrictions.

Even in the case of mass murderer active shooters it doesn't make much sense. Most mass murders dedicate YEARS to their crimes. If I were to dedicate 2-3 years to such a thing I could certainly come up with something better than a Glock and a shotgun or AR. I think Archimides came up with a solution to destroy the majority of the Roman Navy in less time. Every High School kid that reads a newspaper knows about pressure cooker bombs now. We should all pray the crazies don't figure out something more effective than a firearm.
 
Really good conversation...

I think 44 is dead-on in a philosophical way. Your right, if they're willing to kill another, what difference does a couple of gun laws matter?
(But I still think convicted violent felons should remain nixed from gun ownership - they've crossed that line of utter disrespect for fellow man and proven themselves mentally unsuitable for firearm ownership, whether they've paid for their crime or not. )

Alternatively Frank is dead-on in a practical way as evidenced by the fact that those who disagree with 2A have elected their representatives into office and the courts. That trend will continue.
The reality is we do have to deal with their side of the issue despite how vehemently we think they have distorted the 2A.
Fist pounding while hollering "Thou shall not infringe" will accomplish nothing... it was infringed long ago.
The only effective way to deal with it is to elect more representatives that agree with us.
 
[Where and in what way does the language of the Second Amendment in any way leave the door open even a crack for any limits ("infringements") whatsoever?]

There is an element of common sense that we are supposed to have and if one thinks that the mentally unbalanced should have the same rights as the normal person, then that one who thinks that does not think logically.
We are in fact our brother's keeper and the safety of society is important. Most of the gun laws do not contribute to that safety, but some do. I would not want the public to have the right to buy a Stinger missile. I am satisfied with the laws re fully auto guns.

It is important that the Constitution gave the SC the responsibility to determine what the Constitution means, and the SC has clearly said that the right is not without some constraints. In fact I cannot think of any amendment that is without some restrictions.
I admit that the SC is sometimes wrong in my view, but they still have the authority.

Do you think a 10 year old mentally handicapped boy should be able to buy a firearm? If so we have nothing in common re the 2nd.
Jerry
 
We are talking about this on a number of different levels at the same time. And while we are mostly using the same words, we seem to be saying different things on different levels.

Philosophical
Legal
Political
Practical
Actual
Realistic
Historical
...and likely some I haven't recognized yet...

Everything in our physical universe has limits, so an unlimited right is a bit of a misnomer. Not sure what would be a better word, I thought for a moment that unregulated might be a better word, but regulated means so many different things to different people that its probably not a better choice.

The argument that, "if you cannot exercise your right, then you do not have that right", has both yes and no answers. On the practical level, yes. On the philosophical level, its no. You still have the right, you are just being prevented from exercising it.

A distinction without a difference? possibly. Almost certainly for any specific real world situation. But I think the distinction is something important. Philosophically speaking, as I see it, believing that you don't have the right, is believing you don't have the right. Something different from believing you do have the right, and just not being able to use it in a given circumstances.

I believe it is right, just, and proper for society to deny the free exercise of any, or even all of our natural rights, in certain circumstances and situations. And not in others.

It is the who, what, when, where, and how that I would argue.
 
Do you think a 10 year old mentally handicapped boy should be able to buy a firearm?
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No, but there are longstanding precedents that minors are not entitled to the same constitutional protections in general, so it's a moot point.
 
I don't think all felony crimes should strip one's right to bear arms either...

This^ I'd trust an accountant who got a felony conviction for cooking the books with a firearm before I'd trust some bozo who got a misdemeanor conviction for punching someone in the face.
 
Although we could discuss the various nuances regarding the issue, the point is that there is no unlimited right to bear arms.
Every society must have laws in order to prevent anarchy. The Constitution was not written so that each person could do what was right in his own eyes, but to provide for liberty without anarchy.

Any government is better than no government, although maybe not by much.

Jerry
 
Any government is better than no government, although maybe not by much.
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Woah woah woah
I'm not agreeing with that at all. I can provide some cases where economies improve AFTER the fall of tyrannical governments and there are many cases where failed states have less violence and human rights problems than before the state failed. Not to mention instances like the American frontier where gov't was non-existent for decades.
Not that I am in favor of no government. I know what I would think about in that case and I am sure others would as well.

All the "Anarchists" I have run into favor what I would a call a flat system of law, not lack of law. Much like a few companies have flat management. It has worked well for some companies. It isn't as if I am talking about one or two anarchists either. I'm acquainted with a few. The literal translation of the greek root would be something like 'without a king.' Not sure which "anarchy" you are referring to though.
 
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