ChattanoogaPhil
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I wish I were a SCJ.
"Shall not be infringed"
Next case please.
"Shall not be infringed"
Next case please.
Landmark 2A case might be heard by Supreme Court
- Thread starter richardw
- Start date
"Most gun control arguments miss the point. If all control boils fundamentally to force, how can one resist aggression without equal force? How can a truly "free" state exist if the individual citizen is enslaved to the forceful will of individual or organized aggressors? It cannot."
Consider this:
There are several valid reasons that would pass muster as to why the Government could prevent me from owning the above gun without violating the Second Amendment:
1) State could say that putting Hello Kitty on a gun is a nuisance. The issue would be the interplay between my First Amendment right to free speech and the right of the Government to protect the safety of its young citizens from an attractive nuisance. Second Amendment would not be an issue.
2) Government could say that using Hello Kitty without permission was a copyright violation.
3) Government could say that the gun was infringing a valid patent if even one of the parts was patented and being used without a license.
4) The Constitution protects the Right to Contract. If I had contracted not to own this gun a Court could enforce that contract.
5) If the gun was defective, and prone to accidental discharge, the State could declare its ownership a nuisance.
My point is that a law preventing the ownership of a particular gun or a type of gun is not necessarily a Second Amendment violation.
(P.S., even if you do not my like take on the law, which is nothing more than personal opinion, I hope you like the photo)
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DevilDog72
US Veteran
"My point is that a law preventing the ownership of a particular gun or a type of gun is not necessarily a Second Amendment violation."
Yes it is... in my opine....."shall not be infringed".
In fact the 2nd was designed to keep an overbearing government at bay and that the weapons employed by the gov should be available to the citizen.
Yes it is... in my opine....."shall not be infringed".
In fact the 2nd was designed to keep an overbearing government at bay and that the weapons employed by the gov should be available to the citizen.
To truly interpret law you must review and interpret the legislative intent of those who wrote the law. Anyone who has read the statements concerning the 2nd by the founding fathers would know it was meant as a way for the people to defend themselves, and if need be against an oppressive government.
Hard to believe such mean would want the people to have muzzle loaders and the government helicopter gun ships.
Hard to believe such mean would want the people to have muzzle loaders and the government helicopter gun ships.
BM1313 - I can see your point that thru certain secondary interpretations and machinations of the law, some clever politicians could enact limited firearms regulations that do not directly confront the 2A. But my question still stands: at what point do these indirect firearm regulations become an infringement? Examples: Is the forced removal of the heat shield from my Winchester M97 because it looks too "military and war like" an infringement? I can still own it and the shotgun still functions as before. How small does your "kitty picture" have to be to avoid being a "nuisance". My view, and only my view, is that while lawyers and politicians play legal gymnastics with the interpretation and justification of the 2A, our rights under that same 2A are being infringed upon. An infringement by any other name or avenues is still an infringement.
PS - I do like the photo ��
PS - I do like the photo ��
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As stewards of the Second Amendment we have a responsibility not to encourage the loss of the actual right enshrined in the Constitution by insisting that the Constitution protects what it does not.
For example. IMHO it is entirely reasonable, rational and Constitutional for a jurisdiction to mandate that the color orange cannot be used in lethal firearms. If the pro-Second Amendment camp doubles down and says that this type of reasonable restriction is an unconstitutional infringement of the Right to Keep and Bear Arms "because any infringement is an infringement," they will be laughed out of court. Worse, it will cause damage because it will make the next case of a real infringement harder to win.
Credibility matters. Taking extreme positions that squander credibility is fatal in courts of law and in the court of public opinion.
Be careful out there.
For example. IMHO it is entirely reasonable, rational and Constitutional for a jurisdiction to mandate that the color orange cannot be used in lethal firearms. If the pro-Second Amendment camp doubles down and says that this type of reasonable restriction is an unconstitutional infringement of the Right to Keep and Bear Arms "because any infringement is an infringement," they will be laughed out of court. Worse, it will cause damage because it will make the next case of a real infringement harder to win.
Credibility matters. Taking extreme positions that squander credibility is fatal in courts of law and in the court of public opinion.
Be careful out there.
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Yes. A resounding yes. So being motivated to think I have this to say.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The words cited above preceded the Constitution by over ten years. They are the basis of the Constitution and the rule of law in our great country. They define the basic rights that cannot be taken away by any government or other entity that exercises any control over us. Notice that the words "to bear Arms" is not mentioned. The Constitutional right to bear arms flows from the unalienable rights to "Life" and "Liberty." Without a means to defend oneself life and liberty can be swiftly lost.
Recall that the Second Amendment was not part of the Constitution as originally drafted by the framers. The original draft were the Articles drafted by the Framers. Once published and before approval resistance mounted because the Draft did not protect certain rights deemed to be critical to a free society. Those concerns were addressed in the Bill of Rights, the first ten Amendments to the Constitution. So the initial drafting of the Constitution was not impeccable and so was successful protested and amended.
So the critical question is whether the Rights granted by the first ten amendments are unalienable? Sorry but hey are not. Through the entire history of the United States under the approved Constitution certain rights guaranteed by the Bill of Rights have been subject to regulation. Those rights were deemed by the People to properly regulated for cause.
Let's look at some examples of how Constitutional rights can be regulated under The Constitution.
The right to vote can be denied to a convicted felon in some States.
The right to be free of warrantless search can be lost in hot pursuit.
The right to free speech does not give a right to create havoc in public.
The right to bear arms can be denied to felons and others deemed unsafe
All of those denials of rights have been upheld by the Supreme Court. Only the reason for or the degree of the loss of Constitutional Rights is debatable under law. The simple fact is that rights change depending upon circumstances. The unalienable rights in th Declaration of Independence never change, but the sublordinate rights under the Cinstitution do change.
When some believe that the "Right to Bear Arms" is unalienable they are wrong. It has been and is alienable from day one after the Constitution was adopted. We cannot own tanks, flame throwers, howitzers, and in most cases machine guns, all of which are "Arms."
The laws of our Country are based upon the "Reasonable Man" theory, that is, what would a reasonable man decide to be correct. That is a moving target. Recall when women could not vote, when slavery was legal, and when gay marriage was illegal. While it too many decades to resolve those issues the fact is that they outcomes defined them as unalienable rights through either Constitutional amendments or Supreme Court decisions. Yesterday and today the parameters of the Right to Bear Arms is in the hands of the Supreme Court because the Congress cannot or will not act.
In the Heller v. DC decision the Supreme Court rued that the Right to Bear Arms can be be reasonably regulated. I think it was a good decision. You have to read the decision before debating that if you disagree. The landmark case of Kolbe v. Hogan, if the Court hears it, will further define the "Right to Bear Arms." We are now waiting for nine Justices to decide what is Reasonable. The Constitution that so many cite to defend their opinion says the Supreme Court is the final arbiter of disputes. If you support the Constitution, then you should support that fact. I took an oath to support and defend the Constitution. It did not end with my retirement from the Corps.
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Based upon my last post above, I think it necessary to elAborate on 2A which employs the word "infringed."
What does infringed mean? The dictionary is a tool often used by courts to understand statutes. The word infringed means "to encroach upon in a way that violates law or the rights of another."
So when 2A says my rights may not be infringed it is not oblivious to the rights of others whose rights might be violated. What rights might those be? They are the same rights that allow people to own arms, and rose can be defined as the right to feel safe and secure.
So there is the dichotomy that the Supreme Court and other Courts must deal with. Our Constitution creates many dichotomies that nine Justices get to adjudicate.
What does infringed mean? The dictionary is a tool often used by courts to understand statutes. The word infringed means "to encroach upon in a way that violates law or the rights of another."
So when 2A says my rights may not be infringed it is not oblivious to the rights of others whose rights might be violated. What rights might those be? They are the same rights that allow people to own arms, and rose can be defined as the right to feel safe and secure.
So there is the dichotomy that the Supreme Court and other Courts must deal with. Our Constitution creates many dichotomies that nine Justices get to adjudicate.
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BM1313 - yes and really do agree with you, however, I'm still asking, perhaps rhetorically, where is the threshold for "infringement "?
Only the courts will decide that, some may say, but the courts appear to be more of an "activist " outlet of dogma then a true arbiter and interpreter of the written law. So, the color Orange, while reasonable to you or I, could be the edge of Ms. Polsei's slippery slope? That's a question, not a statement.
Master Guns - also agree with your fine write up. In our form of government, while we have more freedoms then most, as you pointed out, there are boundaries to our "rights". You can own a tank or machine gun, however, heavily regulated and costly. You have the right to feel "safe and secure" by carrying a firearm, while your neighbor does not. It is up to the courts to determine those boundaries. What is "Reasonable" and what is "Infringement"? Like beauty, it can be in the eye of the beholder.
And again, no argument , just a really interesting discussion, the kind we would have around a pizza and beer.
Only the courts will decide that, some may say, but the courts appear to be more of an "activist " outlet of dogma then a true arbiter and interpreter of the written law. So, the color Orange, while reasonable to you or I, could be the edge of Ms. Polsei's slippery slope? That's a question, not a statement.
Master Guns - also agree with your fine write up. In our form of government, while we have more freedoms then most, as you pointed out, there are boundaries to our "rights". You can own a tank or machine gun, however, heavily regulated and costly. You have the right to feel "safe and secure" by carrying a firearm, while your neighbor does not. It is up to the courts to determine those boundaries. What is "Reasonable" and what is "Infringement"? Like beauty, it can be in the eye of the beholder.
And again, no argument , just a really interesting discussion, the kind we would have around a pizza and beer.
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Agreed, it is a very slippery slope because judges can settle an issue based upon their interpretation of the law. The consequences are that the en banc 4th Circuit clearly ruled that assault arms could be banned to protect people. Thus justifying an infringement of 2A by placing the right of people to feel secure ahead of the right to be secure in life and liberty by bearing arms. That is an oil soaked slope that SCOTUS 9 now have to deal with.
In your analysis of rights you made a mistake in saying that the bill of rights granted rights. It did not. It recognized that they were pre-existing that must not be infringed. The original authors of the Constitution were opposed to adding the ammendments precisely because they were concerned that future generations would misconstrue the constitution as having the authority to grant rights. They said those rights are indeed unalienable, and therefor it would be redundant to list them. Furthermore, the federal government is a creation of the states and has only those powers granted to it by the states. Those powers don't include the granting of rights. Those rights existed before the Constitution was written.
Your examples of infringements are mostly within the last 100 years. The sorry fact that they have been upheld be the Supreme Court is evidence that the founders' concerns were correct.
Your examples of infringements are mostly within the last 100 years. The sorry fact that they have been upheld be the Supreme Court is evidence that the founders' concerns were correct.
Gunsnwater
Member
I sincerely doubt Scotus will take the case. I believe MD allows certain semi-autos with removable magazines but bans others based on having two evil features. As such MD residents can still have semi-auto weapons with considerable firepower and their rights are not really being infringed.
see
Firearm Search
Allowing some Ruger Semi-Auto 5.56's but not others
Seriously, is New Jersey preventing me from keeping and bearing arms because it prohibits me from putting a flash hider or baynet lug on my .243 semi-auto?
IMHO, the ban based on cosmetic features might be arbitrary and capricious, but it is not a 2A violation
So your ok with arbitrary and capricious laws? Sad state of affairs. Please keep that serfdom attitude in Jersy.
Gunsnwater
Member
Please show us the Right To Feel Safe And Secure enshrined in the constitution.
We were warned that those who would trade liberty for security would have neither.
The constitution does not contain ambiguities. It is not unclear nor subject to interpretation. The Supreme Court is to judge a law against the plain language of the constitution. Period.
Precedence is a farce. Oh we don't want to rule against some prior settled law. B.S.
Would we not want slavery ended along with Japanese internment camps?
Too often the popular view, when it counters the constitution is adopted as law. The Bill Of Rights is for the unpopular. The popular needs no defense.
ChattanoogaPhil
Member
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The above cannot be stressed enough.
I particularly like the way AWR Hawkins expresses this.
"We don't have the right to keep and bear arms because the Bill of Rights says so; rather, the Bill of Rights says so because the right to keep and bear arms is intrinsic to our very being: it is a right with which we were endowed by our Creator."
BlueOvalBandit
Member
Disappointing but perhaps it will be resubmitted and heard later.
https://www.supremecourt.gov/orders/courtorders/112717zor_f204.pdf
Not even a dissent.....
https://www.supremecourt.gov/orders/courtorders/112717zor_f204.pdf
Not even a dissent.....
