Gun laws: Is this consitutional?

[KingMerv00]

I think it's not so much, in my instance, a case of “read[ing] things into the Constitution because it lacks detail”, as applying basic common sense in recognizing that some times, the practice of one right by one person may violate another right of another person, and that it is necessary, at times, to limit one right in order to protect another. I see the rights outlined in the Bill of Rights as being absolute, only to the degree that they aren't exercised to the point where they clearly violate other rights.

Please explain the difference between "reading into the Constitution" and "applying basic common sense". Seems to me, the only difference is that the latter is the application of YOUR opinion while the former is the application of someone else's.

The Constitution SPECIFICALLY states "NO LAW". How are you getting "no law except when I think common sense should apply". You don't have to like it, but that's what it says. No amount of word twisting changes that. If you are going to be a constitutional literalist with the 2nd amendment, you should be a literalist with the 1st too. (Maybe you should start a campaign to change the amendment to include slander.)

Slander, extortion, fraud, etc., are exercises of free speech which violate other rights of other people, and which are intended to do so. You very clearly have a right not to be robbed; and your right not to be robbed, in this case, I think clearly overrides my right to exercise free speech by saying “Give me all your money, or else I'll kill you.” It's a bad thing that my right to free speech must be curtailed in that case, but it'd be an even worse thing to allow me to use my right to free speech to take what is rightfully yours by the use of threats of violence and murder.


I do not see any similar principle that applies well enough to ordinary weapons, to supersede the Second Amendment's affirmation of my right to own and carry a gun. Even the worst hoplophobe is not going to suffer any actual harm, if I happen to be standing next to him with a loaded gun strapped to my hip; therefore, no similar basis exists to deny me this right as exists to deny me some extreme forms of free speech.

Being robbed, slandered, etc. does not violate your constitutional rights. It violates criminal law and allows you to collect money through civil means. Both of those are applications of common law and/or statutory law. They are not derived directly from any state or federal constitution.

That distinction is not a minor one.

 

[cwalner]

The Constitution SPECIFICALLY states "NO LAW". How are you getting "no law except when I think common sense should apply". You don't have to like it, but that's what it says. No amount of word twisting changes that. If you are going to be a constitutional literalist with the 2nd amendment, you should be a literalist with the 1st too. (Maybe you should start a campaign to change the amendment to include slander.)

I just double checked. The 1st ammendment is phrased that way, but not the second.

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.

This actually leaves a lot more open to interpretation. What is considered an infrigment on the right to keep and bear arms? This different phrasing allows for legislative regulation as long as the SCOTUS does not consider such regulation to infringe on the right to keep and bear arms.

In other words, there is actually much more wiggle room to regulate guns than there is to regulate speech, at least within the text of the constitution.

 

[The Painter]

Blindly going to the 2nd amendment is not supporting states rights. It actually restricts states rights by preventing states that want stricter gun control laws from passing them.

OK last time I'm saying this. It is more about the Commerce Clause than guns. Got it??????

 

[Freddy]

OK last time I'm saying this. It is more about the Commerce Clause than guns. Got it??????

Yes. Federal gun regulations have to navigate both the commerce clause and the second amendment. They have to be within Congress' power under the former, and they have to avoid violating the latter.

State gun regulations don't have to worry about either the commerce clause or the second amendment (until the latter is incorporated, which most experts expect will happen this fall).

I sympathize with your dislike for the Supreme Court's commerce clause jurisprudence, but it is what it is. You can't un-ring that bell.

 

[KingMerv00]

I just double checked. The 1st ammendment is phrased that way, but not the second.

Oh I know. I was just hypothetically giving him the most generous interpretation of the 2nd amendment I could think of.

 

[cwalner]

Yes. Federal gun regulations have to navigate both the commerce clause and the second amendment. They have to be within Congress' power under the former, and they have to avoid violating the latter.

State gun regulations don't have to worry about either the commerce clause or the second amendment (until the latter is incorporated, which most experts expect will happen this fall).

I sympathize with your dislike for the Supreme Court's commerce clause jurisprudence, but it is what it is. You can't un-ring that bell.

Interesting that you brought this up. This is showing what I feel is the hypocrisy on both sides of the issue.

Liberals absolutely love incorporation when it applies to issues of minority rights like in the 1st and 14th, but are now fighting tooth and nail to oppose it in relationship to the 2nd.

Conservatives are doing the exact opposite. Fought tooth and nail against incorporation of the 1st and 14th with the mantra of states rights, but now want to use incorporation of the 2nd amendment to override state laws restricting access to guns.

The issue for either has never been truly about incorporation or states rights. Those have just been convenient tools for both sides to push their policy agendas.

 

[Ranb]

You seem to be acting intentionally not getting the point. The proponents of these state laws state that they want them in place to make violent revolution(ie terrorism) easier.

Where are you getting this? Got a link?

So those guys in Michigan who wanted to kill the police officer then attack his funeral, if they could have gotten legal machine guns you argue that they would not have? And I mean machine guns not full auto conversions of assault rifles.

I am saying that there seems to be very few Americans who own legal machine guns that have demonstrated any intend to use them in a violent manner.

Ranb

 

[ponderingturtle]

OK last time I'm saying this. It is more about the Commerce Clause than guns. Got it??????

Good then you agree that if your interpretation was correct you couldn't apply federal anti drug laws to medical marijuana, as that is purely with in an individual state.

 

[ponderingturtle]

Where are you getting this? Got a link?

Just listen to them talk about the ability for a populace to resist the government. They are talking about terrorism in that, or at least by things that we regard as terrorism when we like the government anyway. They don't say explicitly that they want to make domestic terrorism easier, because terrorism is not a word people use to describe things they support. Terrorism does not describe any particular action, it is used to mark the non support of a broad category of action by the person making the statement.

 

[The Central Scrutinizer]

They leave it out because the Supreme Court has said that the second amendment protects an individual right, and that this right is not conditional on membership in an organized militia.

They said that in a very specific case in DC about 2 years ago. The guntards jumped with joy, because they thought it meant that every "anti-gun" law would fall throughout the land. Instead, they heard the sound of crickets chirping.

 

[Freddy]

They said that in a very specific case in DC about 2 years ago. The guntards jumped with joy, because they thought it meant that every "anti-gun" law would fall throughout the land. Instead, they heard the sound of crickets chirping.

The Heller case, because it arose in DC, only applies to territories directly administered by the federal government. I'm sure some misunderstood the scope of Heller, but who cares? The scope is about to be expanded, because the Court is going to decide McDonald v. Chicago this fall. The oral argument transcript is available online. I have read the transcript, and I'd put the probability at nearly 100% that the Court will incorporate the second amendment via the due process clause of the Fourteenth Amendment, which will make it enforceable against the states as well. Every expert I've read or talked to expects that result as well. Then we'll see many (but by no means all or even most) gun laws struck down as unduly burdening the right to bear arms.

By the way, the use of pejoratives like "guntards" does not make you appear more intelligent.

 

[Ranb]

By the way, the use of pejoratives like "guntards" does not make you appear more intelligent.

It does not bother him at all. He sometimes takes the opportunity to ridicule those on this forum that like to discuss guns, even in threads on firearm hobbies. I am surprised he has not tried to degrade the thread further by indulging in discussion of deviant sexual activity involving firearms as he too often does.

He has been warned by the forum admin, but this weird behavior keeps popping up from time to time. Occasionally I think The Central Scrutinizer has changed his ways and I will try to debate him; but then he decides to degrade others instead of using actual evidence to support his strange conclusions. It is best to just ignore him whenever guns are the subject of discussion.

Ranb

 

[KingMerv00]

The Heller case, because it arose in DC, only applies to territories directly administered by the federal government.

You have a quote from Heller to back that up? I have not read the whole thing from beginning to end so my question is genuine.

I am aware it was a DC case but that does not necessarily mean the holding was limited to DC.

 

[cwalner]

You have a quote from Heller to back that up? I have not read the whole thing from beginning to end so my question is genuine.

I am aware it was a DC case but that does not necessarily mean the holding was limited to DC.

This goes back to the issue of incorporation. Since DC is governed directly by the 2nd amendment directly applies. As has been pointed out, there is currently a case pending before the SCOTUS that will deal with incorporation of the 2nd amendment, but it has not yet been resolved (although smart money seems to be betting on incorporation)

 

[KingMerv00]

This goes back to the issue of incorporation. Since DC is governed directly by the 2nd amendment directly applies. As has been pointed out, there is currently a case pending before the SCOTUS that will deal with incorporation of the 2nd amendment, but it has not yet been resolved (although smart money seems to be betting on incorporation)

I don't know. The bits I've read seem to say the 2nd Amendment is incorporated even if it didn't SAY the 2nd Amendment is incorporated. As always, Scalia was pretty firm.

I see your argument but I think one could easily use Heller as precedent without waiting for the magic words.

 

[Freddy]

You have a quote from Heller to back that up? I have not read the whole thing from beginning to end so my question is genuine.

I am aware it was a DC case but that does not necessarily mean the holding was limited to DC.

Not a quote from Heller, but the bill of rights was long held to constrain only the federal government. This goes back to the Marshall court, in an 1833 case called Barron v. City of Baltimore. After the Fourteenth Amendment was ratified (actually some time after it was ratified), the Supreme Court began "incorporating" the protections of the federal Constitution, which means that the Court held that for states to abridge them constituted a denial of due process (this is the idea of "substantive due process"). Most of the bill of rights has been incorporated through the due process clause, but not all of it. At least one amendment has been partially incorporated (either the sixth or the seventh, I can't remember which).

Any right guaranteed by the federal Constitution that has not been incorporated constrains only the federal government unless it specifies otherwise. Since Congress has direct and ultimate sovereignty over federal lands, including DC, and since the second amendment explicitly constrains Congress, none of those territories can have gun regulations that violate the second amendment, as interpreted in Heller.

Heller did not go so far as to incorporate the second amendment. Because it arose in DC, it did not need to address that question in order to decide that case. (It is a general rule of jurisprudence that an issue should not be ruled on if doing so is not necessary to decide the case at hand.)

But now Chicago's gun ban has been challenged. It is extremely similar to the one struck down in Heller. The big question the Court will decide is whether the second amendment protects a "fundamental" right. If so, then it will be incorporated. Then it will constrain state and local governments as well as Congress. Inclusion in the Bill of Rights creates at least an unofficial presumption that a right is "fundamental."

Edit: There is certainly language in Heller that makes it seem that the majority of the Court does indeed agree that the right to bear arms was viewed as a fundamental right when the Constitution was ratified. But language in Heller to that effect is not binding precedent, because it is only dicta, not the holding of the case. This is because deciding whether the right is fundamental was not necessary for disposition of the Heller case, and therefore it is not technically part of the holding. That means that stare decisis does not dictate the result of the Chicago case. But I'd say the result is very predictable. I realize now that only this last paragraph actually addresses what you said. The Supreme Court could not have incorporated the second amendment in Heller, because it must wait for a case where the question of incorporation is material to the result.

 

[KingMerv00]

Not a quote from Heller, but the bill of rights was long held to constrain only the federal government. This goes back to the Marshall court, in an 1833 case called Barron v. City of Baltimore. After the Fourteenth Amendment was ratified (actually some time after it was ratified), the Supreme Court began "incorporating" the protections of the federal Constitution, which means that the Court held that for states to abridge them constituted a denial of due process (this is the idea of "substantive due process"). Most of the bill of rights has been incorporated through the due process clause, but not all of it. At least one amendment has been partially incorporated (either the sixth or the seventh, I can't remember which).

Any right guaranteed by the federal Constitution that has not been incorporated constrains only the federal government unless it specifies otherwise. Since Congress has direct and ultimate sovereignty over federal lands, including DC, and since the second amendment explicitly constrains Congress, none of those territories can have gun regulations that violate the second amendment, as interpreted in Heller.

Heller did not go so far as to incorporate the second amendment. Because it arose in DC, it did not need to address that question in order to decide that case. (It is a general rule of jurisprudence that an issue should not be ruled on if doing so is not necessary to decide the case at hand.)

But now Chicago's gun ban has been challenged. It is extremely similar to the one struck down in Heller. The big question the Court will decide is whether the second amendment protects a "fundamental" right. If so, then it will be incorporated. Then it will constrain state and local governments as well as Congress. Inclusion in the Bill of Rights creates at least an unofficial presumption that a right is "fundamental."

Edit: There is certainly language in Heller that makes it seem that the majority of the Court does indeed agree that the right to bear arms was viewed as a fundamental right when the Constitution was ratified. But language in Heller to that effect is not binding precedent, because it is only dicta, not the holding of the case. This is because deciding whether the right is fundamental was not necessary for disposition of the Heller case, and therefore it is not technically part of the holding. That means that stare decisis does not dictate the result of the Chicago case. But I'd say the result is very predictable. I realize now that only this last paragraph actually addresses what you said. The Supreme Court could not have incorporated the second amendment in Heller, because it must wait for a case where the question of incorporation is material to the result.

Trust me, I understand all of that. My point is you are making a distinction without a difference.

If the Supreme Court uses strong words to say the 2nd amendment gives a personal right to carry firearms, it is as good as incorporating it. In practical terms the outcome is almost certainly going to be the same. Can you really picture the Supreme Court saying, "Yes we though the 2nd Amendment was a personal right and yes we used strong terms but no we aren't going to apply them to everyone." I COULD happen but it won't.

 

[Freddy]

Trust me, I understand all of that. My point is you are making a distinction without a difference.

If the Supreme Court uses strong words to say the 2nd amendment gives a personal right to carry firearms, it is as good as incorporating it. In practical terms the outcome is almost certainly going to be the same. Can you really picture the Supreme Court saying, "Yes we though the 2nd Amendment was a personal right and yes we used strong terms but no we aren't going to apply them to everyone." I COULD happen but it won't.

Oh. If what you're saying is that the outcome of McDonald v. Chicago is not in doubt, then I agree. The Heller decision as good as incorporated the amendment in that it made that eventual outcome all but inevitable.

 

[KingMerv00]

Oh. If what you're saying is that the outcome of McDonald v. Chicago is not in doubt, then I agree. The Heller decision as good as incorporated the amendment in that it made that eventual outcome all but inevitable.

That is part of what I'm saying. I'm also saying that the dicta in Heller should not be referred to as "ONLY dicta". It was so strongly worded, that it has the same practical impact as a full blown holding. It gives direction to lower courts, it can be used as precedent (though "only" as persuasive precedent rather than binding precedent), and warns legislatures across the country on how it will rule in the future.

"ONLY dicta" indeed.

 

[Freddy]

That is part of what I'm saying. I'm also saying that the dicta in Heller should not be referred to as "ONLY dicta". It was so strongly worded, that it has the same practical impact as a full blown holding. It gives direction to lower courts, it can be used as precedent (though "only" as persuasive precedent rather than binding precedent), and warns legislatures across the country on how it will rule in the future.

"ONLY dicta" indeed.

Point taken. You're right. "Only" is not a term that I should have used. "Technically" would have been better, because, as you say, dicta are persuasive authority, and strongly worded dicta from the Supreme Court are rather persuasive. The effect of officially incorporating the second amendment would just be to make what is already a strong suggestion to lower courts into a mandatory order to those courts. Not a great deal of practical difference.