Another Second Amendment win in California

[newyorkguy]

"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..."

Fairly clear where at least one fellow thought that "Rights" come from.

How did he know that do you suppose...?

​

 

[Bardy]

True, but it doesn't engage until after they have taken every other opportunity to avoid conflict, including tucking tail and running away whenever someone looks like they might escalate violence towards yourself and/or others who are equally capable of avoiding conflict. IOW, anyone who feels more confident carrying a gun, probably shouldn't (feel confidence or carry a gun).

You are aware that, when faced with an imminent violent indicent, turning your back on your attacker and attempting a getaway is one of the surest ways to ensure that you end up getting seriously injured, don't you? Usain Bolt may safely disregard this message. Everyone else should take note.

I would say that it's more realistic to argue that a person should make every reasonable effort to avoid a conflict. Some efforts to avoid conflict are not advisable depending on your physical capabilities and the situation at hand. A blanket approach which stated it was unlawful to use force unless you had first tried running away would be a great disservice to people. Now all we have to do is define 'reasonable' so that everyone agrees. I'm sure we can get that nailed down in 3 or 4 days. 5, tops

Of course, there is also the discussion to be had about the extent to which as a society we expect law-abiding civilians to cede the streets to those who would do them harm. After all, we could avoid conflict by never leaving the house or travelling in packs of 10 etc. We could do that, but should we? This very question was behind the Florida SYG laws, for example. Now, there are many disturbing reports of how the SYG laws are being potentially abused, so it's something that obviously needs further discussion. I do have to admit to being sympathetic to the viewpoint that law-abiding citizens, going about their legal daily business should not have the onus of avoiding conflict placed on them. Rather, the onus should be on people not to promote conflict through aggressive acts. Remember, 'blame the victim' is a very unpopular viewpoint, and with good reason.

 

[Ranb]

Remember, 'blame the victim' is a very unpopular viewpoint, and with good reason.

It's fairly popular on this forum.

Ranb

 

[The Norseman]

It's fairly popular on this forum.

Ranb

It really seems that way, doesn't it?

 

[Trakar]

I'm sure we can get that nailed down in 3 or 4 days. 5, tops ...Remember, 'blame the victim' is a very unpopular viewpoint, and with good reason.

I seriously doubt that "reasonable" could ever be "nailed down" in a way that is even majorly accepted, yet alone unanimously agreed upon. Furthermore I don't see anywhere that I "blamed the victim," what I did imply, is that regardless of who initiated actions considered threatening, people that employ weapons when they perceive they are being threatened are escalating the situation and generating more violent outcomes not promoting a safer environment for themselves or others in general.

That said there are staggeringly large differences between someone being threatened by a person brandishing a firearm, who pulls out his own weapon and shoots the person who threatened him, and someone who sees someone behaving in a way he disagrees with so he assaults them and then when he realizes that the other person is resisting his demands for them to conform to his perceptions and beliefs, he pulls out a gun and shoots them.
In the first case, reasonable self defense seems at play, in the second it seems more like assault, vigilantism, and "get off my grass/turn down that noise" carried to unreasonable extremes. These are more the extreme ends of the scenario range, where precisely the law does, or more importantly "should" separate acceptable from criminal is where the discussion enters play.

 

[The Norseman]

I seriously doubt that "reasonable" could ever be "nailed down" in a way that is even majorly accepted, yet alone unanimously agreed upon.

The "reasonable person" doctrine has been a part of the legal system for decades, if not a few centuries. It seems to work out and is agreed upon by judges, lawyers, and courts in the US.

I'm not seeing your objections here.

Furthermore I don't see anywhere that I "blamed the victim," what I did imply, is that regardless of who initiated actions considered threatening, people that employ weapons when they perceive they are being threatened are escalating the situation and generating more violent outcomes not promoting a safer environment for themselves or others in general.

There are a huge number of cases every year that show beyond doubt that citizens with firearms stop potential violent situations and criminal acts without ever firing a shot.

Again, I'm not seeing your objections here, either.

That said there are staggeringly large differences between someone being threatened by a person brandishing a firearm, who pulls out his own weapon and shoots the person who threatened him, and someone who sees someone behaving in a way he disagrees with so he assaults them and then when he realizes that the other person is resisting his demands for them to conform to his perceptions and beliefs, he pulls out a gun and shoots them.

Those people are called "criminals" and are not a part of the general citizenry who carry firearms for self-defense.

In the first case, reasonable self defense seems at play, in the second it seems more like assault, vigilantism, and "get off my grass/turn down that noise" carried to unreasonable extremes. These are more the extreme ends of the scenario range, where precisely the law does, or more importantly "should" separate acceptable from criminal is where the discussion enters play.

The laws in place already separate acceptable from criminal.

 

[W.D.Clinger]

...Some of the Supreme Court's decisions have been a bit startling, yes, but expressing incredulity about those decisions is not much of an argument, especially when you're the one who cited that decision in the first place...

You missed my point entirely.

Sorry. That does happen a lot around here.

I was expressing amazement that after all the gun threads in these pages only now have we arrived at the argument that it is 'natural law' that permits Americans to carry guns for self-defense. You would think the advocates would have been arguing that all along.

Citing 'natural law' sounds like right-wing fantasy to me, yes. YMMV

The Bill of Rights doesn't say the right to bear arms is an "unalienable" [sic] right, but the US Supreme Court has determined (and stated in various decisions) that (1) the right to bear arms is indeed a right, (2) it's a right whose existence does not depend upon the Constitution (US v Cruikshank), (3) it's the sort of right that could be infringed, (4) but the second amendment says the right to bear arms shall not be infringed by Congress, and (5) the fourteenth amendment limits the ability of states and local governments to infringe upon that right.

Those are verifiable historical facts, not right-wing fantasy.

Some of us might not be happy about those facts. Indeed, four of the nine justices dissented in the two most recent cases (District of Columbia v Heller and McDonald v Chicago), so those of us who believe those cases were wrongly decided have some distinguished jurists on our side. Nevertheless, the Supreme Court has decided those issues, and there is no higher authority here.

The Supreme Court has reversed itself on a few issues, but it usually lets a few decades pass even when it does reverse itself. The Roberts Court isn't likely to reverse itself on these matters any time soon.

A few state and local governments still have work to do before their laws, regulations, and bureaucracy align with the recent decisions. This thread is about one such state. In most states and cities, where the status quo ante was more or less consistent with the court's recent decisions, those decisions won't matter very much.

In states and cities where the status quo ante was inconsistent with the court's recent decisions, a few more citizens may exercise their right to bear arms, but how many? If a truly large number of citizens in those states and cities wanted to bear arms but were prevented from doing so by what is now seen to have been unconstitutional infringements, then those unconstitutional infringements must have been a significant overreach of governmental power. If only a small number of citizens were unhappy with the status quo ante, however, then any increase in the number of citizens who choose to exercise their constitutional right to bear arms will also be small.

The right to bear arms is neither recent nor restricted to the more barbarous regions of the New World. Thucydides, near the very beginning of his History of the Peloponnesian War, in paragraph 6, wrote:

And even at the present day many of Hellas still follow the old fashion, the Ozolian Locrians for instance, the Aetolians, the Acarnanians, and that region of the continent; and the custom of carrying arms is still kept up among these continentals, from the old piratical habits. The whole of Hellas used once to carry arms, their habitations being unprotected and their communication with each other unsafe; indeed, to wear arms was as much a part of everyday life with them as with the barbarians. And the fact that the people in these parts of Hellas are still living in the old way points to a time when the same mode of life was once equally common to all. The Athenians were the first to lay aside their weapons, and to adopt an easier and more luxurious mode of life; indeed, it is only lately that their rich old men left off the luxury of wearing undergarments of linen, and fastening a knot of their hair with a tie of golden grasshoppers, a fashion which spread to their Ionian kindred and long prevailed among the old men there.

(In context provided by paragraph 5, "from the old piratical habits" apparently refers to the need for defense against pirates and other marauders.)

"The Athenians were the first to lay aside their weapons, and to adopt an easier and more luxurious mode of life"—other Greeks continued to bear arms, and some were still in the habit of bearing arms as recently as 2450 years ago. It should not surprise any of us that the custom of bearing arms has persisted longer in some parts of the Americas than in others.

 

[newyorkguy]

...the US Supreme Court has determined (and stated in various decisions) that (1) the right to bear arms is indeed a right, (2) it's a right whose existence does not depend upon the Constitution (US v Cruikshank)...

When did the Supreme Court state clearly that Americans have the right to bear arms?

I don't agree about Cruikshank. It seems to me it said the reverse. It said the Second Amendment DOES NOT confer the right to bear arms. The next sentence -- the one everyone gets so excited about -- said, "Neither is it in any manner dependent upon that instrument for its existence." What does that mean in a legal sense? I don't see that it means anything. If the right to bear arms is not dependent on the Second Amendment what is it dependent on? Natural law, again? What is natural law? Where is it written down?

What are we hearing here? Some of us know about natural law and some of us don't? wink-wink

The right to bear arms is neither recent...

[T]he Aetolians, the Acarnanians, and that region of the continent; and the custom of carrying arms is still kept up among these continentals, from the old piratical habits. The whole of Hellas used once to carry arms, ​

This is how Americans gain the legal right to bear arms? Because the whole of Hellas used to carry guns?

 

[Vermonter]

Nice poisoning the well fallacy ya got there.

How is this poisoning the well? This is common sense, unless you're arguing that there should be absolutely no restrictions or background checks of any kind. If this is the case, I have to respectfully disagree with your position, because I believe that it's irresponsible to not even do rudimentary background checks for individuals who may have warrants out for their arrest, felonies, or a court order regarding their mental stability. I've submitted my ID for a background check for every firearm I've purchased, even at the gun shows. I'll happily continue to do so.

 

[The Norseman]

How is this poisoning the well? This is common sense, unless you're arguing that there should be absolutely no restrictions or background checks of any kind. If this is the case, I have to respectfully disagree with your position, because I believe that it's irresponsible to not even do rudimentary background checks for individuals who may have warrants out for their arrest, felonies, or a court order regarding their mental stability. I've submitted my ID for a background check for every firearm I've purchased, even at the gun shows. I'll happily continue to do so.

You're denigrating people who may disagree with you in the first place which is poisoning the well. In other words, I may disagree with you but if I do so, I'm considered an oddball by you and perhaps others.

And more "common sense" eh? The only time I hear or read the phrase "common sense" is in relation to more restrictions and laws. The laws now... never enough.

 

[Cylinder]

Neither is it in any manner dependent upon that instrument for its existence." What does that mean in a legal sense?

It means it is a right that exists in the common law.

 

[W.D.Clinger]

...the US Supreme Court has determined (and stated in various decisions) that (1) the right to bear arms is indeed a right, (2) it's a right whose existence does not depend upon the Constitution (US v Cruikshank)...

When did the Supreme Court state clearly that Americans have the right to bear arms?

On 28 June 2010, a majority opinion of the Supreme Court stated (with my highlighting):

Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

The right to bear arms is neither recent...

[T]he Aetolians, the Acarnanians, and that region of the continent; and the custom of carrying arms is still kept up among these continentals, from the old piratical habits. The whole of Hellas used once to carry arms, ​

This is how Americans gain the legal right to bear arms? Because the whole of Hellas used to carry guns?

No. Re-reading the sentence you truncated above might help you to understand why I quoted Thucydides...but I doubt it.

 

[Bardy]

I seriously doubt that "reasonable" could ever be "nailed down" in a way that is even majorly accepted, yet alone unanimously agreed upon.

My was a nod to the fact that universal agreement will never happen, though as has been pointed out by others, we do have a fairly good definition of 'reasonable' being used in the courts, established by a fairly large amount of case law over the years.

Furthermore I don't see anywhere that I "blamed the victim," what I did imply, is that regardless of who initiated actions considered threatening, people that employ weapons when they perceive they are being threatened are escalating the situation and generating more violent outcomes not promoting a safer environment for themselves or others in general.

If i had to paraphrase your statement, it would be thus : 'I don't see anywhere that I "blamed the victim,", what I did imply was that if potential victims respond to a threat with force, they're doing something wrong'. By suggesting that using force in response to a perceived threat is unjustifiable escalation, you are blaming the victim in exactly that way I tried to describe. If you genuinely perceive that someone is threatening your life or your physical health, then using force to prevent them is an entirely reasonable and justifiable escalation. We then have a legal system where if necessary a jury can decide if your perception of danger was reasonable. This is the system working as it should.

To take your viewpoint to a logical extreme, i could be cornered by two guys with knives who threaten to kill me unless i give them my money and if I pull out a gun to defend myself then I am at fault for escalating the situation. Now, I know that much advice along the lines of 'just give them the money' is given, and if handing over the cash was some magical shield which would ensure i would not then be harmed anyway then it would be really good advice, but we all know that's not the case.

That said there are staggeringly large differences between someone being threatened by a person brandishing a firearm, who pulls out his own weapon and shoots the person who threatened him

Who would be entirely justified, whether the weapon they were being threatened with was a gun, a knife, a lead pipe or a pair of fists. Don't think fists can be deadly? Take that up with Andrew Young. Also note that this didn't require an extended beatdown, but only one single punch

and someone who sees someone behaving in a way he disagrees with so he assaults them and then when he realizes that the other person is resisting his demands for them to conform to his perceptions and beliefs, he pulls out a gun and shoots them.

Who should be going to jail. However, if they do not go to jail this is not a failing of gun laws, but rather of the application of self defense laws. After all, if we take the gun out of the equation and the assault you describe was of the form 'get off my lawn [with a shove] - hey you can't shove me [with a harder shove back] - hey you're assaulting me [with a fatal punch to the head]' Then the situation is the same. Unprovoked assault leading to a death - someone should go to jail. You'd struggle to find anyone here who would disagree, i feel.

 

[newyorkguy]

On 28 June 2010, a majority opinion of the Supreme Court stated (with my highlighting):
the Second Amendment protects the right to keep and bear arms for thew purpose of self defense...the Second Amendment right is fully applicable to the States. ...

This was my original point. June 2010. I said that the scope of the Second Amendment has been and is being expanded by recent court decisions.

No. Re-reading the sentence you truncated above might help you to understand why I quoted Thucydides...but I doubt it.

I think the real difficulty here is not that I'm truncating the sentences you posted -- I read them, it's only a few sentences, why would I quote the whole thing in the very next message? -- I think the real problem is I'm not agreeing with them.

Instead of me rereading them why you don't you help me understand why you quoted Thucydides? Can you explain why you did? What your point is?

That peoples who lived "as recently as 2450 years ago" all carried weapons. That this was their custom. So that somehow gives Americans the right to carry a gun? No I'm not getting that.

 

[newyorkguy]

Why not quote the Heller decision which affirms that individuals have the right to keep and bear arms?

All this wrangling over the militia clause is now moot.

This was my one and only original point: recent court decisions have expanded the right to bear arms. AKA the wrangling over the militia clause is now moot. Now as in "recent."

 

[The Norseman]

This was my one and only original point: recent court decisions have expanded the right to bear arms. AKA the wrangling over the militia clause is now moot. Now as in "recent."

When again did the militia clause first become an issue?

 

[W.D.Clinger]

On 28 June 2010, a majority opinion of the Supreme Court stated (with my highlighting):
the Second Amendment protects the right to keep and bear arms for thew purpose of self defense...the Second Amendment right is fully applicable to the States. ...

This was my original point. June 2010. I said that the scope of the Second Amendment has been and is being expanded by recent court decisions.

Yet you had to ask "When did the Supreme Court state clearly that Americans have the right to bear arms?"

I think the real problem is I'm not agreeing with them.

I think the real problem is you pretend not to understand whenever you disagree with what is being said.

Instead of me rereading them why you don't you help me understand why you quoted Thucydides? Can you explain why you did? What your point is?

I don't think I can explain much of anything to you. I also don't think I need to explain what I've said to anyone else, but if I'm wrong about that I'll be happy to explain myself to them.

 

[newyorkguy]

..."Neither is it in any manner dependent upon that instrument for its existence." What does that mean in a legal sense?

It means it is a right that exists in the common law.

I thought the right stems from natural law? I thought Cruikshank was referring to natural law?

Now we're back to common law.

 

[newyorkguy]

All this wrangling over the militia clause is now moot.

When again did the militia clause first become an issue?

Former Supreme Court Chief Justice Warren Burger (a conservative Republican) thought the militia clause was the operative clause.

The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen....We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word "because" was the opening word of the guarantee...Link

When did the militia clause first become an issue? I can't give you an exact date but it goes back a long way. One source says it goes back over 200 years:

Since its ratification, Americans have been arguing over the amendment's meaning and interpretation. One side interprets the amendment to mean it provides for collective rights, while the opposing view is that it provides individual rights. Link

 

[newyorkguy]

...I think the real problem is you pretend not to understand whenever you disagree with what is being said.

I don't know why you seem to expect everyone is supposed to agree with you. I could say the same thing to you. Only I don't because I don't expect everyone will agree with me.

Former Supreme Court Chief Justice Warren Burger (a conservative Republican) thought the militia clause was the operative clause....I can't give you an exact date but it goes back a long way. One source says it goes back over 200 years:

There's a LOT of disagreement here. I'm in pretty good company!