Another Second Amendment win in California

[Trakar]

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.

I thought I was acknowledging that I was agreeing and expanding upon the perceived intent of your emoticon, apologies if that did not translate well.

As to the legal definitions they are many and varied, as well as generally constantly undergoing revision and reinterpretation, not that this is necessarily a bad thing, but rather that such are generally vague and moving targets.

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.

My first response would be to say that as you apparently misinterpreted what I was trying to say, it is not surprising that you have constructed improper deductions from that misinterpretation. The primary difference being that when there is a reasonable clear display of an actual physical threat (eg. the individual brandishing a firearm and actually threatening personal harm and injury) we both view as "acceptable self-defense" as a reasonable response. It is when the threat is much more subjective and potentially abstract that we seem to disagree. IOW, just because I don't trust, or feel suspicious about the behavior of another individual, even if they are shouting at me and talking about what they do to people like me, I don't feel that this alone should give me the right to pull out a gun and shoot them, or even continue to walk up on them confident that I could pull a gun if their words turn to actions. IMO, the proper action is to de-escalate the situation and avoid that individual. The only time you pull a weapon is immediately prior to using that weapon, and you only do that when you have no other option in the preservation of your own life or the life of someone else who has no other option.

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.

Though my explanations, have now, and in the previous posts clarified my position,...in actuality, when simple robbery is the primary motivation the only time you and others (innocent and guilty) around you are most likely to get hurt, is when you resist and try to protect the $27 dollars in your wallet with your life. I would be very likely to never pull my gun in such a situation, at least not until after I had handed over my money and it looked like robbery alone was not their game.

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
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.

I'm not sure what you are arguing in this example, should the attacker who felt threatened by the racial slur and insulting language of the dead man been found innocent by way of self-defense? or should the dead guy have pulled out a gun and started shooting at the three people who argued on a crowded street with him because he felt threatened after he initiated the exchange by trying to tell them what they should and should not be doing?

Striking the dead man was a bad choice, complicated by the fact that he actually died from what looks like a wild "girlish" swing. Manslaughter with jail time actually seems rather harsh for this incident, but it is hard to say without knowing all of the details, and I wouldn't be inclined to second guess the judge in this case. Most manslaughter cases are issues of negligence, without compounding factors they typically result in probation and possibly counseling, in this case something like anger management and impulse control would seem fitting.

 

[Cylinder]

I thought the right stems from natural law?

But that's not the question you asked.

What does that mean in a legal sense?​

The answer to that question is that it exists in the common law (i.e. by custom and practice.) That the custom originates (in some people's opinion, at least) in natural law is immaterial to the question of the authority cited. Our system would look vastly different if there were a judicial enforcement of natural law over the common law.

 

[newyorkguy]

But that's not the question you asked.

What does that mean in a legal sense?​

The answer to that question is that it exists in the common law (i.e. by custom and practice.) That the custom originates (in some people's opinion, at least) in natural law is immaterial to the question of the authority cited. Our system would look vastly different if there were a judicial enforcement of natural law over the common law.

First I want to ask you, if you disagree with the notion of 'natural law' conferring this right -- being that the past two days many people argued precisely that (the Second Amendment didn't grant the right it recognized that the right existed under natural law) -- why haven't you stated that? Why do you seem to be only going after me?

But my understanding is, common law does not refer to custom and practice. It refers to judicial rulings, to case law.

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people...Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Link

 

[Bardy]

I thought I was acknowledging that I was agreeing and expanding upon the perceived intent of your emoticon, apologies if that did not translate well.

As to the legal definitions they are many and varied, as well as generally constantly undergoing revision and reinterpretation, not that this is necessarily a bad thing, but rather that such are generally vague and moving targets.

Fair enough.

My first response would be to say that as you apparently misinterpreted what I was trying to say, it is not surprising that you have constructed improper deductions from that misinterpretation. The primary difference being that when there is a reasonable clear display of an actual physical threat (eg. the individual brandishing a firearm and actually threatening personal harm and injury) we both view as "acceptable self-defense" as a reasonable response. It is when the threat is much more subjective and potentially abstract that we seem to disagree. IOW, just because I don't trust, or feel suspicious about the behavior of another individual, even if they are shouting at me and talking about what they do to people like me, I don't feel that this alone should give me the right to pull out a gun and shoot them, or even continue to walk up on them confident that I could pull a gun if their words turn to actions. IMO, the proper action is to de-escalate the situation and avoid that individual.

Yeah, not quite the message i took from your previous posts, but again fair enough. Based on your clarification we're not that far apart on thinking. If someone tells me they're about to kick my butt, then the correct response is indeed to try to remove myself from the situation if possible. If i feel they're about to actually follow through on the threat, then things possibly change.

The only time you pull a weapon is immediately prior to using that weapon, and you only do that when you have no other option in the preservation of your own life or the life of someone else who has no other option.

Again, no problem with this. The sticky details come in deciding when a person actually has a reasonable fear that their life is in danger. As the Zimmerman case highlighted, individuals perceptions on when they are in mortal danger can vary quite wildly. If I misinterpreted your posts it's only because i've read so many on this forum that imply the only time you can be reasonably in fear of your life is when someone has a gun to your head and you see their finger pulling on the trigger! It makes me slightly sensitive

Though my explanations, have now, and in the previous posts clarified my position,...in actuality, when simple robbery is the primary motivation the only time you and others (innocent and guilty) around you are most likely to get hurt, is when you resist and try to protect the $27 dollars in your wallet with your life. I would be very likely to never pull my gun in such a situation, at least not until after I had handed over my money and it looked like robbery alone was not their game.

I'm aware that any kind of resistance brings with it all kinds of risks, just as submission does. I think the individuality of each mugging / whatever makes discussions of appropriate reactions difficult. I think the point that I am trying to make is that in a situation where the commission of a crime has led to an armed response, my reaction is not to ask 'what could they have done to avoid responding with force?' but rather 'did they legitimately feel threatened?'. Shooting an unarmed man 30 feet away because he said he was going to go home, get a bat and come beat you with it that evening would clearly not be appropriate, but i'm not going to argue with someone who claims that while being mugged at knifepoint he felt he had no option but to shoot. In a situation where a crime has been met with an armed response, the benefit of my doubt goes to the victim of that crime.

I'm not sure what you are arguing in this example, should the attacker who felt threatened by the racial slur and insulting language of the dead man been found innocent by way of self-defense? or should the dead guy have pulled out a gun and started shooting at the three people who argued on a crowded street with him because he felt threatened after he initiated the exchange by trying to tell them what they should and should not be doing?

Sorry, I probably should have clarified that the main point of the link was the demonstration that a single punch can be lethal, rather than the circumstances surrounding the whole incident. Again, this is in response to the general feeling that a person with a gun can only feel threatened by someone else with a gun. I probably could have dug up a better link, but it's late

 

[Trakar]

Fair enough.

Individual circumstances and considerations always modify behavior, but we seem to be close enough in our understandings of each other, and do not seem to have a great gulf between our thoughts on this issue, but it is always good to make sure where everyone stands and I appreciate that you seem to agree with that process.

Cheers! time for my evening nightcap.

 

[Cylinder]

First I want to ask you, if you disagree with the notion of 'natural law' conferring this right -- being that the past two days many people argued precisely that (the Second Amendment didn't grant the right it recognized that the right existed under natural law) -- why haven't you stated that?

I accept the philosophy that the right to bear arms in self defense is a natural law right. The philosophical founders would have agreed with those asserting that it was protected by our constitution because it was a pre-existing, natural law right and would have disagreed with the notion that the constitution created rights.

Long story short, raise a group of people on an island without any cultural references from which to draw, somewhere, sometime, someone will gather the understanding that the tiger that lives next door has 4-inch razors and they will have to adapt something to defend against those. Pointy stick -> pointy stick that flies through the air powered by tension -> piece of metal that flies through the air powered by a chemical reaction.

But my understanding is, common law does not refer to custom and practice. It refers to judicial rulings, to case law.

Case law is part of the common law - it's the custom and practice of the previous courts. Your cite explains this concept:

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people...​

That still exists, though our legal system relies much more heavily on statutory law and case law because of some intervening history but it's not at all uncommon to see the common law history of a subject examined by the court. For instance, in deciding if a particular firearm regulation in consistent with the 2nd Amendment, courts will often examine the customs and practices of early Americans. That would be a case of a common law examination or interpretation.

The reason the police can justify a probable case search without warrant on your vehicle but almost never can on your home is our common law practice of our home being the place where an expectation of privacy is almost absolute. The reason the police can knock on your door and develop probable cause from that transaction is the custom and practice of entry doors being a place where the public would likewise be permitted to intrude. Those are common law interpretations of the right of privacy.

One reason rulings on electromagnetic spectrum searches can be so schizophrenic is that there is very little common law history to guide courts. Like the odor of marijuana, for instance, it propagates to areas where no expectation of privacy exists but the content, when compared to previous methods of communicating similar content, would clearly fall under some expectation of privacy.

 

[3point14]

Sorry, went away and people gave me some excellent answers.

Thank you, and I'll try to respond where I can.

 

[The Norseman]

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

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:

There were no sources listed in that article; it was an opinion piece. I was hoping that you'd have quoted some founder(s) and/or contemporaneous sources.

 

[WildCat]

There were no sources listed in that article; it was an opinion piece. I was hoping that you'd have quoted some founder(s) and/or contemporaneous sources.

I've been asking nyg and Mudcat that same thing this entire thread. So far not one single cite from anyone in the early days of the USA who thought there was no right for private individuals to keep and bear arms for self defense.

 

[newyorkguy]

I accept the philosophy that the right to bear arms in self defense is a natural law right...

What are the natural laws? Is the right to armed self-defense the only one? Are there others? What are they? You claim they exist but where?

There were no sources listed in that article; it was an opinion piece. I was hoping that you'd have quoted some founder(s) and/or contemporaneous sources.

An opinion piece, yes, by a former U.S. Supreme Court Chief Justice.

 

[The Norseman]

I've been asking nyg and Mudcat that same thing this entire thread. So far not one single cite from anyone in the early days of the USA who thought there was no right for private individuals to keep and bear arms for self defense.

From what I remember, the so-called controversy over the 2nd amendment only began a few decades ago. For the vast majority of our country's history, there never was any doubt that it was a personal right as demonstrated by my quote-dump earlier.

 

[The Norseman]

An opinion piece, yes, by a former U.S. Supreme Court Chief Justice.

Unless you can back it up, it's now just an appeal to authority.

 

[newyorkguy]

Unless you can back it up, it's now just an appeal to authority.

Quoting a former U.S. Supreme Court Chief Justice is an appeal to authority.

I was hoping that you'd have quoted some founder(s) and/or contemporaneous sources.

Quoting a founder is not an appeal to authority. I think what's clear is, you have your mind made up about this and nothing is going to get you to budge.

From what I remember, the so-called controversy over the 2nd amendment only began a few decades ago. For the vast majority of our country's history, there never was any doubt that it was a personal right as demonstrated by my quote-dump earlier.

The way I remember it is, for most of our history the Second Amendment was seen as conferring a collective right, not an individual right. I have been listening to this debate for may years.

Many references have been made to Heller. Heller struck down a Washington D.C. law that had been on the books for thirty-three years. McDonald struck down a law passed in 1982. Why did it take so long? I have seen it argued -- and I agree -- it was because the political atmosphere had changed. That's what I'm arguing here. The political atmosphere has changed and the rights the Second Amendment confers are being expanded.

 

[The Norseman]

Quoting a former U.S. Supreme Court Chief Justice is an appeal to authority.

Without anything to back it up? What is this Justice's opinion based on? I'd like to know the historical records which support your position.

Quoting a founder is not an appeal to authority.

They wrote the damn thing that we're arguing over so no, it's not an appeal to authority.

I think what's clear is, you have your mind made up about this and nothing is going to get you to budge.

I've been following this for years, myself. I'm also comfortable with how I have changed my mind many times after being presented with evidence. You don't believe me and that's fine.

The way I remember it is, for most of our history the Second Amendment was seen as conferring a collective right, not an individual right. I have been listening to this debate for may years.

Post up some evidence, please.

 

[newyorkguy]

...Post up some evidence, please.

Evidence of what?

I'm saying by their existence Heller and McDonald prove that the courts have expanded the individual right to carry guns. Heller struck down portions of a 1975 law that restricted individual rights to carry handguns. McDonald found those rights extend to the states.

If these rights were already firmly established, it seems to me, these laws wouldn't have existed for over a quarter-century. There wouldn't have been any Heller and McDonald. They wouldn't have been necessary.

 

[Old man]

If these rights were already firmly established, it seems to me, these laws wouldn't have existed for over a quarter-century. There wouldn't have been any Heller and McDonald. They wouldn't have been necessary.

Segregation laws existed in parts of the USA as recently as the 1950s.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868.

From -
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

 

[Xulld]

Evidence of what?

I'm saying by their existence Heller and McDonald prove that the courts have expanded the individual right to carry guns. Heller struck down portions of a 1975 law that restricted individual rights to carry handguns. McDonald found those rights extend to the states.

If these rights were already firmly established, it seems to me, these laws wouldn't have existed for over a quarter-century. There wouldn't have been any Heller and McDonald. They wouldn't have been necessary.

Your critical errors of reasoning starts with the assumption that some mechanism existed to prevent unconstitutional laws from being placed on the books. It works the other way around, any old law can be made a law and it takes a challenge in court by someone harmed by the law to test its constitutionality, and often cases are not heard by the court, or wait a long time to be heard.

Supreme court cases are brought about because someone has challenged an existing law as unconstitutional, not because we decide to establish some new law and need our pet interpretation to be supported by the court.

Your argument is nonsense, sadly it is also a means to an end and thus the irrationality is ignored if it serves a purpose for many.

Those of us who truly support the constitution and do not pander to the USSC just to gain favor, or get our way care about the meanings of the amendment, and ask that the intentions of the founders not be ignored just because it suits your purposes.

You want the document to be about interpretation through your own set of biases, and that would render it meaningless.

 

[tyr_13]

What are the natural laws? Is the right to armed self-defense the only one? Are there others? What are they? You claim they exist but where?

Start reading John Locke, then proceed on to reading the works of Thomas Paine. You'll get a rough idea of the philosophy that the founders were employing regarding natural rights.

And again, the point is moot. Even if natural laws don't actually exist it is an assumption made by the documents. If they don't exist, the documents still behave as if they do. If not and it behaves as it seems you believe based on your criticisms then the entire document is invalid, not just the 2nd Amendment. That invalidates not just the right to self defense or to bear arms, but the whole host.

In practice it doesn't matter if the natural rights exist or are brought into existence through the social contract.

 

[newyorkguy]

Segregation laws existed in parts of the USA as recently as the 1950s.

This is one of the issues that comes up with interpreting the Constitution exactly as the Founding Fathers intended it to be.

Slavery existed when the Constitution, the Bill of Rights and the various Amendments were written. Women also did not have the right to vote or to serve on juries.

Was that part of the natural laws, too? I don't think anyone would argue ** we should reinstate slavery or deny women the right to vote. Although it is clear the Founding Fathers accepted the existence of slavery and did not think women should vote.

Anyway, my point is, this whole concept that we are bound by and have always been bound by what the Founding Fathers thought, is nuanced and murky. There's room for reasonable people to disagree.

** - Actually I do think people would argue we should reinstate slavery or deny women the right to vote. In fact I expect to see that argument here very shortly!

 

[Xulld]

This is one of the issues that comes up with interpreting the Constitution exactly as the Founding Fathers intended it to be.

Slavery existed when the Constitution, the Bill of Rights and the various Amendments were written. Women also did not have the right to vote or to serve on juries.

Was that part of the natural laws, too? I don't think anyone would argue ** we should reinstate slavery or deny women the right to vote. Although it is clear the Founding Fathers accepted the existence of slavery and did not think women should vote.

Anyway, my point is, this whole concept that we are bound by and have always been bound by what the Founding Fathers thought, is nuanced and murky. There's room for reasonable people to disagree.

** - Actually I do think people would argue we should reinstate slavery or deny women the right to vote. In fact I expect to see that argument here very shortly!

What makes you think that any honest assessment by any of the founding fathers would have revealed a belief that the nation's laws were in perfect alignment in regards to the philosophy of natural rights?

If one or more did would this belief be true, or false? What makes you think the belief (held or not held by a founding father) can reveal to us the truth or falsity of the idea?

That laws are created which violate the spirit of the constitution is all that matters in countering your claim that because Heller exists therefor new rights are created. Heller is recognizing that laws exist which violate that spirit, not that we have interpreted new meaning from the amendment.

NYG wants to say that the scope of the amendment has been expanded, but let me explain why that is nonsense without regards to his very confusing argument.

Laws restrict behavior. In absence of laws restricting a set of behaviors they are legal (as in no law, all is fair). In absence of a governing body to enforce such laws they have no power to effect a change in behavior. The constitution and the bill of rights where designed with the intention of limiting what the government could restrict. What the USSC has ruled on is a tiny subset of laws which interact with the bill of rights.

NYG wants to argue that because laws have been allowed to be created that restrict such activities therefor they were never really protected by the constitution to begin with. Ignoring that the constitution has no power to prevent unconstitutional laws from being written into law.

Just imagine for a moment how few laws we would have on the books if every single law had to pass constitutional muster before being placed on the books? Really shouldn't take long to figure it out really, how many times has a USSC resolution occurred? Now compare that to the total sum of all laws ever made.

Looking at the chart this data makes do you think you could even see the little tiny bar that represents the USSC rulings .vs the massive column representing the totality of all laws ever established? Or on a pie chart, how thin would the line be?

Kinda baffles me we are having this conversation.

Fun little hypothetical of a potential future USSC case: If a time machine existed and I went back in time to 1965 and bought a fully automatic weapon legally, and then came forward in time to today I might get arrested for having an unregistered fully automatic weapon. Then the USSC may decide to hear my case and may decide to create a further ruling determining how to deal with this new technology, that is time travel, in order to figure out how to rule in my case regarding the legality of owning a fully automatic weapon I bought before the ban, and subsequent requirement of registration. HOWEVER, none of this would have changed history (well short of me killing my father or something with the fully automatic weapon while in the past changing history and all that paradoxical stuffa, lol)