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Old February 1, 2013, 12:16 PM   #285
Spats McGee
Join Date: July 28, 2010
Location: Arkansas
Posts: 6,869
Originally Posted by Alabama Shooter
Originally Posted by Spats McGee
The RKBA is a constitutional right. It's a civil right. It's a fundamental, individual right. It's just not subject to being violated in the way that you supposed.
While I disagree on the one hand I think I can continue in that vein on the other.
I'm not entirely sure which part you disagree about. On the nature of the RKBA, I'm just telling you what SCOTUS has said:
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 592, 128 S. Ct. 2783, 2797, 171 L. Ed. 2d 637 (2008)
. . . .we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, . . . . or as we have said in a related context, whether this right is “deeply rooted in this Nation's history and tradition,” . . .

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)(internal citations omitted)
Individual right. Fundamental right. It's not a criminal right (such as against unreasonable search and seizure (A4) or compelled self-incrimination (A5)). It's not a contract right or a property right, so it must be a civil right, correct?

Or do you disagree with my proposition on who may violate such a right and how it may be violated?

If that be the case, go back and look at the language of 42 USC 1983 that I posted. It's very clear on the "color of law" language. As I said earlier, I've spent ~7 of the last 10 years in civil rights litigation. Specifically, I've defended cities, their officers and agents from lawsuits. Virtually every federal lawsuit I've ever defended has been brought under s1983, in conjunction with some other constitutional provision.

Let me try another example.
Originally Posted by Alabama Shooter
. . . .individual (or a company or a municipality, whatever) . . . .
This is actually a critical distinction. The rights that you may have in relation to other persons or entitites depends, in part, on the nature of the entity in question. I know that you hate hypotheticals, but I want to illustrate the distinction between private and non-private violation of rights.

Example 1: Four guys burst through my door in the middle of the night, armed with shotguns and Glocks. Nobody is home, but they rummage through my stuff, and take some guns of mine.

Example 2: Exactly the same as Example 1, except that the four guys are police officers. They do not have a warrant.

Example 1 is a burglary, but it's not a violation of my A4 right to be free from unreasonable search and seizure. Example 2 is a possible A4 violation. Why? Because the guys bursting through my door are agents of (acting on behalf of) the government. The four guys in Example 1 cannot violate my A4 rights. They may have violated a bunch of my other rights, but not the A4.

Originally Posted by Alabama Shooter
When I lease a house for rent what do you suppose I do before that?

When I hire someone to be my personal nanny, security guard, nursemaid; what do I do before I let them do that?

Is it a violation of their civil rights to ensure that someone is not unqualified To make sure that they are a bona fide and not child molester or felon before hand? Remember as individual (or a company or a municipality, whatever) I can not legally discriminate on for these things. To do so would be a violation of their rights.

Can the state require that all security guards and nurses and child care workers have a background check for any position? Is this a violation of civil rights? Provided I do it the same way every time?
In your examples, you're back to housing and employment (CRA of 1968). That's a different kettle of fish from the RKBA. Since you've asked the question, though, I'll see if I can sort some of it out for you.

As a general proposition, it would not violate someone's civil rights for the state to require someone to prove their qualifications to perform the essential functions of a job before they may hold a license to do so. Having a clean record, absent of any convictions for child abuse, child endangerment, child molestation, etc., is a perfectly valid requirement to have a license to run a day-care center or a nanny's license (if they have those), for example. It's also unrelated to any membership in the protected classes.

However, job requirements, background checks, and licensing requirements could be tricky. For example, if the background check that I want to run on someone checks for "arrests" rather than "convictions," that can be problematic. Why? Historically, minority groups have gotten arrested more than whites. That means that if I reject a protected-class applicant for having more arrests (but not convictions) than another non-protected applicant, and get sued, a court could conclude that because minority groups get arrested more often than whites, I'm simply using "arrests" rather than "convictions" so that I have an excuse to not hire minorities.

For RKBA purposes, though, the courts will stick with the framework already established. While employment discrimination laws are rooted in constitutional law (as all laws need to be), they follow a different analysis.

Originally Posted by j3ffr0
. . . . Every nut that runs loose with a gun is a poor reflection on the rest of us. . . . .

Originally Posted by j3ffr0
. . . .The only people that background checks will hurt are people who shouldn't really have a gun in the first place. . . . .
I wholeheartedly disagree. The NICS system is already backlogged, and it will only get worse if universal checks are instituted. I have this sneaking suspicion that somewhere, there's a divorced woman with a stalker of an ex-husband who really needs her gun today, rather than in 3 days.

Originally Posted by j3ffr0
. . . . I live in VA. The govt already has an inventory of every firearm I bought from a dealer. The form is filled out every time I buy a gun, and it's fine by me. . . . .
Just because you are fine with the government having all of your information, doesn't mean you have my permission to give it mine.

Originally Posted by j3ffr0
. . . .It's true that laws don't stop people from committing crimes. If that was the case their would be no murder. However, that doesn't me there shouldn't be a law against murder.
That's not a great example. The law against murder doesn't put any affirmative duty on law-abiding citizens. The only thing I have to do to comply with the law against murder is to not kill anyone. I think we all know that violent felons who want guns will not go through background checks. That being the case, why make law abiding citizens jump through more hoops?
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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