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Old April 8, 2013, 04:31 PM   #39
Aguila Blanca
Senior Member
Join Date: September 25, 2008
Location: CONUS
Posts: 9,684
Originally Posted by Tom Servo
Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
The same place the 1st Amendment discusses shouting fire in a crowded theater, and in which the 4th Amendment discusses wiretaps.
Not a perfect, or even good, analogy.

The 1st says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Even after we accept incorporation and read "Congress" to include the state legislatures, the 1st still says only that the gummint shall not enact a law abridging the freedom of speech. Your example of yelling "FIRE!" in a crowded theater is NOT illegal. In fact, if I were a theater patron and I discovered a smouldering fire in a corner and yelled "FIRE!" in time to empty the place before it burned to the ground, not only would I not have broken any laws, I would perhaps be hailed as a hero.

But freedom carries responsibility. While it is not against the law to yell "FIRE!" in a crowded theater, if one does so when there is no fire, for the purpose of inciting panic, THAT is illegal and the yeller simply is asked under the law to accept the responsibility and consequences of his/her action.

4th Amendment. Wiretaps? Wiretaps are searches. They require warrants. What's the issue?

Originally Posted by Tom Servo
Like it or not, there have always been limits on our rights.
So now we come to the 2nd Amendment. Your argument that our rights have always been subject to limits sounds eerily like what Frank Ettin has told me in the past. (I guess you moderators do talk to one another.) My response is that judges are human, and the fact some rights may have been limited in the past doesn't mean the limits were/are constitutional, it just means they haven't yet been declared UNconsitutional.

I like to compare the 2nd and the 4th Amendments. The 4th Amendment specifically says we are to be secure against "unreasonable" searches and seizures. This opens the door -- if we are secure only against UN reasonable searches, then some searches must be reasonable, and it then falls to the courts to determine where to draw the line between reasonable and unreasonable. Fine. I get that.

But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there. The 2nd Amendment is an absolute prohibition on infringement of the RKBA. And "regulation" equals "infringement."And this is why I agree with rajbcpa. Justice Scalia wrote what he wrote and we're stuck with it, at least for now, but I have the temerity to propose that he was flat-out wrong. A true strict constructionist would have to acknowledge that there is simply no room under the language of the 2nd Amendment to argue that the RKBA can be subject to any degree of regulation, of any degree of reasonableness.
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