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Originally Posted by 44 AMP
Two questions,
Is the use of this phrase..
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Even a mature and well accepted right,
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meant to imply that the right to arms isn't ??
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While the right predates the country, our judicial recognition of it as an individual right is quite young. If you visited a law school in 2006, I bet you'd have found lots of people arguing that it just means that states are allowed to maintain national guard units. The inertia from that error isn't defeated. Where Frank makes reference to resistance to the language of Heller and McDonald in the judiciary, he notes something quite real.
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Originally Posted by Frank Ettin, in a different thread
But a lot of other judges, while they claim to be following Heller and McDonald have been applying what I think are spurious readings of those cases. Heller and McDonald were dramatic rebukes to what was, until those cases, dogma.
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https://thefiringline.com/forums/sho...5&postcount=42
Comparatively, the speech right is older and much more established. Not even the most dense legislator thinks a law requiring all speech to be pre-approved by government would survive challenge. We have so many cases pounding the meaning of "shall make no law" into public consciousness that even people who don't really believe it know that they are supposed to say that they favor free speech. We still have cases about free speech, but they are on the periphery of the right, like whether a public employee who doesn't belong to a labor union needs to pay agency fees to the union he didn't join.
Yes, we do have speech regulation, but for almost all of us almost all of the time, our experience with the right is not subject to regulation. So, one might describe that as regulated, but 95% unregulated.
I'd say few people have never had their 2d A. rights regulated in practice.
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Originally Posted by 44 AMP
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95% of the way to an unregulated right.
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like being 95% pregnant??
What I mean by that is, it seems to me that it has to be one, or the other.
doesn't it??
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Yes. There is probably a
Roe v. Wade joke to be had in this, but I've yet to get enough coffee. The percentage model might be more illustrative in the context of travel. If you were to drive from Miami to DC, you might have a sense of when you are 95% there.
Do you know many people whose federal campaign contributions are influenced by federal regulation? I know some, but the percentage of the population that writes thousands of dollars in checks for political campaigns is pretty small. Lots of people never write a check for more than a $100, and are never subject to prosecution for speaking too close to an election.
On the other hand, shooters who've had to fill out a yellow form are common because the supply network for newly manufactured arms is federalized (not federally owned, but federally licensed). Would we call that 95% unregulated?
My point in avoiding exclusive reliance on an all or nothing dichotomy is not to denigrate the ideal of freedom from any regulation, but to apply the ideal in a legal context that doesn't recognise any completely, 100% unregulated and untouched rights from government power. Even with an established right like speech, we have
a bit of give, and we don't conclude that since, for example, campaign contribution limits have been upheld and a single regulation is allowed,
therefore any regulation short of prohibition is allowed. that italicized portion is the step too far.