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March 29, 2013, 09:33 PM | #26 | |||||||||
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Let's start with the fact that one is owned by the church and the other is not? I promise, I'm not being as snarky as that might come across. It's actually a critical distinction. (Footnote 1) So what does that mean for a no-guns-in-church law? It means that the retail establishment is unaffected by the no-guns-in-church law (unless it doubles as a place of worship). Folks who want to CC into the retail establishment? Also unaffected by the no-guns-in-church law, because the retail establishment is not a church. One legal consequence of that is that the retail establishment lacks standing to challenge such a law. If a church wants to challenge such a law, it will have to show that it has standing. In order for anybody to challenge a given law, that (potential plaintiff) must have standing. So we need to talk about standing for a moment. One of the elements of standing is that there has to be an actual controversy in regards to the law. The retail store, above, has no actual controversy under the no-guns-in-church law, because it's unaffected by it. The church might have an actual controversy, but in order to establish such a controversy, I submit that it will have to demonstrate that carrying guns in church is a bona fide religious belief held by that particular church. This is a First Amendment analysis, not an Equal Protection analysis. If you want to discuss whether church-owned private property and other property should be treated "equally under the law," that appears to fall under the Equal Protection Clause of the Fourteenth Amendment, and is a separate analysis. For that one, the one challenging the law would need to demonstrate that he (or she, or it) is similarly situated to other entities in all relevant aspects (Footnote 2), and is being dissimilarly treated to his disadvantage. [Footnote 1: Mind you, there are certain stores, such as Hobby Lobby, that (at least claim to) have integrated a belief system into their corporate structure so as to be able to claim religious exemptions, but those are the exception rather than the rule. Footnote 2: I'm not entirely sure how SCOTUS has phrased that test under something like this, but that ought to be pretty close.]
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March 30, 2013, 01:35 PM | #27 |
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But those restrictions are made because of the supposed religious beliefs of the groups affected.
If churches are perceived as pacifist havens where no instruments of violence should be allowed and government passes a law to universally enforce that policy, is that not promoting a religious view (whether it is correct or not)? Are you saying that religious organizations can be singled out for any kind of restriction as long as it does not directly affect religious practice? Could a government body pass a series of nuisance laws aimed at all places of worship in order to have a chilling effect on the practice? What if those laws were instead aimed at all publishers? Would that not constitute an attempt to infringe on a free press? |
March 30, 2013, 02:59 PM | #28 | |||
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March 30, 2013, 04:34 PM | #29 |
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Not to veer this too far off-course, but I recall reading that some of the Sikh faith will settle for a decorative dagger that is basically spot-welded in the sheathed position. IIRC, that related to a NY case/decision.
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March 30, 2013, 05:50 PM | #30 | |
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What is the secular reasoning for prohibiting guns in church? |
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March 30, 2013, 07:21 PM | #31 |
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There will always be tension between religious freedom and ostensible governmental desire to protect and serve the greater good. Defining freedom is a tricky thing. There are many things endorsed by various religions that are not legal in our country, and there are many others that are absolutely forbidden by some religions that are perfectly legal. It will always be so.
On topic, I believe strongly that I have a God given right and responsibility to protect myself, my loved ones, and those who cannot protect themselves from evil. I also understand that freedom of religion does not give me license to violate the established laws of the land whether I believe in them or not, without facing the consequences. My beliefs and affiliation does not give me special rights or privileges, and neither does yours.
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March 30, 2013, 07:22 PM | #32 | |
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To get to the bottom of the secular reasoning for a particular law, we'd have to go to the legislative record, and see what the legislators actually said. Or if there are any codified legislative findings, we could look there. I don't have access to any such materials from home (& don't honestly don't know if I could get them at work).
However, some possible reasons: 1) Many churches have day care centers. It is just as dangerous to have guns around small children at churches as it is secular schools. Accordingly, guns are prohibited from churches. 2) Churches, synagogues and other places of worship are traditional forums for peace and tranquility. The carrying of firearms would be disruptive to other people desiring such peace and tranquility. Accordingly, guns are prohibited. Take a quick look at the other side of the coin. I said earlier that the A1 Quote:
What would be impermissible would be for Congress to exempt (for example) Roman Catholic charities, or Buddhist charities, or charities of one other particular faith, to the exclusion of others. Or to give one group a larger tax advantage than others.
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March 30, 2013, 07:41 PM | #33 | |
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It was also the plan of folks opposed to concealed carry to ban as many places as possible. That would make carry such a pain that few would do it.
Libraries, theaters, etc. - these would have surface validity to ban as you don't want to disturb the peace. The surface validity of having God protect in the house of worship or not insulting God (who probably could take care of that by turning Open Carriers into pillars of salt) or not disturbing the peace of prayer would be used to convince folks to support such a ban. The real motive was to make carry annoying. It is my belief (based on my great experience in Constitutional law ) that the text part of the First: Quote:
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March 30, 2013, 08:06 PM | #34 |
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And to play the Devil's Advocate, . . . The other side of that is the argument that unless carrying that firearm is central to the actual exercise of your religion, prohibiting you from carrying it does not infringe upon (much less prohibit) the free exercise thereof.
That's what makes this interesting. The Sikhs have a clear element in their belief system that at the very least requires the carrying of the kirpan. Whether that stretches to the polymer semiauto pistol. However, even if an argument that support the carrying of a weapon exists for other religions (as Aquila Blanca pointed out), I can think of no other in which the carrying of a weapon is so conspicuous and central.
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March 30, 2013, 08:59 PM | #35 |
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In addition there are already laws on the books that recognize that wearing a Kirpan is a federally protected right. http://sikhcoalition.wordpress.com/2...irpan-at-work/
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March 31, 2013, 12:01 AM | #36 |
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Spats, this is where my point comes in. There are precedents for other religions seemingly popularized for the purpose of getting around a law. If a new religion were to spring up and become popularized saying that we must have a weapon in reach at all times, would it be permissible?
I think the way to look at it is to go to the furthest extreme and then decide what we're looking at. We know that certain religions are allowed to carry a weapon. Are any religions allowed to open carry automatic weapons and destructive devices? If no, how about to own or concealed carry? What about open carry of a semi automatic weapon? What if the religion specifically states that you must make use of the best available weaponry? |
March 31, 2013, 06:37 AM | #37 |
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dakota.potts, I don't know about any "religions seemingly popularized for the purpose of getting around a law," but that doesn't mean that they're not out there. It really just means I'm unaware of them.
As for the rest of the "what if," I don't know. If a member of said "new religion" wanted to challenge a law, my best guess would be that the member had best be prepared: 1) to go to jail; 2) to go to jail for a long time; 3) to lose the challenge (thus staying in jail and losing gun rights forever); 4) to expend a great deal of money on legal challenges, both civil and criminal. Could a member of such a religion win? I don't know, and figuring it out is much more than I can answer in an internet post. The devil is in the details, and I'd likely have to interview several members of the religion, including the member challenging the law and his or her clergyman, as as well as spend several hours researching the law on state and federal levels.
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March 31, 2013, 09:00 AM | #38 | |
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As a layman, it seem to me Spats has pretty well laid out the probable results of such an attempt, though. |
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March 31, 2013, 12:06 PM | #39 | ||
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I like to think I'm a reasonably intelligent guy, but these legal issues really baffle the hell out of me sometimes, particularly those those that seem to show a disparity in application (such as the difference in treatment of the religious establishment and free exercise clauses, or how the 2nd has been completely twisted beyond recognition over the years). I do appreciate those legal minds on the board (Spats and others) trying to sort it out for us mere mortals. |
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March 31, 2013, 01:38 PM | #40 |
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Thanks for the great answer nonetheless, Spats. When you list those things that a religious person should prepare to do to change a law, do you believe this Sikh man should be preparing himself for those things/already is?
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March 31, 2013, 02:35 PM | #41 |
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If you're going to challenge criminal laws, you don't have to wait to be prosecuted, but there must be some reasonable threat that you could be. (ATM, I don't remember the exact wording.) As part of the pleading, the plaintiff will have to say:
1) I am prohibited by law from doing X. 2) I would very much like to do X. 3) Were X not illegal, I would do it. IOW, the plaintiff has to make a statement under oath that he wants to break the law. The other way to challenge a criminal law is to go break it, and challenge in as part of your defense. Do I think the Plaintiff has prepared himself for one of the things I've listed? Yes, I do. Constitutional challenge to a federal law is long, expensive, and not risk-free.
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April 1, 2013, 12:59 PM | #42 | |
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Seams like once we the people give what, at the time, seams like a reasonable inch and "they" take the unreasonable mile we can only get that mile back one inch at a time. No spelun and grammar is not my specialty. So please don't hurt my sensitive little feelings by teasing me about it. |
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April 1, 2013, 01:30 PM | #43 | ||
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Certainly, we would object to a state law permitting the state to engage in prior restraint of speech if spoken at a church. Requiring a fellow to suspend his right as described in the Second Amendment while he attends church imposes a burden on that First Amendment right as well as the Second Amendment right. Quote:
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