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April 15, 2018, 01:40 AM | #201 | ||
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Between one pole of asserting that anything touching the right is prohibited, and the other pole of asserting that any regulatory framework short of general prohibition there is an enormous grey area. Even a mature and well accepted right, that of speech, comes with some odious federal regulation that wasn't struck by Citizens United. If in the field of speech, the government can't prohibit speech in the lead up to an election, and you can say or publish nearly anything that doesn't cause a riot, there is some regulation, but you are 95% of the way to an unregulated right. That's not perfect application of the ideal, but it is pretty good. If speech sat at the other end of the spectrum and you and I had to undergo a government check before speaking or contributing to a political campaign, it would be fair to ask what right we really had. It wouldn't be a robust and substantial one. Quote:
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April 15, 2018, 02:11 AM | #202 | |
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It will be interesting to see the situation in Vermont unfold. A Vermont Supreme Court decision (State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903)) reading the Vermont Constitution's RKBA provision broadly effectively did away with carry permit requirements. But now, how far will the Vermont courts take matters as recent legislation is challenged?
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April 15, 2018, 05:30 AM | #203 |
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https://legislature.vermont.gov/asse...Unofficial.pdf
The latest VT bill talks about transfers of firearm "ownership" in relation to background checks. This seems to me to do away with the concerns about transfers of possession and what constitutes constructive possession. Doesn't matter as long as ownership doesn't change. This is in contrast to Senator Feinstein's latest effort at regulating "assault weapons." It requires background checks for transfers of possession with a few exemptions. One such exception is for target shooting "in a licensed target facility or established range." My wife's Ruger 10-22 has a telescoping stock, so it's an assault weapon under her bill. We've been shooting in my back yard for decades. Does that make it an established range? |
April 15, 2018, 11:38 PM | #204 | ||
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Two questions,
Is the use of this phrase.. Quote:
and is Quote:
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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April 16, 2018, 05:58 AM | #205 | |||||
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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. Quote:
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.
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April 16, 2018, 09:50 AM | #206 | |
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April 16, 2018, 09:59 AM | #207 | |
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One could map out a couple of very different ways that 11 year old decision could develop. On the other hand, it would be tough to see huge and likely changes in the main body of established 1st Am. doctrine.
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April 16, 2018, 12:59 PM | #208 |
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^^^
So you're actually saying that it's the 2A / RKBA jurisprudence that hasn't matured as much as 1st Amendment jurisprudence has, not that the 2A right is significantly less mature than 1st Amendment rights. I agree with you on that. |
April 16, 2018, 02:54 PM | #209 |
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Aguila, that's exactly correct. The individual right has a long history, but before Heller if you asserted that the right is held by the individual, you were open to the Big Lebowski retort.
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April 16, 2018, 08:28 PM | #210 | |
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April 16, 2018, 08:42 PM | #211 | |
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The problem varies. It's little concealable pistols, or it's big unconcealable rifles. The solution is constant.
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April 17, 2018, 12:25 AM | #212 | |
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Could someone explain to me, if, and how, the
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I understand, and agree that the ruling negates the argument that we only have a right to militia weapons, as I see it, by ruling the core of the right to arms is independent of militia service, isn't that IN ADDITION to our citizen's right to arms suitable for militia use?? If not, why not? It seems there are two opposing ideas at work here, Everything that is not prohibited is permitted Everything that is not permitted is prohibited I do not see how anyone can apply either of these two principles differently to different things, without being deliberately deceitful. (aka lying ) The biggest irony of the "assault weapon panic" to me, is that the government, led by the gun banners, virtually created the situation they most feared, making these weapons popular and mainstream. And that was well before the current attempt to define virtually every semi automatic as an "assault weapon". ARs, FALs, H&Ks and a few others were on the civilian market from the early/mid 1960s on. They weren't all that popular. Sales were steady enough, but not large, and no where near dominating the market. Until they tried to ban them. So, here we are now, with a lot of people doing their best to restrict, regulate, and ban what they call "weapons of war that have no place on our streets" and yet we have the 2nd Amendment saying that if anything is an arm that people have a right to keep and bear, it IS those same "weapons of war". Their counter argument was that the right to those militia weapons only applied if you were in the militia... The Heller decision stated that the right exists independent of militia service. So, militia suitable weapons (military style arms) AND everything else, including sporting arms that could be used for personal self protection, I realize the anti-gun people want us to have neither, but under existing law don't we have a right to BOTH??? Why aren't we making this point, as well??
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April 17, 2018, 03:14 AM | #213 | ||||
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https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Quote:
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April 17, 2018, 09:34 AM | #214 | ||
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44, Aguila answered you opening question so well that I can't imporve on it. instead, I would address your closing questions.
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Concealed carriers are statistically less prone to crime than POs, and the hysteria about concealed carry translating into frequent shootouts over triva turned out to be just hysteria, so that end of the argument seems reasonably well consolidated. ARs and other rifles are used so infrequently in any kind of crime that a general sort of shyness about the right to have them doesn't rest on crime stats or COTUS language. There is a school of advocacy, the beauty school of advocacy, that goes for the easiest achievable goal without taking the underlying principle to any logical end. Gura did quite a bit of that. His argument for Heller was audacious in claiming an individual right, but modest in application. He just wanted to overturn DC's categorical denial of a permit to keep an operable pistol at home. No machine guns, no barrett .50, no street sweeper, not even a shoulder thing that goes up. Gura didn't even dispute DC subjecting the right to licensing. His modesty made it easier for five to say "yes". That modesty frustrated some people, but Gura was right given his circumstance. That beauty school of advocacy isn't the only way to argue the issue, and it isn't even the way Gura explained the issue in the wake of Heller. Public advocacy isn't necessarily about looking good or sounding good to people who don't really think you have a right; it can include arguing that you do have the right and expanding its application. None of the following is presented for its political substance, but for the pattern in which substance is argued. Roe v. Wade did not announce an unrestricted right. It included a series of balancing tests about state interests and when the state could interfere. It took additional litigation and sympathetic justices to bring about the current state. Illinois National Socialists are the bumpstocks of free speech, but advocates made the point that a right that doesn't protect the ugly and the hated from government power is hardly worthy of the name. Some people stress the beauty school instinct to put on make up it and smile and sell what people will already buy, and there is a place for that. There should also be a warts and all public educational function equivalent to the observation that it is ugly to let Illinois National Socialist march through a jewish neighborhood, but it's even uglier to not let them.
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April 17, 2018, 09:46 AM | #215 |
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To zukiphile's summary I would just add that if we look at the second portion of the Heller decision I quoted above, with respect to licensing we should read what it says. Mr. Scalia did NOT write that a licensing scheme is constitutional if not applied arbitrarily and capriciously. He wrote, "...the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement."
'Does not address." That means the Heller decision doesn't say that licensing is constitutional ... or that it isn't. That means, "That's a question for another day, thank you very much," and it runs parallel to his other throw-away statement about "other, presumptively lawful, regulations." It's the latter that any number of district and appellate courts have used to uphold anti-gun laws without subjecting them to any level of scrutiny, claiming that Heller made them all kosher, when the "presumptively lawful" language was really another way of saying, "We're not looking at those today, so we'll just presume they're lawful until each has its own day in court." |
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