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Old April 15, 2018, 01:40 AM   #201
zukiphile
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Quote:
Originally Posted by 44 AMP
SO, it appears that there is a historical basis for the argument that unless a right (contract, pact, etc) is completely prohibited (broken, violated, etc) then it is not infringed.

Thereby leading to the conclusion that, using the understood definitions of the day, what the Founders meant by "shall not be infringed" was not, "shall not be regulated at all" but rather "shall not be completely taken away".
Emphasis added. I don't think that is what Al Norris' entries should suggest.

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:
Originally Posted by 44 AMP
Unlike a Universal Background Check law, which is made to affect every single gun purchaser and seller in the nation, every time a gun is bought and sold.

Everywhere, every time.

Tell me how that squares with "shall not be infringed".

I don't see that as treading on the edges at all. I see it as jumping right into the middle with size 12 hobnail jackboots.
That's colorful but fair. Requiring a thumbs up from the state looks less like a robust right and more like an act of legislative and executive grace bestowed for good behavior.
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Old April 15, 2018, 02:11 AM   #202
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Quote:
Originally Posted by zukiphile
...part of the function of the court is to contradict government acts that reflect unwholesome political and cultural enthusiasms that push the state beyond constitutional limits....
Well yes, that is defining the outer limit. So, for example, we could reasonably hope that ultimately the courts will define the outer limits of the government's constitutional power to regulate the carrying of guns in public to be some form of a "shall issue" permit plan. But with something like that as the outer limit there's nothing to prevent, given an amenable political and cultural climate, a State from going constitutional carry -- as a number have done.

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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Old 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?
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Old April 15, 2018, 11:38 PM   #204
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Two questions,
Is the use of this phrase..
Quote:
Even a mature and well accepted right,
meant to imply that the right to arms isn't ??

and is
Quote:
95% of the way to an unregulated right.
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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Old April 16, 2018, 05:58 AM   #205
zukiphile
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Quote:
Originally Posted by 44 AMP
Two questions,
Is the use of this phrase..

Quote:
Even a mature and well accepted right,
meant to imply that the right to arms isn't ??
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.

Quote:
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.
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.

Quote:
Originally Posted by 44 AMP

Quote:
95% of the way to an unregulated right.
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??
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.

Last edited by zukiphile; April 16, 2018 at 01:18 PM.
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Old April 16, 2018, 09:50 AM   #206
Aguila Blanca
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Quote:
Originally Posted by Zukiphile
Comparatively, the speech right is older and much more established.
Isn't this sort of like saying that a 65-year old veteran isn't "mature" if there's an octogenarian in the room?
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Old April 16, 2018, 09:59 AM   #207
zukiphile
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Quote:
Isn't this sort of like saying that a 65-year old veteran isn't "mature" if there's an octogenarian in the room?
I think of it more as saying that we are more likely to see significant development from an 11 year old than we are from a 100 year old.

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.

Last edited by zukiphile; April 16, 2018 at 10:52 AM.
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Old 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.
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Old April 16, 2018, 02:54 PM   #209
zukiphile
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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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Old April 16, 2018, 08:28 PM   #210
Aguila Blanca
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Quote:
Originally Posted by zukiphile
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.
And watching the RKBA jurisprudence mature is to have a ring-side seat to see irony in action. From Miller until Heller, the prevailing legal theory was that only firearms with a military purpose were covered. (There's that pesky militia clause at work.) Then along came Heller, and Mr. Scalia wrote that the "core" right of the 2A was self defense and unrelated to militia duty. So, from Miller until Heller we didn't have a right to a firearm unless said firearm could be construed to have a military (or, at least, militia) application -- and now they want to tell us we're NOT allowed to have certain firearms if they even look like military weapons.

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Old April 16, 2018, 08:42 PM   #211
zukiphile
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Quote:
Originally Posted by Aguila Blanca
From Miller until Heller, the prevailing legal theory was that only firearms with a military purpose were covered.
Back when "Saturday night specials" were the problem and only criminals needed pistols? Those memories are doubleplus ungood, citizen. Move along.

The problem varies. It's little concealable pistols, or it's big unconcealable rifles.

The solution is constant.
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Old April 17, 2018, 12:25 AM   #212
44 AMP
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Could someone explain to me, if, and how, the
Quote:
Heller
decision negates our right to militia weapons??

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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Old April 17, 2018, 03:14 AM   #213
Aguila Blanca
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Quote:
Originally Posted by 44 AMP
Could someone explain to me, if, and how, the
Quote:
Heller
decision negates our right to militia weapons??
It doesn't, but lower and appellate courts are using it to do so. The problem is that Mr. Justice Scalia wrote that the "core" right protected by the Second Amendment is a right to have an operable firearm for self defense. He also wrote that this right is not connected with service in a militia.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Quote:
1.
The Second Amendment protects
an individual right to possess a
firearm unconnected with service in
a militia
, and to use that arm for
traditionally lawful purposes, such
as self-defense within the home.
Quote:
3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelming ly choose for the
lawful purpose of self-defense. Under any of the standards of scru-
tiny the Court has applied to enumerated constitutional rights, this
prohibition—in the place where the importance of the lawful defense
of self, family, and property is most acute—would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense
and
is hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbi-
trarily and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home.
SO now the anti-gun side has done an about face. Now, instead of claiming that we are only allowed to own guns that have a military usefulness, they're saying we CAN'T have any guns that are military-ish, because the 2A "only" protects a right to keep a hand gun in the home. That's not actually what Heller said at all, but that's what they're saying it said.
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Old April 17, 2018, 09:34 AM   #214
zukiphile
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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.

Quote:
Originally Posted by 44 AMP
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???
I believe that is the correct meaning. The COTUS says "keep and bear arms", not "keep and bear only concealable self-defense" or "keep and bear only skeet equipment". The phrase is catholic.


Quote:
Originally Posted by 44 AMP
Why aren't we making this point, as well??
Those eight small words make a large question. I'll get to an answer by the end.

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.

Last edited by zukiphile; April 17, 2018 at 09:39 AM.
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Old 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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