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June 18, 2008, 08:45 PM | #1 |
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2nd Amendment Regulation
The Heller decision thread (http://www.thefiringline.com/forums/...d.php?t=298718) brought an interesting question to mind, but it didn't seem to be within the topic of that thread so I've started this one rather than hijack the other one.
Just how far does the government have a right to regulate the posession and/or use of arms? My view is this, the government does have an extremely limited right to do so. Basically, I think it's OK to limit the rights of those who have violent criminal histories, chronically abuse drugs or alcohol (i.e. multiple offences), and those who have been demonstrated to be mentally unstable to the point of being a danger to themselves and/or others. I also think that it's reasonable to strictly regulate and/or prohibit weapons that are extremely difficult or impossible to handle/posess/operate safely such as chemical, biological, and nuclear materials as well as certain types (though certainly not all) of explosives. Beyond that, shall not be infringed seems pretty clear to me. I am interested to hear everyone's views on this subject. |
June 18, 2008, 08:50 PM | #2 |
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chronically abuse drugs or alcohol (i.e. multiple offences), and those who have been demonstrated to be mentally unstable to the point of being a danger to themselves and/or others
Well that excludes 90% of those in Washington D.C. at least the elected of appointed ones. let us not forget State capitals also.
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June 18, 2008, 09:09 PM | #3 | |
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June 18, 2008, 10:30 PM | #4 |
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Not my quote, but...I'd rather hunt with Dick Cheney than drive with Ted Kennedy.
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June 19, 2008, 09:13 AM | #5 |
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As I see it, the "shall not be infringed" wording inherently invokes the "super-strict scrutiny" standard of review, the most stringent standard which was laid out in the Near v. Minnesota case regarding prior restraint of publication as it pertains to the First Amendment. In that case, the only allowable prior restraint on publication could be during wartime, for obscenity, or incitement to acts of violence or forcible overthrow of orderly government.
As I see it, the "no infringement" wording radically limits the scope of any possible regulation of the right. Persons in actual physical custody of police, just as their physical freedom can be revoked by operation of the law, their possession of firearms can be revoked, for example. The lifetime ban on possession by even non-violent felons will not survive in its current form either. I see it as questionable as to whether a lifetime ban on even violent felons can endure. If the compelling government interest in banning violent felons is that they might re-offend, then the least-intrusive method that does not involve prior restraint of the Second Amendment right is to keep them in prison.
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June 19, 2008, 09:40 AM | #6 | |
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June 19, 2008, 09:54 AM | #7 |
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One of the problems with the felony exclusion is the notion that a felony then was something reserved for heinous crimes. Today, a felony has almost lost its meaning, since the various legislatures have made almost everything under the sun, a felony.
A valid argument can be made that only violent felonies should incur exclusion. Other forms of "restriction" will endure, as they will meet the strict scrutiny standard. NICS checks and firearms registration will meet the standard, for example. All of the above is necessarily premised upon how Heller is written. |
June 19, 2008, 11:12 AM | #8 | |
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June 19, 2008, 11:18 AM | #9 |
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For example, a man in Michigan who used a coffee shop's free, unsecured WiFi network to check his e-mail from the parking lot, without going into the coffee shop, was charged with a five-year felony.
http://news.cnet.com/8301-10784_3-9722006-7.html Luckily for him, the prosecutor wasn't up for re-election (or was), so the felony charge was dropped and he wound up paying a fine and doing community service. But just picture that - spending five years in prison and losing your gun rights and your vote for the rest of your life for using a free, open, unsecured computer network.
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June 19, 2008, 11:19 AM | #10 |
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The NICS will survive because it excludes people from owning firearms who do not qualify under the law. They do not exclude those who can legally qualified to own a firearm. Mistakes are made of course but there is a system in place to remedy that.
In the decison the Justices made it clear that a government can regulate firearms as long as the regulations do not ban a citizen from owning one. In the statment submitted by the plaintiff to the USSC they were very careful about making the distinction that governemnt does have a right to regulate but not ban ownership from qualified citizens.
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June 19, 2008, 11:23 AM | #11 |
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Actually, right now there is no system in place to remedy mistakes. Congress, under Teddy Kennedy, zeroed out all funding for the BATFE to handle rights restoration. Nobody has had their rights restored in many years, and the Supreme Court ruled that failure to act is not a denial, and thus there is no remedy available to someone stuck in that $0 limbo.
The NICS check is questionable at best - imagine having to prove your innocence before being allowed to write a letter to the editor or publish a magazine!
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June 19, 2008, 11:34 AM | #12 |
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I wasn't talking about rights restoration.....
Administrative errors within NICS. However, the Heller decison might even effect rights restoration if the person is qualified under the law to now own a firarm and this bans them from owning a gun. Wait and see.....
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June 19, 2008, 11:45 AM | #13 |
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mvpel,
I have written on this topic before and received lots of criticism for my opinion. But so be it, it is my opinion and worth as much as anyone else's. I happen to like and agree with the argument that Alan Gura made that established weapons in common use by civilians for self-defense/hunting/ traget etc. While I like machineguns and other NFA type weapons and do not wish for them to be banned (even though some here think full auto weapons have been by the FOPA "86) I have no problem with them being heavily regulated and in some cases banned. Gura was also criticized for conceding that point but I liked his answer. If you don't like the 1934 NFA then repeal the law. He didn't think and I don't think you will get any public or court support to legalize without restrictions those NFA weapons. I maintain that those weapons were designed for military use and are not suitable for civilian self-defense and so I don't think the second amendment applies. My two cents. I also believe that there are some people (felons and mentally defectives) who should not be allowed to legally own firearms. I support the Background Checks and believe that those who commit felonies should not ever own firearms unless they have their civil rights restored which I think you can do, but have to pay money and hire a lawyer. My feeling there: "Don't do the crime if you can't do the time" part of the "time" is you do without some civil rights including holding public office and voting. I also think that Mental Health professionals should be required to enter into the NICs system or otherwise notify the system about those who are judged mentally defective and they should be punished if they don't do it. I think the NICs needs be be really kept up to date as much as possible. That ought to start a good discussion BTW I am a lifetime NRA member and CCW. I have been shooting for over 40 years. I just say that to let you know that I am not a left wing or gunhater.
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June 19, 2008, 11:46 AM | #14 |
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Maybe the federal government ought to require that anyone who wishes to purchase a computer undergo a federal background check. They could deny computers to anyone who has posted an anti government rant or a pro terrorist rant.They could deny purchase to anyone who has viewed or posted information on bomb making materials. Why should we let convicted felons buy a computer? What will they use it for?
This wouldn't prevent the ownership of computers, it would just put the federal government in charge of who would be able to purchase one. Also, all dealers, such as Best Buy, Circuit City, Wallmart, etc, should be required to keep paperwork on all of the computers they sell, and to whom they sell them to, after a background check and the required "yellow" paperwork is completed by the purchaser and put on file by the computer dealer. Kids under 21 should not be able to purchase a computer. This would prevent young hackers from legally buying a computer, which is a compelling government interest with respect to security and privacy concerns. I'm sure the ACLU would be OK with such background checks and registration schemes. It's not preventing any "law abiding" folks from keeping and carrying a laptop, even when concealed in a computer bag. Also, I don't think anyone in Iowa should be able to purchase a laptop in Minnesota without having a dealer in each state involved in the sale. This would prevent people like Ted Kozinski from purchasing his computer in one state, but using it in another. Of course, all of the above is sarcasm. However, treat computer users and purchasers as gun owners are treated and you'd have a riot on your hands with the ACLU leading the charge to riot. Just my .02 worth. By the way, although I am well aware of the "potential" dangers of firearms misuse, I do not think it is wise for pro gun rights folks to state in public, "firearms are dangerous". In and of themselves, they are no more dangerous than a chain saw, for example. Anti gun folks use that term (guns are dangerous) against us. Agreeing with them on one facet of their arguement does us no good. I try to use the terminology, "firearms, if misused or mishandled, have the potential to result in injury or death". This keeps the human element alive and well in the debate.
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June 19, 2008, 11:52 AM | #15 | |
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June 19, 2008, 12:01 PM | #16 | ||
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Tennessee Gentleman wrote:
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I think we actually need to separate the legal term "felony" into two different categories, non violent felony and violent felony. If you get convicted of a violent felony you lose virtually all of your rights, including the right to keep and bear arms, free speech rights, and freedom of religion. I don't want violent felons going to listen to Reverend Wright lambast America. It could incite violent felons to commit act's of violence against America. On the other hand, if you get convicted of a non violent felony, you get all of your rights back as soon as your penance is completed, whatever that happens to be (community service, fine, jail time, prison time, etc.). Quote:
Imagine this scenario. The mental health professional sees a person, and doesn't judge them to be "mentally defective" so they don't submit the client to the NICS. Later on, that person does go nutso and shoots someone after purchasing a gun from a dealer, "legally". They'll go right after the mental health professional. It would be better for them to submit all clients names to the NICS, just in case. Just like lawyers suggesting that all women who file for divorce should take out a restraining order, just in case. That can deny people who have not been convicted, nor even charged with a crime, from possessing firearms for life. That's dangerous.
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June 19, 2008, 12:10 PM | #17 |
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I see no problem with NICS. I have never been turned down and the most it has taken was about 5 mins. A small inconvienece in keeping guns out of the hands of criminals and those who should not have them. NICS has never violated my Second Amendment rights.
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June 19, 2008, 12:20 PM | #18 | |
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My point is that these are all tools which would just lay there and not do a darned thing until a human picks them up and does something with them. What humans choose to do with these tools can either help or severely damage society and/or individuals. Is a firearm more dangerous than a laptop? Well, it would be relatively hard to kill someone at a hundred yards with a laptop. I'll grant that. However, if both of them are just laying on a firing bench, the firearm unloaded and the laptop turned off, I'd be totally comfortable walking 100 yards down range to check my target.
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June 19, 2008, 12:30 PM | #19 | |
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Eghad posted:
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The thing that worries me about the NICS, is how the government is increasing the number of things that are classified as "felonies". Also, I'm concerned that a future congress will eliminate the requirements that the data must be destroyed once a person is deemed worthy by the government to purchase a firearm. This would then be a registration scheme. Also, what if the government says, just because we can't prove that you shouldn't have a gun, doesn't mean we will automatically LET you purchase one. Federal Govt. Agent: "If our computer systems need to go down for a month of maintenance and upgrades, you can just wait for your purchase to be approved. Besides, why do you need a gun right now? Are you planning something illegal, Mr. Citizen?" On it's face, the NICS doesn't seem to be TOO dangerous to our liberties. But there is certainly potential for abuse by the government in the future, which would infringe upon our rights. At some point in time, when liberals have more control, you can bet their next step will be registration. This will be sold as a non threatening addition to the NICS. After all, if you are already submitting yourself to government scrutiny before you are allowed to purchase a firearm, why would you care that the government keeps a record of such a purchase, so long as you aren't planning on doing anything illegal?
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June 19, 2008, 12:48 PM | #20 | |||
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June 19, 2008, 01:00 PM | #21 |
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Whether anyone likes it or not, it's hard to imagine some constitutional bar to having to undergo an indentity check to buy a firearm.
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June 19, 2008, 01:20 PM | #22 | ||||||
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My gut feel is that we have to live with the NICS. On it's face, it appears reasonable and not too dangerous with respect to our liberties. Clinton was keeping names for up to 180 days, which is defacto registration. Do we believe those lists were destroyed or scrubbed? Only if you really trust the federal government to have the protection of our rights as a high priority. I'm not convinced. There are too many people who believe that the NICS actually prevents prohibited people from acquiring guns. As you mentioned, they can still get them illegally, and we don't seem to be able to stop that. So, we'll have to live with NICS, because it at least "appears" as though we're doing something, even if it isn't very effective. __________________
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June 19, 2008, 01:29 PM | #23 |
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I see identity check as being essential part of enforcing proper policies like catching criminal records and mental cases. Beyond that, nothing firearms related should be restricted, and explosive stuff has a lot of provisions in place as it is.
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June 19, 2008, 03:53 PM | #24 |
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In a legal sense, anyone who is rejected by the NICS should be arrested for a felony. For you see, if you are prohibited from possessing a firearm, it is a felony to attempt to purchase one. Also, they don't run the NICS check until AFTER you have filled out the yellow paper, (4473). On the form 4473, there is a statement that says, if you lie on this form, that too is a felony.
Well, if some guy with a criminal record, which prohibits him from possessing a firearm, comes into a gun shop to buy a gun, what happens? If he tells the truth on the 4473 form, the gun shop owner would not be required to run an NICS on him. He should tell the guy that he cannot sell him a firearm and that's the end of it. We know that most criminals won't tell the truth on the 4473. They may be ignorant, but they're not stupid to that extent. So, they have to lie on the 4473. The dealer then runs them through the NICS. If they come back "DENIED" due to a criminal record or other disqualifying factor, they've obviously lied on the 4473 and they have just committed a felony in doing so. This is a felony punishable by one year in federal prison, because they've just committed a "federal" felony offense. How come we don't have a bunch of these yahoos behind bars in the federal prison system? I'll tell you why. Most criminals don't buy their guns in gun shops or at gun shows. They have someone else, who doesn't have a record, buy for them. Or they buy them from criminal friends who have received them illegally, through theft, smuggling, or straw purchases. The NICS is virtually ineffective at stopping prohibited persons from getting a firearm.
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June 19, 2008, 04:38 PM | #25 |
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Once again, it is about principles, and as far as those are concerned, this Marine agrees with airman USAFNodak.
Better than making a distinction on felonies, we need to outright eliminate "felonies" that seem all too arbitrary and capricious to begin with. That WiFi article was insane. In essence, the man who used an unsecured connection is the same as an armed bank robber? Another thing that is arbitrary and capricious is the all encompassing asset seizure forfeiture guidelines. I don't know if it's an exaggeration or what, but I'm sure you've all heard of how one things leads to another on what the authorities can take away from you. Arrests and confiscations should be limited to the persons and items directly related to the offense, and no more. The one thing I will agree with TNGent is about the "doing time" part. However, what myself and others are trying to say is, what constitutes "crime" now is too far reaching. I have also said this in other threads, if the offense is so severe that they would have their 2A rights revoked, why would they be released from incarceration to begin with? As I've discussed with TNGent before on the issue of select fire weapons, it is definitely a slippery slope that will lead to more restrictions, and prohibitions. If that sounds like paranoia, another AWB bill just was written and is waiting and hoping to be passed...there are lever gun and other CAS guns in there. If you feel they are so dangerous, then the next logical step is to also view semi auto repros of military arms to be equally dangerous. Crimes with select fire weapons are nonexistent, and the only time there were any, was in conjunction with equally asinine legislation (Prohibition) and the main reason for continued crimes with them (if they were available again) would also be because of another equally failed, and asinine legislation (War on Drugs).
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