2nd Amendment Regulation

[Webleymkv]

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.

[tony pasley]

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.

[Webleymkv]

Well that excludes 90% of those in Washington D.C. at least the elected of appointed ones. let us not forget State capitals also.

I'm certainly not going to argue that point. I've met a good number of young children that would probably be more trustworthy with a firearm (or trustworthy in general for that matter) than a lot of politicians (I certainly don't want to go hunting with Dick Cheney)

[KDM]

Not my quote, but...I'd rather hunt with Dick Cheney than drive with Ted Kennedy.

[mvpel]

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.

[HKuser]

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.

I don't know about that. Conviction of a felony at common law was "civil death," i.e., you don't have any rights. One of the worst crimes was treason, which included counterfeiting, a non-violent crime (paper currency printed by Benjamin Franklin often bore the phrase "to counterfeit is death"). Why should other felonies not bear as great a stigma? If strict scutiny is adopted, and that a big "if," some things that might go would be the full auto transfer tax and the freeze on new registrations, both would be hard to argue to be serving a compelling state interest, narrowly tailored to achieve that interest, but the registration portion itself might survive. Just a few thoughts.

[Al Norris]

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.

[HKuser]

NICS checks and firearms registration will meet the standard

When I saw these placed sis by side, it brings up the question, why would both survive, what compelling state interest do they each serve that is different? Of course, assuming strict scrutiny is the standard.

[mvpel]

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.

[Eghad]

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.

[mvpel]

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!

[Eghad]

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.....

[Tennessee Gentleman]

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.

[USAFNoDak]

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.

[Tennessee Gentleman]

By the way, although I am well aware of the "potential" dangers of firearms misuse,

I think there is a big difference between a firearm and a computer and I think we all know the difference.

[USAFNoDak]

Tennessee Gentleman wrote:

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. 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.

I believe that there are some felons and mentally defective people who should not have firearms. But, if they are dangerous enough that we will not let them "legally" purchase firearms, then they should be kept away from society at large, because they can get firearms or other weapons and still cause injury, damage, or death. I also don't believe that a guy who uses a laptop to gain access to an unsecured wireless network is a felon. If the store is going to broadcast a radio signal which is unsecured, that should be public domain for as far as the signal can be received. I don't think a tax cheat should necessarily be barred for life from owning guns, but he can probably get his rights restored. If we are going down that path, however, a tax cheat should not be able to vote, get a passport, be immune from warrantless searches, including phone taps, etc. Why should a non violent felon have just his Second Amendment rights removed, but no others? That doesn't make much sense. The government should be able to house soldiers in his house anytime they feel like it, unless he goes to court, hires a lawyer, and pays to have all of his rights restored. That makes just about as much sense as telling him he can no longer own any firearms because he cheated on his taxes.

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.).

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.

This is a little scary. I believe the unintended consequence could be that they would enter anyone they saw into the system as mentally defective just to do CYA. Otherwise, they could go to jail or be sued for everything they have if they don't judge all of their clients as mentally defective for the NICS system.

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.

[Eghad]

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.

[USAFNoDak]

I think there is a big difference between a firearm and a computer and I think we all know the difference.

Of course there is a big difference between a computer and a firearm, and we all know the difference. There's a big difference between a machete and a firearm. There's a big difference between a chainsaw and a firearm. What's your point?

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.

[USAFNoDak]

Eghad posted:

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.

I have never had my rights violated by the cops breaking into my house to search it without a warrant. Wouldn't that be a small inconvenience too, in arresting more criminals and drug dealers and taking more drugs off of the street. Heck, they could find firearms that criminals are using and aren't supposed to have, if they could just bust in unannouced where they suspected criminals live. Be careful anytime you give up liberty in exchange for perceived security, as Ben Franklin warned us.

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?

[Tennessee Gentleman]

Of course there is a big difference between a computer and a firearm, and we all know the difference. There's a big difference between a machete and a firearm. There's a big difference between a chainsaw and a firearm. What's your point?

A pet peeve of mine. It is a strawman argument that I see a lot of progun people use and I think it makes us look bad. Firearms are designed to kill things, people or animals. Target shooting and other sports are ancillary to why firearms exist IMHO. I think trying to equate them with other objects like hammers and scissors is not valid and I think we are smarter than that.

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.

Another strawman. Losing some of your rights does not mean you lose them all. Even people in prison retain rights as citizens. No need to separate the felonies. If you commit one you lose those rights defined by law until and if you can get them restored.

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?

NICs is also different from registration. NICs is a reasonable way to help keep firearms out of the hands of those who are legally prohibited from getting them. It also helps legit guns dealers from selling to them. Doesn't mean they won't get them anyway but they'll have to do it illegally which is another issue in itself. Registration is a much bigger step and not related to reigstration. NICS just establishes legal status.

[MedicineBow]

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.

[USAFNoDak]

A pet peeve of mine. It is a strawman argument that I see a lot of progun people use and I think it makes us look bad. Firearms are designed to kill things, people or animals. Target shooting and other sports are ancillary to why firearms exist IMHO. I think trying to equate them with other objects like hammers and scissors is not valid and I think we are smarter than that.

I never equated them. I just said that they can all be dangerous, depending upon what they are used for and how. I can't help it if you see strawmen in your pet peeves.

Another strawman. Losing some of your rights does not mean you lose them all. Even people in prison retain rights as citizens. No need to separate the felonies. If you commit one you lose those rights defined by law until and if you can get them restored.

I never said that losing some of your rights means you lose them all. You can't be waterboarded in prison, even you are Charles Manson. I call your strawman arguement and raise you one. I think we should definitely separate felonies. The threat to society by some felonies is certainly higher than others. The punishments should reflect that. I guess we disagree on that one.

Quote:

NICs is also different from registration. NICs is a reasonable way to help keep firearms out of the hands of those who are legally prohibited from getting them. It also helps legit guns dealers from selling to them. Doesn't mean they won't get them anyway but they'll have to do it illegally which is another issue in itself. Registration is a much bigger step and not related to reigstration. NICS just establishes legal status.

I know that NICS is different from registration. I never said it wasn't. It could lead to registration at some point in time, when liberals have more power. NICS may be touted as a "reasonable" way to "help" keep firearms out of the hands of those who are legally prohibited from possessing them. However, if it was all that effective, our violent crime rates where guns are used as a tool in the commission of a crime, should have dropped considerably after the NICS was implemented. I have never seen any data which would support that. Bill Clinton's administration claimed that 600K felons and other prohibited persons were stopped from purchasing a gun by the Brady Law in its very first year. You'd think there would have been a step function (negative) with respect to the lowering of violent crimes in which firearms were used as tools during the crime. I've not seen the data showing this to be the case.

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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[Yellowfin]

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.

[USAFNoDak]

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.

[CGSteve8718]

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).