Theoretical 2nd Amendment excercise

[telewinz]

Missed opportunity?

Don't underestimate the joy of being a law abiding citizen, it is quite possible you will enjoy that feeling much more than that hidden stash of illegal weapons. The fear of being a prisoner may seem much more relevant than the fear of being a "slave". Once you decide to violate the law be aware of the price, both hidden and otherwise. During the 60's and 70's the LEO's went after thousands of draft dodgers, I don't recall them backing off just because of a few riots and civil distrubances. Be careful that you are not underestimating their resolve. That knock on the door could come next week or years later, at home or at work. Seems to me that you are trading an intangible fear for a tangible one.

 

[OF]

Missed opportunity to do what? Register yourself as a gun owner?

- Gabe

 

[Sam Adams]

Demise and Futo Ino

Demise said:

Can you show exactly how simple registration is an infringement on ownership? Registration doesn't stop you from owning a gun, it just lets the government know you have it.

How would you feel about a law that made you register every bible or other religious article that you bought? How about the government requiring all churches, etc. to provide lists of members, as well as lists of contributors? How about a law that required you to give the government a copy of the key to every door in your house, along with alarm codes. How about a law requiring full access to all of your computer files, including the keys to any encryption algorithm? All of these laws would provide some rational basis for their enactment, most being some variation of "its for the children" or "its for your own good."

In each and every one of these cases, the law wouldn't be an "infringement on ownership" or (in the case of going to church, etc.) an "infringement on free assembly or freedom of religion." However, what you are dealing with is having a chilling effect on the exercise of a fundamental right. Think about the effect on your voting rights if an election official was standing in the voting booth with you - just to make sure you know how to work the machine, of course, so that we don't get any more repeats of Floriduh. Hell, most people wouldn't even bother to vote under those circumstances - i.e. the right to vote would have been infringed.

I know that you are playing 's advocate, but all too many people say the same crap and mean it - look at all of the gorons that say "Well, if you have to register cars, why not guns?" All of these folks have GOT to understand that regulation or taxation of any right is an infringement thereon, no matter what it is called or what the reasons for doing so are, not by outlawing it, but by making it difficult to exercise that right.

I've got a real, historical example of the chilling effect on a fundamental freedom caused by registration: several Soviet Bloc countries (notably Rumania) required the registration of all typewriters and copying machines. Not only was ownership registered, impressions of typewriter keys were taken and invisible identification marks were put on every copy produced. Were these things banned? Nope, but if you wanted to exercise the fundamental freedom to publish or copy an anti-government article, your knowledge of the fact that the government would quickly track you down tended to persuade the folks of those countries not to do so.

Futo Ino

Isn't there a 1942 or 1943 USSC case that originated in Pennsylvania which said that any tax on an instrumentality used to exercise a fundamental right was unconstitutional? IIRC, it had to do with taxes on bibles or something similar. It would seem to me that this case would be ample precedent to overturn all of the taxes and fees imposed on guns, ammo, concealed carry permits, etc.

 

[Sam Adams]

Telewinz, GRD

Don't underestimate the joy of being a law abiding citizen, it is quite possible you will enjoy that feeling much more than that hidden stash of illegal weapons.

Ah, Telewinz is up to his old tricks, defending the right of the government to do any damned thing it pleases, and us uppity subjects had damned well better obey the laws, or else!

Tell you what Telewinz, there are so many laws and regulations on the books that I'd bet you money that you can't even step out of your house, let alone go through a normal working day, without violating at least one. When the US Code alone takes up an entire wall, and the regulations fill several aisles of a library - not to mention all of the state and local crap - it is literally impossible to obey all laws. This is especially true because most laws and regulations are so poorly written and intentionally obtuse that even experienced attorneys who specialize in these things disagree about what they mean, let alone the average John or Jane Doe. What do you think that the libraries full of court cases are about? Those tens of thousands of volumes aren't full of traffic citations and jaywalking tickets, they're full of (mostly) learned judges deciding *** the law in question really means - and many of those are overturned by more senior judges, so even JUDGES don't know the law. So no one is or can possibly be a law-abiding citizen, no matter what they think. Don't you ever wonder if there's something wrong with that?

Maybe you should think about why there are so many laws. Here's the best explanation that I've ever seen. It is taken from a fictional novel written several decades ago, but neither human nature nor the nature of power has changed one iota since then:

"Did you really think we want those laws observed?" said Dr. Ferris. "We WANT them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted -- and you create a nation of law-breakers -- and then you cash in on guilt. Now that's the system Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with."

-- Ayn Rand, Atlas Shrugged


In answer to Telewinz' quote, all I have to say is "In for a penny, in for a dollar." If statists like you insist that I'm a law-breaker for owning something now that I used to own quite legally (like, for instance, a few dozen 20-round magazines that I owned in NJ, carrying a penalty of 5 years in prison EACH), or that my grandfather owned quite legally and handed down to me quite legally (like a machine gun - which I DON'T own) - well, then so be it. If you'd see me (and a few tens of millions of others) imprisoned and deprived of their 2nd Amendment rights because of a minor violation, why shouldn't I really violate the law and at least enjoy doing it? If the penalty is the same for owning a single-shot Derringer as full-auto Uzi, why shouldn't I get the latter? Do you see where your slavish devotion to "the Law," no matter what it contains, leads to?


I surmise that you'd have been a good Loyalist about 227 years ago.

 

[jsalcedo]

I surmise that you'd have been a good Loyalist about 227 years ago.

ouch

 

[Daniel T]

Sam, you make an extremely good argument. So good, in fact, that I'm gonna steal most of it and use it other places.

 

[Sam Adams]

Jsalcedo

It was meant to be an ouch. I have no patience for those that worship the State. I'm a "Law and Order" type, whereas they are just "Order" types. Order without Law is merely a new name for tyranny.

Oh, and the Law, whatever it is, must be both moral and comprehensible to the average person. If it isn't both, it deserves to be used as toilet paper.

[edited by Sam Adams to add the last paragraph]

 

[Sam Adams]

Demise

Steal away!

 

[keederdag]

What was the original question again?

 

[tyme]

I don't have a problem with registration... IF
1) It's free
2) The government will not attempt to do anything illegal or unethical with that registration information. There aren't many legit uses of gun registration I can think of, but if the government's only going to use it to help return stolen guns, etc., I don't have a problem with it.

The problem is that
1) The government always charges money for registration stuff like that
2) The government never obeys strict meanings of laws. Once they have such a list it will be abused.

Even if the jedi council were in charge of laws (the council would certainly refuse that duty), there would be mistakes and misuses of information and lists of citizens owning dangerous objects, just not in the patently evil ways they're misused today.

I hope, for their sake, that the justices uphold the second amendment and apply strict scrutiny to 2nd amendment restrictions. This would require striking down the CA law. Anything less, and unfortunately I think there will be real trouble.

 

[hammer4nc]

With regard to Futo Inu's scenario, I'd offer this comment: somewhere between arrest and sentencing, won't there be a jury trial? Seems like a slight oversight, eh? My hypothetical scenario would have fully informed juries refusing to find defendants guilty; and grand juries no-billing cases brought before them, involving unregistered gun charges.

And its not just wishful thinking. I hate to bring this up again, but in the Ruby Ridge case, Randy Weaver was facing the death penalty for murder; he ended up with a minor "failure to appear" conviction, time served. Subsequently, .gov settled a civil case for $millions, because they wanted to sweep it under the rug. Likewise, in the Waco case, the defendants were looking at murder; but were only convicted on lesser charges. Had not Judge Walter Smith revised the charges after the jury was dismissed, these folks would be walking free today. Didn't the jury send a letter of protest to Judge Smith over this action?

Jury decisions are a powerful safety valve in the system. One that the knee-jerk loyalists conveniently ignore.

 

[telewinz]

Sam Adams

"It was meant to be an ouch. I have no patience for those that worship the State. I'm a "Law and Order" type, whereas they are just "Order" types. Order without Law is merely a new name for tyranny."

I work with alot of people who share your opinion of law abiding citizens. I suspect you are in fact a law abiding citizen or else you would not be so confident in your views. I believe you lack "seasoning".

BTW: The people I work with are called inmates, they have a very secure retirement plan.

 

[keederdag]

LOL...LOL....

 

[Molon Labe]

Tyme said:
I don't have a problem with registration... IF It's free…

How could it ever be free? Wouldn’t computers and other equipment need to be purchased using tax payers’ money? Wouldn’t wages need to be paid using tax payers’ money?

 

[Standing Wolf]

Would you then comply with laws requiring your guns to be registered for crime prevention purposes (tracing thefts, illegal uses, etc.)? After all, there can't be a confiscation, as the USSC has declared that the 2nd applies to individuals.

Supreme Court rulings change on an irregular and frequent basis. Today's guarantee is next week's sheet of worthless paper. There not only could be firearms confiscation in the United States, but it's already been done in a number of states.

If I'd wanted my guns stolen, I'd have left them in the front yard.

 

[Sam Adams]

Telewinz

I said: "It was meant to be an ouch. I have no patience for those that worship the State. I'm a "Law and Order" type, whereas they are just "Order" types. Order without Law is merely a new name for tyranny."

To which you replied: "I work with alot of people who share your opinion of law abiding citizens. I suspect you are in fact a law abiding citizen or else you would not be so confident in your views. I believe you lack "seasoning".

BTW: The people I work with are called inmates, they have a very secure retirement plan."

In case you didn't get the drift of my comment (and you obviously didn't), it is this: Any dime store tyrant can promise and deliver Order. However, if said tyrant has to obey the Law (by which I mean some objectively moral standard, not the "laws" forced down a society's gullet at gun point), then there will not be so much Order. Order alone is merely tyranny - Mussolini made the trains run on time, and the Mongol Khans made sure (for a time) that there were no murders by road side brigands, but I hardly regret not having lived in such a society.

As for your "guests'" opinions of law-abiding citizens, I not only don't care, but I fail to see the relevance to my comments. So what if they want Law and Order, instead of just Order? Even a stopped clock is right twice a day.

As for your profession: while I'm not criticizing you for taking it up, and while it is a very important job in the scheme of things, folks with similar credentials are not exactly well-known for their vigorous defense of Constitutional rights. Dealing with the scum of society all day, every day, tends to color your perception of all of society. Well, tell you what, about 98% of citizens are quite moral and obey as many laws as they can. There's no problem with them owning guns, and some 20,000 gun laws didn't prevent most of the people that you deal with daily from getting them - remember, they DON'T care about the law. Laws only deter the law-abiding, not those with whom you deal. We are supposed to live in a free society, one where you are free to do as you wish so long as you don't directly harm another. You and your fellow travelers, however, clearly want to limit everyone's liberties because it MIGHT prevent some crimes, or make it easier to solve them. That kind of solution might be very utilitarian and efficient (kind of like tyrannies tend to be in this regard), but it delivers a tremendous body-blow to the cause of Liberty.

Conclusion: stop being a government parrot. Wake up, and read the Declaration of Independence, Constitution, Federalist Papers, etc. Maybe you'll learn something besides "if its written in a book by our lawmakers, it is right."

 

[Graystar]

However, in the Supreme Court's opinion, "reasonable" limitations can be put upon the 2nd, just like there are on the 1st Amendment.

What "reasonable" limitations have been placed on the 1st Amendment?? As far as I know, there are no limitations on free expression.

There ARE limitations on knowingly making false statements and on "fighting words." But these types of speech are not considered free expression, so these laws don't constitute limitations on the 1st Amendment.

 

[geekWithA.45]

The shifting line in the sand.....reasonable restriction on fundamental rights,

1A, 2A, etc.


In the past, the widely held view (and the correct one in my opinion) was that restrictions on fundamental rights had to be as narrow as possible, and be applied only when excercise of the right resulted in immediate, unjust harm to another.

Hence, the inability to shout "FIRE" in a crowded room, (immediate damage) to publish lies, (unjust damage), to strike an innocent (immediate, unjust damage) and so on.

If we apply the same standard to 2A, you'll find that reasonable restrictions basically means you can't point a gun at someone who hasn't attacked you, which pretty much rules out all of the actually illegal, initiation of force type issues that surround firearms.

This thread presuposses that registration somehow falls into that category, and it just doesn't work.

Registration of firearms, that is, the creation of a list of gunowners, and what guns they own, achieves ONLY ONE THING: the existence of a list of gunowners and what they own.

The problem with it is that there is not _one_ legitimate use for such a list.

(I don't consider its use in solving crimes after the fact as legitimate,either. Basically, all it does is throw people willy nilly unto the suspect list, for no reason other than owning an item like the perpetrators. Furthermore, it's generally a misuse of time and money, like the Great .223 Hunt of 2002 associated with the DC sniper)


Or to put it another way, such a list is EXACTLY as legitimate as a list of printing presses (printers, typewriters, etc) and their owners.

 

[geekWithA.45]

Sam Adams:

n't there a 1942 or 1943 USSC case that originated in Pennsylvania which said that any tax on an instrumentality used to exercise a fundamental right was unconstitutional? IIRC, it had to do with taxes on bibles or something similar. It would seem to me that this case would be ample precedent to overturn all of the taxes and fees imposed on guns, ammo, concealed carry permits, etc.

I've been thinking along this line myself.

Similiarly, "poll taxes" and "literacy tests" for voters have also been shot down.

I haven't heard of this line of legal reasoning being used, has anyone? It could be important.

Very important.

 

[Ian]

Did the FFs envision exploding rounds? No probably not.

One quick nitpick, Futo. You bet they knew of exploding rounds. Exploding cannon shot had been around for quite a while before our revolution, and it's even referenced in classic Americana - "And the bombs bursting in air...".

 

[Boats]

Just a few observations:

. . .shall not be infringed. is not all that unique in the BoR.

Congress shall make no law. . . is pretty equivalent, and yet we see laws against "terroristic threatening," "illegal campaign contributions, (too many in a specified period, or too large, or from the "wrong" people), solicitation, parade and demonstration permits, so on and so forth.

The trump card that allows infringement of the 1A that will allow infringement of the 2A even if it is ruled an individual right and incorporated via the 14A to the states is classically called police powers. When a branch of the government can find no other way to constitutionally abridge a freedom, this "power" of the state is invoked. The Constitution is not a suicide pact. . . . is a famous expression of such sentiment.

Intermediate scrutiny is a narrow analysis used in certain cases, usually discrimination cases involving race or gender, it is unlikely to be used in any successful 2A ruling. To be precedent consistent, the 2A would have to be ruled a fundamental freedom, along with the rest of those in the BoR, and laws attempting to abridge that freedom be subject to strict scrutiny.

However, even strict scrutiny, as it has developed, would allow wiggle room for the feds and the states to pretty much keep the 2A "in check." A compelling state interest in abridging the freedom is all that is required in the manner calculated to least burden the right. Again, police powers and appeals to the benefits of a "well-ordered society" will be used to defend those laws already in place as not very onerous to the citizen. Those hoping for an invalidation the NFA or the GCA would probably be sorely disappointed, while items like the '86 machine gun ban and the '89 importation ban would probably fall. Background checks, i.e., prior restraint, would probably be upheld as long as no comprehensive registration scheme other than the NFA for autos, DDs and AOWs were employed.

Keep and Bear Arms can be construed as a self-limiting provision of the 2A. One may keep a warship, but one may not bear it. Same with crew served weapons, nukes, F-16's and other extreme examples. It would perhaps be the analysis that if it can't be bourne by an individual, it can't be kept. Where this would get interesting is in a fight over the NFA being an improper exercise of the Congressional taxing power, as there are cases that invalidated the taxation of presses. However, knowing that the Justices are elites, they will probably find another way to keep the NFA, or roadmap a replacement that would meet scrutiny.

In short, a positive 2A SCOTUS ruling is not going to be a panacea in the fight over the 2A, just a breather until it comes under attack from the usual suspects, as it has ever been. A negative decision would make for a more interesting event from a sociological viewpoint.

A possibly kosher argument for weapons registration would begin with Congressional authoirty to regulate the militia, both organized and not. How could the government know the capabilities of the unorganized militia without taking stock? Muster laws used to be used to just that purpose. With confiscation allegedly off the table, I tend to think registration under the right scheme would be permissible as a legitimate state exercise with historical precedent, not that I agree with that sentiment in the least.

 

[Chris Rhines]

Historically, the USG does not have a very good reputation when it comes to keeping promises, behaving ethically, etc. In short, if you trust the government, any agency of the government to keep its word, you're pulling down your pants and bending over.

And so no, I wouldn't register my guns, now or ever. I'll take the uncertain joy of freedom over the transitory comfort of submitting to the Man.

- Chris

 

[AZRickD]

This assumes: Politicians will obey the Consitution and USSC in the laws they pass, and/or keep their word.

In 1995 in US v Lopez, the USSC declared that the "Federal Gunfree School Zone Act" was an unconstitutional use of the Interstate Commerce Clause.

Chastened (not), in 1996, Congress passed and Clinton signed "The Federal Gunfree School Zone Act."

Hmmmm.

Would you then comply with laws requiring your guns to be registered for crime prevention purposes (tracing thefts, illegal uses, etc.)?

Where are the laws requring registering of reporters (outside of Chicago), 5-day waiting periods so that Government Fact Checkers could make sure no falsehoods were transmitted? How about a $200 tax on each magazine subscription?

Allow me to quote Justice Harlin's analysis in dissent of the meaning of the 14th Amendment from Poe v Ullman (1961).

"The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints..."

Poe v Ullman ruled that an old Connecticut law prohibited the use of contraceptive devices and the giving of medical advice in the use of those devices was not a violation of the Constitution. The Court chose to dismiss the case because it involved the threatened and not actual application of the Connecticut law. Since the statute had been on the state's books for over three-quarters of a century without ever having been enforced, the Court found no sense of "immediacy which is an indispensable condition of constitutional adjudication."

A few years later was Griswald v Connecticut 1965, which essentially reversed Poe v Ullman .

Rick

 

[tyme]

AZRickD, to be fair, the 1996 law did add something like "in or affecting interstate commerce" to the relevant sections.
Has anyone been prosecuted under the new law?

The trial court now has to find that the gun's possession in a school zone was in or affecting interstate commerce, and I would think that the same logic the SCOTUS used to reject the claim in Lopez can be used as grounds for appeal.