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An non-USian perspective on the Gun Debate | 355 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
We don't need this discussion
Authored by: Anonymous on Friday, April 05 2013 @ 10:17 AM EDT
This topic is political, divisive, and too inflammatory.

All due respect for your ideas and all that, but I think you
should take them elsewhere.

[ Reply to This | Parent | # ]

An unarmed perspective on the Gun Debate
Authored by: PJ on Friday, April 05 2013 @ 11:03 AM EDT
This isn't such a good place to discuss this, but since I didn't see this immediately, I'll answer your points, so others are not confused. First, free speech is not total. There are restrictions already, when there is a strong governmental interest. You can't yell "Fire" in a crowded theater. That isn't violating the Constitution, that restriction. Similarly with the gun thingie. If you read the US Supreme Court's decision in District of Columbia v. Heller, you will find that the court stated that there can be certain types of restrictions. From the syllabus:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
From Justice Scalia's majority opinion:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. ...

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Back in the 19th century, the court said in Presser v. Illinois the Second Amendment has no authority over states, for example, just the federal government. So the states can decide they want certain such restrictions.

You can read about the history here.

So your absolutist view of the US Constitution is not legal. In fact, one could even say it's not Constitutional. Just so you know.

But I prefer that you take the conversation elsewhere, after you respond to this, should you choose to. It's not altogether off topic for Groklaw, in that we do discuss Constitutional issues, but in the past, comments arrive that are deeply offensive and political in nature, and politics is what Groklaw never wades into, or we try not to, as an editorial decision I made years ago.

[ Reply to This | Parent | # ]

An non-USian perspective on the Gun Debate
Authored by: Wol on Friday, April 05 2013 @ 11:18 AM EDT
As I read that article, it appears to me to say that US citizens have the right
to join a militia, and UNDER MILITIA ORDERS bear arms.

Also, I gather that this clause was viewed in a very different light before the
founding of the NRA.

It's probably very enlightening to study the way the Constitution has been
interpreted throughout history - this clause and others!

Cheers,
Wol

[ Reply to This | Parent | # ]

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