Interpreting the 2nd Amendment: Literalism and Intent in Gun Laws

[Office_Shredder]

Judge sotoymayor was very disappointing in the way she voted.

Can you clarify this? I'm mystified

 

[Cyrus]

Can you clarify this? I'm mystified

She voted against it.

 

[Office_Shredder]

She voted against it.

I was really focusing on the disappointment part

 

[Cyrus]

I was really focusing on the disappointment part

She is supposed to uphold the constitution, she failed. She voted exactly as I'd expect from a liberal judge.

 

[turbo]

Can you clarify this? I'm mystified

I have to agree with Cy on this one. The notion that states and cities can restrict personal freedoms granted in the Constitution and Bill of Rights is disturbing.

 

[Office_Shredder]

Oh my god this isn't hard. How is Judge Sotomayor disappointed in the way she voted. No lectures on the morality of the case or whether states rights trump the constitution etc.

 

[Cyrus]

Oh my god this isn't hard. How is Judge Sotomayor disappointed in the way she voted. No lectures on the morality of the case or whether states rights trump the constitution etc.

No no no no no. Reread what I wrote. I'm disappointed in how she voted.

 

[Office_Shredder]

No no no no no. Reread what I wrote. I'm disappointed in how she voted.

Oh, I thought it said 'disappointed' not 'disappointing'. My bad

 

[Cyrus]

pEP9G2v-_LA&feature=player_embedded... him a constitution to go read. F'in scumbag.

 

[drankin]

pEP9G2v-_LA&feature=player_embedded...heir home and we all survived without injury.

 

[Cyrus]

Its amazing how utterly and completely PATHETIC and STUPID these anti-gun loones are. They don't know the first damn thing about guns, but they want to regulate them. Why don't they do something else with their worthless time.

 

[drankin]

Its amazing how utterly and completely PATHETIC and STUPID these anti-gun loones are. They don't know the first damn thing about guns, but they want to regulate them.

It actually makes me wonder how stable they are. Not able to trust themselves if they owned a gun. Maybe those that are the most afraid of people owning guns are the ones that should not own guns.

 

[turbo]

The worst part about the superseding of federal law by states and localities is that there is no rhyme nor reason to the patchwork of resultant legislation. You can visit a client and pick up a gun collection, and then violate rule after rule as you cross state and municipal lines while transporting the collection to your place of business. Do guns have to be in locked cases? Can you transport ammunition in the same container as a gun? Do the guns have to be fitted with trigger-locks? Is there a limit on the amount of ammunition that you can transport? Do you need special permits, even though you are a licensed firearms dealer? I am not kidding about this. If you send out a pick-up crew and the truck gets pulled over for a DOT inspection, you had better be prepared to deal with some pretty arcane rules.

 

[drankin]

The worst part about the superseding of federal law by states and localities is that there is no rhyme nor reason to the patchwork of resultant legislation. You can visit a client and pick up a gun collection, and then violate rule after rule as you cross state and municipal lines while transporting the collection to your place of business. Do guns have to be in locked cases? Can you transport ammunition in the same container as a gun? Do the guns have to be fitted with trigger-locks? Is there a limit on the amount of ammunition that you can transport? Do you need special permits, even though you are a licensed firearms dealer? I am not kidding about this. If you send out a pick-up crew and the truck gets pulled over for a DOT inspection, you had better be prepared to deal with some pretty arcane rules.

Unfortunately, this kind of craziness will never completely go away.

 

[Cyrus]

The worst part about the superseding of federal law by states and localities is that there is no rhyme nor reason to the patchwork of resultant legislation. You can visit a client and pick up a gun collection, and then violate rule after rule as you cross state and municipal lines while transporting the collection to your place of business. Do guns have to be in locked cases? Can you transport ammunition in the same container as a gun? Do the guns have to be fitted with trigger-locks? Is there a limit on the amount of ammunition that you can transport? Do you need special permits, even though you are a licensed firearms dealer? I am not kidding about this. If you send out a pick-up crew and the truck gets pulled over for a DOT inspection, you had better be prepared to deal with some pretty arcane rules.

You mean like the fact that I could walk out the shop with my heavy barrel AR-15, but if I wanted a pencil barrel I'd have to wait 7 days (and it would have to be registered)? -Stuuuuuuuuupid.

I took the heavy barrel and walked out.How about the 20 round magazine limits in MD. Don't you worry, I'm going to a gun show in VA and getting a ton of 30 round banana magazines.

 

[turbo]

You mean like the fact that I could walk out the shop with my heavy barrel AR-15, but if I wanted a pencil barrel I'd have to wait 7 days (and it would have to be registered)? -Stuuuuuuuuupid.

I took the heavy barrel and walked out.


How about the 20 round magazine limits in MD. Don't you worry, I'm going to a gun show in VA and getting a ton of 30 round banana magazines.

Now imagine that you have a two-man crew in a box van bringing back a collection or two - comprised of many hundreds of guns, accessories, and ammo. They stop for a routine commercial vehicle check, and Deputy Dawg decides that when he sees the bill of lading, he'd like to tear down the whole load looking for violations of local/state ordinances. When you get that phone call from your drivers, it's like getting a punch to the gut. It's pretty hard to run the Eastern seaboard and avoid NJ, MA, NYC, NY and other locations that have nutty inconsistent gun laws. Pretty much every route back to Maine is fraught with risk. Your drivers can have squeaky-clean records, copies of your FFL, signed contracts, company IDs, etc, and still get treated like suspects.

 

[CAC1001]

She voted against it.

Interesting that during her hearings, Sotomayor had said she believed gun ownership was a fundamental right.

 

[turbo]

Interesting that during her hearings, Sotomayor had said she believed gun ownership was a fundamental right.

The Chicago/Oak Park ordinances specifically banned HANDguns. Might seem like a niggle, but it's not.

I have debated with nut-cases that said the 2nd amendment guarantees the right to bear muzzle-loaders. People who are blissfully unaware that at the time of the amendment, matchlocks and flintlocks had been invented, but percussion muzzle-loaders had not been. The federal government's firearms laws draw a line at 1898 defining "antique" and "modern" though that is a pretty tenuous border. A .30-30 Winchester rifle made in 1894 will kill you just as reliably as a "modern" one, and a much older Colt Single-Action Army pistol from decades earlier is just as deadly as one built yesterday, apart from caliber.

 

[Cyrus]

PIaSczbCt-o[/youtube] And here i...ntrol. His finger is wayyy over that trigger.

 

[Al68]

The notion that states and cities can restrict personal freedoms granted in the Constitution and Bill of Rights is disturbing.

I hate to nitpick on the one issue we seem to agree on, but there are no freedoms "granted" in the constitution. The constitution protects (not grants) pre-existing rights.

But I do agree that the fourteenth amendment must apply to the right to bear arms just as it applies to other constitutionally protected rights.

 

[turbo]

I hate to nitpick on the one issue we seem to agree on, but there are no freedoms "granted" in the constitution. The constitution protects (not grants) pre-existing rights.

We probably agree on more points than you imagine.

 

[Al68]

We probably agree on more points than you imagine.

Probably. I guess it's the nature of political debate that areas of disagreement are under the spotlight while areas of agreement are usually under the rug.

 

[TheStatutoryApe]

I hate to nitpick on the one issue we seem to agree on, but there are no freedoms "granted" in the constitution. The constitution protects (not grants) pre-existing rights.

But I do agree that the fourteenth amendment must apply to the right to bear arms just as it applies to other constitutionally protected rights.

Can you explain how you would interpret the 14th amendment to include the 2nd amendment? The other protections in the Bill of Rights transferred through the 14th amendment were via "Due Process". Is the right to bear arms related to due process?

 

[Al68]

Can you explain how you would interpret the 14th amendment to include the 2nd amendment? The other protections in the Bill of Rights transferred through the 14th amendment were via "Due Process". Is the right to bear arms related to due process?

Absolutely. The law in question deprived people of liberty (their right to bear arms) without due process.

And restricting a citizen's right to bear arms violates the privileges or immunities clause of the 14th amendment.

Interestingly, the primary argument in the Chicago case was based on the privileges and immunities clause, with a "backup" argument based on due process. I think either argument alone would result in a 9-0 decision if we had 9 honest justices.

 

[TheStatutoryApe]

Absolutely. The law in question deprived people of liberty (their right to bear arms) without due process.

And restricting a citizen's right to bear arms violates the privileges or immunities clause of the 14th amendment.

Interestingly, the primary argument in the Chicago case was based on the privileges and immunities clause, with a "backup" argument based on due process. I think either argument alone would result in a 9-0 decision if we had 9 honest justices.

Due process means that you get a "fair trial". I do not see exactly how a handgun ban violates due process.

"Privileges and immunities" is regards to states treating people from other states by differing laws. I can see the possibility of an argument regarding the effect of a law on people traveling through states and being subjected to restrictions on firearms legally obtained in their own state. That would not over turn a ban completely though.*

When I have time I will have to actually read the decision. I have no idea how they would construct the argument for such a decision. From the snippet quoted earlier I assume that they are relying on an argument that persons should be allowed to defend themselves and ought not be charged as criminals for doing so. "Police protection isn't a right..." sort of thing.*Edit: I did a bit of looking and found that the concurring opinion in the case attempts to affirm the broad interpretation of "privileges and immunities". I wonder how that will come out since it is only a concurring opinion. That means quite a lot of change in state law.

 

[BobG]

Due process means that you get a "fair trial". I do not see exactly how a handgun ban violates due process.

You can't take a way a person's rights without due process - with a fair trial being the usual way those rights are taken away.

Theoretically, due process could consist of people voting to rescind one or more of their rights, but that only works if the vote was unanimous. The majority can't band together and vote to rescind the rights of a minority, even if it's affecting everyone equally.

I can't actually think of any other way a person's rights (including the right to bear arms) could be taken away other than a trial (i.e. - you can take away a convicted felon's right to own firearms, vote, etc).

 

[Al68]

Due process means that you get a "fair trial". I do not see exactly how a handgun ban violates due process...

Because there was no fair trial for the majority of Chicago citizens that were deprived of their liberty by the ban. But that argument was the "back-up" argument.

The main argument is the privileges and immunities clause, which has been interpreted as a prohibition on the states depriving citizens of the same rights the federal gov't is prohibited from depriving them of.

I, too, haven't read the entire opinion, I just scanned over it, but the dissenting opinion interests me far more than the majority opinion. My instinct tells me that, as in most cases like this one, the majority opinion will just point out what I consider to be obvious.

I have no idea how they would construct the argument for such a decision.

What if it were newspapers or political pamphlets instead of guns that were banned? I think the argument is essentially identical.

 

[Cyrus]

I'm very curious to see the trends in Chicago crime rates over the next few years after the repeal.

 

[CRGreathouse]

I'm very curious to see the trends in Chicago crime rates over the next few years after the repeal.

Likewise. What cities do you think would serve well as control variables?

 

[Cyrus]

Likewise. What cities do you think would serve well as control variables?

Not sure, but why can't you just compare it to past ban enacted years?

 

[TheStatutoryApe]

Because there was no fair trial for the majority of Chicago citizens that were deprived of their liberty by the ban.

"Deprived of liberty", in the context of "due process", is being imprisoned. Legislation does not put people in prison (that is illegal) and has little to do with "due process". According to previous interpretation the states were allowed to restrict access to guns if they so chose. "If states are allowed to ban guns then people may go to jail for possessing guns which makes it an issue of due process and so states should not be allowed to ban guns" is a terribly circular argument.

So in what manner does a ban on guns effect "due process"? due process being that ability of a person to be treated to a fair trial.

But that argument was the "back-up" argument.

The main argument is the privileges and immunities clause, which has been interpreted as a prohibition on the states depriving citizens of the same rights the federal gov't is prohibited from depriving them of.

"Privileges and immunities" has been 'settled' as not meaning this for over one hundred years. I do not see why then you think the decision here is so obvious.

What if it were newspapers or political pamphlets instead of guns that were banned? I think the argument is essentially identical.

The issue with freedom of speech is that speech is banned based on content. If your freedom of speech is banned based on content then any such trial against you is unfair by definition. You are being put on trial for your ideas where people who act similarly, and with similar effect, but have differing ideas are not arrested at all.

 

[CRGreathouse]

Not sure, but why can't you just compare it to past ban enacted years?

It allows for better control of macroeconomic variability: income changes, crime rate changes, etc. If the general crime rate goes up but that in Chicago is flat, it's a success; if the generate rate goes down but in Chicago it's flat, a failure. Etc.

 

[Cyrus]

It allows for better control of macroeconomic variability: income changes, crime rate changes, etc. If the general crime rate goes up but that in Chicago is flat, it's a success; if the generate rate goes down but in Chicago it's flat, a failure. Etc.

Yeah, true. But do you really think that would change drastically in say, 5 years comparison? Probably not. I predict you will see a sharp (large signal to noise ratio) inline or decline in violence. It will be clear as day - a 30-40% swing very quickly.

The potential pitfall; however, would be if Mayor Donkey tries to enact more laws that makes it harder for people to obtain handguns. Then the rates might stay the same, and Mayor Donkey will say 'see I told you, it didn't change anything, crime is still out of control as usual.'

 

[CRGreathouse]

Yeah, true. But do you really think that would change drastically in say, 5 years comparison? Probably not. I predict you will see a sharp (large signal to noise ratio) inline or decline in violence. It will be clear as day - a 30-40% swing very quickly.

I would not expect such a sharp effect, no. (I'd love to see one, though!) I would also expect extremely high noise.

 

[Al68]

"Deprived of liberty", in the context of "due process", is being imprisoned. Legislation does not put people in prison (that is illegal) and has little to do with "due process". According to previous interpretation the states were allowed to restrict access to guns if they so chose. "If states are allowed to ban guns then people may go to jail for possessing guns which makes it an issue of due process and so states should not be allowed to ban guns" is a terribly circular argument.

That is a circular argument, but that's not the argument I made. I wasn't referring to the people who broke the gun ban law being deprived of liberty, I was referring to those who surrendered to it. My argument (and I think the secondary one presented to SCOTUS) is that depriving people of their right to bear arms constitutes being deprived of liberty. Imprisonment isn't the only way to deprive someone of liberty.

But this argument would only be relevant if the privileges and immunities clause didn't apply. There is no reason to argue that passing and enforcing a law that restricts liberty constitutes "depriving liberty" when the (preceding) privileges or immunities clause already prohibits passing and enforcing such a law in the very same sentence. That's why this is a back-up argument.

"Privileges and immunities" has been 'settled' as not meaning this for over one hundred years. I do not see why then you think the decision here is so obvious.

Because of the immediately preceding words in the 14th amendment: "No state shall make or enforce any law which shall abridge..." combined with the relatively recent SCOTUS ruling that re-affirmed that the right to bear arms is an individual right of citizens. Sounds pretty obvious to me.

The issue with freedom of speech is that speech is banned based on content. If your freedom of speech is banned based on content then any such trial against you is unfair by definition. You are being put on trial for your ideas where people who act similarly, and with similar effect, but have differing ideas are not arrested at all.

That's not what I meant by being essentially the same argument. I meant that the phrase "No state shall make or enforce any law which shall abridge..." is applied to the right to bear arms in this argument just as it would be applied to freedom of speech in a similar argument.