Big Day for the 2nd Amendment

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Embar Angylwrath
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Big Day for the 2nd Amendment

Post by Embar Angylwrath » Sun Mar 16, 2008 6:05 pm

On Tuesday, the Supreme Court will hear arguments regarding the DC ban on guns. The case is framed such that the Supreme Court will have to address and interpret the 2nd Amendment. This is an historic moment in American jurisprudence, since its really the first time the high court has addressed the issue at its most fundamental core. Does the government have the right to restrict access to firearms? That's the core question. This precedent will shape the future of the gun rights in America, and will set the direction for other questions such as registration of firearms (if owning guns is a constitutional right, how far can the government go to limit that right?), conceal and carry laws (again, if you have a right to bear arms, can the government restrict that right without showing a compelling need?)

How about this scenario.. if the court says every American has a constitutional right to bear arms, that means convicted felons might regain the right to own firearms, once they have served the terms of their sentence.

I don't know about the rest of you, but I sure wish I could hear the arguments on Tuesday. I REALLY wish I could be there and witness a watershed moment in American history.
Correction Mr. President, I DID build this, and please give Lurker a hug, we wouldn't want to damage his self-esteem.

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Re: Big Day for the 2nd Amendment

Post by Partha » Sun Mar 16, 2008 9:14 pm

The only watershed moment will be when the GOP 5 decide what's to be done in the cloakroom after arguments. Which should be fairly obvious.
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Re: Big Day for the 2nd Amendment

Post by superwalrus » Mon Mar 17, 2008 12:04 am

About the felons comment Embar made...

If the right to bear arms is deemed to be a fundamental right then the government can still easily stop felons from having them. The test would be strict scrutiny, or "necessary to achieve a compelling interest." Obviously restricting persons that have committed felony crimes from owning weapons would meet this standard, as the government has an important interest from keeping dangerous people armed.

I think the biggest effect Tuesday's ruling will be whether or not the 2nd amendment applies to the states. Right now the 2nd amendment only applies to Federal laws, and the 2nd amendment has never been incoporated through the 14th Amendment. If so, we will be one step closer to full incorporation of the Bill of Rights, next stop... no forced quartering of soldiers!

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Re: Big Day for the 2nd Amendment

Post by Embar Angylwrath » Mon Mar 17, 2008 8:42 am

There's a whole lot of non-violent crimes that are felonies. Like tax evasion. Embezzlement. Perjury. The government would have a hard time showing a compelling interest to restrict gun ownership with those individuals. A simple "you're a felon, no gun for you" argument won't work.
Correction Mr. President, I DID build this, and please give Lurker a hug, we wouldn't want to damage his self-esteem.

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Re: Big Day for the 2nd Amendment

Post by Embar Angylwrath » Mon Mar 17, 2008 8:45 am

Oh.. walrus...

Constitional rights trump any law in any state. No state can can enforce a law deemed unconstitional. You probably missed that part in law school when you were drinking all the beers in the world.
Correction Mr. President, I DID build this, and please give Lurker a hug, we wouldn't want to damage his self-esteem.

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Re: Big Day for the 2nd Amendment

Post by Rsak » Mon Mar 17, 2008 9:02 am

The problem with the felons getting guns again is that what lawmakers will do is make a lifetime probation part of their sentence so that they never complete it and cannot regain the full rights.

Its the same basis for having to file as a sexual predator whether your crime is rape of a child or getting a blowjob from your 16 yr old girlfriend when you are 18.

Embar Angylwrath
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Re: Big Day for the 2nd Amendment

Post by Embar Angylwrath » Mon Mar 17, 2008 9:17 am

Rsak wrote:The problem with the felons getting guns again is that what lawmakers will do is make a lifetime probation part of their sentence so that they never complete it and cannot regain the full rights.

Its the same basis for having to file as a sexual predator whether your crime is rape of a child or getting a blowjob from your 16 yr old girlfriend when you are 18.
They won't be able to do that, without showing a compelling need. It violates other constitutional protections.
Correction Mr. President, I DID build this, and please give Lurker a hug, we wouldn't want to damage his self-esteem.

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Re: Big Day for the 2nd Amendment

Post by Rsak » Mon Mar 17, 2008 9:23 am

In my opinion if you cannot be trusted with weapons then you should still be behind bars. Once you are free from prison then you should be "Free" with all of your rights. However that is simply not how our legal system works. It doesn't make it right, but it is what is happening.

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Re: Big Day for the 2nd Amendment

Post by Klast Brell » Mon Mar 17, 2008 9:25 am

The government can restrict felons from having guns the same way that they can restrict felons from voting. Not really an problem there. Sure the constitution may be clear as a bell on the issue, but that has never stopped Washington from making laws that cover situations the founding fathers may not have considered. The constitution guarantees a right to travel as well. But look at all the laws that restrict the way we fly.
Washington also defines what arms we can bear. You may notice that a lot of military grade weapons like Ground to air missiles and mortars are not exactly available at the corner gun shop. If Washington decided that arms were only those weapons available at the time of the signing of the constitution then we would all have to suck it up and go back to flintlock muskets. (at least till the next election where you might be able to vote in a bunch of gun nuts who permit every flavor of assault rifle and turret mounted machine gun)
"A few months ago, I told the American people I did not trade arms for hostages. My heart and best intentions still tell me that's true, but the facts and evidence tell me it is not." - Ronald Reagan 1987

Embar Angylwrath
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Re: Big Day for the 2nd Amendment

Post by Embar Angylwrath » Mon Mar 17, 2008 10:03 am

Cart before the horse, Klast. If the USSC decides that each citizen has a constitutional right to bear arms, all those regulations and laws you alluded too would be eventually challenged, with many overthrown or reduced in scope. This is why this is so exciting. The USSC has never weighed in on the 2nd Amendment at such a fundamental level. After this precedent is set, old laws may have to be thrown out. Perhaps the government CAN'T restrict someone from owning a stinger missle or a flamethrower or M1 Abrams tank. If the intent of the founders was to ensure a well armed militia, so as to protect themselves from illegal governments (including ours, by the way), why restrict the weapons at all? If governments now fight with tanks and nukes, shouldn't a well armed militia have those tools too?
Correction Mr. President, I DID build this, and please give Lurker a hug, we wouldn't want to damage his self-esteem.

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Re: Big Day for the 2nd Amendment

Post by Klast Brell » Mon Mar 17, 2008 11:19 am

How are you going to legalize stingers and etc when all it takes is a couple people in Washington to say "9/11". Huge sections of the constitution are being disregarded by that same republican supreme court. (you are lucky you don't have to fly naked wearing a TSA approved locking but plug)
This Supreme court ruling may throw a bone or two to the castle doctrine fanatics in the NRA, but I doubt you will see any loosening of the restrictions on the mil spec stuff.
"A few months ago, I told the American people I did not trade arms for hostages. My heart and best intentions still tell me that's true, but the facts and evidence tell me it is not." - Ronald Reagan 1987

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Re: Big Day for the 2nd Amendment

Post by Garrdor » Mon Mar 17, 2008 2:19 pm

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Re: Big Day for the 2nd Amendment

Post by superwalrus » Mon Mar 17, 2008 10:54 pm

Constitional rights trump any law in any state. No state can can enforce a law deemed unconstitional. You probably missed that part in law school when you were drinking all the beers in the world.
This right here shows that you have no understanding of law and did not understand anythign that I wrote in my post.

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Re: Big Day for the 2nd Amendment

Post by superwalrus » Mon Mar 17, 2008 11:30 pm

Since the post police have started grading my posts I feel that sometimes I need to clarify. Your statements Embar are silly, do you really think I don't know the truth of what you said? But what you said was only partially true. Constitutional rights are constantly being curbed by state laws. I can name off the top of my head 100 ways in which, right now, our Constitutional rights are infringed or curbed by state laws. The last half of your statement is true, once a law is unconstitutional then it is unenforceable, but what does this have to do with the argument at hand?

The basic argument behind declaring the DC gun law unconstituional is that the 2nd Amendment is a private fundamental right guaranteed by the constitution to bear arms, and not a group militia right. So what will happen if the DC law is unconstitutional? It will look something like this:

- DC law unconstitional, right to own a handgun is a private fundamental right
- state laws will remain in place
- state laws that are different from the DC laws will be challeneged
- district courts will be ALL over the place as to how to rule on the other state laws
- circuit courts will begin issuing rulings, the 2nd and 9th will gain prominence and other circuits will probably look to them
- if the circuit courts are in extreme opposition to each other, the Supreme Court will take time and clarify the point of disagreement
- in the alternative to the last points, the SC might choose to look at a particular case or group of cases to clarify a point they want to

this process will repeat itself over and over again as states change their laws in an attempt to adapt to the SC rulings. If the DC law is unconstitional it won't make any other laws in the country unconstitutional, they will have to be ruled on seperately by the district courts. Every state SG will argue that its state law is distinguishable from the DC law, or that its state law complies with the policy reasons in the DC ruling. The SC doesn't just rule and then its going to be a gun nirvana, there is a process.

So my original post still stands. If owning a gun becomes a fundamental right protected by the constitution then state laws will be upheld if they are necessary to protect a compelling state interest. Thats the test for every fundamental right guaranteed by the constitution. Freedom of speech, privacy, etc. I don't understand what your argument is.

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Re: Big Day for the 2nd Amendment

Post by Embar Angylwrath » Tue Mar 18, 2008 4:01 pm

http://www.ft.com/cms/s/0/51ca64b6-f51d ... ck_check=1

Looks like the court will hold people have a constitutional right to own weapons. Bout fuckin' time.

If this is indeed the ruling, it will get very interesting for a while. Every law that attempts to restrict gun ownership in anyway must pass a challenge on a constitutional level. That's no easy task. Once something has been ruled a constitutional right, governments must show a legitimate and compelling interest to narrow the right. That means, every law that restricts the possession of a weapon by a citizen is now open to constitutional challenge.

Can the government restrict a minor from buying a handgun?

Can it require background checks? (Do you undergoe a background check to vote, or to exercise your right to free speech?)

Can it restrict any weapon in the "lineal" evolution from the weapons available at the time the Constitution was adopted? (That includes any weapon that fires a bullet, all the way from a .22 to a Vulcan cannon)

Can it restrict the number of weapons?

Can it impose a license fee (hello, poll tax.. you don't have to pay for a constitutional right)

All these questions, and more I'm sure, will have to be adjudicated, and applied now to a higher standard of freedom. This is why it will be very interesting to see what happens in the courts over the next few years, and what kind of precedents will be established. Related issues will land at the feet of the USSC for years to come as they further define the limits of the constitutional right.
Correction Mr. President, I DID build this, and please give Lurker a hug, we wouldn't want to damage his self-esteem.

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Re: Big Day for the 2nd Amendment

Post by Partha » Tue Mar 18, 2008 6:47 pm

You act like this is surprising. Yawn.
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Re: Big Day for the 2nd Amendment

Post by Ddrak » Wed Mar 19, 2008 5:31 am

Can it restrict any weapon in the "lineal" evolution from the weapons available at the time the Constitution was adopted? (That includes any weapon that fires a bullet, all the way from a .22 to a Vulcan cannon)
I've always thought that was the fundamental test of the 2nd amendment, and why the particular amendment was stupidly written. What America really needs is to write a better 2nd amendment.

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Re: Big Day for the 2nd Amendment

Post by superwalrus » Wed Mar 19, 2008 10:05 am

Its going to be awhile, considering the political climate since Clinton and George W that another amendment will get any steam.

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Re: Big Day for the 2nd Amendment

Post by Arathena » Thu Mar 20, 2008 10:49 am

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