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2nd Amendment Question

Discussion in 'Legal' started by Cyborg, Dec 7, 2008.

  1. Cyborg

    Cyborg Well-Known Member

    I am asking this in all honesty and not trying to start a fight.

    Context: Texas legislators to consider Open Carry in the upcoming legislative session.

    Question: Would requiring a minimal amount of education - equivalent to the current CHL course - and demonstration of at least minimal proficiency with the weapon - also as is required now for a CHL in Texas - necessarily represent an "infringement" of the
    I do not believe it would.

    We cannot yell "fire" in a theater but isn't that an infringement of the right to free speech?

    We cannot have a large gathering without getting a permit from the city. Is that not an abridgement of "the right of the people peaceably to assemble"?

    Isn't the "res gestae" exception to the hearsay rule a de facto abridgement of the protection against self-incrimination? (For those of you who are unfamiliar with legal terms, res gestae refers to spontaneous statements made by a suspect - before or after he has been given his Miranda briefing)

    There are other examples with which I could probably come up but these should suffice. If the left has to be sensible in its interpretation of the 2nd Amendment, doesn't the right? Would regulation of all carrying not be at least as much a public safety issue as, say, not allowing someone to hollar "FIRE!" in a crowded theater?

  2. Frog48

    Frog48 Well-Known Member

    Thats not quite the same. Think of it this way...

    Yelling "fire" will result in a reactionary punishment as a result of abuse of the 1st Amendment. It does not preemptively limit our use of free speech. I have no problem with this.

    Shooting someone unlawfully and being prosecuted would be a reactionary punishment to the abuse of the 2nd Amendment. It does not preemptively limit any rights. I have no problem with this

    However, requiring education/licensing/etc would be a preemptive limitations upon the right to keep and bear arms.

    In my opinion, limitations upon rights should be a reaction after a real, actual occurrence of wrongdoing. Limitations should not be put in place "just in case" of some hypothetical, future action.
  3. Frank Ettin

    Frank Ettin Moderator

    the simple reality is that it is a well settled principle of Constitutional law, as reflected in decisions of federal courts, including the Supreme Court, that government may regulate Constitutionally protected rights, subject to certain constraints.

    Thus government may regulate a Constitutionally protected right as necessary to further a compelling state interest as long as such regulation is as narrow it may possibly be and still serve that interest. Any such regulation must not totally obviate the Constitutional right. Furthermore, any such regulation must be evenly applied and not subject to the discretion of governmental authority.

    For example, while the First Amendment protects freedom of speech and, we know there has been a history of certain regulation of speech and assembly. A few examples are:

    [1] Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Such laws may also require prior approval by certain regulatory agencies of certain advertising or solicitation material, especially material advertising prescription drugs or solicitations in connection with the sale od stocks or securities. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.

    [2] Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be Constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.

    So Constitutionally protected rights can in fact be regulated. While many people point to the "shall not be infringed" language of the Second Amendment, the fact of legal life is that some infringement will nonetheless be condoned by the courts. That's just real life in the real world.
  4. sailortoo

    sailortoo Well-Known Member

    Grant48 - +1
    And just how much training is "appropriate"; how much education? You see the barn door is wide open? The word "infringe" is specific, not general - even though it is routinely and expressly abused. The reason (as I read it) for the training and education involved with CCW "permitting", is just that, you must have a permit, as the old time attitude was that a concealed weapon was used for "nefarious" reasons, looked down upon by the general population, and many state constitutions specifically prohibit concealed carry. The permit process is to overcome the state constitutional prohibition, in some, but not all states. The freedom "to Keep and Bear Arms" was probably originally looked on by most citizens as obviously in the open. Just my 2 cents.
  5. cbrgator

    cbrgator Well-Known Member

    I think "shall not be infringed" has been violated many times over before the education requirement for a ccw. It is clear that these rights are not regarded as absolute by the government.
  6. BullpupBen

    BullpupBen Well-Known Member

    The 2nd amendment is about annihilating a government and making a new one in its place during that most extreme of cases where the government is beyond corrupt beyond the point that it can be repaired through normal legislative action.

    It really doesn't have anything to do with everyday carry of any kind so I think such a course would be fair.

    However, if the question is whether or not the 2nd amendment allows for a national registry of those who wish to open carry, then its a whole different story.
  7. gc70

    gc70 Well-Known Member

    No. The Second Amendment has not (yet) been incorporated against the states. Until it is incorporated, it means essentially nothing with respect to state laws.
  8. Cyborg

    Cyborg Well-Known Member

    sailortoo asked
    And so the answer is to say "None"?? We could argue the level of training/education needed indefinately. Probably no one would argue that the (usually minimal) levels mandated for a CHL are really sufficient. But can we not at least agree that those levels are a starting point? However minimal those requirements are, can we not agree that they are better than nothing?

    I am not an advocate for government control of our lives. I'm not sure who actually said it but I have heard that one of the Founding Fathers said something to the effect of "That government governs best governs least.". I subscribe to that principle wholeheartedly. But to live in groups we must of necessity be willing to forgo exercise of our rights to some extent or another.

    I was taught that my right to swing my arms ends at your nose. "WHAT!? I want to swing my arms entirely as I will." Fine, go off somewhere by yourself and swing to your heart's content. If you want to live with other people you have to agree to not exercise all your rights all the time. I might want to yell at those idiots on the City Council but if I do so during a meeting I could be charged with "DISRUPTING MEETING OR PROCESSION" (TPC 42.05) and spend half a year in county lockup, or a $500 fine or both. So I sit quietly through the meeting (or watch it on the public access channel of cable so I can holler all I want) to keep from being a disturbance.

    One other point. Despite TPC Sec. 8.03. MISTAKE OF LAW.
    Sure as the sun is going to come up tomorrow morning the first time some ignoramus wanders into one of the places where weapons are regulated (like a bank or even a liquor store) and gets busted for it; his lawyer is gonna holler that the dufus didn't know he wasn't supposed to be packing in a bank and if it was so important why didn't the state require him to be educated in where he could carry. I guarantee it. And depending on the jury that defense could fly.

    Or we could agree to being certain that everybody we see carrying is either a felon or someone who has been exposed to the law and demonstrated minimum proficiency with a handgun. I would probably wear my certification on my belt alongside my holster. Anybody that wasn't willing to show their certification would prima facie be a badguy. Off duty cops in plain clothes wear their badges displayed. What's wrong with that?
  9. Frank Ettin

    Frank Ettin Moderator

    Nonetheless, the courts and settled principles of Constitutional law are against you.
  10. Frank Ettin

    Frank Ettin Moderator

    You have a great week too, Johnny Dollar.
  11. Audrey

    Audrey Well-Known Member

    ANYTHING that prevents me from owning and using EVERYTHING available to the standing army is an infringement.

    But then I'm not a member of the NRA.
  12. sailortoo

    sailortoo Well-Known Member

    Cyborg - The point of ANY government requirement to exercise a god given right, which the Second Amendment guarantees, becomes an infringement. If you open the door a tiny crack, then the door is open. The state of our Second Amendment rights, with something over 20,000 infringements, and growing, "is what it is", but asking for more "regulation" is not desirable. Who is to decide what you need, to be an "adequate" gun owner? An exceptional gun owner? Not capable of owning a gun (besides being a felon or insane)? My point is the creeping governmental control, that seems OK today, but tomorrow is burdensome. I remember carrying openly, outside of town, in California with no problem or questions - but that was back in the 1950's. Consider where California is today on "the Right to Keep and Bear Arms". None of the Amendments is "bulletproof", pardon the pun, but to willingly give the government more and more control over a Right, not a privilege, is to eventually lose that Right. I realize that I am being idealistic, but damned if I'll help the government take away a basic Right. :cuss:
  13. sailortoo

    sailortoo Well-Known Member

    Cyborg - wearing a "certification" (the old CCW badge ?) on my belt will get me arrested in New Mexico - state statute forbids any form of badge or symbal indicating a CCW permit. No, just leave the government regs out of our Rights, as long as no one else is harmed. We are a nation of laws, and you just try to find a lawyer that knows even a significant portion of them. We surely don't need more of them.
  14. Frank Ettin

    Frank Ettin Moderator

    So what? It's not going to change.

    The door's been open for a couple of hundred years, and it's not going to close. To fight effectively, we must understand the way things are and how they work.
  15. Audrey

    Audrey Well-Known Member

    And we do that by accepting that we can't change it?
  16. Frank Ettin

    Frank Ettin Moderator

    If you think that you can change it and be able to legally acquire anything the standing army can, have at it. I don't think you can. Are you going to try to prove me wrong?
  17. Audrey

    Audrey Well-Known Member

    You've got such a winning personality I've decided to include you. And if you think the standing army is "legal" you will enjoy the ride.
  18. Ed N.

    Ed N. Well-Known Member

    Regarding the OP's comment about yelling "fire" in a theatre:

    Your analogy isn't a good parallel. Look at it this way.

    Suppose the law required that you attend a training class regarding laws regulating speech, covering topics such as fraud, slander, libel, inciting to riot, etc. You would have to pass a test and be certified in free speech before you could legally enter a theatre, all because you might yell "fire."

    Would that be an infringement on your rights?

    You see, the 2A addresses the right to "keep and bear." It does not address using arms (actually firing a shot [like actually yelling "fire"]). When it's legal to shoot is a matter addressed by a completely different set of laws. You're suggesting a form of prior restraint on a right, justified by the notion that someone's use of the firearm might be illegal.

    Keep in mind, too, that it's also a matter of circumstance. There's nothing wrong about yelling "fire" in a crowded theatre if there is, in fact, a fire! Similarly, a gun may be used legally for self-defense. Restricting the right would prevent legal use in addition to illegal use.

    Training is a good idea, certainly. Requiring it as a condition to exercise a right is a very very bad idea, as bad for the RTKBA as any other right. It allows the gov't to deny the right based on an aritrary, gov't established basis.

    Should we require gov't training for the press? For anyone who wants to practice a religion?

  19. Bubba613

    Bubba613 member

    And yet. I don't know how many states require some kind of course for a permit (mine does). And those states are among the most liberal and gun friendly.
    I honestly don't see the downside of this. Yes, people ought to become informed about laws in their states. But it is amazing how many just won't do it. Even those who have been through courses are still misinformed (either they didnt get it or the instruction was sub par).
    In the end, I would want a succesful program that showed clearly that law abiding permit holders act within the law 99% of the time. Classes on it further that interest.
    As for infringing, everything Fiddletown writes is correct imo.
  20. subknave

    subknave Well-Known Member

    The problem with requiring a permit is it makes it a privilege not a right. Now if you can carry openly just not concealed then it gets into how restrictive is it and what is the cost both financially and in terms of government interference. Lets say you can carry openly anywhere except into government buildings or schools but you can carry concealed anywhere. Then you would get the permit to lessen the restrictions on your right.

    A analogy would be if you can stand on a street corner and expound your political views but needed to show you had an understanding of libel and other laws to start a newspaper. In effect is it a check to make sure you understand what you are doing or a means of preventing a class or group of people from exercising their rights.

    A must issue state would not be an infringement but a state where issue was at the sole discretion of a police chief or judge could be if exercised arbitrarily or denial was not based on logical reasons.

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