U.S. vs. Heller: the Flawed Logic.

[dm1333]

Don't you mean District of Columbia vs. Heller?

 

[Sans Authoritas]

Yes, I do mean that. I should have labeled it thusly. Thank you. Mods, can you mod-ify the title accordingly?

-Sans Authoritas

 

[RP88]

the "fire in a theater" argument is stupid.

You have the right to use your freedom of speech to your accord so long as you do not put the freedom of others at risk by doing something like screaming 'fire' really loud, or phoning in a fake bomb threat.

Likewise, you could use the same argument saying that you have the right to bear arms, so long as you don't go to the movie theater and shoot at the screen.

Someone needs to put something like that in another brief for the next case that hears on 'reasonable restriction'.

 

[GRB]

Both sides propose the idea of a "reasonable restriction" on a right. There is no such thing.

According to the way the founding fathers wrote the second amendment it is most clear that there are restrictions of rights, whether reasonable or not I cannot say.

If there was no such thing as a restriction upon a right, they would not have had to mention that it shall not be infringed. Infringment of a right most assuredly means restriction of the right . They plainly said it shall not be infringed only due to the need for a well regulatedmilitia. So in the abscence of that need, such a right could be infringed or restricted. Thank goodness and their smarts that a well regulated militia will always be a need.

 

[RP88]

the restrictions come in to play when one uses their rights in violation of other people's rights. Those are the only reasonable restrictions. I remember reading something like that awhile ago in 8th grade history, but its text and title eludes me.

 

[Sans Authoritas]

GlennBartley wrote:

If there was no such thing as a restriction upon a right, they would not have had to mention that it shall not be infringed. Infringment of a right most assuredly means restriction of the right.

An infringement on a right is not a "restriction" on a right. It is a violation on the exercise of someone's right. It cannot change the nature of a right. Anything that is not an absolute right is a privilege.

I have no right to falsely yell "fire" in a crowded theater. I am not free to do this act. It is not a part of free speech to needlessly endanger others. Therefore, a law that punishes someone for falsely yelling "fire" in a crowded theater is neither an infringement or a "restriction" of a right. It is a law against the initiation of aggression: fraud that results in others losing their lives. If you have no right to put others in danger to begin with, there can be no "restriction" on your right to put others in danger, can there?

-Sans Authoritas

 

[Sans Authoritas]

RP88 wrote:

the restrictions come in to play when one uses their rights in violation of other people's rights.

No! Equal rights cannot, by nature, conflict with the equal rights of others! You have no right to violate another person's rights.

Restrictions come into play against actions that are not rights, but acts of aggression that violate the rights of others. And no one has the right to violate anyone else's rights! Therefore, it is not a restriction on my rights for someone to tell me "You cannot violate his rights."

Is a law against rape a "restriction" on my right to rape someone? No! I have no right to rape someone! A law against rape is a protection of the rights of others! Do you see what I am saying?

-Sans Authoritas

 

[RP88]

No! Equal rights cannot, by nature, conflict with the equal rights of others! You have no right to violate another person's rights.

No, but I figured you would have gotten my meaning.

Restrictions come into play against actions that are not rights, but acts of aggression that violate the rights of others. And no one has the right to violate anyone else's rights! Therefore, it is not a restriction on my rights for someone to say "You cannot violate his rights."

of course.

Is a law against rape a "restriction" on my right to rape someone? No! I have no right to rape someone! A law against rape is a protection of the rights of others! Do you see what I am saying?

no, but your basic right to liberty can come into play here. If you use your rights, your freedoms, your given and held fundamental free will/liberties to deprive someone of there's...that is what I was getting at. You can own a gun, but can't shoot randomly at buildings because that would endanger life and property; you can own a very expensive car, but you cannot drive it over the speed limit or do dry-spins in the middle of the interstatebecause that endangers other drivers; you cannot kill someone because that violates a right to life, etc. etc. Thats the gist of it, anyway. it also goes back to the post on consequence.

 

[Sans Authoritas]

You can own a gun, but can't shoot randomly at buildings because that would endanger life and property; you cannot kill someone because that violates a right to life, etc. etc.

Correct. But that is not a restriction on any right you have. Some people, including Scalia and all of the justices, claim that it is. That is, and has always been, my point. There is no such thing as a reasonable restriction on your right to peacably carry a firearm for self-defense.

-Sans Authoritas

 

[RedLion]

I am under the impression that the Supreme Court left the decision as vague as the original amendment simply because there will be advances in arms that we cannot foresee. If the supreme court had said that 'only' non-NFA weapons were under the complete protection of the second amendment, what would happen when someone is attacked, say in the distant future when the attacker can get bullet proof armor is really bullet proof?

I do agree that the Heller Decision is bitter-sweet "victory", but then one has to define victory. Like I have said on other posts, If the founding fathers had written the constitution as direct and descriptive as they possibly could, we would be gathering at town halls for THR posts and getting angry at anti's for calling our flintlocks "tools of criminals", but we wouldn't have to worry about them taking our flintlocks.

I think that because of this vague decision, this has forced us to remain a part of the American system of government. I think that is actually a good thing because in the end the majority will win. If laws were permanent and not open to interpretation, I think this country would be no different than the corrupt monarchies it was supposed to free regular people from.

 

[geekWithA.45]

No, Geekwitha.45, that is precisely not what I am advocating. It is sad to see my intents and words so horribly misunderstood and mangled (though not maliciously) by people's pre-existent perceptions of what I am saying, and very difficult to undo years of already thoughts and fixed patterns of thinking.

Violence is what your words, whether or not you recognized or meant it, advocated.


Violence is what your words, whether or not you recognized or meant it, advocated.

Sans, you're on flimsy ground indeed asserting that meaning unto my words based on Spoonerian illegitimacy of coercive government.

And while you're at it, spare me, in fact, spare all of us the misunderstood martyr act. You're hardly the enlightened savior delivering us from our entrenched thought patterns.

The position is a classic example of what I am talking about: it's high order mental wankery, partly because the only system that passes the implied test, anarchy, has been thoroughly demonstrated to be vacant, and to fail miserably at protecting anyone's rights other than the strongest man in the band, who inevitably crowns himself king.

The fact that people who espouse this argument routinely fail or refuse to recognize that they are arguing an inevitably degenerate case is exactly the sort of perspective loss to which I refer.

As a philosophical tar pit, I remind myself of the fruitlessness of arguing with people mired in it, and so I am merely setting up the traffic cones and yellow tape, so the less wary travel might step aside the trap.

But hey, if anybody wants to jump into that philosophical tar pit with you, be my guest.

Ideological purity and $2.50 gets you applause AND a latte down at the coffee house.

There's nothing wrong with applause, (or latte, for that matter) but they shouldn't be mistaken for substantive contribution to the cause of liberty.

 

[M_Olson]

partly because the only system that passes the implied test, anarchy, has been thoroughly demonstrated to be vacant, and to fail miserably at protecting anyone's rights other than the strongest man in the band, who inevitably crowns himself king.

I believe you are wrong. Unless I have missed something, Sans has not advocated anarchy anywhere in this thread, and his definition, which I share, does not rely on anarchy.

What he has done is to define what a right is. Essentially a right is something that is inherent to humans by birth, and does not harm anyone else. As soon as it harms someone else, it is, by definition, no longer a "right". I think some of the confusion in this thread is through the mingling of the concepts of "freedom" and "rights". In my mind they are two seperate things. A right is limited. Not by man or man's government, but by its very definition. Freedom, in my mind, is unlimited and is where restrictions by man and man's governments are needed. An example of my way of thinking: you have the freedom to kill another person, you do NOT have the right.

Getting back to the anarchy issue, because we have both rights and freedom, there does need to be an authority or government to ensure that our rights are not violated by others' freedoms.

I hope that made sense, these philosophical discussions can get confusing due to the need to precisely define terms. As the late Col. Cooper said, "I am sometimes accused of picking semantic nits, but the precise meaning of words is not a trivial matter."

 

[lysander]

these philosophical discussions can get confusing due to the need to precisely define terms.

In this you are spot on...and it reinforces SA's point, that the court is, on a technical level, engaging in a misapplication of the word right...when in reality they describe a privilege.

So what does this mean? To my mind it means that though Heller is a "tip of the spear" type of win for firearms ownership "privileges", it isn't a win for those who would like to see a return to a more classically liberal understanding of what a "right" is.

 

[TG13]

From Wiki..

Liberty

Liberty is divided into four types : natural, personal, civil and political. The first two are inalienable, the latter two are government granted. Natural liberty is absolute freedom, limited only by the laws of nature. It is exercised upon one's private property or upon unclaimed property (anywhere else would be a trespass). Personal liberty is the right of locomotion, the freedom to travel upon public roads and waterways; limited only by the requirement to not infringe another's right to travel. Civil liberty is the permission from government to do that which would otherwise be a trespass, a tort or not allowed by law. A license to practice medicine is an example of a civil liberty (inflict injury without criminal liability). Political liberty is the permission to vote and hold office. In countries with socialist / communist governments that abolish private property rights, natural and personal liberty do not exist. Permission (license) is required for most activities and actions.


is the 2A a Natural, or a Civil Liberty??

 

[Cosmoline]

Who gets to decide?

There's the rub. The way it works in our system is the courts set the outer limits to the law, by interpreting the Constitution. This still leaves the law makers free to make their own decisions within those bounds. So if the courts aren't willing to go as far as we'd like, we still have political avenues.

s the 2A a Natural, or a Civil Liberty??

The Second is a CIVIL LIBERTY.

The RKBA is a NATURAL RIGHT

 

[TG13]

The Second is a CIVIL LIBERTY.

The RKBA is a NATURAL RIGHT

if the 2A is Civil, then it can be infringed/regulated..

the idea of RKBA is based in common law, but is the right to defend the same as the right to use arms??

if not, and they are separate, the state can determine the legal use of arms without infringing on the RKBA..

if they are not separate, the state cannot dictate the arms that are used in the defense, under RKBA..

is the action separate from the item??

if not, there would be no use for "arms" other than defense.. the item would have to be specific to the usage.. and since there are other "uses" for the item, can it be determined that the action is specific to the item??

 

[Cosmoline]

But that is not a restriction on any right you have.

You are falling into fallacy here. Let me try to break it down for you.

I have a right to free expression both through the Constitution as a civil right and as a natural right.

I would like to destroy my enemy by calling him a child molester and inventing proof of this charge. That is an expression. It is speech.

The law of defamation limits my ability to attack people with false charges. It restricts my free expression.

Instead of admitting that the right is curtailed, you claim that defamatory communications are simply not expression. But the end result is the same. You are still limiting the ability of a person to communicate free from state restriction. Whether you class this as a "reasonable restriction" as the courts do or simply redefine the right, the end result is the same. But I would suggest that the first approach is much more honest.

There is no such thing as a reasonable restriction on your right to peacably carry a firearm for self-defense.

See, what you are doing here is redefining the right to PEACEABLY carrying for SELF DEFENSE. To put it in a proper legal analysis, there is a right to keep and bear arms but a reasonable restriction would limit you to PEACEABLE CARRY for SELF DEFENSE. Thus curtailing a right to insurrection or carry to hunt down a bad man. It is a restriction, but most would agree it is reasonable.

In the end however I think we reach the same conclusion. I agree with you that the right should allow peaceable carry everywhere but a location of special rules such as a courtroom, which is a special place akin to a boxing ring. The judge can pack, and arguably the jurors should be allowed to as well. But the litigants and their counsel must be disarmed so as to meet on even turf like boxers in the ring.

 

[Cosmoline]

if the 2A is Civil, then it can be infringed/regulated..

It is civil, and it can be limited just like any other civil right. The fact is the Second is an amendment to a CONSTITUTION--which is the foundational CIVIL DOCUMENT of the republic. It is not the word of the Lord or dictation from a holy man.

The extent of the NATURAL RIGHT to keep and bear arms is another matter. It may well extend beyond the CIVIL RIGHT under the Second, for a variety of legal and historical reasons. But to enforce it you must look to the community and the polity, not just to the courts.

Put it another way, before Heller when a majority of circuits believed there was essentially no CIVIL right to keep and bear arms, there was still a NATURAL right to do so, even illegally. Just as there was a NATURAL right to be free, even when slavery made freedom illegal for some.

 

[Just Jim]

What should happen in every city in America ,that has gun controls, is for the victims of crime to bring suit against the cities for denying the person 2nd amd right. When cities have to pay for their folly they will quit making foolish laws.

Any other loss of right is taken to court and the 2nd Amendment is listed right near the top. I could use a few million cause the government wouldn't protect me and wouldn't allow me to protect myself.

We need to start after these jerks with the court system.

jj

 

[Erik]

"The fact is the Second is an amendment to a CONSTITUTION--which is the foundational CIVIL DOCUMENT of the republic. It is not the word of the Lord or dictation from a holy man."

DING! DING! DING! We have a winner!

 

[pyle]

Sans Authoritas:

I like what you're saying and I believe it's important for us to remember that is the way it should be worded. However, I believe it is only a semantic debate. I someone says ....my freedom to kick my leg ends at your nose (I'm a Karate man)..... - isn't it the same as saying .....I have a responsibility to make certain my kicks aren't directed at your nose....? I guess I just don't see much practical application to your thinking OTHER THAN reminding all of us that our rights are PURE and UNRESTRICTABLE - however, the responsibilities that accompany those rights are just as important as the rights themselves.....

But wait, I might have just answered my own question. The 2nd Amendment is somewhat unique in that the right involves some "object" and not just our mouth (speaking), or how we are treated, etc........ Well, I need to re-read the Bill of Rights again. Be back soon...

 

[Owens]

Pyle, you reminded me of what Grandma used to say: "Your right to swing ends where the fence begins."

Ooopps...there's that responsibility thing.

 

[akodo]

Is it a "reasonable restriction" on freedom of speech to require someone to get a permit before staging a march down the middle of a street? No! You have no right to prohibit people's movement by disrupting transportation, without there being forewarning and accomodations.

Is it a "reasonable restriction" to have a law that punishes a man who makes the threat, "I'm going to kill you?" No! Because no one has the right to threaten to initiate violence against any other man.

actually, those are two very good examples of reasonable restrictions

ANY rule or law is a restriction, even rules and laws against murder. In a truely, utterly free society, you would be allowed to kill someone for pissing you off, or because you were bored, take someone's stuff because you could, capture someone and sell them for profit, etc.

There is a reason the founders decided to set up a new government rather than just burn every lawbook and run naked through the trees.

Saying person A's rights end when they begin to trample on person B's rights IS a restriction.

Saying to a prisoner in a high security prison that he cannot go protest the olypmics due to China's human rights record IS an restriction on his right to free speech and his right to assemble

 

[M_Olson]

The law of defamation limits my ability to attack people with false charges. It restricts my free expression.

Instead of admitting that the right is curtailed, you claim that defamatory communications are simply not expression.

This is where your argument steers off course, in my opinion. My, and I believe Sans', argument is that you have a right to free expression that is limited by its very nature. Defamation is in fact expression, but it does not fall within the bounds of a "right". In other words, you may express yourself as long as that expression does not cause undue harm to another. Once you have caused undue harm to another, that action of expression has fallen out of the realm of a "right" and has become a freedom that you exercised to the detriment of another. I laid the foundation for this argument in my earlier post, I'm not sure if you read it or not, but it's post #62 for reference.

 

[Sans Authoritas]

Again, freedom is not the same thing as "ability," or "power." Freedom is the ability to do what you ought, not what you want or are able to do. I have all the ability in the world to murder someone. I have no freedom or right to murder anyone. Therefore, a law against murder (the killing of an innocent man) is not a violation of any of my freedoms or rights. Do you have a right to put me in shackles because I have the ability to murder someone? No! So it should be with laws: do not put shackles on men because of what they can do. Put shackles on men who have committed a real crime: an act of aggression against the life, liberty and property of other men. Or better yet, cause him to compensate his victim: because if he is a real and grave threat to the individuals who comprise society, he should be eradicated from society. Permanently.

I can speak words that ruin someone's reputation unjustly. I have no right or freedom to do so. I am not free to unjustly destroy someone's reputation and career.

There are some things that we have no right or freedom to do, yet we cannot possibly make a law against them, because they are violations of God's rights, not men's rights. All of men's rights are respected when God's rights are respected. But one can only pass a law against acts that are initiations of violence against other men. You cannot pass a law that says everyone must go to church every week. You cannot pass a law that says everyone must believe God exists. These are matters that belong to God to enforce, not men. My right to life, liberty and property are not violated if a couple of men want to move in together, have relations, and call it "marriage." My right to life, liberty and property are not violated if someone wants to look at women who choose to sell their dignity by posing for pornography. Are these acts morally wrong? I believe they are. Extremely wrong. But I also believe there should be no law against them.

A person's right to life, liberty and property is violated if someone initiates aggression/fraud against that person. That is the only thing laws should (and indeed, can effectively) prohibit. Is that an unreasonable desire? Does anyone have an idea for any laws they think should exist that only prohibit non-violent and non-fraudulent actions?

You can't make anyone believe anything by force. That is not what laws are about, though some people seem to think they are. You cannot make a murderer or society realize and respect the value of human life by the use of capital punishment. All you can surely accomplish is the neutralization of a real threat to other people. You cannot make a rapist respect the value of a woman's will, body and sexuality. You can only ensure that he does not do it again, by physically preventing him from ever doing it again. That is the purpose of law. Not to make people feel good, not to convert sinners. A law against aggressive or fraudulent acts exists to ensure that everyone lives in an environment as free as possible from acts of aggression and fraud: an environment in which men are able to recognize and pursue that which is good.

-Sans Authoritas