dc gun case victory?

sjalterego · Jun 30, 2008

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Well so far as I know the Zero Aggression Policy isn't on anybody's list of tools for Constitutional Interpretation however good it may be as a guide to individual conduct.

Certainly my example was over the top. But I'm sure I can construct numerous examples that don't violate your Zero Aggression standard of review.

My basic point was in response to your comments that the Heller decision was worse than a disappointment because it held that the "2A is an individual right, but the state can infringe on it."

I just don't get that line of reasoning. Every constitutional "right" has limits. Essentially all the court did was reassure people that holding there is an individual right didn't mean every single gun law was going to be invalidated.

While I am happy with the decision, I predict that as the 2A is fleshed out in additional cases etc. we will NOT get everything or even most of what we want. However we are a lot better off today with at least some enforceable constitutional limit on what government can do to restrict our ability to "keep and bear" arms. In that sense I share your pessimism (probably to a lesser extent) but in deciding the particular issues before it the S.Ct. did all we could have reasonably expected.

If you were expecting MORE from this decision

Really, the only standard for gun control set by this case is that the state cannot completely ban handguns and cannot require a gun to be kept locked at alll times. That's not much... and I don't see how that's going to be much help to CA.

I don't see it helping Open Carry in the least... which is all the more reason we need to keep doing it.

Then I think you were overly optomistic. Nothing in the case involoved a request to carry that was denied by gov't. I certainlya gree with and commend your belief that we need to "keep on doing it" and pushing other efforts to expand the recognitin of our "rights".

As others have said it was a baby step and nothing more.

marshaul · Jun 30, 2008

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CA_Libertarian wrote:

sjalterego wrote:

I'm not sure why people are unhappy with the message that the 2A is an individual right but it has limits. Every other right in the Bill of Rights has limits.

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I'm not sure why people are happy with that message. Does it make it better to know that every other right outlined in the constitution is subject to trampling? Not to me. "...shall not be infringed" is very specific and concise. If the founders wanted there to be exceptions, the would have used different wording, like "shall not be unreasonably infringed"... like the did with 'unreasonable searches and seizures" in the 4th Amendment.

They affirmed that felons and mentally ill may be restricted from possessing firearms. I hope this isn't controversial.

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This is controversial. Felons are not always violent. Once time is served, their debt to society is paid... yet they lose their rights permanently. If they're so dangerous they can't own a gun they should be in jail. If they truly are dangerous telling them not to buy a gun won't stop them illegally or just stealing one.

Mental illness is another shady area. Again, if they're that dangerous lock them up. Again, telling them they can't buy one won't stop them from getting one if they're motivated. The most dangerous part of this deprivation of rights is the potential for abuse. It's far too easy to say someone is mentally ill without really proving it. I'm sure there's a few LEOs that think I'm mentally ill because I think it's a good idea to OC. Way too much potential for abuse here...

They affirmed that "sensitive places" such as schools and some gov't buildings may restrict possession within them. This may be more controversial to members of this forum but I would hope that we can largely agree that there may be some places in which firearm possession isn't "necessary" and in which gov't can restrict such possession.

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No, I don't agree that there is any place were a firearm is not necessary. Schoolhouses, courthouses, police stations are all just as dangerous as the grocery store or the average workplace. You ever notice that all the 'sensitive places' are places were government employees work? In CA it is EVERY place that a government employee works, plus some.

Forget the 'neccesity' of the firearm. I don't have to prove I'll need my gun to carry it. You have to convince me that the government has a legitamite right to stop me from carrying anywhere. There's no logic and no statistical data to prove that these 'gun-free zones' are any safer for their lack of guns.

They affirmed that dangerous and unusual firearms may be restricted. This should be obvious and not controversial.

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I couldn't disagree more. ALL guns are dangerous. So, all a gun has to be is unusual to be restricted. I like unusual guns. I know a guy that has an old flint-lock musket; it's my favorite gun to shoot and it's the only one like it I've seen.

So, what constitutes unusual? This is a slippery slope to tread.

OK, forget the semantics. I want to own the most lethal and most unusual firearms I can find. What gives anybody the right to stop me?

I apologize for the rant here, but it just steams me when the people claiming to be on the side of gun rights are so happy with the sink-hole we're trying to dig our rights out of.

WAKE UP! The right to keep and bear arms serves one purpose more important than all others: being able to violently overthrow a tyranical government. Gonna be a lot harder to do that when we're limited to weapons that aren't 'dangerous.'

+1

Right on the money, as (almost) always. I agree with all of your points, and I would like to point out that with a government that tries to make every citizen a "felon" for things as trivial as traffic infractions, I believe it is time to restore rights to felons. The practice of denying voting rights to felons is, in my opinion, particularly dangerous.

CA_Libertarian · Jun 30, 2008

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sjalterego wrote:

Well so far as I know the Zero Aggression Policy isn't on anybody's list of tools for Constitutional Interpretation however good it may be as a guide to individual conduct.

I disagree with your assertion that " the Zero Aggression Policy isn't on anybody's list of tools for Constitutional Interpretation." The Zero Agression Principle is on my list of tools for interpreting the Constitution (along with anything else that needs interpreting). So, I'll assume you mean it isn't the standard in the 'justice' system. This is my point exactly. It should be the standard, as it is the most just standard.

Certainly my example was over the top. But I'm sure I can construct numerous examples that don't violate your Zero Aggression standard of review.

I doubt it. Feel free to try.

My basic point was in response to your comments that the Heller decision was worse than a disappointment because it held that the "2A is an individual right, but the state can infringe on it."

I just don't get that line of reasoning. Every constitutional "right" has limits. Essentially all the court did was reassure people that holding there is an individual right didn't mean every single gun law was going to be invalidated.

My point is that every firearm law on the books is invalidated by the US Constitution. No matter how many judges disagree with me the US Constitution is clear: shall not be infringed.

Not good enough for you? OK, to hell with the US Constitution; let's apply the Zero Agression Principle. Remember when you said you could probably provide numerous examples? Here's your chance. Tell me who's rights I'm violating if I:

Carry a loaded firearm
Carry a firearm as I drive past an elementary school
Carry a firearm while at a parent-teacher conference in a classroom
Carry a firearm in a courtroom
Carry a concealed weapon without asking a bureaucrat's permission first
Buy a handgun without clearing a background check
Buy a handgun without waiting 10 days to actually receive the firearm
Own a magazine with 11-round capacity
Own a fully automatic weapon
Own a chain-fed weapon
Own a grenade

I bet the only answers you will think of will have to do with offending my neighbors' sensibilities. An unreasonable fear of weapons is no excuse to violate my rights. A reasonable fear is not an excuse to violate my rights. You don't have a right to not be offened or scared. If I'm not violating your rights then you have no right to point a gun at me (or pay someone else to do it) to force me to stop what I'm doing.

...If you were expecting MORE from this decision

...Then I think you were overly optomistic.

As others have said it was a baby step and nothing more.

As I said before, I am not surprised, just disappointed. I agree it is a baby step, and I don't think baby steps this small are cause for as much celebration as I'm seeing. In fact, I think it sends the wrong message to be so happy about such slight a win. It shows just how desperately the win was wanted/needed. Reacting with disgust sends the strong message that "this is not enough."

marshaul · Jun 30, 2008

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sjalterego wrote:

But putting aside "semantics" the basic premise of Scalia's statement was that finding a 2A individual right to "keep and bear arms" doesn't end the matter but that the Court will in future have to define what "arms" are included within the right and the extent to which they may be "kept" and borne. Just b/c I call my backpack nuclear bomb that I bought off of e-Bay from that nice Russian arms dealer an "arm" doesn't mean the 2A will protect my right to possess it. That is an extreme example but a line will have to be drawn somewhere. Where do you think the line should be drawn?

Should individuals be allowed to possess:

a nukes

b conventional warheads/bombs

c rocket/missile delivery systems

d artillery

e the 30 mm GAU -8/A Avenger Gatling gun found on the A-10 Thunderbolt

f the GE M134 minigun

g an M60

h an M16?

Me personally I don't want my neighbors to have anything on a-f. G makes my uncomfortable but I'm not ruling it out. H I'm pretty much okay with.

Your entire argument is hinged upon the premise that regulation - beyond the protection of established rights - is effective in achieving arbitrary goals (like what - the reduction of backpack nuke attacks, or murders committed with the M134?). This premise is, in my opinion, flawed. The arguments I am going to use against your position are used against liberal gun-control advocates on a regular basis.

First of all, the unjustified taking of another's life ("murder") is illegal, so what benefit does one obtain from having outlawed the various means of murder, be they handguns or backpack nukes?

Ask yourselves the three following questions before you launch hyperbolic straw-man arguments:

A: If a person were sufficiently motivated to detonate a "backpack nuke" (assuming such devices indeed exist), thus committing innumerable counts of murder, would a mere prohibition against the use, or even possession, of a backpack nuke then be sufficient to deter him from this action?

B: Considering the existence of laws prohibiting the "intent to commit murder" - and the ease of arguing such intent based on, say, the possession of a nuclear weapon by a citizen with no possible use for one - would the lack of a "backpack nuke" prohibition impede the ability of law enforcement agencies to prevent backpack nuke attacks?

C: Is there a backpack nuke problem is the U.S. today?

I think if you think about these questions, you will realize the absurdity of using nuclear weapons in the argument against the unlimited right to keep and bear arms.

As for any regulation, necessity and effectiveness should be the first consideration. From my perspective, your argument for the pointless, and doubtless ineffective, ban on nuclear weapons is as flawed as any gun control argument, if not more so.

It's time to wake up and stop trusting in the inherent efficacy of the rule of law. Government, and law, are the big lie perpetrated on the human race by those with power for the purpose of maintaining their position. While I won't go so far as to advocate anarchy, what I will do is insist we do things like question our assumption that (a) law actually serves its intended purpose.

CA_Libertarian · Jun 30, 2008

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To get a little more back on topic... I'm a little more optimistic now about the utility of Heller to the cause of repealing 12031.

As posted on Calguns.net by yellowfin2:

12031 is directly voided by Heller because it's an impairment to functional purpose of self defense.

I read a case once where a CA court adressed this issue. It wasn't a RKBA case, but I think the analogy fits. The case said something to the effect of, 'the right to the press implies a right to distribution of newspapers as it is a functional purpose of the right to create newspapers.'

I am hopeful that the CA courts will recognize that carrying a loaded firearm is a logical extension of the right to self defense. However, CA courts can torture logic with the best of them.

marshaul · Jun 30, 2008

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The California Supreme Court is right now the only thing resembling a libertarian influence on mainstream Californian politics (I'd point to some examples outside the arena of RKBA for further proof of this).

It will be interesting to see how they react to Heller in general. I wonder if they will see fit to apply it to the suit against San Francisco?

http://hotair.com/archives/2008/06/28/nra-sues-san-francisco-on-public-housing-gun-ban/

CA_Libertarian · Jun 30, 2008

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Later this month I will be attending a meeting of the Madison Society. I plan to discuss the option of setting up a 'test case' for open carry. I may or may not volunteer to be the test dummy, contingent on how they respond and how confident I am in their financial backing.

Unfortunately, their meetings are held in the Modesto PD station, so I'll have to lock my gun in the trunk before I enter. I will however wear an empty holster.

marshaul · Jun 30, 2008

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I assume you mean LOC?

Edit: Never mind, I didn't notice your reference to 12031 above.

Sounds like a good idea. Keep us posted.

CA_Libertarian · Jul 1, 2008

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marshaul wrote:

I assume you mean LOC?

Edit: Never mind, I didn't notice your reference to 12031 above.

Sounds like a good idea. Keep us posted.

Yes, and maybe double that up with a challenge of 626.9.

4armed Architect · Jul 1, 2008

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MudCamper wrote:

It's a baby step. But it's a step in the right direction.

Apparently, more baby steps in the right direction are following HELLER. Some smaller Chicago suburbs are capitulating(a little) and suspending their handgun bans, at least for a while. Little, teeny, tiny steps, but steps in the right direction none-the-less. Unfortunately, some big ships take a long time to turn around. See the following:

http://www.chicagotribune.com/news/local/chi-suburbs-gun-ban_both_27jun27,0,2696560.story

4armed Architect · Jul 1, 2008

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Where we are now:

The Supreme Court of the United States(SCOTUS) has, finally, definitively addressed one component of this portion of the 2nd Amendment of the U.S. Constitution:

the right of the People to keep and bear arms shall not be infringed

the right of the People
SCOTUS says that "the right of the People" applies to individuals. They left open the door as to what the definition of "individuals" is. It will take future legal action
to further clarify.

keep
SCOTUS says that DC's gun ban is too restrictive regarding how individuals can "keep" firearms and therefore is unconstitutional. They did not conclusively spell out under what conditions, if any(or lack thereof), individuals can keep arms and did not specifically say other jurisdictions' gun bans were too restrictive. It will take future legal action to further clarify. Wisely, a few jurisdictions with laws similar to DC aren't waiting for the legal action and are, at least, suspending their current handgun bans.

bear
SCOTUS did not specifically delineate the issue of how an individual might bear arms.
It will take future legal action to further clarify.

arms
SCOTUS did not specifically delineate what would be the definition of arms. It will take future legal action to further clarify.

shall not be infringed
SCOTUS indicated that they will not take this phrase literally. SCOTUS has given the greenlight to jurisdictions to infringe - just not too much(of course how much is too much becomes lots more cases for the courts). It will take future legal action to further clarify.

As you can see, there will be lots of court cases before the dusts settles and SCOTUS' vision of what the 2nd Amendment means becomes more clear(arguably LESS clear with more court cases). This is why we can't get too excited about it. It is a victory in a battle in a much bigger war. Victories are always good, but are, by no means, the end of the trouble. If just 1 judge had gone with the minority, we might have lost 2nd Amendment rights, as individuals, forever. For that, I do breathe a small sigh of relief. Unfortunately, many of those same judges(and new ones appointed by either Presidential candidate) seem to be leaning towards a lot of infringement by gov't. :uhoh:

sjalterego · Jul 1, 2008

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Well I'm not going to take you up on your offer to analyze the constitutionality of your ownership of various weapons under your "Zero Agression Principle". It may very well be the best "moral" principle around. However, it isn't any part of the "standard" tests used by the S.Ct. in interpreting Constitutional or Statutory principles or statements.

If you want to analyze the constitution that way fine. That is the way YOU want the Constitution to be interpreted. That has no bearing on how the Constitution actually is interpreted and thus has no bearing on reality. Like it or not, the Const. is "interpreted" by the S.Ct. according to a set of well recognized (sometimes antagonistic and contradictory) principles which happen not to include your "Zero Aggression Principle."

I'm fairly libertarian and agree that you generally aren't harming anyone or violating the "rights" of any individualby doing any of the things that you listed. However, the Const. does not limit Gov't power to legislate only to prevent one individual from violating another individual's "rights". Maybe that is the way it should have been written and interpreted but that simply isn't the case today.

The U.S. Const. has long been interpreted to allow the governments to pass laws for the general welfare (as the legislature sees it) that restrict your and my "freedom" to do whatever we want. The Const. also places certain defined limits (largely in the Bill of Rights) on government's power to regulate in some areas. Thus even though your mere ownership of any weapon doesn't violate anybody else's individual rights, government has the power to legislate in the general welfare and may restrict such ownership, or at least it did until Heller. NOW, the 2A has been interpreted to limit gov'ts power to so legislate. We will see how effective that limitation is.

I think this debate is becoming worthless as we seem to be speaking past each other instead of to each other. You are looking at the issue in an idealized sense of how you wish the Const. were worded or interpreted and I am looking at it through the lens of how the Court is likely to interpret the Const.

From your idealized perspective our current 2A system is woefully inadequate and hence you see the glass as half empty (probably more than half empty).

From my historically based perspective (I don't mean you are ignorant of history, merely that my baseline is a realistic view of how the Const. has been historically been interpreted) I see that the 2A is now being given coequal treatment with the other amendments in the Bill of Rights and that we have a chance for a full development of 2A rights within the Constitutional framework and hence I see the glass as half full.

dc gun case victory?

sjalterego

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marshaul

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CA_Libertarian

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marshaul

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CA_Libertarian

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marshaul

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CA_Libertarian

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marshaul

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4armed Architect

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4armed Architect

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sjalterego

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