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Thread: Decriminalization vs Legalization

  1. #1
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    This is probably obvious to most everyone on the forum, but I wanted to bring it up for discussion to make sure we're all on the same sheet of music, especially as the battle for our rights takes off in the states without OC. We want OC decriminalized, not merely legalized.

    Legalizing means allowing or creating exceptions for an activity that is prohibited, usually by another law, though it could mean creating an exemption to a natural or common-law right generally held by another. (I think CC laws allowing permit holders to carry on private property without explicit permission would be an example.) It usually includes control and restrictions of the activity.

    Here in TX carrying a handgun is explicitly prohibited by law in all cases with a patchwork of exceptions that legalize the activity. In addition to legalizing CC, the law creates a permitting process. It may be a "shall-issue" process but there's still a possibility of being denied. There are also requirements about carrying the permit and very explicit, and onerous penalties for failure to adhere to the law.

    (Interestingly, if we look at the Constitution there's very little that could be "legalized" for the people.)

    Decriminalizing means removing all legal prohibitions to an activity. Advocates for decriminalizing drug use or prostitution want to remove or severely narrow prohibitions to those activities. In the case of prostitution, advocates accept criminalizing prostitution involving minors. In the case of drugs, some advocates would allow prohibitions against use of some "hard" drugs. Neither group wants an outright ban of the activity with some exceptions.

    The problem those of us in Texas and the other 5 states is that our legislatures have criminalized activities necessary to the exercise of our 2a rights (among the many rights they're infringing). We should be very clear that we want our legislatures to repeal all laws that criminalize our 2a rights. We don't want a license. We don't want regulation. We don't want the state to "legalize" OC. We want our rights back! We want them recognized and we want them defended (or at least not infringed).

    It might be a good idea to criminalize or restrict some aspects of gun ownership or possession, but those would be laws explicitly dealing with those areas. What we don't want, is for possessing a handgun to be de jure prohibited with an exception for OC.

    Where we need to be on our guard is with the gun-control crowd. First, as we all know, they most ardently want citizen ownership completely outlawed. With DC v. Heller it looks like that battle is won (though vigilance is required). Secondly, and more likely, is the gun-control group is going to continue to try and take our 2a rights away by law and then license back to us the smallest subset that will pass SCOTUS review. This is unacceptable.

    I suspect that if there's any movement in our respective legislatures to quit violating our rights, the gun-control crowd is going to talk about "legalizing" OC. They're already trying to shift the debate by saying that DC v. Heller "legalized" a citizen's individual right to keep and bear arms. Of course they're wrong, but it's a multi-pronged campaign to win in the public square so they can then win in the state house.

    They'll want to put in place training requirements, restrictions, waiting periods and any other manner of control they can think of. And some in our ranks will be willing to compromise and accept a licensed privilege, rather than a state-recognized and defended natural right.

    I urge all of us to fight first for full decriminalization. IMO only Alaska and Vermont truly respect their citizens rights in this area. Once we've set the terms of the debate -- full decriminalization -- then let's discuss sensible prohibitions. If there are any.

    --Aaron


  2. #2
    Regular Member Sonora Rebel's Avatar
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    Pre-emption of the Constitution... US and local by regional Ordinanceis WRONG! I dunno how many times I'm gonna have to re-post this... but...

    In the Heller case, Justice Scalia wrote, “Nowhere else in the Constitution does a ”right“ attributed to ”the people“ refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention ”the people,“ the term unambiguously refers to all members of the political community, not an unspecified subset... The Second Amendment extends, prima facie, to all instruments that constitute bearable arms... The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed’.”

    What part of 'Shall not be infringed' eludes these liberal **********?

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    The same bunch that can't read "Shall pass no law establishing a religion.
    or the big sleeper... Nor prohibit the free excersize thereof.....
    Lets face it that pesky document is not worth the fax paper the SCOTUS
    prints it on.

    I hadn't even thought in the decriminalize terms, boy I'm starting to slip in my old age, that should have been jumping out at me.



  4. #4
    Campaign Veteran marshaul's Avatar
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    It's my understanding that decriminalization is a lesser goal than legalization. In the realm of drugs, decriminalization refers to removing criminal penalties for possession and sale, although those things may still be, technically, illegal. In effect, drugs would be prohibited on a similar level to minor speeding infractions.

    Legalization, on the other hand, would remove all prohibition entirely, making drugs something that could be, say, sold in stores.

  5. #5
    Regular Member Sonora Rebel's Avatar
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    How can you 'criminalize' a Constitutionally recognized Right... or any expression thereof? Only the 'criminals' willdeny citizens ofinalienable rights.

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    I believe what Aaron is trying to convey is what exists in a number of States where OC carry is considered "legal".

    In Michigan, OC is not illegal in that there is no law prohibiting OC. That, coupled with a good preemption statute, prevents local sub-units of gov't enacting any more stringent laws; in that sense OC is not just decriminalized (which would indicate that it was criminal initially) but rather non-criminalized.

    My feeling is that 99% of all laws enacted are considered 'positive law'; they tell us what we can't do. Our rights are what we can do. Viewed that way, the entire legislative process, which was designed to secure our rights, has become just the opposite - almost every law passed is designed to restrict our rights. And I'm pissed.



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    Its somewhat of a semantics game to try and make something more or less palatable.

    Back in the late 70s and early 80s, some fairly well to do communities in Illinois "decriminalized" pot possession. Mostly this was about protecting their precious high school football players. They passed local ordinances that made pot possession an infraction rather than a misdemeanor, so the miscreants could be charged with the infraction, which is not actually a crime, and coincidentally preventing their precious football players from having a criminal record.

    I would prefer to not see any kind of law passed to allow OC. What should happen is laws that prevent it should be repealed. If it is not illegal, than what would they charge you with?

  8. #8
    Campaign Veteran marshaul's Avatar
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    jmlefler, you're confusing the function of law with your annoyance at the overabundance of it.

    Something should never be allowed by law, except as an exception to an otherwise outlawed activity. In a free society, everything is legal until it is actively outlawed. Laws should only exist to prohibit those activities which society deems are harmful to the rights of others.

    The problem with our society isn't that we don't have enough laws protecting those activities we have a right to engage in, it's that we have too many laws prohibiting activities which the government has no right to prohibit us from engaging in.

  9. #9
    Regular Member Sonora Rebel's Avatar
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    ilbob wrote:
    I would prefer to not see any kind of law passed to allow OC. What should happen is laws that prevent it should be repealed. If it is not illegal, than what would they charge you with?
    The 2A recognized the Right to bear arms a long time ago. Many (if not most) State Constitutons recognize this same Right. Where does a Legislature assume the authority to preempt a Constitutionally recognized Right?

    "The Second Amendment extends prima facie to all instruments that constitute bearable arms. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed’.” (SCJ Scalia) ALL INSTRUMENTS! There is no limit in the Constitution as to type of Arms or manner of carry. Bearable... is what one person could reasonably be expected to carry and wield such instument for personal self defense primarily.

    ANY 'law/ordinance' which prohibits or limits the means to an individuals right to self defense is unConstitutional. Therefore... Illegal.



  10. #10
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    jmlefler wrote:
    I believe what Aaron is trying to convey is what exists in a number of States where OC carry is considered "legal".

    In Michigan, OC is not illegal in that there is no law prohibiting OC. That, coupled with a good preemption statute, prevents local sub-units of gov't enacting any more stringent laws; in that sense OC is not just decriminalized (which would indicate that it was criminal initially) but rather non-criminalized.

    My feeling is that 99% of all laws enacted are considered 'positive law'; they tell us what we can't do. Our rights are what we can do. Viewed that way, the entire legislative process, which was designed to secure our rights, has become just the opposite - almost every law passed is designed to restrict our rights. And I'm pissed.
    jmlefler has it right. Speaking my opinion isn't "legal" -- it's a right. I don't need permission; I don't need a permit and I don't need the legislature to do anything for me to exercise that right. The same should be true of RKBA and OC. Some states like AK and VT have no laws regarding OC or CC.

    The semantics are important here. The point is as jmlefler notes: we're free. Our laws tell us what we can't do. I don't need nor do I want any law telling me what I can do. Legalizing means telling me what I can do. Decriminalizing means taking the statutes off the books and letting me revert to the freedoms I was born with.

    Here's an example close to home: murder and killing. Murder is always against the law. Killing is almost always against the law. In Texas our "castle doctrine" law has made it legal to use deadly force in some circumstances. The statute explicitly states, legalizes, those times when a citizen can use deadly force:

    Code:
    Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the   other's use or attempted use of unlawful force.
    While it's common sense that a person ought to be able to defend themselves against another person trying to kill them, this law (which has a bunch of provisos and other clarifications) legalizes the use of deadly force. It doesn't remove the penalty so that your still guilty but unpunished. It legalizes the very act. Chapter 9 is devoted to language that legalizes actions that are prohibted elsehwere by law or might be interpreted to do so.

    Decriminalizing murder or even killing would be absurd. Legalizing certain actions that are illegal makes sense to protect life, liberty or property.

    One last thought, though. I'd describe our laws as being (or should be) "negative": they prohibit. By default we are free to do anything that doesn't infringe the liberties of another. Legislatures exist to write those necessary laws that enable a free society to interact within their freedom or raise necessary taxes to secure those freedoms and should be rarely necessary to legalize actions.

    --Aaron


  11. #11
    Campaign Veteran marshaul's Avatar
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    I don't believe there is much of a difference between "legalize" and "decriminalize," at least the way you mean. As I understand the common use, the difference is basically one of extent. As I understand it, decriminalization refers to removing criminal penalties (not necessarily all codified restriction), whereas "legalization" refers to removing all codified illegality, even where criminal penalties may not be present.

    I agree semantics are important. I would suggest that when you say "decriminalize," what you really mean is "deregulate," or maybe even "delegislate."

    But I could be wrong.

    Edit: A google search returns interesting results. In seems that, when discussing prostitution, the words are commonly used as akpoff describes them. Whereas, when discussing drugs, the words are often used as I describe them.

    Drugs:
    http://www.dpft.org/policy.htm

    Prostitution:
    http://www.freedomusa.org/coyotela/decrim.html


    Further edit: I think, to be clear, I will, from now on, use the phrases "legalize and regulate" and "decriminalize and deregulate." That way there can be no ambiguity.

  12. #12
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    marshaul wrote:
    I don't believe there is much of a difference between "legalize" and "decriminalize," at least the way you mean. As I understand the common use, the difference is basically one of extent. As I understand it, decriminalization refers to removing criminal penalties (not necessarily all codified restriction), whereas "legalization" refers to removing all codified illegality, even where criminal penalties may not be present.

    I agree semantics are important. I would suggest that when you say "decriminalize," what you really mean is "deregulate," or maybe even "delegislate."

    But I could be wrong.

    Edit: A google search returns interesting results. In seems that, when discussing prostitution, the words are commonly used as akpoff describes them. Whereas, when discussing drugs, the words are often used as I describe them.

    Drugs:
    http://www.dpft.org/policy.htm

    Prostitution:
    http://www.freedomusa.org/coyotela/decrim.html


    Further edit: I think, to be clear, I will, from now on, use the phrases "legalize and regulate" and "decriminalize and deregulate." That way there can be no ambiguity.
    I found the same thing, which is odd. I think the "sex workers" have the more correct usage but there is a lot of confusion.

    "Decriminalize and deregulate" is more polite than "leave me the alone", though the latter is closer to how I feel about it. :P


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