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What do they REALLY mean by "Reasonable Restrictions"?

Jack House

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Jun 12, 2010
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I80, USA
I just wanted to point out that I can yell fire in a theater all I want, as long as no one is caused any undue alarm, panic, riot and/or I am not asked to leave and refuse, I have committed no crime. It's not a crime to yell fire, it is a crime to intentionally cause a panic.

Just like threatening someone is a crime, or conspiring to commit a murder. However I can say "I am going to kill you, Bob" all I want, if Bob does knows I am speaking in jest, then no crime has been committed.

Like wise, I can point my gun at Bob all I want and unless Bob feels threatened by it, then no crime has been committed. For instance, I stated multiple times last night that I was going to kill all of my coworkers so that I may receive the upcoming promotion that we are all fighting over. However, everyone knew I was joking. It's not a crime to say "I'm going to kill you" it's a crime to threaten someone.
 

simmonsjoe

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Nov 1, 2009
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Mattaponi, Virginia, United States
You are confusing RIGHTS with PRIVILEGES.

Rights incur RESPONSIBILITY

Privileges incur IMMUNITY.

When you restrict rights, and only grant them to certain people ("only ones"), based on some criteria you require them to pass, you've removed the right and replaced it with a privilege. When you 'grant' someone a privilege, you have removed responsibility from the individual. If you are confused or don't believe it, the forum is full of stories of cops getting away with insane stuff, even manslaughter/murder on a number of occasions. Often the excuses or cover-ups don't even attempt to hide reality, just ignore it. It's the nature of class structure.

The reason there is no such thing as 'reasonable restrictions' is because it is a form of 'redistribution of power.' That is, a group removing their own responsibilities for their actions.

This is why individual responsibility must not be subjugated.

EYE95 -- This is why, as I have stated before, I am a libertarian and Minarchist. As I have stated before, anytime the gov't is allowed to interfere before a crime against another person has been committed it can only bring about disparity. Yea maybe the reasoning sounds good, but what are the real consequences of giving these powers to MEN?
 

rodbender

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Navasota, Texas, USA
"Right to falsely yell "fire" in a crowded theater?"

No one has a "right" to falsely yell fire in a crowded theater. You have the "ability" to do so, but I really would NOT call it a "right". You also do not have a "right" to commit armed robbery, you have the "ability", but not a right to do it. Geez, how insane some people get with the word "right".

When they talk about "reasonable restrictions", they are simply avoiding what they actually mean which is "reasonable infringements". But then using the real phrase, "reasonable infringements", would be like giving their play book to the opposing team, would it not?
 
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eye95

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The problem comes in when someone does yell "Fire" in a crowded theater, then goes to court, and claims Free Speech. How does the court handle telling the defendant that, despite the right, he cannot yell "Fire" in that situation?

Should he say that speaking freely is a right, but a specific instance of speaking freely is not?

Should he say that speaking freely is a right, but, in context, such as putting others in danger, causes that actions to be illegal?

Should he say that the right is not absolute? That there are reasonable restrictions that can be placed on the right?

We all (I hope) agree that yelling "Fire" in a crowded theater is not protected under the right of Free Speech. We are communicating that idea in different ways--and arguing about that wording. Since the courts communicate this idea using the words "reasonable restrictions," that is the phrase that I will use.

While I would rather the CC and OC both be available as unlicensed means of exercising the RKBA, they provide an example of a reasonable restriction that, I am sure, would pass muster with the SCOTUS.

The right is to be able to move around with your firearm available for immediate use. If a State were to say that you have the right to carry it around, but need a permit to cover it, that would be a reasonable restriction. The core right is not actually being restricted (even though one might argue that exercising the right has been made more difficult). What is being restricted is contextual behavior.

What makes the restricting the right (I know some hate that phrase) reasonable is that the State has a compelling interest to make sure we are all aware of who is armed and who is not--or that the State vouches for those who might be secretly armed.

Again, I am not advocating licensing of CC. I am pointing out how that can be considered, depending on how one prefers to phrase it: (1) a reasonable restriction of the RKBA, (2) a recognition that bearing arms is a right; but concealing is not, or (3) defining unlicensed conceal as a context in which exercising the right, in combination with that context, not by itself, as unlawful.

Again, the purpose of this post is not to defend licensing CC. It is merely to point out different ways of communicating the idea that the courts call "reasonable restrictions."

The point remains that one exercising a right does not permit him all possible accompanying actions and contexts--however that idea is communicated.
 

gogodawgs

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Oct 25, 2009
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Federal Way, Washington, USA
Not really focusing on the correct issue.

You may not cause "imminent lawless action" (Brandenberg v. Ohio) with your speech.

First amendment law does not refer to 'reasonable restrictions', it refers to 'strict scrutiny' which has a much higher standard before it infringes on the right.

I sure hope that in the evolution of 2nd amendment law that the term 'reasonable restrictions' goes away and that the same standard of 1st amendment law and 'strict scrutiny' is what is used.

There are other lesser levels of scrutiny 'intermediate' or 'middle-tier' and 'rational basis' or'lower tier' regarding the 'equal protection' clause of the fourteenth amendment.

You can argue the semantics of yelling fire all you want but if you would of read my post earlier that standard was replaed with the imminent lawless action standard. And regardless what will be focused on is the level of scrutiny given to the 2nd amendment.

If as Justice Scalia argues the 2nd amendment is a 'fundemental right' then 'strict scrutiny' will be applied and it will be difficult for many laws to be upheld. However, that is not what the court opines. They assured the municipalities that not all laws would fall in one fell swoop.

I think that you will continue to see an affirmation of the 2nd amendment and the finding that many laws lack scrutiny. I think that some laws will fail strict scrutiny and some will fail the middle-tier. We really need to focus on strengthing the argument for strict scrutiny.

[FONT=Arial,Helvetica]
[FONT=Arial,Helvetica]Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis[/FONT][/FONT]
[FONT=Arial,Helvetica][FONT=Arial,Helvetica][SIZE=-1]1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):[/SIZE][/FONT][/FONT]
[FONT=Arial,Helvetica][FONT=Arial,Helvetica][SIZE=-1]A. Suspect Classifications:[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]1. Race[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]2. National Origin[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]3. Religion (either under EP or Establishment Clause analysis)[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]B. Classifications Burdening Fundamental Rights[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]1. Denial or Dilution of the Vote[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]2. Interstate Migration[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]3. Access to the Courts[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]4. Other Rights Recognized as Fundamental[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]Quasi-Suspect Classifications:[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]1. Gender[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]2. Illegitimacy[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]3. MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.)[/SIZE][/FONT]
[FONT=Arial,Helvetica][SIZE=-1]Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens.[/SIZE][/FONT]
[/FONT]
 
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utbagpiper

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Utah
...

While I would rather the CC and OC both be available as unlicensed means of exercising the RKBA, they provide an example of a reasonable restriction that, I am sure, would pass muster with the SCOTUS.

The right is to be able to move around with your firearm available for immediate use. If a State were to say that you have the right to carry it around, but need a permit to cover it, that would be a reasonable restriction. The core right is not actually being restricted (even though one might argue that exercising the right has been made more difficult). What is being restricted is contextual behavior.

What makes the restricting the right (I know some hate that phrase) reasonable is that the State has a compelling interest to make sure we are all aware of who is armed and who is not--or that the State vouches for those who might be secretly armed.
...

I understand you are using CC and OC as easy examples of what might be considered a "reasonable restriction". But I must disagree about whether the state has any compelling interest in knowing who has a gun or vouching for those who carry one concealed.

As others have pointed out, despite the often used, simple example of yelling fire in a crowded theater (when there is no fire) as being illegal, what is actually illegal is inciting a riot or panic, or even causing harm as people are trampled trying to get out. So long as the yelling of fire does not have a reasonable likelihood of causing a panic or harm, it is not illegal to yell fire in a crowded theater even in the absence of a fire. Imagine actors on a stage running about yelling fire at the top of their lungs. Perfectly legal free speech. However, to stop all action, walk to the front of the stage and calmly and authoritatively announce: "Ladies and Gentlemen, there is a fire in this theater and we need everyone to exit very rapidly lest you be burned alive," might well be illegal in the absence of a fire.

I have to ask, what is the harm done to others, where is the cause for panic, if I carry a gun out of sight without benefit of a government permission slip? Indeed, were I to play devil's advocate for a moment, I might well argue that it is the presence of a visible gun in modern society that is most likely to cause a panic and thus the action that might be most subject to state imposed limitations.

Also, consider the history of laws against concealed carry. In his "Racist Roots of Gun Control", Clayton Cramer explains that laws barring the concealing of arms were intended to force recently freed slaves to carry guns openly where they could be seen and the black man more easily disarmed. While these laws were written in an officially race neutral manner, they were rarely enforced against whites, or at least not against "respectable" whites.

I agree with Cramer that gun control laws generally--and laws governing whether a gun must be visible or hidden in particular--should be viewed as "suspect classifications" that are presumed racist and unconstitutional until they can be proven otherwise.

To ban removing a gun from the holster in public (excepting lawful need to use the gun) would seem to me a reasonable restriction given the chance for NDs and harm to the public from a loaded, unholstered gun. To consider the visible presence of a gun in full context of someone carrying that gun making threats (verbal or otherwise) against another person would be reasonable (obvious immediate access to a weapon to carry out a threat of grave harm). To ban guns from court rooms, jails, and other places where the state has an over-riding interest in (and actually does) maintaining high security and complete control of the facility would seem a "reasonable restriction".

But to say that the public has some compelling interest to know whether or not I am carry a gun, or to suggest that all of a city, or national park is somehow under enough control and security as to warrant a ban on guns would not be reasonable, IMO.

Charles
 

eye95

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Joined
Jan 6, 2010
Messages
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Location
Fairborn, Ohio, USA
I understand you are using CC and OC as easy examples of what might be considered a "reasonable restriction". But I must disagree about whether the state has any compelling interest in knowing who has a gun or vouching for those who carry one concealed.

As others have pointed out, despite the often used, simple example of yelling fire in a crowded theater (when there is no fire) as being illegal, what is actually illegal is inciting a riot or panic, or even causing harm as people are trampled trying to get out. So long as the yelling of fire does not have a reasonable likelihood of causing a panic or harm, it is not illegal to yell fire in a crowded theater even in the absence of a fire. Imagine actors on a stage running about yelling fire at the top of their lungs. Perfectly legal free speech. However, to stop all action, walk to the front of the stage and calmly and authoritatively announce: "Ladies and Gentlemen, there is a fire in this theater and we need everyone to exit very rapidly lest you be burned alive," might well be illegal in the absence of a fire.

I have to ask, what is the harm done to others, where is the cause for panic, if I carry a gun out of sight without benefit of a government permission slip? Indeed, were I to play devil's advocate for a moment, I might well argue that it is the presence of a visible gun in modern society that is most likely to cause a panic and thus the action that might be most subject to state imposed limitations.

Also, consider the history of laws against concealed carry. In his "Racist Roots of Gun Control", Clayton Cramer explains that laws barring the concealing of arms were intended to force recently freed slaves to carry guns openly where they could be seen and the black man more easily disarmed. While these laws were written in an officially race neutral manner, they were rarely enforced against whites, or at least not against "respectable" whites.

I agree with Cramer that gun control laws generally--and laws governing whether a gun must be visible or hidden in particular--should be viewed as "suspect classifications" that are presumed racist and unconstitutional until they can be proven otherwise.

To ban removing a gun from the holster in public (excepting lawful need to use the gun) would seem to me a reasonable restriction given the chance for NDs and harm to the public from a loaded, unholstered gun. To consider the visible presence of a gun in full context of someone carrying that gun making threats (verbal or otherwise) against another person would be reasonable (obvious immediate access to a weapon to carry out a threat of grave harm). To ban guns from court rooms, jails, and other places where the state has an over-riding interest in (and actually does) maintaining high security and complete control of the facility would seem a "reasonable restriction".

But to say that the public has some compelling interest to know whether or not I am carry a gun, or to suggest that all of a city, or national park is somehow under enough control and security as to warrant a ban on guns would not be reasonable, IMO.

Charles

I wish you would have included the parts of my post intended to forestall a debate on CC. I do not intend to discuss whether the State should have a compelling interest. I posited that the SC would find the restriction reasonable.

Therefore, in the interest of not creating another tangent, I will specifically choose not to respond to your post on topic. If you wish to readdress this issue in its own thread, I will give you my thoughts there.

Let me just reiterate the point my post was trying to make:

Again, the purpose of this post is not to defend licensing CC. It is merely to point out different ways of communicating the idea that the courts call "reasonable restrictions."

The point remains that one exercising a right does not permit him all possible accompanying actions and contexts--however that idea is communicated.
 

Thundar

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Sep 12, 2007
Messages
4,946
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Newport News, Virginia, USA
Did the SC MacDonal Ruling give us 3 Bright Lines and one core principle?

Court Opinion page 39-40

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as

"prohibitions on the posession of firearms by felons and the mentally ill",

"laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,

or laws imposing conditions and qualifications on the commercial sale of arms"

If these are bright lines for reasonable regulation, then there are lots of unconstitutional laws out there.

We should be fighting the strict scrutiny battle with these 3 bright lines and one core principle.:monkey

We ought to also stress that any regulation that restricts the core right, which is the use of firearms for self defence, cannot stand a strict scrutiny challenge, thus negating most open carry bans.:banana:
 

eye95

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Jan 6, 2010
Messages
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Fairborn, Ohio, USA
Court Opinion page 39-40

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as

"prohibitions on the posession of firearms by felons and the mentally ill",

"laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,

or laws imposing conditions and qualifications on the commercial sale of arms"

If these are bright lines for reasonable regulation, then there are lots of unconstitutional laws out there.

We should be fighting the strict scrutiny battle with these 3 bright lines and one core principle.:monkey

We ought to also stress that any regulation that restricts the core right, which is the use of firearms for self defence, cannot stand a strict scrutiny challenge, thus negating most open carry bans.:banana:

The list is not all-inclusive. They did not say that they were not casting doubts on a law that would prohibit the personal possession of a howitzer, yet they would undoubtedly find such a restriction to be reasonable (even though I know that some of our fellow members would not).

However, having specifically mentioned those three would forestall lawsuits in those regards.
 
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