Gun Control - Now Discussing Tucson Shooting

Discussion in 'Archive: The Senate Floor' started by Lowbacca_1977, Dec 3, 2008.

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  1. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    Mr44

    I had a feeling it was Daley being Daley, and I agree with your analysis.

    KK

    As I?m sure you know, I?m not arguing for a ban. In fact, I think we agree except on open-carry, and even on that I think there can be open-carry in certain situations.

    Justice Scalia, writing for the majority, wrote (emphasis mine):

    "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ..."[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court's opinion, although refraining from an exhaustive analysis of the full scope of the right, "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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."

    So far as I can tell, and I?ll admit I did a quick search, there is nothing specific about open-carry.

    The logic is very simple and straightforward (and has been upheld by several state courts). It is the right to keep and bear arms. Bearing arms includes the ability to carry them with you. As it is a right, and not a privilege, it does not require prior government permission in the form of a permit.

    Again, this is not nor has it ever been absolute.

    Here in Cali, open-carry of a loaded weapon is basically prohibited unless licensed by the Police Chief/Sherrif. Concealed carry is more obtainable, but still quite restricted.

    So far as I know, these laws have never been challenged nor overturned by the state courts out here.

    You don't need a permit in order to publish a newspaper or to petition the government. You don't need a permit to practice your religion or express your views. These are fundamental rights. The same would logically hold true for other fundamental rights such as the right to bear arms.

    Again, none of these are absolute. One can?t build a church wherever they want, nor can they protest whenever or wherever they want.

    I agree though, regarding ?reasonable regulations?, obviously we disagree as to what those regulations should be. I am fine with open-carry when going hunting, or even hiking. Here in Cali, one can encounter a coyote, or even a mountain lion. Otherwise, I agree with the SC that it is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
  2. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I actually quoted the relevant section of Heller. Particularly the cases cited in footnote 9, pretty much all of which state that open carry is a clear expression of the right to bear arms, and if the state is going to restrict or prohibit concealed carry, then it must allow open carry.

    For example, see Bliss v. Commonwealth from Kentucky in 1822. You could also see State v. Reid. These are but two of the state rulings that interpret the scope of the RKBA. Heller did not go into details, because the specific issue in front of the court dealt with keeping arms at home rather than bearing them in public, but the basis for my claims is right there in the text and footnotes.

    I'm sorry, but could you please quote for me where I ever said that it was? If you can't do that, then you are simply presenting a straw man argument by claiming that I have made such a claim.

    I've already outright stated that several different restrictions (such as on concealed carry, or time and place restrictions on all carry) are most likely constitutional. I've stated outright support for restrictions on criminals having access to guns. Where in any of that do you come away with the idea that I think this or any right is absolute?

    The California constitution does not have any clause recognizing the RKBA. As such, until the 2nd Amendment was officially incorporated against the states, there was no judicial basis for such a ruling in California. When it comes to 2nd Amendment jurisprudence, California's legislative and judicial history is pretty much meaningless for interpreting the RKBA, because without such a provision in the state constitution, there's nothing for the courts to have ruled upon.

    The citations that I gave from the Heller opinion footnotes all come from states that have the RKBA written into their constitutions using almost the exact same language as the 2nd Amendment. As such, the state rulings on those clauses are the best source that we have at this time for 2nd Amendment jurisprudence guidance post-incorporation.

    Also, as a note, you can open carry in most of California as long as the firearm is unloaded. You can also carry a loaded magazine or speed loader to be prepared to load and use the gun at a moment's notice.

    Again with the straw man arguments. Where did I ever say that it covered "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"? I have repeatedly acknowledged reasonable and justifiable restrictions. Within the contexts of the posts that I've actually made, your responses simply make no sense, because they answer things that I never said.

    Kimball Kinnison
  3. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    KK

    I'm sorry, but could you please quote for me where I ever said that it was? If you can't do that, then you are simply presenting a straw man argument by claiming that I have made such a claim.

    I didn?t say that you did. I was making a general statement that we apparently agree upon.

    I actually quoted the relevant section of Heller. Particularly the cases cited in footnote 9, pretty much all of which state that open carry is a clear expression of the right to bear arms, and if the state is going to restrict or prohibit concealed carry, then it must allow open carry.

    Where does it specifically state in the Constitution that open carry is a part of the right to bear arms? Besides, that is why I focused on what Justice Scalia said ?[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose?. More on this below.

    The California constitution does not have any clause recognizing the RKBA. As such, until the 2nd Amendment was officially incorporated against the states, there was no judicial basis for such a ruling in California. When it comes to 2nd Amendment jurisprudence, California's legislative and judicial history is pretty much meaningless for interpreting the RKBA, because without such a provision in the state constitution, there's nothing for the courts to have ruled upon.

    I?m not sure what you are saying here. I was responding to your statement that ?The logic is very simple and straightforward (and has been upheld by several state courts). It is the right to keep and bear arms. Bearing arms includes the ability to carry them with you. As it is a right, and not a privilege, it does not require prior government permission in the form of a permit.?

    But here in Cali, like many states, concealed carry does require a permit. New York, and a few other states, are even more strict. Massachusetts requires firearm owners to obtain a license through the police department. You are saying that since it is a right, it does not require prior government permission in the form of a permit.

    Perhaps I am misunderstanding you, but it seems as if you are stating that it is settled, and state courts agree that it is the right to keep and bear arms, including the ability to carry them with you. If this is the case, then why do several states/jurisdictions have restrictions on that ability, including open carry? Perhaps this will be answered in the future, as the recent SC rulings may lead to more lawsuits.

    Personally, I would be surprised if the SC touches each and every case involving guns. My understanding of both rulings is that a jurisdiction can't make a blanket ban, but can make restrictions.

    Also, as a note, you can open carry in most of California as long as the firearm is unloaded. You can also carry a loaded magazine or speed loader to be prepared to load and use the gun at a moment's notice.

    Yes, which is why I said ?loaded?.

    Where did I ever say that it covered "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"? I have repeatedly acknowledged reasonable and justifiable restrictions. Within the contexts of the posts that I've actually made, your responses simply make no sense, because they answer things that I never said.

    I don?t know why you are being so defensive and accusing me of making ?straw man? arguments when I am making a general point. I even said that we agree, except on open-carry.

    But the main area of disagreement is something that you acknowledge, that there are ?reasonable and justifiable restrictions?. What those are are open to interpretation and disagreement. Even on that end we mostly agree regarding on many issues regarding RKBA. On top of that, we agree to an extent on open carry (i.e. hunting and hiking). I even believe this is mostly a state/jurisdication issue, because each jurisdiction has different needs/wants. I just believe there should be slightly more restrictions.
  4. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    You are reading a lot into what I say that I'm not actually saying.

    My point is that in those states that:
    1) have a RKBA clause in their constitutions, and
    2) have had the state's highest court rule on the meaning of "bear arms", the result has been
    3) that the right to bear arms covers the right to generally carry them with you in one form or another.

    The usual result of that is that for those states that have actually adjudicated this issue, open carry is legal, while concealed carry can be restricted. At the same time, the states have usually allowed limited restrictions on all forms of carry with regard to time and place, or on private property.

    Massachusetts' constitution includes a RKBA, but I have not been able to find any cases in their highest court specifically interpreting the right to "bear" arms. Neither New York, New Jersey, Maryland, Illinois, nor California have a RKBA clause in their constitutions, and so there has been no basis for any court rulings either way on the issue in their state courts until the 2nd Amendment was incorporated. That list covers most of the states that have significant restrictions like what you describe.

    Do you notice a trend there? The states without a RKBA clause in their constitutions are the ones that tend to be the most restrictive of that right, and tht have the least amount of jurisprudence interpreting the RKBA. All I am saying is that as the Supreme Court adjudicates future cases, the only historical and precedential sources they will have to look at are state courts that have had to rule on similar clauses, and those courts for the most part have ruled that if you restrict concealed carry you need to allow open carry.

    Because in both Heller and McDonald, the Court specifically mentioned regulating concealed carry as being allowed, but they cited cases that also helped settle that open carry was allowed (or even required to be left alone) in some states, that suggests that they will apply similar principles to the balance between open and concealed carry in the future, when cases like Palmer v. DC reach the Supreme Court.

    Kimball Kinnison
  5. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    I don't think two cases from the 1800s really represents a trend. Either way, if the current laws in those various states were so obviously unconstitutional, then they probably would've been challenged so far. Point being is that I don't think it's so cut and dry, although we may find out in the near future considering the current SC seems willing to take up gun cases.

    Furthermore, from Wikipedia:

    http://en.wikipedia.org/wiki/Open_carry_in_the_United_States

    Open carry has never been recognized as a right under the Second Amendment of the U.S. Constitution by any federal court. In the majority opinion in the case of District of Columbia v. Heller (2008), Justice Antonin Scalia wrote, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Justice Scalia did not, however, comment on the practice of open carry specifically.

    Forty-three states' constitutions recognize and secure the right to keep and bear arms in some form, but none specifically refer to the open carrying of firearms. Five state constitutions provide that the state legislature may regulate the manner of carrying or bearing arms, but none mention open carry specifically. Nine states' constitutions indicate that the concealed carrying of firearms may be regulated and/or prohibited by the state legislature which could be considered, by exclusion to indicate that the open carrying of arms may not be legislatively controlled in these states, though this is not explicitly stated and is therefore debatable.



    Regarding the whole 'strawman' thing, it's as if I had reacted as followed to when you said You don't need a permit in order to publish a newspaper or to petition the government. You don't need a permit to practice your religion or express your views.

    I never said that you needed a permit to publish a newspaper or to practice your religion!

    Of course, I know that you know I didn't say that, and I replied accordingly because I knew you were making a general point.

    Because in both Heller and McDonald, the Court specifically mentioned regulating concealed carry as being allowed, but they cited cases that also helped settle that open carry was allowed (or even required to be left alone) in some states, that suggests that they will apply similar principles to the balance between open and concealed carry in the future, when cases like Palmer v. DC reach the Supreme Court.

    Possibly, but since even Justice Scalia recognized that there can be restrictions/limitations, it's also possible that the SC will uphold.

    Of course, by the time that or any other gun case reaches the SC, the composition of the SC itself could change and that too could affect any ruling, particularly since the recent gun rulings have been (I think) very close (5-4).

    But going beyond that, in the end this is a forum for our opinions. After all, there are many cases that many think the SC ruled incorrectly (i.e. Roe v Wade). So all I can really do is state my opinion, which we mostly agree upon, that there is a right to keep and bear arms, and that right is not absolute. You and I disagree on some of the restrictions, but even on that it is not so black and white.







  6. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I'm not basing my claims on just two cases. In the Heller footnote there are over half a dozen cases cited (of which I gave you links to the opinions in two of them). Those aren't even all of the citations available. They were merely the ones from the time period that the Court was discussing at the time (in order to identify the meaning of the right to keep and bear arms).

    Even your Wikipedia quote doesn't address the points that I made, because it only refers to the text of various state constitutions without any reference to the court cases interpreting them.

    And I will point out (again) that all but one of your counter examples came from places where there was no state constitutional RKBA clause. Because of that, your counter examples don't actually speak on what legal basis the Court will have to work from in interpreting the federal RKBA.

    And yet, the context of my post was clear that I wasn't claiming that you needed such a permit. (In fact, those statements you quote are all cases of me stating the fact that you don't require a permit, rather than claiming that you were arguing anything.) I also immediately followed those examples with the statement saying that the same principle would then logically hold for other fundamental rights.

    On the other hand, your response to me, in context, was rebutting my statements by saying that the right isn't absolute. Since that was never part of my point, your statements reiterating that indicate that you were implying that I did think it should be absolute. Rather than discussing the limits that I had already mentioned, you completely ignored those and started talking about how it wasn't absolute. You never said one word about my comments on time or place restrictions. You only mentioned rights not being absolute and went from there.


  7. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    I?m going to be brief because we keep repeating ourselves, and also, I think you're being kinda rude. This isn?t a law school class, it?s a Star Wars message board. If one were to refer to the case of Lawyers v Justice or Science v Religion, I would politely tell them that those were cases on the Simpsons, and not real. In other words, we can have a polite, not-too-serious discussion, which we almost always do, instead of trying to prove whoever is right by any means necessary.

    All you have done is point to Heller and say "They said that there could be some restrictions!" What you have neglected is that while they've said that there can be some restrictions, they have explicitly spoken against outright bans.

    First off, that?s not ?all I have said?. And furthermore, I have agreed that they have spoken against outright bans. But the SC, nor any other federal court, has addressed open carry.

    I don?t think the justices only use state RKBA clauses to come to their conclusions. IIRC, Justice Stevens refered to US v Miller to argue his case, and partly based his dissent on his reading of the Second Amendment. Perhaps it would be a good idea to review Justice Stevens and Breyer?s dissents.

    The problem is that you aren't giving any constitutional basis for why you think that the court would find your preferred restrictions to be reasonable. I've outlined both the case law and the rationale. All you have done is point to Heller and say "They said that there could be some restrictions!" What you have neglected is that while they've said that there can be some restrictions, they have explicitly spoken against outright bans.

    My constitutional basis is that there is nothing in it that states one can open carry a firearm. You have used case law based on what Justice Scalia wrote, and again Scalia himself has said that it is not an unlimited right nor did he address open carry. Again, perhaps it would be worthwhile to take a look at the dissents of Stevens and Breyer to see how they came to their conclusions. Also, while the SC has ruled against outright bans (which I agree with and have stated as such), they have not addressed open carry.

    IMO I think that you are jumping to conclusions, that because the SC ruled against outright bans, and because a few old cases in their rulings that were cited may have discussed carrying guns, then therefore they will rule in favor of open carry, even though none of the justices nor no federal court has directly addressed open carry. I?m saying I don?t think it?s so cut and dry.

    It?s also possible that one (or more) justices could change their vote based on whatever case comes their way. Again, Justice Scalia did say that there can be restrictions, and I suspect that part of the reason he did was to give leeway in terms of future cases that come before him.

    In conclusion, I?m going to restate what I said in my previous post which is that in the end this is a forum for our opinions. After all, there are many cases that many think the SC ruled incorrectly (i.e. Roe v Wade). So all I can really do is state my opinion, which we mostly agree upon, that there is a right to keep and bear arms, and that right is not absolute. You and I disagree on some of the restrictions, but even on that it is not so black and white.
  8. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    If I can make one specific point here:

    Neither New York, New Jersey, Maryland, Illinois, nor California have a RKBA clause in their constitutions, and so there has been no basis for any court rulings either way on the issue in their state courts until the 2nd Amendment was incorporated.

    I don't know about the other states, but Illinois does. It's Article 22, and it says:

    " Subject only to the police power, the right of the
    individual citizen to keep and bear arms shall not be
    infringed.
    "

    So, Illinois didn't have to wait until the 2nd Amendment was incorporated to get a basis for a court ruling. There have been two major court cases that I can think of before Heller and McDonald(possibly more) and both have upheld the restriction under the state constitution clause. Of course, Illinois doesn't allow any kind of carry-open or concealed-for private citizens, and has the FOID Bureau that everyone is subject to.

    Nebraska is another perfect example, as the state has a similar clause, and the highest state court indicated that concealed carry in the state was subject to separate regulation.
  9. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I'm sorry if you think I'm being rude, but I honestly disagree with you on that. I am simply asking you to support your arguments, as we have always done here in the Senate.

    You are right on that point, but that is irrelevant to discussing the logical arguments behind how they are likely to rule on that issue in the future. For that, you need look no farther than the arguments given in Heller and McDonald that I posted earlier. If anything, what they didn't say there should be seen as instructive. They felt it necessary to say that laws restricting concealed carry would presumably be constitution, but they specifically included the qualifier "concealed". Unless we are to assume that by saying "concealed carry" they meant "all carry" (in which case the word is actually meaningless), it provides a strong basis that open carry cannot be restricted.

    Stevens' and Breyer's dissents are not the guiding jurisprudence on the matter. If they were, then the 2nd Amendment wouldn't be incorporated at all! (Also, US v. Miller is a abominable case to base anything on, as it was argued by only one side and Miller himself didn't live to see the ruling handed down, as he was murdered the month before. As the Supreme Court never heard his side of the case, they essentially rubber stamped the only side they did hear.)

    Again, Stevens' and Breyer's dissents are not the guiding jurisprudence on the subject. As such, they are irrelevant for determining how to interpret the Court's opinion.

    There is also a very old legal concept that can be summed up as "That which is not prohibited is allowed".States have only those powers granted to them by the People, and when it comes to fundamental rights, they can only infringe them to the extent that they are authorized to
  10. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    I have answered your questions and supported my views, you just don't like what I have to say and are demanding that I discuss on your terms.

    I think that if it is practically universally agreed that a right is not absolute, and a disputed part of that right has not been addressed by the Court, then it is not unreasonable to think that the SC may rule that certain restrictions of that disputed part are ok.

    You make very good points, but you act as if you have made an ironclad case and anyone who disagrees (i.e. myself, Supreme Court justices, US v Miller) are morons, or are abominable decisions.

    I agree with the theory that 'that which is not prohibited is allowed'. In fact, I said something similar a few pages ago. But the bottom line is even the majority stated that there can be limitations, open carry has never been recognized as a right by a federal court, neither the U.S. nor any state constitution specifically refers to open carry, and numerous laws exist that uphold restrictions on open carry. It is certainly possible that some or all of these laws will be overturned, but for the umpteenth time, I don't think it's so ironclad for the many reasons that I have previously stated.
  11. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    No, that is not what I am doing. I'm not demanding that you discuss on my terms. I'm asking you to provide more support beyond vague generalities, for why you think that the SUpreme Court would be likely to uphold general restrictions on open carry.

    US v. Miller doesn't apply to that, because 1) it's core test of suitability for use in a militia was overturned by Heller, and 2) the actual holdings in the case don't apply to this situation. You can read those holdings here. If there's a part of Miller you'd like to cite, then please tell me which part, rather than make me have to guess to what part you are referring.

    Your references to the dissents don't indicate how you think the Court will uphold your preferred restrictions, because unless one of the five justices in the majority dies or retires (which is unlikely barring an unexpected accident) and is replaced by someone who would vote differently, the Court isn't going to be overturning Heller or McDonald, and so isn't going to be looking to the dissents in those cases for the basis of its arguments.

    I get that you think that they could allow restrictions on open carry because they haven't ruled on it yet, but you haven't really expressed the basis for why they would be likely to draw the line where you want it. I'm not just asking for what restrictions you think are reasonable, but for why you think that the Court (as currently composed) would be likely to uphold those restrictions. You aren't answering that part, and that is why I keep pushing the subject.

    Yes, some states have upheld restrictions on those rights, but you haven't said anything about why those cases should be more persuasive to the Supreme Court than the ones that they have cited in their rulings so far.

    I have said for years that one of my biggest goals here is to not just understand what other people believe on various topics, but to understand why. That requires digging deeper and examining their arguments and evidence. One of the reasons that I do that is because it helps me better question my own beliefs on those subjects and try to identify evidence that I might have missed. If it seems like I'm pushing you on this subject, it's mostly because I want to see if you have any evidence or perspectives that I might not have considered on this issue, so that I might be able to broaden my horizons more.

    Kimball Kinnison
  12. DeathStar1977 Jedi Master

    Member Since:
    Jan 31, 2003
    star 4
    You keep repeating the same thing over and over.

    I am not convinced that all the justices who ruled in the majority would not support restrictions on open carry. On a side note, I was using US v Miller in a general sense to show that the SC doesn?t always rule the way you want it to, and considering it was cited by Justice Stevens, I would be curious as to why he may have cited it.

    The cases cited in Heller may have mentioned in passing or otherwise open carry, but this is presuming that in the cases that Justice Scalia cited that he agrees with everything in that case. It appears from your quote that he was citing them based on the right to bear arms, and in no instance does he himself mention open carry. Is it possible that he will cite them in the future regarding open carry? Of course, but it is not set in stone. Again, he has specifically said that there can be limitations, whereas he has made no specific mention of open carry. This is and of itself leads me to think that he could rule that restrictions on open carry is acceptable whereas a total ban is not. And yes, considering the current makeup of the court, where the past two votes on gun laws have been 5-4, it is certainly possible that one could switch and uphold a restriction on open carry (or many other gun restrictions).

    I'm asking you to provide more support beyond vague generalities, for why you think that the SUpreme Court would be likely to uphold general restrictions on open carry...If it seems like I'm pushing you on this subject, it's mostly because I want to see if you have any evidence or perspectives that I might not have considered on this issue, so that I might be able to broaden my horizons more.

    It?s not vague generalities, it begins with Justice Scalia?s own words. I think I have presented a clear case. You can keep saying why, why, why, why. But that doesn?t change the fact that I have answered your questions, they are just not answered in the manner you would like them to be.

    Instead of 'pushing' me or anyone else, perhaps we could discuss why the vote in Heller was 5-4, including why the dissenters ruled the way that they did. This however presumes that I am still interested in discussing this. At this point, I'm kinda over it and would rather move onto something else since this has really run its course.
  13. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    In this, it is instructive to read those actual decisions. That's why I linked to the two sample cases, so you could see the context behind the citations. For example, from Bliss v. Commonwealth:
    That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an (p.92)entire destruction of it, is forbidden by the explicit language of the constitution.
    Similarly, from State v. Reid:
    The Attorney General for the State, argued that it was competent for the Legislature to prohibit the wearing of concealed weapons, that such a law did not conflict with the constitutional provision, which guarantied to the citizen the right to bear arms in the defence of himself and the State. That the statute under which the defendant was convicted, did not impair that right, while it proposed to discountenance by punishment, a practice which had been greatly promotive of violence and bloodshed. (p.614)Every man was still left free to carry arms openly, the only manner in which they could be used for defensive purposes.

    ...

    Has not a subsequent Legislature (if the statute in question be constitutional) the right to prohibit the carrying of arms openly, and both acts being in force, the right of carrying arms at all, would be taken away. Such a state of things, all will admit, cannot exist without a violation of the constitution.

    The constitution of the United States, provides that the liberty of the press shall not be abridged. The authorities are clear that no previous restraint shall be imposed upon publications. 3 Story on Con. 736. The party publishing is responsible for the abuse of the liberty. 3 Story on Con. 742. So in regard to the bearing of arms, the person making an improper use of them is amenable to the laws, though he may carry them in any manner he pleases.
    Or would you like from Simpson v. Tennesee?
    But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, (p.360)or portion of the common law, our constitution has completely abrogated it; it says, "that the freemen of this state have a right to keep and to bear arms for their common defence." Article 11, sec. 26. It is submitted, that this clause of our constitution fully meets and opposes the passage or clause in Hawkins, of "a man's arming himself with dangerous and unusual weapons," as being an independent ground of affray, so as of itself to constitute the offence cognizable by indictment. By this clause of the constitution, an express power is given and secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature; and it is conceived, that it would be going much too far, to impair by construction or abridgment a constitutional privilege which is so declared; neither, after so solemn an instrument hath said the people may carry arms, can we be permitted to impute to the acts thus licensed such a necessarily consequent operation as terror to the people to be incurred t
  14. Vaderize03 Manager Emeritus

    Member Since:
    Oct 25, 1999
    star 5
    Two things, in brief, that amuse me about this ruling:

    1) The majority used a 14th Amendment argument as the lynchpin of their case; the same amendment that they hate when it comes to reproductive rights

    and

    2) Say what you want, Kimball, but the Supreme Court follows the election returns.

    If this ruling turns out to be politically unpopular, I have a feeling that future cases might very well be decided somewhat differently.

    Not to interject politics into it, but this ruling helps democrats in the upcoming midterms by taking gun control off the table as an election issue. As an aside, the NRA is considering endorsing Harry Reid over his GOP challenger on the theory that Durbin or Schumer, both in line to succeed him as majority leader should he lose, would be much tougher on guns than the much more centrist Reid.

    Interesting all around.

    Happy Fourth to my fellow Americans out there!

    Peace,

    V-03
  15. Lady_Sami_J_Kenobi Force Ghost

    Member Since:
    Jul 31, 2002
    star 6
    I would like to comment on one reason KK gave for being able to have a gun to defend yourself--his house was visited by bounty hunters who were looking for someone else.

    Now, I know he's not going to like this, but I think that in the above scenario, the very last thing you would want to have in your hand is a gun, because bounty hunters have fewer reasons not to shoot you than cops do when confronted with a gun-carrying suspect.

    Many people have been shot/killed/injured because the police raided the wrong house thinking drugs were being sold there. How would having a gun handy have helped any of those people? I seriously doubt having a gun handy would have helped, but would instead have escalated the situation even more.
  16. Lowbacca_1977 Force Ghost

    Member Since:
    Jun 28, 2006
    star 6
    I'm not sure I'd agree with that. I think cops would be more likely to be given the benefit of the doubt in a situation, whereas bounty hunters might not be. So the two don't seem equal in that sense.

    Escalated for those killed? What, would they be MORE dead? That aside, the response to wholesale government negligent homicide (at best, arguably murder) isn't, imo, to make sure citizens are unarmed but to make sure that government forces are not rampantly attacking and sometimes shooting law abiding citizens in a faulty drug war that they have clearly proven themselves to be inept at.
  17. Lady_Sami_J_Kenobi Force Ghost

    Member Since:
    Jul 31, 2002
    star 6
    Obviously, not for those killed, but the injured would not have been helped by having a gun in hand.

    Yes, the cops are inept and they get faulty information 'cause they have to depend on paid informants on occasion, but guns don't help a citizen in these instances.

    More tomorrow, out of time here.
  18. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    First of all, my home was not "visited" by bounty hunters. They were trying to break down my door. That's an attempted home invasion, not a "visit".

    Bounty hunters (the technical term these days is "bail enforcement agents") are not police. They are private citizens who have no more right than you do to be on my property or to enter my home.

    They are there to enforce a private contract between the bail bondsman and and individual. As part of that contract, the individual grants permission for representatives of the bondsman to enter his property and/or residence in the event that the individual violates his bail/parole. They do not have any legal authority to enter any other property/residence, nor to use lethal force in the course of recovering the individual. Any authority that they might have had to enter the residence of Mr. Salinas Escalera ended the moment that I purchased that property, if not earlier (when he stopped residing there).

    If they had managed to break down my door, they would have been intruders, plain and simple, and had they attempted to use any measure of lethal force against me, especially in my own home, then they would have been liable for attempted first degree murder.

    This is real life, not Star Wars, and they were nothing like Boba Fett. (I have jokingly referred to them as Click and Clack, the Boba Fett wannabes.) Bounty hunters cannot just kill anyone they want in the course of finding their target. They can be arrested for kidnapping (as happened to Dog the Bounty Hunter) or other laws if they don't follow the law.

    Kimball Kinnison

    EDIT: In fact, how is your argument any different than saying that by having a gun present when a criminal breaks into my home could escalate the situation? After all, a criminal would have even less reason not to shoot you than a cop or a bounty hunter.

    According to the instructor in my latest CHP course (which I took last month to apply for a Utah permit in addition to my Virginia permit, so I could gain reciprocity with more states), the recommended course of action when someone is trying to beat your door down is to:
    1) Call 911. Inform them that someone is trying to break down your door, and that you are armed. (If it is the police, they can notify the officers at the door and pass instructions on to you.)
    2) Keep 911 on the line. If the individuals at the door continue to try to get in, yell to them in a loud voice that you have called the police and that you are armed, instructing them not to come in. If things go no farther, wait for the police to arrive.
    3) If they continue and break through the door, it is reasonable to believe that they are armed, there for an unlawful purpose (otherwise they would wait for the police), and you are in imminent danger of severe bodily injury or death. At that point, lethal force is justifiable.

    If they are there for a legitimate purpose, they will have no problem waiting for the police to arrive. If they are there for an illicit purpose, they will likely run once they know the police are coming, or that you are armed (or both). If they continue once they know both those facts, then odds are that they are also armed and intend to do you harm.

    The pre
  19. Lady_Sami_J_Kenobi Force Ghost

    Member Since:
    Jul 31, 2002
    star 6
    KK,

    I do indeed see your point, however, how many average citizens are trained to call 911 and handle the call the way you were taught?

    I had the impression that bounty hunters were officers of the court--I will have to verify that.

    Most bailbond enforcers do not go after drug lords or other serious criminals. They are usually just tracking down a person who for one reason or another, did not show up for court.

    EDIT:

    Well, I did look up some general information on bounty hunters. The rules and regs vary from state to state; in certain states, they have to be peace officers (i.e., cops), so if you live in one of those states, they have a legal right to re-arrest you without a warrant.

    In California, where I live, they have to take lots of courses and be certified and background checked by the state before being allowed to work as bounty hunters.

    A few states do not allow bounty hunters to operate at all. So, all a fugitive has to do is cross the state line to avoid re-arrest.

    The Dog the Bounty hunter case is an exception, because most countries do not allow bounty hunters to operate within their borders. So, yes, Dog broke the law in Mexico even tho he returned a very bad man to justice in the US.

    So, the bottom line is: check the laws governing bounty hunters in your state. In some states, they are liable for any injuries caused to persons other than the fugitive they are trying to find.
  20. anakin_girl Jedi Grand Master

    Member Since:
    Oct 8, 2000
    star 6
  21. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    Upped for discussion of the Tuscon shooting.

    pet theories:

    1) Americans are so desensitized to the frequency of Columbine style massacres, we no longer get any emotionally-charged desire to enact extra gun controlled legislation.

    2) Having been caught with its pants down by the Columbine shooting, the NRA now has a rapid response team it sends out whenever there's a Columbine-style shooting somewhere to quell any negative regulatory effects.

    3) Americans love guns more than ever and are now too sensible about gun ownership to be sidetracked by irrelevant tragedies caused when lone gunmen attack.
  22. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    The real problem is that most of that gun control legislation is based in emotional reactions, rather than reasoned responses to what actually happened.

    Consider the Virginia Tech shooting. Cho bought his two handguns at two different times. The first he bought online from a gun store in Green Bay, Wisconsin, and had shipped to a brick-and-mortar-based FFL in Blacksburg, Virginia. The second he bought from a gun store in Roanoke, Virginia. In both cases, he underwent a background check from a federally-licensed dealer before taking possession of the guns. He even waited out Virginia's one-handgun-a-month law (his purchases were 32 days apart; the law requires 30 days between purchases).

    If you listen to some of the survivors, or families of victims from the shooting, what is the major gun control change that they advocate? Closing the "gun show loophole" (which is really another term for eliminating private-party sales). The attempt to use an emotional appeal based on the Virginia Tech shooting to implement restrictions that wouldn't have changed a thing about that shooting. Cho passed the very background check that they advocate for private-party sales!

    Some gun control is sensible, such as the NICS (National Instant Check System), which maintains a database of prohibited persons. That makes it easier for everyone to keep guns out of the hands of people who aren't legally allowed to have them. However, gun control ceases to be sensible when it is used to deny law-abiding citizens access to firearms for their own self defense.

    Kimball Kinnison
  23. SuperWatto Manager Emeritus

    Member Since:
    Sep 19, 2000
    star 5
    I'd think you'd need to provide some data before you make such sweeping statements. Do you have any proof that more killings occur under a total gun ban?
  24. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    Everyone would be pleased if we could somehow keep guns out the hands of mentally ill people with a propensity for violence. Yet there is as far as I know no reliable means of identifying mentally ill people with a propensity for violence against the backdrop of all people at large who have not been institutionalized for any kind of mental illness. As far as I'm concerned, the conversation ends there. We can't have both a society with widespread gun ownership and a society where the mentally ill have a really hard time getting hold of a gun. We have to choose one or the other.

    In light of the practical impossibility of keeping guns out of the hands only of those people who will illegally use them or who will use them in pursuit of some objective brought on by mental illness, it seems natural for families of gun violence victims to seek out some other proxy legislation for limiting access to guns. We all know how challenging any such effort is bound to be in the current political and legal climate, and it stands to reason fewer people will try.
  25. Lowbacca_1977 Force Ghost

    Member Since:
    Jun 28, 2006
    star 6
    Imo, I think emotionally charged desires for legislation are a mistake. Here in California, people have gotten emotionally charged every time there's a prominent abduction and murder and increasingly ridiculous laws get passed. For example, we now have a huge portion of missing sex offenders because it became so hard for them to find somewhere they could legally live that they've stopped reporting.
    Every time there's a terrorism attempt, we get new security measures whether or not they would've prevented the attempt that they're a knee-jerk reaction to, with increasingly intrusive policies because of that emotionally charged concern.

    I think we could do better if more debates for legislation took place without emotionally-charged desires weighing into it to cloud judgement.
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