1st vs. 2nd amendment

Great Debates
21

Enter24, the NRA doesn’t fight every gun control measure that comes up to vote, and they’re certainly not the fringe group opposing any gun control measures you (and the media) make them out to be - Gun Owners of America and Jews for the Preservation of Firearms Ownership fit the ‘fringe’ and ‘tooth and nail’ descriptions much better. The NRA is the compromising group that actually gets things done. Sure, they fought the ‘cop-killer bullets’ ban which would have banned all rifle ammunition (though they supported the version which did pass) and the initial Brady Law which simply imposed useless waiting periods (though they supported the version that included an actual background check requirement). The NRA has been a big backer of project exile (the program to actually, you know, enforce federal firearms laws against criminals), and has backed other things aimed at preventing criminal use of firearms.

Since you keep harping on the NRA should “fight the fights that need fighting instead of every piece of legislation that deals with weapons?” How about listing some specific pieces of legislation that you think the NRA should not have fought in order to ‘fight the fights that need fighting?’

You wrote:

And the corresponding firearms ‘rights’ that go with your examples have long since been ‘given up’.
My side has “given up” the right to shoot/threaten with firearms senators we don’t like.
My side has “given up” the right to fire firearms on your lawn
My side has “given up” the right to shoot a firearm in the ears of random passerbys
My side has “given up” the right to have public schools that only teach pro-gun politics.

None of those are exactly new. However, lets make a more interesting analogy to some current and proposed firearms restrictions:

How about putting serial numbers on all religious materials and requiring a federal license to sell religious materials?
How about requiring a permit from your local leos to buy a book?
How about requiring a license from your local law enforcement which they can deny on a whim in order to speak on politics?
How about a ‘one a month’ limit on religious books (possibly only for the most dangerous religions, like Islam)?
How about making it a felony to store any book containing offensive material where a minor can access it?
How about banning books which, although none of the legally owned ones have been used in a crime, make book-banners kind of nervous?

22

And yet felons and crazy folk have the right to free speech. Passing strange, eh?

23

I thought Bricker’s point re: the 14th Am. to be very much on topic and a good answer. Did that not provide a suitable answer? Or are you calling Riboflavin a felon, or crazy? I really don’t get something here. :confused:

24

Because it’s been established, going back to the the very adoption of the Constitution, that it’s possible for someone to lose their rights for committing a crime and, more recently (though not much more) for being insane enough to commit to a mental institution (in general, the PG crowd limits that restrictions to ‘committed to a mental institution’ and not just someone you call ‘crazy folk’). Upon being convicted of a crime, you immediately lose most of your 4th amendment rights (though you can still comminicate privately with a lawyer), a good chunk of your first amendment rights (no free association for a prisoner, for example), your 2nd amendment rights (duh), your right to vote (which amendment applies depends on demographics) and a whole host of stuff implied under the 10th. The prison sentence itself is only a part of the punishment meted out under due process of law for committing a crime; the later restrictions (like not being allowed to vote or hold federal office) are still a result of the conviction. I can make a similar argument for someone committed to a mental institution.

Plus, of course, there’s the simple fact that fighting for felons to have guns isn’t really worth spending political capital on; while a great many of PG people don’t think that non-violent felons should be restricted from bearing arms, it’s simply not worth the media frenzy that would result. If you’re going to cry ‘hypocrite’ for that, you might want to first explain why GC people aren’t interested in closing the ‘anti-trust loophole’ (people convicted of antitrust felonies, though not other nonviolent felonies, are not generally prohibited from purchasing or possessing firearms, though some states do restrict such people).

25

And yet, felons and the insane lose their right to free association - you know, another part of that first amendment thingy.

26

The NRA is an advocacy group. Its mission is to defend the second amendment. Likewise, the ACLU is an advocacy group defending the constitution. The NRA is little different, other than that it narrows its focus to one amendment.

Both organizations could be considered extreme, but their extreme defense is the necessary counter to the advocates of regulation on the other side. I support both organizations because I believe that defense is good and proper.

The vast majority of people probably find their personal opinions somewhere in the middle area.

27

Well, Enter24 is one of the more creative ways I’ve heard it spelled. Riboflavin, the 2nd amendment merely gives you the right to bear arms it does not absolve you of any responsibility concerning said arms. I can only imagine what America would be like today if the 2nd Amendment stated:
A well regulated Militia, being necessary to the security of a free State, Congress shall make no law respecting the right of the people to keep and bear arms.
I’m wondering just how literal we would interpret the phrase “no law” then.

I don’t know much about the 2nd amendment. I am ignorant of the true workings of the NRA. I said as much in my OP.
I asked whether it was others’ belief that the NRA fights all pieces of legislation regardless of their worthiness and I asked that in response to others who said the NRA must fight against the anti-gun lobby who will not compromise.

Finally, I’ll ignore your comments on Islam lest the temperature of this room rise above its placid 98.6 degrees.

minty, I would have thought kicking a hornet’s nest a much more apt analogy. Still, this is much calmer a debate than I was expecting.
I started it to find out why proponents of the 2nd amendment think the way they do and I’m developing a much clearer picture now.

28

Oh no, Bricker’s response was perfectly accurate. I have no quibble with the details, except that it doesn’t answer the question. Why do Second Amendment fans so readily accept the exclusion of disfavored groups from its coverage, despite the alllegedly absolute language of the amendment itself, when another, equally absolute amendment (the First) tolerates no such exception.

I know the answer is, basically, expediency. Great. But once we’ve established that the Amendment is subject to limitations based on expediency, doesn’t that pretty much eliminate the argument that “The Second Amendment doesn’t have any exception in it for X”?

BTW, Riboflavin, I didn’t ask about freedom of association, which is, after all, not in the text of the First Amendment. Felons and crazy people get to talk and publish and worship all they want. They don’t get to bear arms.

29

Actually, many don’t. GOA and the JPFO Riboflavin identified above, which IIRC are two of the larger gun rights org’s in numbers behind the NRA, do not support Project Exile or restricting ex-felons from owning a firearm. The thinking is, once you’ve paid the price for your transgression, ALL your rights should be restored, including the right to defend oneself (to paraphrase).

And they also (felons) don’t get to vote.

30

Some =! many. That is definitely a minority position, even within the gun rights camp. The point is, many or even most pro-gun folks claim the Second Amendment is some sort of absolute, when their own position (" . . . except for felons and crazy people") reveals it is not an absolute and it is subject to regulations and limitations based on expediency. At that point, all we’re quibbling about is policy, not principle.

Precisely. What’s so magic about the Second Amendment that makes it different?

31

Minty green, I’ll tak you first since it’s always so much fun.

First, why do you say only second amendment “fans?” I think you’ll find that both it’s “fans” and detractors support the exclusion of what you call “disfavored groups.” (Myself, I prefer the label “risky groups;” these people would have a capacity to do serious harm were they permitted firearm ownership—a capacity and a proven propensity. Things that simply doesn’t exist in your “average” citizen—he’s simply not a threat.) As has been demonstrated by Riboflavin (which you’ve dismissed, but not effectively - association is most certainly an element of free speech - ask convicted members of the KKK, or the Weathermen, if they feel there are restrictions upon their speech placed there by with whom they may associate), there are classes of people upon whom first amendment restrictions are placed. In fact, the very same classes of people upon whom second amendment restrictions are placed. Free speech is a more abstract concept than the concrete right of gun ownership. Therefore restrictions are also more abstract resulting in what you see as a disparate range of limiting legislation.

Your question is answered, but I can go further. The reason you promote, expediency, is a rather cynical outlook, although perhaps not entirely inappropriate. I’d prefer to say that a plurality of voters finds these second amendment restrictions on felons and the mentally ill, to be reasonable—a sure and provable argument that gun owners do indeed, in large part, support some restrictions . It’s risk management as I alluded to parenthetically above. Surely you cannot be arguing that free access to firearms among the violent and mentally ill is a supportable position on any grounds?

Who here has said there are no exceptions? Not a soul. Please try to minimize your use of strawmen. They’re detracting from a constructive dialog, not to mention inflammatory to what has been a civil debate. You accuse gun rights advocates of fanning the flames, but here we find only you with the bellows.

Neither are donations to political figures and parties. Both of which have been ruled a form of free speech by the Supreme Court. And if political donations are a form of free speech, voting most assuredly is. You appear to be looking for a literal and inflexible interpretation of these two amendments here. Something for which you find fault in gun rights proponents. There’s room for interpretation and flexibility; nobody’s arguing differently, except maybe you.

Farther up the page, Ender queried:

How do I feel about the NRA? Although I have allowed my membership to lapse, it’s more through neglect than any logical (or illogical) decision making process. I do believe they’re useful, though. And they’re certainly “noisy.” Which I also think is a good thing. The NRA does far more than simply make “noise;” they’re sponsors of many good safety programs, defensive shooting courses, and instrumental in helping gun clubs and shooting ranges navigate the legal (and increasingly environmental) mazes that the various legislatures have erected. The club to which I belong is NRA affiliated. There are several NRA courses and programs offered there every year. The NRA has also helped us with planning range safety, and the building and permitting of our planned 1000 yard range.

And finally, John Harrison asked way up near the top:

Basically, you can’t. In most states, even many of those with concealed carry laws if I’m not mistaken, you may not transport a loaded weapon of any type in your automobile. Here in Ohio, your ammunition and firearms must be in separate compartments of your automobile. In some (Indiana, for one, I believe) the firearm must even be disassembled.

32

Steelwarlord, you couldn’t be further from the truth. The 1st amendment was originally designed to protect people who passed out handbills on the streets. There were no radios or televisions or large circulation newspapers to get information to the public. Freedom of the press can be as simple as anything you want to print up and distribute.

33

Er… forgive me for being dim; the coffee maker is out and I’m not fortified with caffeine this morning. But it seems to me that I offered the counter-example of felons being denied the vote, which was intended to rebut the assertion that only the Second Amendment was interpreted in a way to permit the class of persons that are felons to lose a right generally available to the populace.

Now, minty, your point seems to be, “Sure, OK, the Fourteenth Amendment also takes a hit the same way the Second does – but why is the First immune?”

I have a couple of answers. The first is that we’ve already established that the First Amendment has exceptions - the government can my speech that, by its very nature, tends to immediately incite violence, even though there is no such exception in the language of the Amendment. The burden on the government, as you’re well aware, is extraordinarily high to show that the restriction is necessary and narrowly-tailored to achieve the goal.

The Double Jeopardy Clause of the Fifth Amendment says that no person shall “…twice put in jeopardy of life or limb…” and it, too, contains no escape language. But a mistrial at the accused’s request does not offend this clause, nor does a mistrial for “manifest necessity” even if opposed by the accused. And if an additional proceeding is designated as “civil” rather than criminal, then the clause is held not to apply, even though the result of the “civil” offense may be continued confinement based on the same transactions that led to the criminal conviction, with not one additional scintilla of proof required.

So far as I can see, the laws that encumber your rights under the Second Amendment should be applied in exactly the same way: with the government held to an extremely high, but not impossible, standard when attempting to infringe or burden activity in question.

Does this not address your objection?

  • Rick
34

Because I’m asking about the arguments of gun rights supporters, who frequently take the position that a particular gun control proposal is unlawful because the Second Amendment makes no such exception to the right to bear arms. Yeah, and it doesn’t make an exception for felons and crazy people, either, so even the gun fans conceded that the amendment gives way when it’s something they don’t personally like. There’s no question that gun opponents think felons and crazy people shouldn’t be allowed to bear arms, because the very core of the gun control position is that the Second Amendment is neither absolute nor much of a legal impediment to gun regulation at all.

Hey, thanks for conceding that gun control is an appropriate matter for ordinary democratic action. That’s all I could ever have asked for.

Nobody, and that’s kind of my point. Everybody (except for the minorty of serious extremists BF identified above) concedes that the right to bear arms may and should be infringed in certain cases. On the other hand, plenty of gun rights posters have responded to gun control proposals with the argument that “The Second Amendment doesn’t say you can do that!” Well, so what? It doesn’t say felons and crazy people don’t have the right to bear arms either.

Bricker, once again, I understand what you’re saying, I simply think we’ve been talking past each other here. For clarity, all I’m trying to point out is that “It ain’t in the Second Amendment,” by itself, isn’t a valid argument against a particular restriction of the right to bear arms if you believe it allows other such limitations (most prominently, felons and crazy people).

35

Well don’t break your arm patting yourself on the back. Everybody knows we live in a form of democracy here in the U.S. Nobody’s ever said law-making of any sort it wasn’t an appropriate matter for democratic action. We already know that law-making, and not just those laws that concern the second (or any of the other) amendment are properly in the domain of the public. However, while laws may be made, they are still subject to an overarching constitutionality. A constitutionality which says right now that guns may be privately owned and through democratic actions they may only be privately held within the restrictions of X, Y and Z. But hey, again within democratic action you’re absolutely free to try to change the overriding constitutional authority – the document itself explicitly spells out this procedure. Until then, the laws currently on the books hold sway and us gun rights folks are free to argue the constitutionality of any of your proposed measures.

So, sure. You’re free to advocate and attempt to pass any law you deem useful. And I’m still free to challenge the constitutionality of that law. Simply because you can do something; that doesn’t make it legally proper. Yup. Democratic action.

And as you can see, that point has been conceded by all but the most extreme advocates of private gun ownership. That being the case, I’m not entirely sure why you feel compelled to keep making the point over and over again.

36

Of course.

But “It ain’t in the Second Amendment,” is, I suspect, a convenient short-hand way of saying: “The restriction you describe seems overly broad, not narrowly-tailored to achieve the desired end, or ortherwise not in line with the general freedoms outlined by our long-standing societal and judicial interpretations of the Second Amendment.”

In much the same way, “It ain’t in the First Amendment,” to comment on a law restricting a person’s legal right to publish porn photos is both an insufficient argument on its face, and a commonly-understood shorthand recognition that we although we accept certain limitations, such as obscene materials, the photos in question do not fall under that umbrella.

I certainly agree that if the phrase is uttered not as commonly-understood shorthand, but intended as the beginning, middle, and end of the analysis, then the analysis is sorely lacking. This is true regardless of which amendment is being discussed.

  • Rick
37

It does vary from state to state, for example in North Carolina you can carry a loaded firearm in your car as long as it is visible. In Vermont you can carry a loaded handgun, but no long guns. (and you can carry w/o a permit). Louisiana considers your car as an extension of your house, so no problem there.

Actually my question was whether you supported the laws against transporting a loaded firearm. Sorry if I wasn’t clear. Too much cough syrup. :wink:

38

Oh, sorry I misunderstood ya, John. I thought it odd someone who appears knowledgeable about gun issues would ask such a basic question. And it was odd; you didn’t ask the question I answered. Anyway . . .

I think I’d prefer that firearms are unloaded in automobiles, at least in states where concealed carry is prohibited (such as mine). Disassembly seems a bit extreme, however. If a state allows concealed carrry, with or without a permit, then it’s kinda senseless, if not counterproductive, to force people to unload their firearm when getting in the car.

And try the Vicks44 with a splash of soda and a lemon wedge. Mmmmm-mmm.

39

I agree with this, too . . .

With the advent of desktop computing and printing capabilities, everyone is a veritable publisher. Hell, even with the World Wide Web, your 1st Amendment rights are now in essence, global.

Tripler
I swear, I’m going to sit down and read this entire thread one of these days. . .

40

Why not, UncleBeer? How is a loaded gun in my glovebox more dangerous than one in my nightstand? Surely you don’t think that having a loaded gun in the car is going to cause me to shoot someone who cuts me off?