Skip to main content

View Diary: What gun control does the Second Amendment allow? (226 comments)

Comment Preferences

  •  This is an important reminder that (13+ / 0-)

    not even the conservatives on the Supreme Court have ever said that the 2nd Amendment right is absolute, and that there is no such thing as constitutional regulation of guns.  Heller essentially said (my paraphrasing), yes, individuals have rights under the 2nd Amendment.  To decide this case, we don't have to say what the limits of those rights are, or set limits on the kind of regulation that would be constitutionally permissible, but clearly an absolute ban on handguns goes too far.

    I think, as in the discussion of reasonable limitations on any right, the SCOTUS will look at individual laws and weigh the burden on the citizen (guns used for "law abiding purposes" like hunting or self-defense probably should not be extremely difficult or impossible for people to obtain, more restrictions are probably permissible on guns that are not associated with those law-abiding purposes) against some "compelling" state interest in regulating the exercise of the constitutional right.

    •  Maybe there is a First Amendment analogy (2+ / 0-)
      Recommended by:
      Miggles, fuzzyguy

      A handgun ban would be like a content-based restriction on free speech, but there is room for whatever restrictions you might cast as similar to time/place/manner restrictions.

      •  Exactly (0+ / 0-)

        At least until a future S. Ct. overrules it, the Second Amendment is a fundamental right, just like the other Amendments.

        But all of the other Amendments can be regulated if there is a compelling state interest.  Any sane analysis (i.e., one that likely excludes Scalia) would conclude that there is a compelling state interest in banning or limiting military, law enforcement and other automatic and semi-automatic weapons.  Construing the Second Amendment as permitting ownership of assault weapons would be the same as construing the First Amendment as permitting shouting fire in a crowded theater.

        What more compelling state interest can there be than preventing Columbines and Newtowns?

        The GOP: "You can always go to the Emergency Room."

        by Upper West on Tue Dec 18, 2012 at 12:25:33 PM PST

        [ Parent ]

        •  the first amendment (1+ / 0-)
          Recommended by:
          Upper West

          Does allow you to "shout fire in a crowded theater." Doing so isn't a crime now, and wasn't then. All that case says is that the first amendment doesn't shield you from the consequences of your speech.

          The parallel argument in this context would be that, even if the second amendment protects your right to have a particular gun, you can still be prosecuted of you shoot somebody with it.


          "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
          "Dissent is patriotic. Blind obedience is treason." --me

          by Leftie Gunner on Tue Dec 18, 2012 at 12:44:19 PM PST

          [ Parent ]

        •  Scalia wrote Heller specifically (5+ / 0-)

          acknowledging that the 2nd Amendment right could be subject to regulation, just that an absolute ban on handguns went too far.  

          If you are going to find that the Second Amendment is an individual, rather than a collective, right (and that issue was debatable, given all the history and arguments one way or the other), then saying "you can't absolutely ban a type of weapon that most people want for a lawful purpose -- self defense -- as that goes too far and is too great an intrusion on the right set out in the Second Amendment, but don't read this opinion as saying you can't regulate guns, because all of us on the Supreme Court agree that clearly you can" is a "sane" analysis.

      •  Our most over-rated Amendment: 1st (0+ / 0-)

        No other amendment gets used to do more harm than the 1st.  Yes, it's nice to express speach, but at what costs when our elections are bought and sold?

        The symbol for the Republican party shouldn't be an elephant -- it should be a unicorn.

        by Deadicated Marxist on Tue Dec 18, 2012 at 01:12:26 PM PST

        [ Parent ]

      •  As in "time and place" regulation of free speech? (0+ / 0-)

        (or what's left of free speech as many of us experience it)

        202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

        by cany on Tue Dec 18, 2012 at 02:31:46 PM PST

        [ Parent ]

      •  There are a couple ... (2+ / 0-)
        Recommended by:
        Adam B, MPociask

        ... content-based free-speech restrictions. Visual child porn, per New York v. Ferber, is the one that leaps most easily to mind. Then there's defamation (per common law) and incitement to imminent lawless action (Brandenburg v. Ohio).

        •  publishing national security secrets ... nt (1+ / 0-)
          Recommended by:
          •  Sort of. (0+ / 0-)

            The initial disclosure is illegal.

            Subsequent publishing of leaked classified information, by someone (like a reporter) who has no security clearance, isn't.

            The diference lies in the fact that the leaker has freely agreed to accept a limitation on their right to free speech in exchange for access to the information, and that deal is enforcable by law. The reporter has made no such deal, and so isn't subject to the penalties for breaking it.

            It's also the case that disclosed classified information loses it's classification once it's disclosed.


            "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
            "Dissent is patriotic. Blind obedience is treason." --me

            by Leftie Gunner on Wed Dec 19, 2012 at 08:43:58 PM PST

            [ Parent ]

            •  There is a narrow window for prior restraint ... (0+ / 0-)

              ... on media republishing classified documents, as established in the Pentagon Papers case. The government can get a restraining order, but that's pending judicial review and it has a very high burden of proof to show that continued publication would jeopardize national security.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site