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View Diary: Constitutionally protected RKBA, political speech, or public menace? Open Thread w Poll (129 comments)

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  •  Would you expand a bit on your idea that (2+ / 0-)

    the 9th Amendment protects a person's ability to engage in common forms of self defense?

    I think a more appropriate argument, though one that would require opening a door that the Court would shudder at touching, would be that the Ninth Amendment--not the Second--protects the ability of persons to engage in common forms of personal defense).

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Fri Oct 11, 2013 at 01:52:19 PM PDT

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    •  Protect the Right to Bare Knuckles! (4+ / 0-)

      The Ninth Amendment, many think, is intended as a catch-all to protect the natural rights of individuals. Self-defense is, in one form or another, recognized as a right in every American jurisdiction, whether we're talking about armed or unarmed action, so it would be odd for it to not be constitutionally protected. I think most philosophers would consider it one of the natural rights of mankind. Yet there's no enumerated right to self-defense in the Constitution.

      Scalia and the Heller majority placed a right to armed self-defense within the 2nd Amendment. That required expanding the traditional interpretation of the 2nd to accommodate this right, ignoring the text that strongly indicates a collective-defense rationale for the amendment, and ignoring the question of unarmed self-defense (which was, to be fair, not at issue in Heller). They could have found an individual right to gun ownership without expanding RKBA to cover personal self-defense.

      As reworking existing constitutional doctrine is always a difficult process that takes many years of legislation and litigation to settle, and that the question of unarmed self-defense is obviously not settled by recourse to the 2nd Amendment, the better solution would be to identify where in the Constitution the right to self-defense in the abstract would be located.

      Since we can all agree that plenty of situations exist where self-defense can be accomplished without a firearm, it would seem odd for that right to be housed in the 2nd Amendment. If we find a right to self-defense in the 9th Amendment, however, that solves both problems: it prevents the need to expand the definition of the 2nd Amendment's core right, and it provides cover for forms of self-defense that don't include arms as well as armed self-defense. It's both more complete and less disruptive.

      "Speaking for myself only" - Armando

      by JR on Fri Oct 11, 2013 at 02:09:27 PM PDT

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      •  No they didn't. (0+ / 0-)

        "Scalia and the Heller majority placed a right to armed self-defense within the 2nd Amendment."

        It was, at best, a provisional right. Actually sufficiently weakened as to be nearly emasculated.

        And as far as the whole 9th Amendment stuff, find any case that has legitimized anything fully under the Ninth. Pure wishful thinking.

        There can be no protection locally if we're content to ignore the fact that there are no controls globally.

        by oldpotsmuggler on Fri Oct 11, 2013 at 08:52:23 PM PDT

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        •  OPS, I'm a realist (4+ / 0-)
          Recommended by:
          ER Doc, Smoh, Sylv, LilithGardener

          I think they're going to conclude whatever the hell five of them want to on any given day.

          But, let's be accurate:

          As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.
          That's straight out of the opinion, and there are about a dozen examples offered to justify it. It was central to the analysis the Majority adopted in Heller

          "Speaking for myself only" - Armando

          by JR on Fri Oct 11, 2013 at 10:50:04 PM PDT

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          •  They did not impose "Stand Your Ground" on (0+ / 0-)

            society through the mechanism of constitutional interpretation, or anything like that. The Roberts Court is afarid of not being seen as being "conservative", and afraid of being so conservative as to give the gunnut faction of society what they so vociferously demand.

            The explicit Holding of Heller was to throw out the statute being challenged. Anything else, and everything else is, at most mere Dicta.

            The language you're quoting addressed the question of whether whatever right happens to be associated with the langugage of 2A is an individual one, or a collective one (Militia). And, after saying "individual", the Court then went out of it's way to approve the concept that society can go to pretty major lengths to protect itself from firearm carnage.

            There can be no protection locally if we're content to ignore the fact that there are no controls globally.

            by oldpotsmuggler on Sat Oct 12, 2013 at 11:40:13 AM PDT

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            •  Stand Your Ground is a complex issue (1+ / 0-)
              Recommended by:
              Glen The Plumber

              in its own right.

              Readers might be interested in our first two diaries on SYG laws.  

              Report on Stand Your Ground Laws Highlights Racial Disparities (Sep 18, 2013)
              Justifiable homicides increased by an average of 53-percent since 2005 in the 22 states that have passed stand-your-ground laws—while falling in the rest of the country... In Florida, where the fatal shooting of Trayvon Martin by George Zimmerman first thrust the laws into the national spotlight last spring, the increase in justifiable homicides was even higher—200 percent.
              Getting Away with Murder - Unintended Consequences of Florida's Stand-Your-Ground Laws

              "Stand Your Ground [law in Florida] essentially makes it legal to shoot one's way out of any situation that feels threatening..."

              This primer may help readers understand some evidence that Florida's vague SYG law has had unintended consequences; namely that it enables criminals to get away with murder. This diary is the second in our primer series for those who are beginning to think seriously about so-called "Stand Your Ground" Laws (SYG). Our first SYG primer, Report on Stand Your Ground Laws Highlights Racial Disparities, focused on the disturbing rise in justifiable homicides in states that have passed SYG laws.

              "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

              by LilithGardener on Sat Oct 12, 2013 at 03:57:29 PM PDT

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            •  Florida's Stand Your Ground Law & ALEC (1+ / 0-)
              Recommended by:
              Glen The Plumber

              Anyone interested in Stand Your Ground Laws might also enjoy 2 other diaries on SYG law in Florida.

              Dream Defenders Stand Against Stand-Your-Ground Laws: Trayvon's Law, Part 2 (Sep 6, 2013 by a2nite)

              I'm not sure what problem these SYG laws solve. Maybe people who believe in this can enlighten me. The 2005 bill that Marco Rubio sponsored in Florida was written by the NRA/ALEC and was signed into law by Jeb Bush. Since then, there has been a concerted effort to pass some kind of SYG legislation in other states using FL as a template.
              The American Legislative Exchange is an organization dedicated to expansion of RW racist conservative ideology by means of written law. They are working hand in hand with the NRA to expand this legislation nationwide....

              SYG Laws have been enacted in twenty-five (25) states, and now my state is trying to enact the same law.

              Why? Because we have a super majority of extreme RW Republicans and an evil RW racist Republican Governor, so why not continue to put a jackboot on the people of the state of Ohio by enabling racists -- or any other kind of predator -- to shoot first. Unfortunately Americans are very good at killing: we've had about 400 years of practice between the extermination of the native peoples and the enslavement, oppression, and extermination of the peoples of African descent and all of the wars and killing of each other including the whopper The Civil War.

              The UN committee will be questioning the US this week; mark October 18th on your calendar.
              Dream Defender, Ahmad Abuznaid, Will Deliver Document to United Nations in Geneva (Sep 27, 2013)

              The UN gave Ahmad Abuznaid a scholarship to deliver the document to them in person when the committee will address US compliance with international standards of justice that were ratified by the US Senate in 1992. The Dream Defenders, the NAACP, and Community Justice Project of Florida Legal Services collaborated on the Written Statement on Stand Your Ground Laws

              Here comes a shameless cross promotion of the other group I currently write for. These young activists in Florida are working right now training activists and conducting a voter registration drive to register ~65,000 voters in Florida. Anyone who cares about what's happening in Florida and wants to correct the damage that ALEC has done to our country should follow this group and support the Dream Defenders.



              Support the Dream Defenders - A Daily Kos Group
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              The Dream Defenders are fighting for justice in Florida. Their mission is to enact Trayvon's Law in Florida, which would repeal the Stand Your Ground law, ban racial profiling, and end the school-to-prison pipeline.

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              "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

              by LilithGardener on Sat Oct 12, 2013 at 04:13:01 PM PDT

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            •  Hang on, why won't you concede your error here? (1+ / 0-)
              Recommended by:
              LilithGardener

              What I said was "Scalia and the Heller majority placed a right to armed self-defense within the 2nd Amendment."

              You replied unequivocally "no they didn't."

              I demonstrated that you were incorrect, and in fact they did. Your response to that was essentially word salad.

              As a lawyer, whenever I see someone claim that the rationale commanding a majority of the Court's support is "mere dicta," I have to think that person doesn't understand the words he's using. The holding in this case was dependent on finding a Second Amendment right to self-defense. You can read the syllabus here. Pay particular attention to the fact that the syllabus begins with the word "Held." Here's what the third section of it says:

              3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
              (bold mine)

              There is no interpretation of your comment that is correct. You are simply wrong.

              Are you now willing to concede that the Heller majority found an inherent right to self-defense within the Second Amendment?

              "Speaking for myself only" - Armando

              by JR on Sat Oct 12, 2013 at 05:05:31 PM PDT

              [ Parent ]

              •  Which you already know (0+ / 0-)

                "The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . "

                You didn't limit yourself. I pointed out that there is nothing unlimited about what was done ("No they didn't" do what you said.) And now you still seem to want to assert a breadth and depth to the, otherwise, nebulous self defense concept, that you can't support.

                So, Riddle Me This, what kind of a right is it that says persons with a prior criminal conviction can be convicted for merely trying to possess the tool that would make "enjoyment" of it possible? Or must never be asserted through the mechanism of a sawed off shotgun?

                Because the most absolute favorite saying of all of the RKBA types is "a right is a right".

                There can be no protection locally if we're content to ignore the fact that there are no controls globally.

                by oldpotsmuggler on Sat Oct 12, 2013 at 05:57:34 PM PDT

                [ Parent ]

                •  You totally missed the point of my piece (1+ / 0-)
                  Recommended by:
                  LilithGardener

                  The entire reason I wrote this is to point out that the actual right within the Second Amendment is far narrower than the RKBA types have been arguing, and that not all things considered "gun rights" are actually about the core right to keep and bear arms, but are peripheral.

                  The syllabus is not the opinion itself. It's the headnotes, the guide to understanding what the opinion says. If you head to the pages referenced in point 3, for example (pages 56-64 of the Opinion of the Court) you can find the holding that the syllabus references. This is basic stuff.

                  And again, you're trying to weasel out of being wrong and demonstrating that you have no interest in a good-faith discussion. And what good will I've had for you in the past has pretty much been sapped away by this truly sorry performance. You may be old, but you still need to grow  the hell up.

                  "Speaking for myself only" - Armando

                  by JR on Sat Oct 12, 2013 at 06:37:20 PM PDT

                  [ Parent ]

                  •  Okay, don't address the points I've raised. n/t (0+ / 0-)

                    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

                    by oldpotsmuggler on Sat Oct 12, 2013 at 08:17:36 PM PDT

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                  •  A little supplement (0+ / 0-)

                    "The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22–4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
                    This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment.[17]"

                    http://en.wikipedia.org/...

                    Back in the day, I had three of my Cert Petititons granted by the SCOTUS and won them all.

                    Of course, for all I know. your record there is far superior to my own.

                    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

                    by oldpotsmuggler on Sat Oct 12, 2013 at 08:28:32 PM PDT

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        •  Would you please expand on what you mean (0+ / 0-)

          by "provisional right"? Links would be helpful for those of us who are new to reading judicial opinions.

          Thanks.

          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

          by LilithGardener on Sat Oct 12, 2013 at 02:44:48 PM PDT

          [ Parent ]

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