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Except that in both cases you're talking about the same thing - depriving someone of a liberty. If the suggestion in question is sufficient due process to deprive someone of -a-liberty, then it is sufficient to deprive them of -any- liberty.That's called the "Slippery Slope Fallacy" for a reason.Yes. Someone petitions a court with cause, and the court (possibly) issues a temporary restriction of your rights. That's exceptionally different than the idea presented here.If you have a restraining order against you you lose your rights to firearms as well. There is no due process there as well. That is the Lautenburg Amendment.
Except for the due process clause.But it appears that he is simply fixing on a method of enforcing what is already law
if you can lose your right to arms in this manner, then you can be jailed in this manner.
If they -knowingly- do so, they are already criminally liable -- it is illegal to sell a gun to someone you know cannot legally buy one.I'm sorry -- your response doesn't address what I said.
The prohibition against criminals, etc, buying guns isn't a form of prior restraint, the background check on someone to see if they are a criminal, etc, is.
Please try again.
Well then "prior restraint" must currently use a very broad stroke, since an employer can now deny employment based on a background check not just for criminal activity but for credit history. Why should the private sector get a pass on "prior restraint" and only the government be bound by the Constitutional restrictions?
IF (and its a big if) prior restraint is applied to all constitutional rights then gun ownership would fall under its protection. A job, however is a contract between two parties, and since it is a contract would not fall under consitutional protection, but legislative protection.
This bring the interesting case of IF (again big IF) you can use prior restraint to prevent background checks being required what would prevent the government making a gun SELLER liable criminally for selling a weapon to a restricted party?
Prior restraint is a restriction placed on the exercise of a right by the state.If the seller then did his own check prior to the sale to protect his own ass would that fall under the whole prior restraint line of logic?
Except that in both cases you're talking about the same thing - depriving someone of a liberty. If the suggestion in question is sufficient due process to deprive someone of -a-liberty, then it is sufficient to deprive them of -any- liberty.That's called the "Slippery Slope Fallacy" for a reason.Yes. Someone petitions a court with cause, and the court (possibly) issues a temporary restriction of your rights. That's exceptionally different than the idea presented here.
Except for the due process clause.
if you can lose your right to arms in this manner, then you can be jailed in this manner.
In the context of the 5th amendment, all rights are liberties (though not all liberties are rights). You cannot be be deprived of you right to life, liberty or property w/o due process And so, If the suggestion in question is sufficient due process to deprive someone of -a-liberty, then it is sufficient to deprive them of -any- liberty.Ownership of a firearm is not a "liberty." It is a right. That is different.Except that in both cases you're talking about the same thing - depriving someone of a liberty. If the suggestion in question is sufficient due process to deprive someone of -a-liberty, then it is sufficient to deprive them of -any- liberty.That's called the "Slippery Slope Fallacy" for a reason.
You are correct, and no one claims otherwise. HOWever, as a constitutionally protected fundamental, individual right, there is a very narrow defintion of what 'restrictions' to the right to arms are allowed by the Constution -- that is, to pass muster, it must pass strict scrutiny. To get a good idea of these allowable restrictions, see the jurisprudence surroundng the 1st amendment.It is also not an unrestricted right, as all of them are. This was clear from Heller.
http://www.supremecourt.gov/opinions/09pdf/08-1521.pdfThe Supreme Court did not declare whether the 2A imposed a "fundamental" right that would demand strict scrutiny. You are simply making that up.
I see that you cannot actually counter what I said.And the idea that depriving someone of firearms rights is the same as jailing them does not pass the laugh test.
http://www.supremecourt.gov/opinions/09pdf/08-1521.pdfThe Supreme Court did not declare whether the 2A imposed a "fundamental" right that would demand strict scrutiny. You are simply making that up.
See: Opinion, Section III, p19-31
I see that you cannot actually counter what I said.And the idea that depriving someone of firearms rights is the same as jailing them does not pass the laugh test.
Rights are rights - if (x) is sufficent due process to deprive you of one, it is sufficient to deprive you of any.
If telling a federal official that you commited a felony is sufficient due process to forever remove your right to arms, why then is it NOT sufficient to put you in jail and/or forever remove yor right to vote?
If we outlaw guns, only outlaws will have guns...
Guns don't kill people, people kill people...
Guns don't kill, it's really the bullets...
You can have my gun when you pry it from my cold dead hand...
Did I leave any out?
M14 Shooter said:Show how it is -not- prior restraint.To me a instant background check does not constitute any infringement as seen by court decsions.
Show how prior restraint passes strict scrutiny.
So would this mean people on medical weed would lose their right to guns?
Either way it's a bad law. It's very possible to be a drug addict and only use your gun sober. Also it's possible to quit using drugs.
Decisions, decisions. Should I quit using drugs or buy a gun and shoot my wife?
One must wonder if you think the same thing about tapping your cell phone.I would. Why not? If, as the mantra goes, you've got nothing to hide, you won't have a problem.Would you submit to the above tests to get a driver's licsence?
How are you sure of that? There's absolutely nothing to support this.So you wouldn't mind infringing on the Second Amendment? Having to take a drug test and a mental health evaluation puts an undue burden on someone's right to bear arms. Not going to happen.
Once again, I'm sure the framers of the Constitution hadn't the slightest idea that the extremely broad language of the Second Amendment would be creating a monster to be dealt with in the modern world.
The Framers intended the 2nd to protect the weapons necessary for the militia to remain effective - why do you suppose the framers held the belief that the progression of firearms technology would negate this principle?
The prior restraint argument revolves around the background check.Calling this "prior restraint" is simply dumb.
The primary issue wiith Schumer's poposal is the lack of due process - if you can lose your right to arms in this manner, you can be just as eaisly jailed.
If you have a restraining order against you you lose your rights to firearms as well. There is no due process there as well. That is the Lautenburg Amendment.
I didnt see the details so can't comment on it. But it appears that he is simply fixing on a method of enforcing what is already law.
Allow me to repeat myself:Please cite where the Supreme court, or any court, has said that the 2A confers a "fundamental" right requiring strict scrutiny. There is no such thing.
Strict Scrutiny legal definition of Strict Scrutiny. Strict Scrutiny synonyms by the Free Online Law Dictionary.A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
You already said this and I already negated it.You are using the slippery slope fallacy.
Except, of course, that owning a firearm is a fundamental right, and as such, very clearly a liberty.There is no relationship between a disability to own a firearm and liberty. None.
Um...I can understand all the reasons normal people would want to own a gun: Hunting, protection, Constitutional right. But what is the purpose of semi-automatics that can rattle off a dozen rounds other than to kill or maim a whole bunch of people?
You apparently do not understand the nature of prior restraint.M14 Shooter said:Show how it is -not- prior restraint.To me a instant background check does not constitute any infringement as seen by court decsions.
Show how prior restraint passes strict scrutiny.
What is it called when the State Police pull you over and the first thing they do is ask for your license and registration, take it back to their vehicle and run a check even if you've done nothing wrong? Why do they have a "right" to prior restraint?
Not in any meaningful way, given that the right to these weapons is posessed by the individual, regardless of his relationship to any militia.Operative word.How are you sure of that? There's absolutely nothing to support this.Once again, I'm sure the framers of the Constitution hadn't the slightest idea that the extremely broad language of the Second Amendment would be creating a monster to be dealt with in the modern world.
The Framers intended the 2nd to protect the weapons necessary for the militia to remain effective - why do you suppose the framers held the belief that the progression of firearms technology would negate this principle?
I missed the bolded text before, but my original response covered it.The prior restraint argument revolves around the background check.Calling this "prior restraint" is simply dumb.
The primary issue wiith Schumer's poposal is the lack of due process - if you can lose your right to arms in this manner, you can be just as eaisly jailed.
If you have a restraining order against you you lose your rights to firearms as well. There is no due process there as well. '
Allow me to repeat myself:Please cite where the Supreme court, or any court, has said that the 2A confers a "fundamental" right requiring strict scrutiny. There is no such thing.
http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
See: Opinion, Section III, p19-31. Pretty plain language.
Strict Scrutiny:
Strict Scrutiny legal definition of Strict Scrutiny. Strict Scrutiny synonyms by the Free Online Law Dictionary.A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
So....
-The right to arms, is, according to the court, a fundamental right, and is protected by the Constitution.
-Strict Scrutiny is applied to fundamental rights protected by the Constitution.
-Thus, strict scrutiny is applied to acts/policies that affect the right to arms.
:shrug:
And.. AGAIN....
I see that you cannot actually --counter-- what I said.
Rights are rights - if (x) is sufficent due process to deprive you of one, it is sufficient to deprive you of any.
If telling a federal official that you commited a felony is sufficient due process to forever remove your right to arms, why then is it NOT sufficient to put you in jail and/or forever remove yor right to vote?
You already said this and I already negated it.You are using the slippery slope fallacy.
Except, of course, that owning a firearm is a fundamental right, and as such, very clearly a liberty.There is no relationship between a disability to own a firearm and liberty. None.
McDonald did not change the basic framework of the law, that legislatures may pass laws that restrict ownership of firearms in some way or other.It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession 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." Id., at ___-___ (slip op., at 54-55). We repeat those assurances here. Despite municipal respondents' doomsday proclamations, incorporation does not imperil every law regulating
firearms.
Sure they did. Read what they wrote.OK. SO you see the words "fundamental" and "rights" and assume the Supreme COurt held what you think they held.
THey did not.
No, it doesn't.THey did not extend to 2A protection the same protections as 1A or voting rights as "fundamental" in the technical sense.
The opinion itself backs this up:
Please note specifically the restrctions that were rejected under ANY standard of scrutiny: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
This throws rational basis out the widnow, and puts the right to arms on the same level as freedom of speech, the guarantee against double jeopardy, and the right to counsel.Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144 , n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”. If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect
No one questions that ANY right can be restrcited - the question is, to what degree can laws constitutionally restrict the right in question. This is determimed by the relevant standard of scrutiny; fundamental rights protected by the Constitution enjoy the protection of strict scrutiny.McDonald did not change the basic framework of the law, that legislatures may pass laws that restrict ownership of firearms in some way or other.
