Banning AR-15's Doesn't Make Sense To Me

[M14 Shooter]

From 1-1-1955
The Doctrine of Prior Restraint
Thomas I. Emerson
Yale Law School...

None of this negates the arguments put to you, your onus to respond to them in defense of your position, and your need to suppot your statements.

I am under no obligation to support my statement.

And thus ends our conversation, with a defacto admission that you cannot soundly support your position.
Thank you for playing, and for not resorting to ad homs.

 

[Jimmy_Jam]

None of this negates the arguments put to you, your onus to respond to them in defense of your position, and your need to suppot your statements.

I am under no obligation to support my statement.

And thus ends our conversation, with a defacto admission that you cannot soundly support your position.
Thank you for playing, and for not resorting to ad homs.

Is that really what you think, that I am admitting I cannot soundly support my position? I already have. The doctrine of prior restraint pertains specifically to free speech. I didn't know much about it before our discussion, and I am glad I have learned more about. You are taking the proverbial square peg and trying to fit into a round hole.

If background searches are unconstitutional, it is not because of prior restraint, and you have provide nothing that indicates there is any relevance whatsoever. I was interested in exploring this concept with you, and I tried my best, but I simply cannot take a concept that applies to restrictions of free speech and apply it to buying a gun. It has no business on the premises except in the loosest of ways.

To be perfectly clear, I am a gun-owner and value my 2nd Amendment rights. While there may be valid arguments for and against background checks, this one puzzles me. I have searched extensively and the only relevance of prior restraint to the 2nd Amendment comes from sites offering essentially op-ed pieces that are trying to make that claim. Should a case ever be brought regarding gun control that uses prior restraint as a premise would certainly be met with the same response: "this has to do with free speech how?"

So, it's a shame that you don't want to discuss it further, but it's been stimulating and I appreciate you.

 

[M14 Shooter]

I am under no obligation to support my statement.

And thus ends our conversation, with a defacto admission that you cannot soundly support your position.
Thank you for playing, and for not resorting to ad homs.

Is that really what you think, that I am admitting I cannot soundly support my position? I already have. The doctrine of prior restraint pertains specifically to free speech. I didn't know much about it before our discussion, and I am glad I have learned more about. You are taking the proverbial square peg and trying to fit into a round hole.

This entire paragraph serves to demonstrate that you either missed the point I made, or ignored it.

 

[Jimmy_Jam]

And thus ends our conversation, with a defacto admission that you cannot soundly support your position.
Thank you for playing, and for not resorting to ad homs.

Is that really what you think, that I am admitting I cannot soundly support my position? I already have. The doctrine of prior restraint pertains specifically to free speech. I didn't know much about it before our discussion, and I am glad I have learned more about. You are taking the proverbial square peg and trying to fit into a round hole.

This entire paragraph serves to demonstrate that you either missed the point I made, or ignored it.

It's possible. All I can really gather is that you are construing that the doctrine of prior restraint applies outside of free speech.

At this point, I can't see that it does. Likewise, I have tried to find information that supports such a claim, and thus far have been unable to. And believe me, I have tried. You are applying a certain logic to say that it does apply to all rights. I just don't get it. It's possible that I am just too dense to see your logic, or I am over-simplifying. Can you explain to me how a legal concept that applies to the censorship of speech prior to publication applies to background checks?

 

[Politico]

Anyone see on CNN the other night? When they were talking about Zimmerman and stand your ground the entire screen was a video panning over a table of ARs. What a bunch of douchebags.

 

[Survivalist]

Anyone see on CNN the other night? When they were talking about Zimmerman and stand your ground the entire screen was a video panning over a table of ARs. What a bunch of douchebags.

Fortunately, I missed that. Sometimes I'll flip over to MSNBC or CNN for a little while to see what they have to say. But just like looking at a public toliet that didn't flush, I don't watch it for long.

If you live right next to one of the 100 areas that are going to have anti-White or Hispanic Trayvon rallies. You might want to have an AR type weapon if the rage of these hate-mongers boils over and they start rioting.





This poor Jarhead should have known: "Without my weapon, I am useless."

Hate Crime: Marine Beaten and Stabbed by Group of African American Males | The Daily Sheeple

 

[jon_berzerk]

the threat of national riots

is a good reason to have an ar -15

during the LA riots

the Korean store owners

remained free of looting and rampage by defending theirs

with firearms

 

[M14 Shooter]

Is that really what you think, that I am admitting I cannot soundly support my position? I already have. The doctrine of prior restraint pertains specifically to free speech. I didn't know much about it before our discussion, and I am glad I have learned more about. You are taking the proverbial square peg and trying to fit into a round hole.

This entire paragraph serves to demonstrate that you either missed the point I made, or ignored it.

It's possible. All I can really gather is that you are construing that the doctrine of prior restraint applies outside of free speech.

That's because priopr restraint is a concept - restraining the exercise of a right prior to its exercise to determine if said exercise violates the law violates the rights of those so restrained unless the state can show that it has a compelling interest in that restraint, and that said restraint is the least restrictive means to achive that interest. Because it is a concept, it applies to each right every bit as much as any other, absent a sound argument as to why there should be an exception for any specific right.

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

 

[Jimmy_Jam]

This entire paragraph serves to demonstrate that you either missed the point I made, or ignored it.

It's possible. All I can really gather is that you are construing that the doctrine of prior restraint applies outside of free speech.

That's because priopr restraint is a concept - restraining the exercise of a right prior to its exercise to determine if said exercise violates the law violates the rights of those so restrained unless the state can show that it has a compelling interest in that restraint, and that said restraint is the least restrictive means to achive that interest. Because it is a concept, it applies to each right every bit as much as any other, absent a sound argument as to why there should be an exception for any specific right.

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

Prior restraint is more than a concept. It is a legal doctrine, specifically a free speech doctrine. If one wants to apply this doctrine outside of free speech because they think it would work there, so be it. However, I am discussing the doctrine exactly as it is defined.

 

[M14 Shooter]

It's possible. All I can really gather is that you are construing that the doctrine of prior restraint applies outside of free speech.

That's because priopr restraint is a concept - restraining the exercise of a right prior to its exercise to determine if said exercise violates the law violates the rights of those so restrained unless the state can show that it has a compelling interest in that restraint, and that said restraint is the least restrictive means to achive that interest. Because it is a concept, it applies to each right every bit as much as any other, absent a sound argument as to why there should be an exception for any specific right.

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

Prior restraint is more than a concept. It is a legal doctrine, specifically a free speech doctrine. If one wants to apply this doctrine outside of free speech because they think it would work there, so be it. However, I am discussing the doctrine exactly as it is defined.

As I said:

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

By only considering the concept as held by current jurisprudence is to deliberately side-step the discussion.

 

[Jimmy_Jam]

That's because priopr restraint is a concept - restraining the exercise of a right prior to its exercise to determine if said exercise violates the law violates the rights of those so restrained unless the state can show that it has a compelling interest in that restraint, and that said restraint is the least restrictive means to achive that interest. Because it is a concept, it applies to each right every bit as much as any other, absent a sound argument as to why there should be an exception for any specific right.

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

Prior restraint is more than a concept. It is a legal doctrine, specifically a free speech doctrine. If one wants to apply this doctrine outside of free speech because they think it would work there, so be it. However, I am discussing the doctrine exactly as it is defined.

As I said:

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

Likewise it does not necessitate that they are.

You are asking me to apply the Doctrine of Prior Restraint outside of it's intended application. Constitutional doctrines are a set of rules and guidelines intended to help decide legal issues given a certain set of circumstances. Prior restraint provides the constitutional guidelines relevant to censorship. How is this even a debate? I regret that I got sucked into considering it because you insist on trying to paint me into a corner. I've come to my senses. Prior restraint is a free speech doctrine. This is not debatable. If you want to take it outside of that, then the burden of justification rests on your shoulders.

Now, I am against banning AR-15s, as I am against a lot of gun control measures. I have yet to see an argument that convinces me background checks for eligibility are unconstitutional, although I am not saying they don't exist. Using the doctrine of prior restraint is very creative, granted, but I am not so sure it is appropriate. I could easily say that the doctrine of Public Forum is applicable to the 2nd Amendment, but I would be obliged to justify it.

 

[FA_Q2]

didnt the VT guy buy his guns?

didnt the Colorado shooting guy buy his too?

VT no, he stole them.

Colorado, yes - he bought them.

But he had no criminal record and no mental health issues in any file, so he would fly through a background check.

So, you seem to be saying that background checks pose no restriction to those without a criminal background. That's pretty much been my point all along. What I'm wondering is, why such resistance to them?

From him, he has described why but if you are asking about resistance to them at large I believe that you are sorely mistaken. Almost no one is resisting background checks for the purchase of firearms. The media wo0uld have you believe that drivel because strife is the carcass that feeds them BUT the reality is that background checks are essentially already required for the VAST majority firearm sales. None of those laws are being challenged at all. The reality is that virtually any gun you purchase anywhere legally (to INCLUDE gun shows) will have a background check preformed first.

To claim that there is resistance to background checks is rather silly. The resistance is to adding new layers of federal red tape that adds zero in the way of protections but also create huge violations of other rights like privacy.

 

[FA_Q2]

Is that really what you think, that I am admitting I cannot soundly support my position? I already have. The doctrine of prior restraint pertains specifically to free speech. I didn't know much about it before our discussion, and I am glad I have learned more about. You are taking the proverbial square peg and trying to fit into a round hole.

This entire paragraph serves to demonstrate that you either missed the point I made, or ignored it.

It's possible. All I can really gather is that you are construing that the doctrine of prior restraint applies outside of free speech.

At this point, I can't see that it does. Likewise, I have tried to find information that supports such a claim, and thus far have been unable to. And believe me, I have tried. You are applying a certain logic to say that it does apply to all rights. I just don't get it. It's possible that I am just too dense to see your logic, or I am over-simplifying. Can you explain to me how a legal concept that applies to the censorship of speech prior to publication applies to background checks?

The question is NOT what is current law but rather what should be. We can all look around and agree what the law currently states but that does not mean that we should agree with that application of law as it stands. At one point in time, separate but equal was actually considered constitutional. We know today that is asinine and completely against the constitution in not only letter but also spirit. I think that M14 has presented a very strong case as to why prior restraint should be applied to the second amendment. Considering that I disagree with his stance on background checks, I think that is saying something. To put it simply, I don’t know if I can support my prior position of supporting current basic background checks against the very real concept of prior restraint.

 

[Jimmy_Jam]

This entire paragraph serves to demonstrate that you either missed the point I made, or ignored it.

It's possible. All I can really gather is that you are construing that the doctrine of prior restraint applies outside of free speech.

At this point, I can't see that it does. Likewise, I have tried to find information that supports such a claim, and thus far have been unable to. And believe me, I have tried. You are applying a certain logic to say that it does apply to all rights. I just don't get it. It's possible that I am just too dense to see your logic, or I am over-simplifying. Can you explain to me how a legal concept that applies to the censorship of speech prior to publication applies to background checks?

The question is NOT what is current law but rather what should be. We can all look around and agree what the law currently states but that does not mean that we should agree with that application of law as it stands. At one point in time, separate but equal was actually considered constitutional. We know today that is asinine and completely against the constitution in not only letter but also spirit. I think that M14 has presented a very strong case as to why prior restraint should be applied to the second amendment. Considering that I disagree with his stance on background checks, I think that is saying something. To put it simply, I don’t know if I can support my prior position of supporting current basic background checks against the very real concept of prior restraint.

It is worthy of exploring. If it weren't I would have given up on this long ago.

Here is the main area where the logic of using prior restraint outside of free speech bothers me. There is not a single condition that prohibits an individual from free speech. There are specific types of speech that are restricted. If an individual were to violate them, he/she may be subject to a penalty, but the basic right to free speech is not removed. Not so with 2nd Amendment rights. Because of the deadly nature of firearms, it became necessary to restrict this right to those who have committed certain crimes in the past. This is typically designated as Class C felonies. Should this condition exist, the individual does not have this right.

The argument that background checks are a form of prior restraint rests on the idea that it is intended to prevent the illegal practice of the act preemptively, by censoring a violation of restricted form of speech before they happen. The intent of them may very well be to reduce violent crime, but the action itself is checking for eligibility, to see if the purchaser has committed a crime that has prohibited him from his 2nd Amendment rights.

The form of prior restraint that makes any sense is the idea that it can come in the form of refusing to grant, or revoking, a license. This, I agree, is a form of prior restraint, because it creates an inequality of 1st Amendment rights between the licensed and the non-licensed, because there is no condition defined as prohibiting that right. With the 2nd Amendment, there is, meaning there is a general condition that prohibits an individual's right altogether. The only way around that is by saying that there should be absolutely no condition prohibiting an individual from 2nd Amendment rights, to include a serious felony, which currently does. Were that the case, then yes, I can see prior restraint applying to the 2nd Amendment in the same way as it applies to the 1st.

 

[M14 Shooter]

Prior restraint is more than a concept. It is a legal doctrine, specifically a free speech doctrine. If one wants to apply this doctrine outside of free speech because they think it would work there, so be it. However, I am discussing the doctrine exactly as it is defined.

As I said:

The fact that current juispridence only recognizes the concept of prior restraint as applied to the rights protected by the 1st amendment in no way neceeistates that those rights are the ONLY such rights protected from it.

Likewise it does not necessitate that they are.

You are asking me to apply the Doctrine of Prior Restraint outside of it's intended application.

No... I'm asking you to be consistent and apply it to all rights, outsude the limits of current juisrpridence.

While the court has only applied the concept of prior restraint to rights protected by the 1st amendment, the concept of prior restraint itself is not inherently based on the 1st amendment.

You fail to understand this, and you refuse to offer a sound argument as to why the concept of prior restraint should not apply to rights other than those protected by the 1st.

 

[M14 Shooter]

Here is the main area where the logic of using prior restraint outside of free speech bothers me. There is not a single condition that prohibits an individual from free speech. There are specific types of speech that are restricted. If an individual were to violate them, he/she may be subject to a penalty, but the basic right to free speech is not removed. Not so with 2nd Amendment rights. Because of the deadly nature of firearms, it became necessary to restrict this right to those who have committed certain crimes in the past. This is typically designated as Class C felonies. Should this condition exist, the individual does not have this right.

The argument that background checks are a form of prior restraint rests on the idea that it is intended to prevent the illegal practice of the act preemptively, by censoring a violation of restricted form of speech before they happen. The intent of them may very well be to reduce violent crime, but the action itself is checking for eligibility, to see if the purchaser has committed a crime that has prohibited him from his 2nd Amendment rights.

As mentioned before, there's nothing here that changes anything.

However you want to word it, the basic function of the background check is to restrain the exericse of the right prior to the exercise of same to determine if said exercise will break the law; if it does, then the exercise is denied, if not, then it it is allowed to continue.

The important part of this is "...to determine if said exercise will break the law..." -- it doesnt matter what law is broken, and it doesnt matter the basis for that law, the issue is the breaking of the law itself. As such, your differential argument as to felons having their right removed is meaningless as it does not matter how the law in question came to be or what effect it has, only that the law is/is not broken by the exercise in question.

 

[Jimmy_Jam]

Here is the main area where the logic of using prior restraint outside of free speech bothers me. There is not a single condition that prohibits an individual from free speech. There are specific types of speech that are restricted. If an individual were to violate them, he/she may be subject to a penalty, but the basic right to free speech is not removed. Not so with 2nd Amendment rights. Because of the deadly nature of firearms, it became necessary to restrict this right to those who have committed certain crimes in the past. This is typically designated as Class C felonies. Should this condition exist, the individual does not have this right.

The argument that background checks are a form of prior restraint rests on the idea that it is intended to prevent the illegal practice of the act preemptively, by censoring a violation of restricted form of speech before they happen. The intent of them may very well be to reduce violent crime, but the action itself is checking for eligibility, to see if the purchaser has committed a crime that has prohibited him from his 2nd Amendment rights.

As mentioned before, there's nothing here that changes anything.

However you want to word it, the basic function of the background check is to restrain the exericse of the right prior to the exercise of same to determine if said exercise will break the law; if it does, then the exercise is denied, if not, then it it is allowed to continue.

The important part of this is "...to determine if said exercise will break the law..." -- it doesnt matter what law is broken, and it doesnt matter the basis for that law, the issue is the breaking of the law itself. As such, your differential argument as to felons having their right removed is meaningless as it does not matter how the law in question came to be or what effect it has, only that the law is/is not broken by the exercise in question.

Okay. So, if I'm understanding you correctly, this has nothing to do with the felon, but with the person selling the firearm? I ask because the act of selling the weapon to the ineligible person would be the law that is being broken. If so, then you're saying the prior restraint is on the seller, not the potential ineligible person. Please clarify if I am misunderstanding you.

 

[M14 Shooter]

Here is the main area where the logic of using prior restraint outside of free speech bothers me. There is not a single condition that prohibits an individual from free speech. There are specific types of speech that are restricted. If an individual were to violate them, he/she may be subject to a penalty, but the basic right to free speech is not removed. Not so with 2nd Amendment rights. Because of the deadly nature of firearms, it became necessary to restrict this right to those who have committed certain crimes in the past. This is typically designated as Class C felonies. Should this condition exist, the individual does not have this right.

The argument that background checks are a form of prior restraint rests on the idea that it is intended to prevent the illegal practice of the act preemptively, by censoring a violation of restricted form of speech before they happen. The intent of them may very well be to reduce violent crime, but the action itself is checking for eligibility, to see if the purchaser has committed a crime that has prohibited him from his 2nd Amendment rights.

As mentioned before, there's nothing here that changes anything.

However you want to word it, the basic function of the background check is to restrain the exericse of the right prior to the exercise of same to determine if said exercise will break the law; if it does, then the exercise is denied, if not, then it it is allowed to continue.

The important part of this is "...to determine if said exercise will break the law..." -- it doesnt matter what law is broken, and it doesnt matter the basis for that law, the issue is the breaking of the law itself. As such, your differential argument as to felons having their right removed is meaningless as it does not matter how the law in question came to be or what effect it has, only that the law is/is not broken by the exercise in question.

Okay. So, if I'm understanding you correctly, this has nothing to do with the felon...

... no, it has nothing to do with the fact that there is a class of people that can have their right to arms removed. The key is breaking the law -- that the exercise of the right in question is illegal - it doesnt matter what the law, only that the restraint exists to see of a law is broken.

I ask because the act of selling the weapon to the ineligible person would be the law that is being broken.

Only if the dealer sold the gun after the check denied the sale.
The law in question here is the general prohibition of felonds from buying/possessing a firearm.

 

[Jimmy_Jam]

As mentioned before, there's nothing here that changes anything.

However you want to word it, the basic function of the background check is to restrain the exericse of the right prior to the exercise of same to determine if said exercise will break the law; if it does, then the exercise is denied, if not, then it it is allowed to continue.

The important part of this is "...to determine if said exercise will break the law..." -- it doesnt matter what law is broken, and it doesnt matter the basis for that law, the issue is the breaking of the law itself. As such, your differential argument as to felons having their right removed is meaningless as it does not matter how the law in question came to be or what effect it has, only that the law is/is not broken by the exercise in question.

Okay. So, if I'm understanding you correctly, this has nothing to do with the felon...

... no, it has nothing to do with the fact that there is a class of people that can have their right to arms removed. The key is breaking the law -- that the exercise of the right in question is illegal - it doesnt matter what the law, only that the restraint exists to see of a law is broken.

I ask because the act of selling the weapon to the ineligible person would be the law that is being broken.

Only if the dealer sold the gun after the check denied the sale.
The law in question here is the general prohibition of felonds from buying/possessing a firearm.

That's why I am asking. The key is breaking the law. I get that. So, the sale of a weapon to a prohibited individual is law being broken, and hence why you are considering it a form of prior restraint and therefore unconstitutional?

 

[M14 Shooter]

Okay. So, if I'm understanding you correctly, this has nothing to do with the felon...

... no, it has nothing to do with the fact that there is a class of people that can have their right to arms removed. The key is breaking the law -- that the exercise of the right in question is illegal - it doesnt matter what the law, only that the restraint exists to see of a law is broken.

I ask because the act of selling the weapon to the ineligible person would be the law that is being broken.

Only if the dealer sold the gun after the check denied the sale.
The law in question here is the general prohibition of felonds from buying/possessing a firearm.

That's why I am asking. The key is breaking the law. I get that. So, the sale of a weapon to a prohibited individual is law being broken, and hence why you are considering it a form of prior restraint and therefore unconstitutional?

The violation of the law in question revolves around the attempt to transfer/possess a firearm -by- a person prohibited from doing so - it is illegal for a felon to buy/have a gun; when a felon attempts to buy/possess a gun, he breaks the law in doing so.

A background check restrains the transfer - the exercise of the right - until such time that the state determines that the person buying the gun is not breaking the law in doing so - and thus, prior restraint.