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

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.

I think that he does have a point in that there is no case of a first amendment right being removed through judicial process whereas there is clear and common infringement on second amendment rights through the judicial process.

In that, there is no compelling state interest in applying prior restraint to the first amendment – your rights are always present. There is more of a compelling state interest in regard to the second amendment in that there ARE cases where you no longer have your second amendment rights.

I think that another tact can be taken here as well with the idea that illegally obtaining a weapon does violate others rights (namely endangering others health and life). In your case against the right to vote, you apply prior restraint because illegally exercising that right infringes on others voting rights by diminishing them. It is true that legally purchasing and possessing a weapon is not a danger to others and is a right. However, we are not talking about the legal purchase here but the illegal purchase of a weapon. In that respect, is not the illegal purchase and possession of a weapon a danger to others health? If the answer is no, then why are we limiting those individuals right to a firearm in the first place? If that answer truly is no then the courts should not (and really do not have the right) to remove a person’s second amendment rights. If that answer is a yes, then you have a good case for the application of prior restraint being a compelling state interest in the purchase and possession of firearms.
 
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?

Focusing on the sale I think is a misnomer. The sale itself is not the issue. The problem lies in the fact that the state is restraining your right to bear arms in order to check that they (the state) have not legally denied you that right.

That is prior restraint no matter what angle you look at it. Your right is being restrained until the state deems that you can exercise it.
 
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.

I think that he does have a point in that there is no case of a first amendment right being removed through judicial process whereas there is clear and common infringement on second amendment rights through the judicial process.
In fact, this is exactly the opposite.

Everyone is prohibited from libel/slander, and yet, it violates the constitution to restrain the exercise of everyone's right to free speech until such a time that the state determines that said exercise is legal.

Not everyone is prohibited from buying/owning a gun, yet, without sond explanation as to why, we are expected to accept that it does NOT violate the constitution to restrain the exercise of your right to arms until such a time that the state determines that said exercise is legal.

I think that another tact can be taken here as well with the idea that illegally obtaining a weapon does violate others rights (namely endangering others health and life).
Simple possession/ownership of any gun by any person harms no one and places no on in clear, present and immediate danger of harm - and so, simple possession/ownership by anyone violates the rights of no one.

In that respect, is not the illegal purchase and possession of a weapon a danger to others health? If the answer is no, then why are we limiting those individuals right to a firearm in the first place?
This is another discussion - the legitimacy of the removal of the right to arms from felons, etc, and the question of restoration after incarceration. Said removal is a Due Process/5th amendment issue, not a 2nd amendment issue.

It all boils down to the idea that, absent a compelling interest to do so (see: voting rights). the state cannot constitutionally restrain you from exercising -any- of your rights to determine if you are about to break the law.
 
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Can restrictions on our rights actually prevent the abuse of those rights?
Speed limits don't stop speeding....
Laws against crime haven't stopped crime....
How can we restrict criminals from getting guns without restricting the law abiding citizen at the same time.

According to The CDC report that was ordered by Obama there are 1.5 to 3 million times a year that legal gun owners use their guns to prevent or stop crime. Overwhelmingly with out firing a shot the keep from being victims of crime.

By restricting the second amendment you will turn these crime stoppers into victims and raise the violent crime rate in the US by 1.5 to 3 million per year.
 
I have an idea, let's focus on the least of the problems

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Can restrictions on our rights actually prevent the abuse of those rights?
Speed limits don't stop speeding....
Laws against crime haven't stopped crime....
How can we restrict criminals from getting guns without restricting the law abiding citizen at the same time.

According to The CDC report that was ordered by Obama there are 1.5 to 3 million times a year that legal gun owners use their guns to prevent or stop crime. Overwhelmingly with out firing a shot the keep from being victims of crime.

By restricting the second amendment you will turn these crime stoppers into victims and raise the violent crime rate in the US by 1.5 to 3 million per year.

This is true. The effectiveness of background checks, if it is a restriction of 2nd Amendment rights, is debatable. I was just interested in examining the constitutionality of them. It has been an interesting discussion.
 
It all boils down to the idea that, absent a compelling interest to do so (see: voting rights). the state cannot constitutionally restrain you from exercising -any- of your rights to determine if you are about to break the law.

Compelling interest is very key, I agree. I am more inclined to accept that there is a compelling interest than you are, but that is part of the gray area that has challenged our Constitution as a living document for over 200 years.

It has been a stimulating discussion, sir, and I appreciate you. I can clearly see that we both hold our 2nd Amendment rights dear, if we are not completely on the same page regarding this little niche. I think the niche is pretty well exhausted at this point.
 
It all boils down to the idea that, absent a compelling interest to do so (see: voting rights). the state cannot constitutionally restrain you from exercising -any- of your rights to determine if you are about to break the law.

Compelling interest is very key, I agree. I am more inclined to accept that there is a compelling interest than you are, but that is part of the gray area that has challenged our Constitution as a living document for over 200 years.

It has been a stimulating discussion, sir, and I appreciate you. I can clearly see that we both hold our 2nd Amendment rights dear, if we are not completely on the same page regarding this little niche. I think the niche is pretty well exhausted at this point.
Roger that. Good hunting.
 
Since we're on a trajectory toward having every other Constitutional protection eroded, it only becomes more important to protect the right of the people to bear arms.
 

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