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

Discussion in 'Clean Debate Zone' started by KevinWestern, Apr 2, 2013.

  1. Jimmy_Jam
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    Jimmy_Jam Senior Member

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    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.
     
  2. FA_Q2
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    FA_Q2 Gold Member

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    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.
     
  3. FA_Q2
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    FA_Q2 Gold Member

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    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.
     
  4. Jimmy_Jam
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    Jimmy_Jam Senior Member

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    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.
     
  5. M14 Shooter
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    M14 Shooter The Light of Truth

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    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.
     
    Last edited: Jul 24, 2013
  6. M14 Shooter
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    M14 Shooter The Light of Truth

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    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.
     
  7. Jimmy_Jam
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    Jimmy_Jam Senior Member

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    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.
     
  8. M14 Shooter
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    M14 Shooter The Light of Truth

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    ... 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.

    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.
     
  9. Jimmy_Jam
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    Jimmy_Jam Senior Member

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    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?
     
  10. M14 Shooter
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    M14 Shooter The Light of Truth

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    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.
     
    Last edited: Jul 24, 2013

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