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

[Jimmy_Jam]

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?

 

[Gardener]

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.

no records of ANY mental heaqlth problems?

 

[Uncensored2008]

another good way to stop massacres is to have numeric trigger locks on guns.

That will stop people like Klebold from blowing up the propane tank at Columbine, fer shore....

Ya know, leftists love to say that if only guns were illegal, tragic murders like OJ killing Ron and Nicole would have never happened...

 

[Uncensored2008]

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?

On what basis would James Holmes have been denied weapons?

He had no criminal history, no record of mental illness. What would have stopped him? Oh, and remember that the bastard had ricin bombs in his apartment, so without guns, the death toll would have been 30 times higher.

 

[Uncensored2008]

no records of ANY mental heaqlth problems?

James Holmes?

None at all.

 

[M14 Shooter]

I know that prior restraint has been discussed. However, prior restraint is something that applies specifically to the 1st Amendment, as has also been discussed. It's even application to all rights is not established. Prior restraint, until I see otherwise, has only been applied to 1st Amendment issues.

As I said before:

If you accept the premise of prior restraint, then you need to accept that the same premise applies to all rights, or soundly explain why it applies to some and not to others.

So far, we have discussed how prior restraint is constitutionally acceptable in terms of voting rights, and how that example does not apply to the right to arms due to the specifics found therein. You have taken no issue with anything in that discussion.

And so, presuming that you accept the premise of prior restraint, and absent a sound explanation as to how that premise does not apply to the 2nd, the prior restraint argument stands in support of the position that background checks are unconstitutional.

Background checks to determine if an individual is prohibited from bearing a firearm prior to the purchase of one is not unconstitutional, at least not readily so.

Absent a sound explanation as to how that premise or prior restraint does not apply to the 2nd, the prior restraint argument stands in support of the position that background checks are unconstitutional.

I don't know what your example of prohibiting travel has to do with it.

It is another example of unacceptable restraint by the government, which prohibits the exercise of a right until the state determines you aren’t breaking the law.
You DO agree that such a restraint would violate the constitution, yes?

If you commit a Class C felony, you are prohibited from your 2nd Amendment right, similar to felony disenfranchisement.

Yep. Due process. No question. You can lose all your rights un such a manner.

If a background check is required as a means to determine if an individual fits that status, how is that prior restraint?

The state prohibits the exercise of the right until determines that the exercise does not violate the law.
-That- is prior restraint.

Prior restraint places a restriction on 1st Amendment rights regardless of whether or not the individual committed a crime that forfeits that right.

Irrelevant – the restraint is to determine the legality of the act prior to the action being taken – in this case, the illegal purchase of a firearm before the firearm is purchased. The fact that a felon has his right removed is what makes the act illegal to begin with and therefore does not have any bearing on if the restraint is constitutional or not.

As far as I know, there are no conditions that restrict 1st Amendment rights...

Really?
There are all kinds of restrictions and conditions on first amendment rights, from parade permits to the prohibition of child porn to the 7 words you cannot say on TV to not allowing human sacrifices in church.

...while there are for voting rights, gun ownership rights, and jury duty. For this reason, prior restraint does not apply exactly the same for other rights.

First, your statement here does not logically follow as any number of these restrictions have nothing to do with prior restraint.

Second, as discussed and demonstrated, there is a sound explanation as to why voting rights are constitutionally subject to restraint – that is, how voting rights and the restraint placed upon them differ sufficiently from 1st amendment rights, allowing for the constitutionally permissible restrain found in voter registration. Please note again that you have taken no issue whatsoever with that explanation.

As much as one may want prior restraint to apply evenly to all rights, it does not.

If you accept the premise of prior restraint, then you need to accept that the same premise applies to all rights, or soundly explain why it applies to some and not to others.
Other than arguing “it just does”, you have failed to do this.

And so, the onus remains on you to demonstrate how the rights protected by the 2nd amendment differ sufficiently from the rights protected by the 1st amendment to allow for the constitutionally permissible restraint on those rights.

 

[M14 Shooter]

As for gun massacres? Many of those would be prevented with background checks for all gun sales and more thorough background checks which include updates mental health records.

Name a "massacre" that was committed after 1993 with a gun that was purchased w/o a background check.

 

[M14 Shooter]

another good way to stop massacres is to have numeric trigger locks on guns.

Yeah...
Show mw a trigger lock that cannot be defeated in 15 seconds or less by a bolt cutter or a drill press.

 

[M14 Shooter]

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.

no records of ANY mental heaqlth problems?

There's no law against people with "any" mental health problem from buying/owning a gun, and so any such information to that effect would not stop said purchase.

 

[Jimmy_Jam]

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?

On what basis would James Holmes have been denied weapons?

He had no criminal history, no record of mental illness. What would have stopped him? Oh, and remember that the bastard had ricin bombs in his apartment, so without guns, the death toll would have been 30 times higher.

I'm not disputing anything that you're saying regarding James Holmes. My point is that, because he had no criminal background, there was no restriction to his 2nd Amendment rights. The biggest factor being discussed in this thread is the constitutionality of background checks, the premise being that they infringe on our 2nd Amendment rights. You are bringing up scenarios that clearly support that, unless there is a criminal background that would make one ineligible for their 2nd Amendment rights, such as a Class C felony, there is no restriction. So what I'm wondering is why there is so much resistance to background checks?

If you're position is that they do no good to stop mass shootings, that's a separate issue. I would say that their effectiveness is questionable and really unprovable until they are required across the board as an eligibility measure. However, as for the constitutionality argument, or at least the fear that background checks would pose an infringement on 2nd Amendment rights, your input seems to support the notion there really would be NO infringement.

 

[M14 Shooter]

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?

On what basis would James Holmes have been denied weapons?

He had no criminal history, no record of mental illness. What would have stopped him? Oh, and remember that the bastard had ricin bombs in his apartment, so without guns, the death toll would have been 30 times higher.

I'm not disputing anything that you're saying regarding James Holmes. My point is that, because he had no criminal background, there was no restriction to his 2nd Amendment rights.

All this means is that he will pass the background check; it does in any way demonstrate that the backgroud check is not a form of prior restraint or the difference between 1st and 2nd amendment rights that would constitutionally permit that restraint on the exercise of those 2nd amendment rights.

 

[Jimmy_Jam]

As I said before:

If you accept the premise of prior restraint, then you need to accept that the same premise applies to all rights, or soundly explain why it applies to some and not to others.

So far, we have discussed how prior restraint is constitutionally acceptable in terms of voting rights, and how that example does not apply to the right to arms due to the specifics found therein. You have taken no issue with anything in that discussion.

And so, presuming that you accept the premise of prior restraint, and absent a sound explanation as to how that premise does not apply to the 2nd, the prior restraint argument stands in support of the position that background checks are unconstitutional.

I accept the premise of prior restraint, that it is a concept that applies to the 1st Amendment. You are insisting that it applies evenly to all rights. I am not. Likewise, it has been attempted to apply prior restraint to the 2nd Amendment without success. Again, if you believe that it applies to all rights, that is your opinion.

Absent a sound explanation as to how that premise or prior restraint does not apply to the 2nd, the prior restraint argument stands in support of the position that background checks are unconstitutional.

I have already done so, but I think we may be talking past each other. A background check, if applied to determine eligibility, is not unconstitutional, just as with voting rights. There are no conditions that would make a person ineligible to their 1st Amendment rights. There are for 2nd Amendment rights. As a person who has no criminal background, let alone a Class C felony, I am not ineligible, therefore I am not infringed by a background check that would prohibit my purchase based upon same. If I did, and the purchase were prohibited, then I also have not been infringed because I am ineligible.

The state prohibits the exercise of the right until determines that the exercise does not violate the law.
-That- is prior restraint.

The state is not prohibiting the exercise of a right at all if the check is applied to determine eligibility, just as the state is not prohibiting the exercise of voting if they are doing the same. That is precisely the question at hand. There is a condition that would prevent an individual from exercising this right, i.e. a felony that forfeits that right. If a background check is intended to check this eligibility or lack thereof, then it is no different than a check of eligibility for voting rights. If the background check is doing something other than that, then that's a different matter.

Irrelevant – the restraint is to determine the legality of the act prior to the action being taken – in this case, the illegal purchase of a firearm before the firearm is purchased. The fact that a felon has his right removed is what makes the act illegal to begin with and therefore does not have any bearing on if the restraint is constitutional or not.

I see. So, then if an individual purchases a firearm and then a background check were performed after you would be okay with it?

Really?
There are all kinds of restrictions and conditions on first amendment rights, from parade permits to the prohibition of child porn to the 7 words you cannot say on TV to not allowing human sacrifices in church.

Perhaps a bad choice of words on my part, but I thought that you would understand that what I mean is there are no conditions, such as a felony, that would cause a person to lose their 1st Amendment rights. Sorry if I did not make that clear enough.

I definitely do think we are talking past each other in some ways. To try and keep things as simple as possible. You are saying that background checks are a form of prior restraint. What I am saying is that background checks as a means to determine an individual's eligibility is no different than voting rights where the same is determined. Whatever restrictions exist in regard to the 1st Amendment, there are no eligibility requirements. A person with a Class C felony is not prohibited from the 1st Amendment because of it, but is from the 2nd. A background check that prohibits a person with a Class C felony from purchasing a gun does just that. If a person who is eligible gets to purchase their gun, what infringement has occured?

 

[M14 Shooter]

I accept the premise of prior restraint, that it is a concept that applies to the 1st Amendment. You are insisting that it applies evenly to all rights. I am not.

To apply the premise to all of the rights is consistent; to argue that it applies to some but not all w/o a sound explanation as to why is capricious and arbitrary - don’t be capricious and arbitrary.

Soundly explain why the premise does not apply to all rights – that is, how some/all of the other rights differ from those protected by the 1st that the premise of prior restraint does not apply to them as well.

Absent a sound explanation as to how that premise or prior restraint does not apply to the 2nd, the prior restraint argument stands in support of the position that background checks are unconstitutional.

I have already done so...

Please provide a quote to that effect, as I have been looking very hard for said sound explanation and I have as yet seen none.

Remember that a sound explanation was given for the permissibility of restraint with regard to voting rights; I suggest that we both know you have not in any way provided an explanation with regard to the right to arms that is in any way comparable.

A background check, if applied to determine eligibility, is not unconstitutional, just as with voting rights.

Simply making a statement to that effect doesn’t qualify as a sound explanation.
Lay out the argument as to how restraint of the exercise of right to arms is constitutionally acceptable “just as with voting rights.”

When doing so, be sure to recall that argument and the specific reasons for the acceptability of that restraint.

There are no conditions that would make a person ineligible to their 1st Amendment rights. There are for 2nd Amendment rights. As a person who has no criminal background, let alone a Class C felony, I am not ineligible, therefore I am not infringed by a background check that would prohibit my purchase based upon same. If I did, and the purchase were prohibited, then I also have not been infringed because I am ineligible.

You merely repeat yourself here; my original response continues to defeat your resoning:

All of this is irrelevant – the restraint is to determine the legality of the act prior to the action being taken – in this case, the illegal purchase of a firearm before the firearm is purchased. The fact that a felon has his right removed is what makes the act illegal to begin with and therefore does not have any bearing on if the restraint is constitutional or not. This defeats your entire line of reasoning.

The fact that you are legally able to buy a gun only means that you will pass the background check; it does in any way demonstrate that the background check is not a form of prior restraint or any difference between 1st and 2nd amendment rights that would constitutionally permit that restraint on the exercise of those 2nd amendment rights.

The state is not prohibiting the exercise of a right at all if the check is applied to determine eligibility

Really?
When you wait for a background check, what is happening, if not above.

Irrelevant – the restraint is to determine the legality of the act prior to the action being taken – in this case, the illegal purchase of a firearm before the firearm is purchased. The fact that a felon has his right removed is what makes the act illegal to begin with and therefore does not have any bearing on if the restraint is constitutional or not.

I see. So, then if an individual purchases a firearm and then a background check were performed after you would be okay with it?

Depends. Is there probable cause for the state to believe the purchaser has committed a crime?
If not, then the 4th amendment applies.
Please note, of course, that it is illegal to sell a gun to anyoe you have reaon to believe is not legally able to own one.

Perhaps a bad choice of words on my part, but I thought that you would understand that what I mean is there are no conditions, such as a felony, that would cause a person to lose their 1st Amendment rights. Sorry if I did not make that clear enough.

Fair enough - but all of that is meaningless as previously explained.

I definitely do think we are talking past each other in some ways. To try and keep things as simple as possible. You are saying that background checks are a form of prior restraint. What I am saying is that background checks as a means to determine an individual's eligibility is no different than voting rights where the same is determined.

You are then incorrect, as discussed.

The argument for the permissibility of restraint in regards to voting rights is based on the protection of the rights of the voter and necessary for the meaningful exercise of the right; background checks (and gun registration) do neither, and so the fact that voting rights may be restrained on no way translates to an argument that the right to arms may be restrained in a similar manner.

That is, you fail in your claim of “no difference” because the reasoning for the permissibility of the restraint on voting rights does not and can not in any way apply to the restraint on the exercise of the right to arms.

 

[Jimmy_Jam]

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

"The concept of prior restraint, roughly speaking, deals with official restrictions
imposed upon speech or other forms of expression in advance of actual publication.
Prior restraint is thus distinguished from subsequent punishment, which is a penalty
imposed after the communication has been made as a punishment for having made it.
Again speaking generally, a system of prior restraint would prevent communication
from occurring at all; a system of subsequent punishment allows the communication
but imposes a penalty after the event. Of course, the deterrent effect of a later penalty
may operate to prevent a communication from ever being made. Nevertheless, for a
variety of reasons, the impact upon freedom of expression may be quite different,
depending upon whether the system of control is designed to block publication in
advance or deter it by subsequent punishment.
In constitutional terms, the doctrine of prior restraint holds that the First Amendment
forbids the Federal Government to impose any system of prior restraint, with
certain limited exceptions, in any area of expression that is within the boundaries of
that Amendment. By incorporating the First Amendment in the Fourteenth
Amendment, the same limitations are applicable to the states."

This might be relevant where a discussion of background checks as a form of prior restraint is being presented.

First, the doctrine of prior restraint pertains to the 1st Amendment. Advocates against gun control are saying that it should apply to other rights. If so, then the excerpt above provides some guidelines.

Now, I am not speaking of other measure of gun control which may be forms of prior restraint, since this concept is being applied to pretty much every aspect of gun control from some of the articles I have seen on the Internet. I am talking strictly about background checks intended to determine the eligibility of an individual to purchase a firearm.

The distinction given between prior restraint and subsequent punishment is important here, and tricky because it does not apply as easily to something like purchasing a firearm as it does to publication of material. If an individual is convicted of a Class C felony, they are prohibited from their 2nd Amendment rights, which is a form of subsequent punishment.

The part that bothers advocates against gun control is the "advance screening" aspect, which they are saying constitutes an official restriction imposed in advance, as mentioned in the first sentence. However, if a background check is conducted prior to purchase as a means of determining legal eligibility only, there is no advance restriction. Those that are legally eligible can purchase, while those that are legally ineligible cannot.

Finally, the sentence highlighted above clearly establishes that there are certain limited exceptions. Granted these exception should never be taken lightly, but a background check used to determine legal eligibility to a right, such as is done with voter registration, can certainly fall under limited exceptions.

The premise that the doctrine of prior restraint applies outside the 1st Amendment is an interesting one. I am glad that this has come up, because such notions have to be tested, especially when they involved the Constitution. Everything that I can see out the doctrine of prior restraint is that it is very specific to free speech. I don't think it applies outside of free speech, but for the sake of argument, let's say that it does. The real question would be, do background checks to determine legal eligibility constitute a reasonable limited exception? I think they do.

 

[Gardener]

I would be willing to get rid of all gun laws and regulations and rstrictions.

But only if we required backgroujnd checks for all gun sales.

The most important thing we can ever do is make sure criminals and illegal aliens don't get guns.

 

[M14 Shooter]

I would be willing to get rid of all gun laws and regulations and rstrictions.

I doubt that.

 

[Gardener]

I would be willing to get rid of all gun laws and regulations and rstrictions.

I doubt that.

if we had better background checks and checks for all sales?

yes i would support even CCW in big cities.

 

[M14 Shooter]

I would be willing to get rid of all gun laws and regulations and rstrictions.

I doubt that.

if we had better background checks and checks for all sales?
yes i would support even CCW in big cities.

You'd allow the sales of machineguns produced after 1986?
You're repeal -all- of the state city and local gun bans?
You'd get rid of all state city and local regustration, licensure, etc, of guns?
You'd get rid of all carry permits, allowing carry w/o a permit?

 

[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.

 

[Jimmy_Jam]

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.

It is impossible to discuss a potential prior restraint without discussing the Doctrine of Prior Restraint, since the concept is defined legally by it. Since the doctrine specifically applies to free speech, I don't really have to support anything. I'm just engaging in the discussion because it is interesting. You are taking a free speech doctrine and trying to apply it to the 2nd Amendment, where there has been no precedent for it. Because prior restraint is an official restriction of speech before it is published, what you are essentially claiming is that a background check is a restriction of free speech. Since you are trying to force a square peg into a round hole, the burden of support rests with you.

Because it is a free speech doctrine, I could easily say that everything you have posted re: the 2nd Amendment is irrelevant. However, I think the discussion has merit.