"Shall not be Infringed" (Heller)

[Target1911]

I know I am about to start a heated debate here. All i ask is that everyone follow the rules and no personal flaming.

How could they rule that the 2A was meant as an Individual Right but not go further with the rest of the 2A and uphold the most important part "Shall NOT be Infringed"
I am a strong believer in the 2A and I believe it should 100% as it is written. I dont believe that our "Right to Bare Arms" should be restricted.
Do I think that there are SOME felons that shouldnt have guns? Yes...but not ALL...and how will a "Gun Law" keep guns out of the hands of criminals? It cant and as the nightly News proves, IT WONT.
About the only "GUN LAW" that I believe should be around is......VERY STRICT and HARSH punishments for Felonies commited with a firearm. AND other Felonies commited against another person. [robbery, felony assault, rape, child abuse of any sort, etc etc] I say hang 'em from an Oak tree in the downtown square. America has become TO DARN SOFT when it comes to Punishing the REAL criminals.

So tell me, what is your opinion on Back Ground Checks to purchase and carry a gun?
Tell me why you feel that way.
And if you agree with BGCs, knowing that guns can be bought on the street in ANY city (including DC) in the USA, how/ why do you think they actually work.

[Pinkycatcher]

I know I am about to start a heated debate here. All i ask is that everyone follow the rules and no personal flaming.

How could they rule that the 2A was meant as an Individual Right but not go further with the rest of the 2A and uphold the most important part "Shall NOT be Infringed"
I am a strong believer in the 2A and I believe it should 100% as it is written. I dont believe that our "Right to Bare Arms" should be restricted.
Do I think that there are SOME felons that shouldnt have guns? Yes...but not ALL...and how will a "Gun Law" keep guns out of the hands of criminals? It cant and as the nightly News proves, IT WONT.
About the only "GUN LAW" that I believe should be around is......VERY STRICT and HARSH punishments for Felonies commited with a firearm. AND other Felonies commited against another person. [robbery, felony assault, rape, child abuse of any sort, etc etc] I say hang 'em from an Oak tree in the downtown square. America has become TO DARN SOFT when it comes to Punishing the REAL criminals.

So tell me, what is your opinion on Back Ground Checks to purchase and carry a gun?
Tell me why you feel that way.
And if you agree with BGCs, knowing that guns can be bought on the street in ANY city (including DC) in the USA, how/ why do you think they actually work.

They didn't rule that all that was unconstitutional because that wasn't the case, Heller said he would be fine with a permit to have his gun, so they didn't touch it. They said (in plain english) given the fact were not ruling on registrations so were not gonna decide if they are or are not constitutional then as long as he has access to a gun he can.

So basically they left the door open, now he did say felons and school restrictions would probably be considered constitutional (and other sensitive places, say court rooms and government buildings for example) but other than that he said given the constitutionality of these restrictions which we are assuming because they have not been brought to trial then you must allow Heller to do this.

So they basically ruled exactly how he asked, but left the door open for more rulings on the subject, and in his opinion he actually gave reasoning for further challenges, though he did not rule on em.

[Target1911]

Thank You for the clarification on the Heller ruling. For some reason your explination has been the clearest I have read.

I would still like opinions on the Back ground checks.

[Pinkycatcher]

Thank You for the clarification on the Heller ruling. For some reason your explination has been the clearest I have read.

I would still like opinions on the Back ground checks.

My opinion (and remember IANAL) would be that they're upheld, at least the most basic checks, felon and mental, other than that they're up for challenge, those two could be overturned, but it will be really tough to, and while I'll fight and vote to overturn them in hopes of getting more legislation in our favor, I'm not too concerned about them and don't mind them really.

Now of course I'd rather not have them, but background checks are the last thing we should be fighting for in my opinion, there really are more pressing matters that will have to be taken down before them, such as better carry laws, auto-ban, any .50 cal legislation (not here but in other places), age limits (I say that because I can't actually buy a handgun ) unlimited concealed carry (schools, airports, no 30.06, colleges etc.) gun lock laws, and all that. In my opinion background check laws are the least of our worries, something that shouldn't happen, but still the hardest fought battle for the least gain.

[The Annoyed Man]

I posted basically the same thing that follows in one of the other "Heller" threads...

The conservative 4 justices tend to restrict themselves to the issue before them, and nothing more. A conservative justice takes an "original intent" interpretation of the Constitution and applies it to the issue which has been brought before them. They do not see "penumbras and emanations" which are not specifically enumerated in the Constitution to which they feel they must apply their attentions in each and every case. This is called "judicial restraint," and it is the hallmark of a conservative justice.

The liberal 4 justices tend not to restrict themselves to the issue before them, and nothing more. A liberal justice takes a view that the Constitution is a "living breathing document" that does not necessarily mean the same thing in 2008 as it did in 1787. They tend to view the issue before them as a launching pad from which they can make all kinds of sweeping changes in keeping with their liberal world view. This is called judicial activism, and it is the hallmark of a liberal justice.

If gun rights were precious to liberals, you can bet that the liberal opinion in Heller would have found "penumbras and emanations" justifying the striking down of licensing, registration, and all restrictions as to action type, caliber, barrel length, etc., etc., etc. Instead, we got a conservative decision, based on Heller's complaint - nothing more, and nothing less.

As painful as it is for gun rights activists, this is the proper course. The deficiencies of the Heller case from our perspective were that Heller did not complain about being required to register his handgun. He did not complain about having to obtain a license to own one. He did not complain about being restricted to revolvers only. Therefore, the Conservative majority opinion did not address these issues. Heller only complained that DC would not issue him the license, and that DC's requirements for gun storage in the home effectively rendered any gun useless for home protection. Therefore, the Conservative majority opinion only addressed those two issues.

Also, keep in mind that Justice Kennedy is a swing voter. He takes the liberal view on some things, and the conservative view on others. Liberals would describe him in this case as a moderate. Conservatives would describe him in this case as wishy-washy. Since we have a Court consisting of 4 conservatives and 4 liberals, the majority opinion (liberal or conservative) depends upon convincing the swing voter to pick a side. Since Kennedy is most assuredly NOT a conservative justice, who's to say that he wouldn't have voted with the liberal justices if the conservative opinion had reached for too much beyond the specifics of the Heller case? Most probably, we got a majority of 5 because the conservatives stuck to the facts before them and did not seek an expansive interpretation.

Therefore, the proper course, now that the individual right precedent has been set - and this is HUGE - is to find cases upon which to attack various aspects of gun control laws individually, and to roll back the advances made by gun control advocates. Heller is our Roe v. Wade. The Roe v Wade decision actually set some limitations on the availability of abortion. For instance, the practice of partial birth abortion would have been illegal under Roe v. Wade. It was subsequent decisions which permitted it, but Roe was HUGE because it let the genie out of the bottle. (I want to stress that I am not hijacking this thread on abortion. I am only citing it as an example relevant to this discussion.) Similarly for us, Heller is huge because it establishes the 2A as an individual right, and it lets the gun rights genie out of the bottle. Gun control advocacy has had 40 years or more to chip away at our 2A freedoms. We now have to rebuild that edifice, brick by brick, using good solid mortar.

[Target1911]

^^^^^^^^^^VERY WELL PUT^^^^^^^^^^^^
And I will agree. Back ground checks dont bother me to much either......and that may be because they dont hinder my ability to but a firearm in any way.......and now, due to me having a CHL, they dont even have to call me in.

The reason I chose to ask opinions on the BGCs is due to another thread i did not want to hijack. There were a fews posts that supported the BGCs. I just want to know how they actually think they, and any other gun law, keep the BGs from getting guns.

[bdickens]

I agree. As a practical matter, the Constitution means what the Supreme Court says it means. The main point is that the Second Amendment has now unequivocally been declared by them to be an individual right. They have also declared that a de facto ban on the possession of firearms is unconstitutional. Those two issues are no longer on the table; they're settled. Now that the lid on Pandora's box has been cracked open a wee bit, the next step is to use the Heller ruling as a base of operations for a continued offensive. We are already seeing that in San Fransisco and Chicago. From what I gather, the majority opinion in Heller (the one that counts) was, narrow as it is, carefully worded to lay the foundation for further action.

[tboesche]

David,
I agree that fighting BGC's is not where we need to focus our attention. I don't like 'em,but I undersand the need for them, and can accept having to go thru one to buy a gun. 'Course like most everyone else HERE, we don't need to anymore.
I really do believe that we are too soft on criminals. My personal opinion is that if a felon is caught with/using a gun in a crime, the mandatory sentance should be doubled. I also believe strongly in the death penalty, Tried..Convicted...one appeal, then taken out back and either hung or shot.

[Kythas]

I agree with the "No Felons" rule, and in your opening post you seem to contradict yourself.

When a person gets convicted of a felony, they forfeit certain rights, among these the right to vote and the right to own a firearm.

Your post says that you support some felons being able to own a firearm, yet you also say you support harsh penalties for the commission of felonies. I view the felon firearm restriction as a penalty and form of punishment.

I agree this doesn't mean a felon can't acquire a gun illegally - that will always be the case. However, there are punishments in place for felons in possession of a firearm which don't apply to those of us who abide by the law. Remove the restriction of felons owning firearms and this disincentive not to commit felonies also goes away.

That said, I also support restricting gun ownership by mentally ill persons. Some mentally ill persons may pose a danger to themselves or others, and other mentally ill persons may not have the sound judgment required to make a rational decision on when and when not to use a firearm. By mentally ill, I mean someone who has been diagnosed with having a bona fide mental disorder that cannot be controlled by medication, whether they have been institutionalized or not.

I have no problem with simple background checks for someone purchasing a firearm, either, to ensure the purchaser does not fall into either of the above categories. I'm on the fence on the gang affiliation restriction, however. I can see where it would probably be good policy to not allow known gang members from legally acquiring firearms, but we shouldn't interpret the Constitution based on what may or may not be good policy. After all, what good policy is for one person may not be for another (i.e., socialized medicine).

That said, those are the only restrictions I'd support.

[HerbM]

Thank You for the clarification on the Heller ruling. For some reason your explination has been the clearest I have read.

I would still like opinions on the Back ground checks.

Prohibitions on felons, underage, and some other classes of prohibited persons purchasing or owning handguns would be upheld. This is made clear in the Heller decision. But please notice this is not really "gun control" but rather criminal control (or requiring responsible behavior.) Laws for removing the right (permanently for non-Felony reasons MIGHT be challenged successfully, especially if there is insufficient or no due process.)

In a perfect world, were Heller followed the NICS/Brady backcheck law itself is unconstitutional based on the 2nd Amendment and the Heller decision too.

Two reasons, either sufficient, and a third I offer which is more debateable:

• Not a compelling state interest: It isn't enforced on criminals, as less than 100 criminals are prosecuted each year for Brady/NICS violations -- and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can't make the real charge stick, or needs a "predicate felony" for a conspiracy or RICO charge.

• Doesn't provably server a compelling state interest: Like other gun control laws it has never been shown to work. None of the CDC, the National Academy of Sciences, nor DoJ were able to find that ANY gun control reduces VIOLENT CRIME, MURDER, SUICIDE or ACCIDENTS in any significant manner.

• It is not the most narrowly tailored method: Better would be to remove the 4th Amendment rights of anyone who is deprived of their 2nd Amendment RKBA so that police might just search those with a felony record under reduced cause, perhaps, "professional suspicion" or some other new standard instead of probably cause. This would only affect those who had been afforded due process so it would be more narrowly tailored

While getting it overturned would be very tough, the government may not infringe a natural and fundamental right on mere supposition nor for an interest that isn't compelling nor without using the most narrowly tailored method, therefore it is unconstitutional to enforce it on law-abiding DEALERS and law-abiding purchasers.

Remember, we made similar arguments for 30 years about gun bans in places like DC.

[Pinkycatcher]

Laws for removing the right (permanently for non-Felony reasons MIGHT be challenged successfully, especially if there is insufficient or no due process.)

I think non-violent felonies could also be challenged, also I personally believe rights should start to be restored after an extended period of successful reintegration into society, w/ req. such as 10 years w/o anything other than traffic violations, and a job, and participation in community service or something else constructive, that way it's kind of like a reward for becoming a member of society again and not going back to crime. But that's just me

[HighVelocity]

This ruling will be analyzed until the sun burns out. Bottom line, it's a giant leap in the RIGHT direction.

[txmatt]

I agree with the "No Felons" rule, and in your opening post you seem to contradict yourself.

When a person gets convicted of a felony, they forfeit certain rights, among these the right to vote and the right to own a firearm.

Your post says that you support some felons being able to own a firearm, yet you also say you support harsh penalties for the commission of felonies. I view the felon firearm restriction as a penalty and form of punishment.

If I understand the original post correctly, he is suggesting that some non-violent felonies that are not crimes against a person should not result in the permanent removal of gun rights. I think the original post is right on in recognizing a difference between violent and non-violent crimes, and too many things are felonies these days. Permanent removal of gun rights (and voting) amounts to life-long punishment which in many cases is unreasonable.

[HerbM]

Laws for removing the right (permanently for non-Felony reasons MIGHT be challenged successfully, especially if there is insufficient or no due process.)

I think non-violent felonies could also be challenged, also I personally believe rights should start to be restored after an extended period of successful reintegration into society, w/ req. such as 10 years w/o anything other than traffic violations, and a job, and participation in community service or something else constructive, that way it's kind of like a reward for becoming a member of society again and not going back to crime. But that's just me

I agree with this at least in general principle. Non-violent offenders should eventually (probably 5-10 years) be able to (at least) petition for restoration with a good probability of success. Maybe in this case the burden of proof (of innocence) shifts to the petitioner but some provision should/could be made.

The really tricky ones are the documented spouse abusers and the document sex offenders. We know that an most of these will re-offend, and the spouse abusers will account for a large part of the domestic homicides, along with drug/alcohol abusers.

More than 90% of murderers have prior felonies, documented spouse abuse, documented drug/alcohol abuse, or documented criminal gang membership -- it is actually higher probably due to juvenile records being sealed in most cases.

Something like 71-84% of murder VICTIMS had either crime records OR showed illegal drugs in their systems or were documented members of street gangs at the time of their murder.

I am uncomfortable with loss of rights with no due process or permanent loss of rights without chance of review for minor crimes.

I am very serious when I suggest that all who lose the RKBA should lose (quite a bit of) their 4th Amendment rights to avoid search and seizure -- being a prohibited person after due process should be (close to) probably cause for search.*

If this were done it would reduce crime, put the burden on those who have had due process, AND get the ACLU to spend time restoring and protecting the rights of those who are being treated unfairly. All good things.

* I would expect and support some protections for limiting this somewhat to avoid mere harassment -- maybe a reduced standard for search such as "professional judgement" or limits on frequency if nothing is found, or even just administrative rules that punish officers who abuse the added authority. But in general a person who is not trusted to own and carry firearms cannot be trusted to FOLLOW that law either, and is far more likely than the average citizen to commit a violent crime.

[anygunanywhere]

I agree that fighting BGC's is not where we need to focus our attention. I don't like 'em,but I undersand the need for them, and can accept having to go thru one to buy a gun.

Supposedly, NICS records are destroyed after, I believe, 24 hours.

BATFE is not supposed to ever use 4473s to develop a database.

Am I the only one here that distrusts the government to the point where I doubt their sincerity in complying with the law?

I have argued absolute rights many times.

Here is an absolute you can not ever refute.

Anytime anything is made law where the government is involved in one of your rights it will be a negative influence. If the government is not supposed to do something, they will do it.

This is the reason why background checks are wrong.

In case we ever forget, the reason some of our founders wanted the second amendment was that they KNEW we could never trust our government.

Anygunanywhere