The Liberal Gun Club Forum

http://www.dailykos.com/story/2011/1/18 ... skets-Only

It’s not an uncommon comment attached to RKBA diaries, that the 2nd Amendment only applies to muskets, because that’s what the Founders had available when they wrote it. I realize that sometimes the comment is made as snark, but there are times when it is clearly meant seriously.

Is it a valid argument? Is it good snark...? Let’s discuss it, below the fold, shall we?

TG does a good job, like normal.

It's impossible to call up an armed militia from an unarmed populace

That is the most succinct way of saying that that I have ever seen.

Well, the founding fathers didn't envision the internet when they wrote the First Amendment. Using their logic, I guess that First Amendment freedoms doesn't apply to the internet as well.

Didn't actually click the link, did ya

This comment about yelling fire in a crowded theater is awesome.

The distinction is prior restraint
There is nothing to prevent you from yelling "Fire" in a crowded theater. There is nothing to prevent a crowd of people assembling in a busy intersection. There is nothing preventing you from denying medical care to your children. For any of these actions on your part, abuse of your rights, you are liable to criminal or civil action AFTER the fact. The same applies to misuse of Second Amendment rights.

Limitations on the purchase and possession of firearms is prior restraint, and are unreasonable restrictions. It's the equivalent of requiring that everyone who attends a movie theater wear a ball gag, so that no one can yell "Fire".

That being said, I do support prior restraint for those who have shown themselves to be violent or mentally unstable.

Virtually all Federal law stems from the commerce clause. It is a very simple clause that has been exponentially expanded. Not even strict Constitutionalists want to shrink it except where it affects something from which they make money.

I believe the framers used the term arms not muskets, I believe they wanted us to be the final check and balance, I personally believe they were intelligent enough to visualize advancements in "arms technology".

The idea that the framers were only working with what they had, and not imagining any future in which arms evolve to greater abilities, is to ignore that they were used to shooting flintlock smoothbores that were an upgrade from the English longbow.

To argue so is also to assume that Ben Franklin, a man who was ages before his time, could not envision a time when their guns would be rendered obsolete by better guns. Ben Franklin, a man who discovered a way to use electricity to playfully tase his party guests.

All I'm saying is that if, in some kind of culmination of clusterfuck, I am only allowed black powder goddamn rifles, I will keep a loaded and ready armory of 50 of them, in a rack where I can readily shoot, then swap, rapid-fire.

flemco wrote:The idea that the framers were only working with what they had, and not imagining any future in which arms evolve to greater abilities, is to ignore that they were used to shooting flintlock smoothbores that were an upgrade from the English longbow.

To argue so is also to assume that Ben Franklin, a man who was ages before his time, could not envision a time when their guns would be rendered obsolete by better guns. Ben Franklin, a man who discovered a way to use electricity to playfully tase his party guests.

All I'm saying is that if, in some kind of culmination of clusterfuck, I am only allowed black powder goddamn rifles, I will keep a loaded and ready armory of 50 of them, in a rack where I can readily shoot, then swap, rapid-fire.

I'll hang ropes of blunderbuss pistols from myself like pirates did when raiding ships.

MetalSlugIV wrote:

flemco wrote:The idea that the framers were only working with what they had, and not imagining any future in which arms evolve to greater abilities, is to ignore that they were used to shooting flintlock smoothbores that were an upgrade from the English longbow.

To argue so is also to assume that Ben Franklin, a man who was ages before his time, could not envision a time when their guns would be rendered obsolete by better guns. Ben Franklin, a man who discovered a way to use electricity to playfully tase his party guests.

All I'm saying is that if, in some kind of culmination of clusterfuck, I am only allowed black powder goddamn rifles, I will keep a loaded and ready armory of 50 of them, in a rack where I can readily shoot, then swap, rapid-fire.

I'll hang ropes of blunderbuss pistols from myself like pirates did when raiding ships.

Also: CHAINSAWS

This post is simply brilliant! I have been trying to say this very thing for quote some time, but i am not articulate enough to put it right. Well said.

KVoimakas wrote:This comment about yelling fire in a crowded theater is awesome.

The distinction is prior restraint
There is nothing to prevent you from yelling "Fire" in a crowded theater. There is nothing to prevent a crowd of people assembling in a busy intersection. There is nothing preventing you from denying medical care to your children. For any of these actions on your part, abuse of your rights, you are liable to criminal or civil action AFTER the fact. The same applies to misuse of Second Amendment rights.

Limitations on the purchase and possession of firearms is prior restraint, and are unreasonable restrictions. It's the equivalent of requiring that everyone who attends a movie theater wear a ball gag, so that no one can yell "Fire".

That being said, I do support prior restraint for those who have shown themselves to be violent or mentally unstable.

AmirMortal wrote:This post is simply brilliant! I have been trying to say this very thing for quote some time, but i am not articulate enough to put it right. Well said.

KVoimakas wrote:This comment about yelling fire in a crowded theater is awesome.

The distinction is prior restraint
There is nothing to prevent you from yelling "Fire" in a crowded theater. There is nothing to prevent a crowd of people assembling in a busy intersection. There is nothing preventing you from denying medical care to your children. For any of these actions on your part, abuse of your rights, you are liable to criminal or civil action AFTER the fact. The same applies to misuse of Second Amendment rights.

Limitations on the purchase and possession of firearms is prior restraint, and are unreasonable restrictions. It's the equivalent of requiring that everyone who attends a movie theater wear a ball gag, so that no one can yell "Fire".

That being said, I do support prior restraint for those who have shown themselves to be violent or mentally unstable.

That's a cute analogy but I think you are comparing apples to oranges. A protected ability to own a tangible object vs a protected form of action. There are plenty of examples where, when you need a tangible entity to perform the protected action (a permit to assemble, for example) that they are indeed regulated. The commodity "permit" has regulations and restrictions prior to your ability to obtain one. The commodity "firearm" has regulations and and restrictions prior to your ability to obtain one.

The greatest right that people have, the one from which all others derive, is the right 'to be let alone'. The limits placed on firearms ownership stem from the idea they are protecting others right to be let alone. The point at which that occurs is a vague and broad line that varies depending on who you talk to. And that is why we still have this conversation - its all about trying to pick one spot within the fuzzy line to start instituting regulations.

mark wrote: That's a cute analogy but I think you are comparing apples to oranges. A protected ability to own a tangible object vs a protected form of action. There are plenty of examples where, when you need a tangible entity to perform the protected action (a permit to assemble, for example) that they are indeed regulated. The commodity "permit" has regulations and restrictions prior to your ability to obtain one. The commodity "firearm" has regulations and and restrictions prior to your ability to obtain one.

(First, Mark. Thank you for resources you are putting into this site. I mean this sincerely. Despite that I'm now going to disagree with you......)

The analogy between owning a firearm and assembling fails in at least one respect. Permits to assemble are constitutional only insofar as they manage assembly in public spaces. I could hold a protest on a piece of land I own and not need a permit for it. I could still be in violation of noise ordinances or other laws but this is not different than the exercise of any other protected right. The permits are also tolerated only insofar as they manage the resource. They cannot bar people from protesting on the basis of who they are. As soon as permits to assemble do this, they become unconstitutional. This can be pretty subtle: just increase the permitting fee too much and the court is going to judge that you are depriving a segment of the population from its right to assemble. (It has happened.)

So is the private ownership of a gun more similar to the use of a public resource (public land for protest) or a private resource (my own land)?

Now, someone could say "Oh, but you are going to carry that gun, don't you? Public space!" Well, to this hypothetical objector I say "Look at the quote above again." because that is what I am disputing. The quote compares the capability to own a gun with the permitting process for assembly. The quote is not about carrying.

But ok... for the sake of argument (because I just can't help myself...), let's talk about carrying in public. Again, the comparison with the right of assembly does not quite work because of the distinction between me using my private resources and a group using common resources. Even if you agree with the message of the protesters, their action has a material impact on a public resource. At the very least, this public space is now occupied and someone else cannot protest at the same time in the exact same space. My carrying a gun does not deprive anyone of anything material.

I realize that KVoimakas' quote talked about assembling at an intersection, a public space, but this bit of the quote could be excised without affecting the crux of the analogy: the distinction between prior restraints to try to prevent abuse and punishing people who abuse the right after they actually abuse it.

mark wrote: The greatest right that people have, the one from which all others derive, is the right 'to be let alone'. The limits placed on firearms ownership stem from the idea they are protecting others right to be let alone. The point at which that occurs is a vague and broad line that varies depending on who you talk to. And that is why we still have this conversation - its all about trying to pick one spot within the fuzzy line to start instituting regulations.

"Start instituting regulations?" There already are regulations. The discussion is not about picking a spot but about moving a spot which already exists. And if we move from just buying to the whole system of laws concerning how firearms can be owned, we are talking not about a spot but about some sort of multi-dimensional abomination born of the unholy fusion of convolutions worthy of the imaginations of Moebius (of the famous strip) and M.C. Escher. Try to follow the law and then you end up with yeah, you're legal except that your plane has been diverted and now you are a felon. Yeah, you're legal except that the range was unexpectedly closed today and now you are a felon. Yeah, you're legal except that platypus tuxedo and now you are a felon.

You playing your radio, in your home, so loud that it disturbs the neighbors is not denying them anything material either. But it is denying them the right to be let alone, despite the fact that you have the right to be let alone on your own property (do as you please). Your right to do what you want on your property (like assemble) only works so far as it doesn't start interfering with others - and it needn't be material. Lets say I have 100 people come over to my house to assemble. Pretty soon we are disturbing the peace, a public nuisance, etc. It matters not that its your property, there is some point where what you do on your property starts interfering with the ability of others in their pursuit of life, liberty and happiness. Holding concerts, building a missile silo, etc. are all ways that you might be disturbing others (depending on the layout and location of your property of course).

And yes, I understand we already have laws, my wording wasn't particularly clear. Let me try again: The point at which we, as a society, decide to start putting limits on firearm ownership is the point at which we think that firearms ownership starts interfering with other rights - particularly the 'right to be let alone'. And that point occurs in this vague fuzzy line that varies depending on who you talk to. And that is why we still have this conversation - its all about trying to find the one spot within the broad, fuzzy line where its acceptable to start instituting regulations. Our changing attitudes continually broaden or narrow that line.

So yes, I agree that we already have regulations - its moving that spot around I am talking about. That is the whole argument, isn't it? Where does that sweet spot sit where almost everyone can agree that when you go beyond it, you have started to interfere with the lives of others. And generally, there is a huge difference between people who come from big cities feel about where that spot is, and where people who come from rural areas feel that spot is. That is the greatest divide in this country on gun regulation - urban vs rural experiences with firearms.

Oh, and thanks for the kind words. Disagreeing is encouraged

mark wrote:You playing your radio, in your home, so loud that it disturbs the neighbors is not denying them anything material either. But it is denying them the right to be let alone, despite the fact that you have the right to be let alone on your own property (do as you please). Your right to do what you want on your property (like assemble) only works so far as it doesn't start interfering with others - and it needn't be material. Lets say I have 100 people come over to my house to assemble. Pretty soon we are disturbing the peace, a public nuisance, etc. It matters not that its your property, there is some point where what you do on your property starts interfering with the ability of others in their pursuit of life, liberty and happiness. Holding concerts, building a missile silo, etc. are all ways that you might be disturbing others (depending on the layout and location of your property of course).

I agree with the general lines of what you are saying. Maybe the following bit was misunderstood? I said:

I could hold a protest on a piece of land I own and not need a permit for it. I could still be in violation of noise ordinances or other laws but this is not different than the exercise of any other protected right.

When I say "I could still be in violation", I'm not saying I'd have immunity from other laws because I am exercising a protected right. I'm saying that even when exercising a protected right, I'm still subject to laws which do not specifically regulate protected rights. The last bit I bold is important too. Our constitutional rights are not immunities. Yes, I have a right to free speech but this right will not protect me if my speech constitutes an illegal act, like filing a fraudulent tax report, or breaking a noise ordinance.

Let's take an example to set aside the issue of noise ordinances (which is really besides the point). I have one bus-load of people who want to demonstrate for peace. Their method is to sit in quiet meditation for one hour. If they want to do this on main street, they are going to need a permit. The only reason for this is that the city wants to manage the public space. For one thing, maybe a group holding completely different views is going to demonstrate there at the same time. Security might be needed, etc. The courts have held that the government interest in managing the public space is compelling enough that permits may be required. At the same time, the courts have warned the government that the permitting process cannot constitute a bar to the exercise of the right to assemble. (How well this plays out in reality is a whole other story.) It is a resource management thing, period. And if the group goes to court to argue that they don't need a permit because they are going to be quiet, the court is not going to accept their argument. The reason is that they are going to use a public resource and it is reasonable to manage this resource. (The need for police presence in some cases is just an instance of the same resource management issue: the police is a public resource. Those policemen deployed at the event cannot be used somewhere else, etc.)

Now, let's suppose that the same group is going to go do their thing on a farm instead (because they think that their meditative waves are going to change the world or something similar), where they have the permission of the owner. No permit is required and the government cannot require any permit just because people are assembling.

The reason which allows the existence of a permitting process for assembling in public does not exist in the case of buying guns. When I buy a gun, the act of buying the gun does not raise a special issue for the management of a public resource. This is only what I mean by not depriving anyone of anything material. When I use a space to protest, my opponents cannot use the same space at the same time. Given that desirable space and desirable times are limited, the risk of conflict regarding the use of the space is significant. No such conflict arises when buying a gun. (Now I can just hear someone exclaiming "but you are using the public road to go to the gunsmith!" Yes, in exactly the same way I'm using a public road when I go buy a carton of milk. Buying a gun is not special in this regard.)

mark wrote: So yes, I agree that we already have regulations - its moving that spot around I am talking about. That is the whole argument, isn't it?

Yes.