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Second-Amendment Setup What They Say Isn't What You Get
Jews For The Preservation of Firearms Ownership, Inc. ^ | 2002 | Aaron Zelman and Claire Wolfe

Posted on 07/27/2002 10:11:31 AM PDT by Cato

Second-Amendment Setup:
What They Say Isn't What You Get

By Aaron Zelman and Claire Wolfe

Who made the following statements?

1. "The broad principle that there is an individual right to bear arms is shared by many Americans, including myself.
I'm of the view that you can't take a broad approach to other rights, such as First Amendment rights,
and then interpret the Second Amendment so narrowly that it could fit in a thimble.
But I'm also of the view that there are limits on those rights.
Just as you can't falsely shout fire in a crowded movie theater,
you can put restrictions on who can own guns and how, when, and where they may be possessed."

___ Attorney General John Ashcroft
___ Solicitor General Theodore Olson
___ President George W. Bush
___ Sen. Charles Schumer

2. "While some have argued that the Second Amendment guarantees only a 'collective' right of the States to maintain militias,
I believe the Amendment's plain meaning and original intent prove otherwise. Like the First and Fourth Amendments,
the Second Amendment protects the rights of 'the people,' which the Supreme Court has noted is a term of art
that should be interpreted consistently throughout the Bill of Rights.
... Of course, the individual rights view of the Second Amendment does not prohibit Congress
from enacting laws restricting firearms ownership for compelling state interests
... just as the First Amendment does not prohibit [government from legislating against]
shouting 'fire' in a crowded movie theater. "

___ Sen. Dianne Feinstein
___ NRA President Charlton Heston
___ Attorney General John Ashcroft
___ President George W. Bush

Hard to tell, isn't it?

Dedicated Second-Amendment activists may recognize that the second statement was made by
Attorney General John Ashcroft in his famous May 2001 letter to the National Rifle Association.
For this and other support of the pro-individual rights position,
gun owners nationwide cheered Mr. Ashcroft.

But who made the first statement? It exactly reflects Ashcroft's point of view, but it wasn't Ashcroft who said it.
Here's a hint: No pro-gunner ever cheered this speaker.
The statement was made by Sen. Charles Schumer, one of the nation's most vehement
and persistent opponents of firearms ownership,
at a May 2002 press conference in which he criticized Attorney General Ashcroft,
not for his views, but merely for his means of expressing them.

Similarly, at his confirmation hearings, Ashcroft admitted he agreed with
and would enforce all the restrictions on firearms ownership
Sen. Schumer has worked so hard to impose over the years.
And in May 2002, immediately after the Justice Department filed a Supreme Court
brief claiming the individual rights position as its official policy,
Ashcroft said on "Larry King Live" that he fully supported the Brady Law,
calling it a "reasonable regulation".

In their verbal sparring, Ashcroft and Schumer look like fierce opponents.
Yet they express precisely the same viewpoints.
They advocate stringent enforcement of precisely the same laws.

So where is the difference between the two?

And if Second-Amendment supporters have achieved such a victory with the individual-rights position
(rather than the "militia rights" or "states' rights" position) being voiced in high places,
why are our opponents suddenly proclaiming individual rights while still working to destroy gun ownership?
And why are our "friends" doing exactly the same thing?

As the following examples show, what these politicians and lobbyists proclaim
and what they do are universes apart.

Case in point: Project Safe Neighborhoods

Which presidential administration called for appointment of 700 state and federal prosecutors
whose sole responsibility is to prosecute "gun crimes"?
We're not talking about crimes of violence,
but about miscarriages of justice like these:

Dane Yirkovsky came across a single .22 cartridge while laying carpet, pocketed it, and apparently forgot it.
Because he had previous burglary convictions, he was a "felon in possession of ammunition."
Fifteen years of his life are being wiped away by a mandatory minimum federal sentence.

Katica Crippen went to federal prison for posing for photos holding her boyfriend's firearm.
Crippen, with a previous drug conviction, was another "felon in possession."

Michael Maloney had a youthful drug conviction,
but had cleaned up his act, undergone extensive background checks to get a liquor license,
and believed his felony record was expunged.
So when he bought a .22 to protect himself when making late-night cash deposits at the bank,
he checked No when asked if he was a felon. The BATF disagreed --
and Maloney got a 15-year mandatory-minimum sentence over the protest of the judge who sentenced him.

Candisha Robinson sold illegal drugs to undercover officers.
Because the officers later found an unloaded gun locked in a trunk in her closet,
federal prosecutors charged Robinson with "using" a gun while committing a drug crime. (Oh Boy!)

Prosecutions such as these are not only a grave injustice to the victims.
They are not only destroying trust in the entire justice system.
They are not only costing taxpayers a fortune.
They divert otherwise ordinary criminal prosecutions from state courts to federal courts.
Federalizing of criminal prosecutions is a dangerous process
that further undermines the Constitution by expanding federal government authority
far beyond the tiny handful of constitutionally-defined federal crimes such as treason.

It wasn't the Clinton administration that called for more prosecutions like these.
It wasn't the Clinton administration that created hundreds more prosecutors
for the sole purpose of imprisoning thousands more non-violent gun owners.
It's the allegedly pro-gun George W. Bush administration,
in its Project Safe Neighborhoods.

The Bush administration's fact sheet for Project Safe Neighborhoods also says,
"In addition to strict enforcement of existing gun laws,
the President supports expanding instant background checks
to close the gun show loophole and
banning the importation of high-capacity ammunition clips."

In other words, we ain't seen nothin' yet.

President Bush wants even more laws that violate the Second Amendment.

____________________________________________

For more, see our sidebar article "What's a Compelling State Interest? What's a Felon?" (Below)

What's a Compelling State Interest? What's a Felon?

In his famous, and widely cheered, letter to the National Rifle Association,
Attorney General John Ashcroft made the caveat that gun ownership can be restricted for "compelling state interests."
But what, in this day of omnipresent government, does that mean?
Note that Ashcroft did not say "protection of innocent people against violent criminals."

In theory, when evaluating a law that seems to infringe on a fundamental right,
judges are supposed to examine whether the law in question is narrowly tailored to advance a truly "compelling state interest."
Great injustice may be permitted, but only in a great cause.
For example, during World War II, the Supreme Court ruled that internment of Japanese-Americans
was allowable because of a "compelling state interest"
-- the preservation of the nation in wartime.
It was a decision that seems outrageous to most of us now,
but was widely supported amid the tension of the war.

Other laws, that don't affect fundamental rights,
are tested for whether they "reasonably" advance a "legitimate" state objective.
As we see every day, there's virtually nothing the government doesn't consider its own "legitimate" objective
-- such things as:

Forcing us to wear seatbelts

Regulating how we can landscape our own properties

Deciding whom we can hire to fix our roof

Determining what substances we can put into our own bodies and

Determining exactly what our children must be taught.

Where the courts will draw the line on the Second Amendment remains to be seen;
for most of the last century, judges have treated the individual right
to own firearms as if it simply didn't exist.
Only in the last few years have we seen even minimally favorable decisions (in the Emerson case).
Given today's climate of government supremacy,
there is still no adamant principle to prevent courts from deciding
that the state has a "compelling interest" in "preventing an epidemic of gun violence,"
"protecting children" against firearms,
tracking all citizens who own firearms (for "public safety"),
requiring firearms to be locked up in a secure storage facility, etc., etc.,etc.

One thing we know for certain:

It's clear (as the accompanying article shows), that both "right-" and "left-wing" politicians
consider any restriction on firearms ownership to be compelling and in their interest.

______________________________________________________

In another portion of his statement to the NRA, Ashcroft gave, as an example of "compelling state interests,"
the authority to forbid convicted felons from owning firearms.
But again, government mission creep makes even this reasonable- sounding authority far more dangerous than it appears.
When felons were first forbidden to own firearms, a person usually had to commit terrible, violent criminal deeds to become a felon.

Now you can make an error on EPA or IRS paperwork and be forbidden forever to own firearms --
without the slightest suspicion that you are a threat to anyone.

Indeed, when reporter David Holthouse examined every prosecution made under Colorado's Project Exile
(a forerunner to the Bush administration's Project Safe Neighborhoods),
he discovered that 154 of the 191 "gun criminals" targeted had no violent criminal records at all
and two were merely illegal aliens (a civil offense) with no criminal record of any sort.2

The Clinton administration was ruthless about passing laws, but lax about enforcing them.
It takes a law-and-order Republican administration --
enthusiastically backed by organizations like the National Rifle Association
-- to carry out the Democrats' dirty work.

This is what Margaret Thatcher described at the "ratcheting process,"
in which a "left-wing" government pushes through policies that were previously intolerable to the people,
and a "right-wing" government then enforces policies it once ardently opposed
after those policies have become business-as-usual.

It hardly matters whether the ratcheting loss of Second-Amendment rights
is a deliberate plot or merely the product of the prevailing political mindset
that "government should do whatever it thinks necessary, regardless of the Constitution."

The result is the continuing loss of liberty
--and in the case of Project Safe Neighborhoods, vastly increased danger of punishment for gun owners.

Case in point: Americans for Gun Safety

Americans for Gun Safety also says it supports the individual-rights position on the Second Amendment.
This group, which appeared suddenly on the scene about two years ago,
initially positioned itself as an "educational group."

It said it had no political agenda.

It said (we paraphrase): "Let's face the fact that Americans have an absolute right to keep and bear arms;
let's simply make gun ownership safer."

But from its beginnings, AGS (founded by Andrew McKelvey, multimillionaire founder of Monster.com)
threw millions into political campaigns to "end the gun- show loophole"
-- politician-speak for having the federal government regulate and track all private sales of firearms.

AGS helped pass state laws in Oregon and Colorado to achieve that goal.
And AGS and Sen. John McCain, another ardent gun prohibitionist,
have been as thick as thieves in a so-far unsuccessful attempt to impose Brady tracking,
government databases, and waiting periods
(which still exist despite the alleged "instant-check system") on private firearms sales nationwide.

AGS no longer pretends to be merely an "educational" group.

While showing happy gun hobbyists as a background image on its Web site,
its entire aim is to discourage gun ownership by making it more difficult to purchase firearms,
and to hand the government the name of every person in the nation who ever legally purchases a gun.
(Criminals will still buy untraced firearms while their law-abiding brethren submit to government scrutiny.)

Individual-rights hypocrisy

All the while, the proponents of waiting periods, citizen-tracking, unsafe "safety" measures,
and arbitrary restrictions on the manufacture and ownership of firearms sanctimoniously claim
they believe wholeheartedly in the individual right to keep and bear arms.

Just like John Ashcroft.

Just like Bush administration Solicitor General Theodore Olson.

Just like Charles Schumer.

As Sarah Brady always claimed, all they want is "a few reasonable restrictions."
From Ashcroft to Schumer, they devoutly respect our individual right to keep and bear arms,
except for a few harmless little limitations like:

Not allowing us to buy inexpensive handguns ("Saturday-night specials")

Not allowing us to buy handguns with high-capacity magazines

Not allowing us to buy short-barreled shotguns

Not allowing us to buy semi-automatic rifles with a military appearance

Not allowing us to buy fully automatic firearms --
or being able to buy them only at exorbitant prices and
after paying exorbitant taxes to the government

Forbidding us to own guns if we're one of the millions of non-violent felons

Forbidding us to own guns if we've ever (even decades ago)
been convicted of a large group of misdemeanors

Forbidding us to buy guns if the FBI's "instant-check" system is down

Forbidding us to buy guns if we won't give a social security number

Forbidding us to defend ourselves with firearms on airplanes,
in courthouses, and hundreds of other public places

Forbidding trained schoolteachers, principals, or parents
from defending school children against Columbine-style rampages

Forcing us to keep our guns locked away or disabled in our homes
so we can't use them against a violent attacker

Forcing us to beg government permission and submit to fingerprinting
and criminal background checks to carry a handgun
(IF they allow us to carry one at all)

Wanting us to tremble before 700 special prosecutors whose sole mission
is to arrest and jail people like us.

It doesn't matter what they say either.

The individual rights position is now referred to by legal scholars as "the standard model."
Virtually no serious scholar now gives credence to the "state's rights" or "militia rights" position
from which opponents of gun ownership claimed their authority for so many years.

Are we better off because the individual-rights interpretation now prevails?

We should be, because the change represents a tremendous philosophical shift in the direction of honesty and liberty.
To whatever extent courts in the future may use that interpretation to throw out outrageous anti-gun laws
and the convictions based on them, we will be better off.

But we are not better off as long as politicians and lobbyists succeed in cynically using the individual-rights position
to pursue their old, familiar goals of limiting firearms ownership and punishing firearms owners for harmless,
technical violations of obscure laws. And those are the straits we're in now.

If we are foolish enough to keep paying attention to what they say, rather than what they do,
their cynical misuse of our trust and the English language will have no limit.
And neither will the injustice they can impose.

What's a Compelling State Interest? What's a Felon?

In his famous, and widely cheered, letter to the National Rifle Association,

Attorney General John Ashcroft made the caveat
that gun ownership can be restricted for "compelling STATE interests."

But what, in this day of omnipresent government, does that mean?

Note that Ashcroft did not say "protection of innocent people against violent criminals."

In theory, when evaluating a law that seems to infringe on a fundamental right,
judges are supposed to examine whether the law in question is narrowly tailored to advance a truly "compelling state interest."
Great injustice may be permitted, but only in a great cause.
For example, during World War II, the Supreme Court ruled that internment of Japanese-Americans
was allowable because of a "compelling state interest" -- the preservation of the nation in wartime.
It was a decision that seems outrageous to most of us now,
but was widely supported amid the tension of the war.

Other laws, that don't affect fundamental rights,
are tested for whether they "reasonably" advance a "legitimate" state objective.
As we see every day, there's virtually nothing the government doesn't consider its own "legitimate" objective

-- such things as:

Forcing us to wear seatbelts

Regulating how we can landscape our own properties

Deciding whom we can hire to fix our roof

Determining what substances we can put into our own bodies and

Determining exactly what our children must be taught.

Where the courts will draw the line on the Second Amendment remains to be seen;

for most of the last century, judges have treated the individual right to own firearms as if it simply didn't exist.
Only in the last few years have we seen even minimally favorable decisions (in the Emerson case).
Given today's climate of government supremacy,
there is still no adamant principle
to prevent courts from deciding that the state
has a "compelling interest" in "preventing an epidemic of gun violence,"
"protecting children" against firearms, tracking all citizens who own firearms (for "public safety"),
requiring firearms to be locked up in a secure storage facility, etc., etc.,etc.

One thing we know for certain:

It's clear (as the accompanying article shows), that both "right-" and "left-wing" politicians
consider any restriction on firearms ownership to be compelling and in their interest.

In another portion of his statement to the NRA, Ashcroft gave, as an example of "compelling state interests,"
the authority to forbid convicted felons from owning firearms.

But again, government mission creep makes even this reasonable-sounding authority
far more dangerous than it appears.
When felons were first forbidden to own firearms, a person usually had to commit terrible,
violent criminal deeds to become a felon.

Now you can make an error on EPA or IRS paperwork and be forbidden forever to own firearms --
without the slightest suspicion that you are a threat to anyone.

Indeed, when reporter David Holthouse examined every prosecution made under Colorado's Project Exile
(a forerunner to the Bush administration's Project Safe Neighborhoods),
he discovered that 154 of the 191 "gun criminals" targeted had no violent criminal records at all
and two were merely illegal aliens (a civil offense) with no criminal record of any sort.

__________________________________________________________________________________________________________________Footnotes

1. Examples are from a Cato Institute study,
"There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime," by Gene Healy, issued May 28, 2002
(http://www.cato.org/pubs/pas/pa-440es.html),
and from "More Injustice on the Way" a June 12, 2002 column by Paul Craig Roberts
(http://www.newsmax.com/commentarchive.shtml?
a=2002/6/11/203057)

2. Cato, pg. 10.

© 2002 Aaron Zelman. Permission is granted to distribute this article in its entirety,
so long as full copyright information and full contact information is given for JPFO.

Published by:

Jews For The Preservation of Firearms Ownership, Inc. P.O. Box 270143 Hartford, WI 53027

Phone (262) 673-9745 Fax: (262) 673-9746 http://www.jpfo.org

--------------------------------------------------------------------------------

read The State vs. the People: The Rise of the American Police State,
by Claire Wolfe and Aaron Zelman.
(http://www.jpfo.org/tsvtp.htm)

Second-Amendment Setup: What They Say Isn't What You Get © 2002 JPFO < webmaster@jpfo.org >


TOPICS: Constitution/Conservatism; Crime/Corruption; Government
KEYWORDS: banglist; constitution; crime; government; guns

1 posted on 07/27/2002 10:11:31 AM PDT by Cato
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To: Cato
you can't take a broad approach to other rights, such as First Amendment rights, and then interpret the Second Amendment so narrowly that it could fit in a thimble.

Brilliantly stated.

2 posted on 07/27/2002 10:22:08 AM PDT by LouD
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To: Cato
2. "While some have argued that the Second Amendment guarantees only a 'collective' right of the States to maintain militias, I believe the Amendment's plain meaning and original intent prove otherwise. Like the First and Fourth Amendments, the Second Amendment protects the rights of 'the people,' which the Supreme Court has noted is a term of art that should be interpreted consistently throughout the Bill of Rights.

Ashcroft is not the enemy of the second amendment that many would portray him as.

3 posted on 07/27/2002 10:23:14 AM PDT by He Rides A White Horse
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To: Cato
... Of course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests

I don't think pedophiles are entitled to operate day care centers either.

4 posted on 07/27/2002 10:25:06 AM PDT by He Rides A White Horse
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To: Cato
Dane Yirkovsky came across a single .22 cartridge while laying carpet, pocketed it, and apparently forgot it. Because he had previous burglary convictions, he was a "felon in possession of ammunition." Fifteen years of his life are being wiped away by a mandatory minimum federal sentence.

Katica Crippen went to federal prison for posing for photos holding her boyfriend's firearm. Crippen, with a previous drug conviction, was another "felon in possession."

A qualified 'yes' to the first; a qualified 'no' to the second.

5 posted on 07/27/2002 10:26:58 AM PDT by He Rides A White Horse
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To: Cato
Great post!
6 posted on 07/27/2002 10:44:16 AM PDT by Auntie Mame
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To: *bang_list
Bang
7 posted on 07/27/2002 11:30:08 AM PDT by Atlas Sneezed
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To: Cato
So, in your opinion, felons have as much right to own a firearm as any one else? Would you be willing to take the position that "compelling state interests in restricting firearms ownership" just do not exist?
8 posted on 07/27/2002 11:36:52 AM PDT by DugwayDuke
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To: DugwayDuke
In my opinion, felons fall into two categories: those that are dangerous, and those that are not. Those who are dangerous (committed a violent crime, and are still violent) should not be out on the street at all. Putting them among us, and giving them “firearm restrictions” turns the rest of society into an ultra-low security prison. Cheap for the prison system, potentially deadly for us.

People who are not violent have the same rights as the rest of us. If they are safe enough to be among the rest of us, then they are safe enough to defend themselves (and us) with weapons. Why would you assume that someone convicted of felonious marijuana cultivation (again, assuming no violence) would be less likely than anyone else to help you if you needed help? And if he’s not less likely to help you, why would you restrict the tools at his disposal?

9 posted on 07/27/2002 11:53:38 AM PDT by Jubal Harshaw
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To: He Rides A White Horse
Day care centers are not mentioned in the Constitution, firearms are and the Second comes with no qualifications. Read it. Unless people means people who are licensed and CONNECTED or the police/military. What is it?? People means people or people means what The Government says it means. LOL!

I trust the dictionary over any government. Who do you trust?

"......The Right OF "THE PEOPLE" to KEEP AND BEAR ARMS Shall not be infringed." says it all.

But then you could be one of those who Confuse RIGHTS with PRIVILEGE. You one of those people?? If so, England wants you. They dole out privilege to the Nobles and rights(easily legilated away as we have witnessed) to the People.

Such rights as the right Not to be killed UNLESS it is by a policeman or an aristocrat. OR the right to FREE SPEECH as long as you are not dumb enough to use it.

CATO

10 posted on 07/27/2002 11:59:06 AM PDT by Cato
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To: Cato
Day care centers are not mentioned in the Constitution, firearms are and the Second comes with no qualifications. Read it.

I have read it......'live it, learn it, love it'..........and I do. Unless people means people who are licensed and CONNECTED or the police/military.

I am not arguing that, and to imply that I am is disingenuous..........after all, who were the Minutemen.....;)

People means people or people means what The Government says it means.

People are the People, such as you and I........no doubt here in my mind.

But then you could be one of those who Confuse RIGHTS with PRIVILEGE. You one of those people??

Driving is a privilege......bearing arms is a RIGHT............you are welcome to test that theory at any time. (laughing)

11 posted on 07/27/2002 12:12:31 PM PDT by He Rides A White Horse
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To: Jubal Harshaw
Do you believe non-violent felons should have the right to vote?
12 posted on 07/27/2002 2:09:25 PM PDT by DugwayDuke
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To: DugwayDuke
Do you believe non-violent felons should have the right to vote?

If they pay taxes, then they should have the right to decide on the government supported by those taxes. Any other system is taxation without representation, and against the spirit of our country. BTW, I also think that people who, on net, don't pay taxes (i.e. people whose taxes paid are less than welfare benefits received) should also not vote.

I'm still trying to figure out whether or not violent felons should have the right to vote, assuming that they pay taxes. If there are few violent felons, then their voting patterns won't matter much. If there are so many violent felons that their votes can sway elections, then perhaps the definition of "violent felon" should be changed. I can envision a government which classifies the thoughts of it's opponents as "violent" and its opponents as "violent felons," and restricts their right to vote with no actual violence involved. Allowing "violent felons" the right to vote might diminish the government incentives for such distortions. Your thoughts on this are welcome; flames are NOT. I repeat the first sentence of this paragraph: I'm still trying to figure [this] out.

Thank you for your question.

13 posted on 07/27/2002 2:38:19 PM PDT by Jubal Harshaw
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To: Jubal Harshaw
I may perhaps have a solution to your dilemma. Let's let everyone vote, but they get as many votes as the net taxes they pay. I rather doubt felons with a violent past would pay many taxes.

Or, more to the point, perhaps a probationary period following release for non-violent felons after which all their rights are restored.

I'm sure you understand why I raised the issue of voting felons. Gun rights or voting rights, let's be consistent.

I'm not sure why you mentioned flames.
14 posted on 07/27/2002 3:41:44 PM PDT by DugwayDuke
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To: DugwayDuke
The comment about flames was not to you in particular, but to any of the hotheaded freepers who sometimes seize upon a controversial issue and respond with ad hominem attacks. Sorry, I’ve seen it happen too often, and I just wished to avoid such attacks. I apologize if I offended you.

Your system makes perfect sense. I respond with my own political system. In my perfect system, we have two legislative houses, one elected by “one man one vote” the other elected by “one dollar one vote.” The “one man one vote” house is responsible for acts that affect everyone: criminal laws, and for the declaration of war. The “one dollar one vote” house has to approve the budget, but cannot create criminal laws or declare war. The President is still elected by an electoral college, preserving the republican nature of the government, and the bill of rights remains the same.

15 posted on 07/27/2002 4:27:53 PM PDT by Jubal Harshaw
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To: DugwayDuke
So, in your opinion, felons have as much right to own a firearm as any one else?

Don't be ridiculous. Felons are in prison; giving firearms to prisoners is just crazy, and also would endanger the prison guards.

16 posted on 07/27/2002 4:30:33 PM PDT by Dr. Frank fan
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To: DugwayDuke
Turret sealed. Engine running. bombed up and ready to roll.

So, in your opinion, felons have as much right to own a firearm as any one else?

Ready?? Really Ready?? Ok Then!!!!!!!!!!!!!!!!!!!!!!!

I THINK that a felon who has served their sentence and who has no valid(that means jury) orders written into their sentencing order barring them from buying & owning & shooting & hunting & plinking or target shooting with any firearm or even specific firearms then they would have a Constitutional and a God-given right to defend themself, provide game for themself, and to sport shoot with a firearm they bought, owned, kept, cleaned and shot.

Of course, they would be expected to abide by the laws that GWB abides by.

snicker

And this would be Constitutional. As it is, the Present Punishment is Legislative and IF you know law punishment comes from and Must come from the Judiciary for our Three Branch System of government to SURVIVE.

Ride the Wind,
CATO

17 posted on 07/27/2002 5:16:30 PM PDT by Cato
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To: Jubal Harshaw
well said, the fact that a convicted felon is out on the street, should mean that he has served his time and paid his debt to society and now can partake in all the unalienable rights he is bestowed by his creator... if he is still a threat to society, then he should still be incarcerated...
18 posted on 07/27/2002 5:37:07 PM PDT by teeman8r
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To: Jubal Harshaw
Your system is not unlike the one we first had. I believe the two biggest mistakes we made were the imposition of the income tax and the direct election of Senators. Prior to these two amendments, the federal government could only rely upon various tarrifs and fees for it's income. If that were not enough, it was required to levy assessments on the various states in proportion to their population. The state legislatures were required to raise the money. Since these legislatures also selected the Senators, one of the jobs of the Senators was to ensure that budgets did not exceed the revenues from tarrifs and fees. Otherwise, the state legislators would have to make up the difference, something that could make them quite unpopular.

I apologize if this was tedious or repitious, it happens to be one of my pet peeves.
19 posted on 07/27/2002 5:41:27 PM PDT by DugwayDuke
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To: Dr. Frank
I didn't say convicts should have weapons. I apologize if my use of the term "felons" was confusing. BTW, to those who say that 2nd Amendment rights may not be infringed in any case, I like to ask about convicts, those actually in prison.
20 posted on 07/27/2002 5:44:20 PM PDT by DugwayDuke
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To: Cato
Actually, I believe the courts have ruled that baring prior felons from owning firearms is constitutional. They have also ruled that felons may not vote. Do you believe that is constitutional. I don't necessarily believe that all felons should lose these rights after they have served their time. Perhaps your suggestion about such loss of rights being a decision by a jury is valid. I would suggest that should be done following their release to avoid a rubber stamp type of thing at their original trial.
21 posted on 07/27/2002 5:48:38 PM PDT by DugwayDuke
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To: DugwayDuke
In order to answer your question substantively, we have to examine a little history.

In 1791, there wasn't a single civilian prison in any of the states. People who violated the law were punished by flogging, spending some time in the stocks or a fine. Violent criminals were hanged.

So, as written, the 2nd Amendment protects the rights of prisoners currently incarcerated to have weapons while in Federal prison. Which is fitting, since most of them have weapons anyway.

This should have been changed when the Federal prison system was introduced. If we are going to completely abandon flogging as a punishment (and only Delaware still has flogging on the books as a punishment) then we need an a new amendment to allow for all free citizens to keep and bear arms.

As a bonus, this will quickly demonstrate to the public exactly what the prison system is, state-sponsored slavery for those people who run afoul of one of the 80,000 Federal laws on the books.

Of course, the quick fix is to make all crimes punishible by death. Then allow criminals to temporarily give up their right to bear arms while they are incarcerated.

22 posted on 07/27/2002 6:00:22 PM PDT by Knitebane
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To: DugwayDuke
I didn't say convicts should have weapons. I apologize if my use of the term "felons" was confusing.

No confusion. A "felon" is (presumably) a person tried and convicted of a felony. Hence, he's in prison.

Otherwise, he's paid his debt to society and all that, so why are you slapping this label on him? If we let a "felon" out of prison then (presumably) he's no longer a danger to society, so there's no problem restoring his rights. Tell me where I go wrong in this thinking.

BTW, to those who say that 2nd Amendment rights may not be infringed in any case, I like to ask about convicts, those actually in prison.

Thus missing the point. Of course the rights of convicts may be infringed, else we wouldn't even be able to lock 'em up in the first place! Even the most diehard gun-rights absolutist excludes convicts from his consideration, and you know it. The worst a person who says "shall not be infringed in any case" is guilty of is (slightly) sloppy use of language. But you catch 'em on it, congratulations.

23 posted on 07/27/2002 6:14:21 PM PDT by Dr. Frank fan
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To: Cato
Just as you can't falsely shout fire in a crowded movie theater, you can put restrictions on who can own guns and how, when, and where they may be possessed.

... just as the First Amendment does not prohibit [government from legislating against] shouting 'fire' in a crowded movie theater.

Yes! I can falsely shout fire in a crowded movie theater. However, I would expect that I would be prosecuted for causing a disturbance, malicious mischief, or, should someone become injured as a result, reckless endangerment perhaps. In a free society, I would NOT expect to have to show ID (assuming I'm an adult), register with the BMC (Bureau of Moviegoers Control), have my background checked to see if I have ever shouted 'Fire!' in a theater before, wait thirty minutes for any road rage to subside, or wear duct tape over my mouth before being allowed to purchase a ticket.

24 posted on 07/27/2002 6:24:34 PM PDT by RANDomScout
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To: Dr. Frank
"Otherwise, he's paid his debt to society and all that, so why are you slapping this label on him? If we let a "felon" out of prison then (presumably) he's no longer a danger to society, so there's no problem restoring his rights. Tell me where I go wrong in this thinking."

You go wrong in one important aspect and that is the recidivism rate. Implicit in your thinking is the assumption that prisons rehibilitate and that once released, the person will commit no more crimes. But, instead, we know that a very high percentage will commit many more crimes upon their release.

I know, innoncent until proven guilty, and that, in one light, prohibiting something on the basis of what some one might do in the future, is considered slippery ground. This argument taken to it's extreme would allow forbidding all gun ownership on the basis that anyone might commit a crime. But, if some one does attempt to make that argument they are confusing a very high probability with a very small possibility.

Perhaps a solution to this could be the restoration of rights after a probationary period following release. This period, say three to five years, would allow the released convict to demonstrate, in an open environment, that he has indeed been rehabilitated. BTW, anyone who used actively used a gun in their crime (and that's a stiffer standard than just having one some where in their home), say armed robbery, murder, etc., would never get that right back again.

"Even the most diehard gun-rights absolutist excludes convicts from his consideration, and you know it. The worst a person who says "shall not be infringed in any case" is guilty of is (slightly) sloppy use of language. But you catch 'em on it, congratulations."

Just like you caught me on convicts and felons?

But laying that aside, this goes far sloppy use of language. This issue with convicts or felons is not a special case. Those that say "shall not be infringed" is an absolute, also like to say that "all 20,000 gun laws are unconstitutional". These arguments are equivalent. One might ask at that point, even the ones that say you cannot operate an open air, high powered rifle range on your 1/4 acre suburban homesite? You mean the ones that say you cannot coop your local park as a skeet range on the weekends? You see this really is an issue of more than "sloppy language".

This is a flanking movement that undermines the entire "shall not be infringed argument". You see, once the point that "shall not be infringed" doesn't mean in all cases is granted, these absolutists lose their argument. If you are willing to grant some infringements, then one must debate exactly the circumstances where an individual has the right that "shall not be infringed". Once you accept one example where society can infringe this right, then all other examples may be questioned.

Any right can be constitutionally be "infringed" for the good of society by use of the balancing tests. If we make absolutist arguments that are false on their face, if we are not willing to engage in debate on what are compelling interests and what are not, then we will lose the gun control debate and our guns too.
25 posted on 07/28/2002 4:37:18 AM PDT by DugwayDuke
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To: Knitebane
"So, as written, the 2nd Amendment protects the rights of prisoners currently incarcerated to have weapons while in Federal prison."

That's a clever argument and I thank you for sharing something with me that I had not encountered before. That said, I think the argument falls apart rather quickly. This argument says that since there were no prisons, then the question isn't addressed. Isn't that much like saying since all newpapers in that time used manual type, the first amendment only applies to newspapers that rely upon methods used at the time the constitution was written, ie, manual type?
26 posted on 07/28/2002 4:46:52 AM PDT by DugwayDuke
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To: DugwayDuke
Implicit in your thinking is the assumption that prisons rehibilitate and that once released, the person will commit no more crimes.

I didn't say "no more crimes" - no one can guarantee that any group of people can commit "no" crimes whatsoever. But you are partially right that implicit in my argument is that, surely, we wouldn't let people out of jail unless they were no longer a serious threat to society. Surely we'd have long enough sentences, and a wise enough parole policy, to prevent this.

Of course, if we don't, then all bets are off. But what that means is that we ought to increase sentences and alter policy in order to keep dangerous convicts in prison. It doesn't mean that we should sigh and throw up our hands and say "well, they're out. Let's create two classes of citizenry, then." I disagree with the latter approach.

Perhaps a solution to this could be the restoration of rights after a probationary period following release.

Still smells funny to me. Are they free or aren't they? Why are we letting these people out of jail in the first place if we can't trust them with their rights? You keep missing the obvious solution: keep dangerous people in prison where they belong.

One might ask at that point, even the ones that say you cannot operate an open air, high powered rifle range on your 1/4 acre suburban homesite? You mean the ones that say you cannot coop your local park as a skeet range on the weekends?

I don't know if there are laws specifically forbidding this, but assuming that they are, at best they seem redundant. Aren't there already laws against reckless endangerment, about how public lands can be used, and the like?

In fact I agree with the substance of what you say about absolutist arguments, but "not absolutist" can mean different things to different people. I'd prefer to say that yes, you're right, "shall not be infringed, ever" is wrong - but: the only exceptions to it are obvious, trivial ones (don't hand guns to convicts), and they do not affect the core truth of the statement.

The other exceptions you mention are not even infringements of "gun rights" per se, because (in a broader sense) they represent a depraved indifference to the lives of others and are a reckless endangerment to society and all that. And no one has the "right" to recklessly endanger others in the first place, so the argument is a red herring.

27 posted on 07/28/2002 10:44:40 AM PDT by Dr. Frank fan
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To: DugwayDuke
Isn't that much like saying since all newpapers in that time used manual type, the first amendment only applies to newspapers that rely upon methods used at the time the constitution was written, ie, manual type?

You have a good analogy, but if you examine it logically, your argument supports my argument, it doesn't break it down.

Look at it like this:

The second amendment applies to all citizens everywhere and prohibits government from taking your weapons. The fact that prisons came along later does not mean that you can make an exception and take weapons away from prisoners.

The first amendment applies to all citizens everywhere and prohibits government from censoring the press. The fact that electronic press came along later does not meant that you can make an exception and censor electronic media.

The fact that electronic media is safe from government censorship simply proves the point. So, why one and not the other?

The constitutional amendments prohibit government interference in our lives. It doesn't matter what methods we use in our lives, it still prohibits government from interfering. The government can add things to the list of guaranteed freedoms, but it cannot take away any freedoms without amending the constitution.

If our lives change sufficiently that the guarantees in the constitution interfere with life, then either we abandon the changes or we amend the constitution.

We don't look the other way and pretend the impasse doesn't exist.

A good amendment to allow the prison system to disarm prisoners would read something like this:

Congress shall have the authority to restrict the keeping and bearing of arms to persons while they are being held awaiting trial or, upon conviction, while they are incarcerated. This amendment shall not be construed to deprive any free citizen of his right to keep and bear arms.

28 posted on 07/29/2002 6:36:35 AM PDT by Knitebane
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BTT
29 posted on 07/29/2002 7:04:58 AM PDT by MileHi
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