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

[DugwayDuke]

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.

[Knitebane]

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.

[Dr. Frank fan]

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.

[RANDomScout]

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.

[DugwayDuke]

"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.

[DugwayDuke]

"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?

[Dr. Frank fan]

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.

[Knitebane]

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.

[MileHi]

BTT