Suggestion for compromise gun legislation

Then the FBI disagrees with the CDC

 

The debate should not be whether death stats justify restrictive gun laws; the debate should be whether the state and federal constitutions allow such laws to be written.

California is among those states with no right to arms provision in its state constitution and its legislature has treated that as a black authority to do whatever it wants regarding gun possession and use . . . The question isn't do those laws work, convince me that they are not void on their face because of constitutional illegitimacy (McDonald v Chicago).

 

The inalienable right is the right of self defense against acts of aggression and that right is limited to stopping the act of aggression. There is also an inalienable right to life and the two rights cannot conflict. Self defense does not include a right to kill and firearms are a lethal weapon but they are the most effective means currently available to stop an act of aggression. The obvious problem with firearms is that incidental to their use to stop an act of aggression they can cause death that is a violation of an inalienable right.

If, at any time, a non-lethal means of stopping an act of aggression is invented that is equal to or superior to firearms (i.e. a weapon that incapacitates instantly one or more persons without causing physical harm) then firearms could be banned completely without any infringement upon an inalienable right.

Three final points.
The Second Amendment does not refer to firearms but instead uses the general word "arms" that is subject to both statutory and judiciary definition.
The Second Amendment does not prevent the commerce in arms from being regulated.
Regulation of firearms is not an infringement upon the inalienable right of self defense.

 

McDonald v Chicago did extend the 2nd Amendment protection established in the Heller v DC decision to all of the states under the "due process" clause of the 14th Amendment. It must also be remembered that while Heller v DC did predominately address firearm possession for self defense in the home it also came with a caveat.

https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller#Decision

These "exceptions" actually open up a broad range of possible regulations based upon historic regulations that can be imposed without infringement upon the Second Amendment.

 

California, Connecticut and New York choose to completely ignore the "in common use for lawful purposes" protection and broaden "dangerous and unusual" to be meaningless to impose unconstitutional restrictions upon their citizens. They also ignore the ex post facto protections afforded by the Constitution.

Their lawmakers are also really bad at math.

 

Heller's significance is not what you quote; actually you completely misread the entire paragraph and as usual, omit the real actionable take-away from that paragraph, footnote 26. The important part of Heller is the invalidation of all of the various "collective right" interpretations -- and that is completely lost on people like you.

The kookiest, free-for-all gun control states are the ones where this will be of the greatest impact. California and New Jersey in particular will be the test beds for incorporation because they have no RKBA provision, thus they never developed an individualized, sophisticated legal framework to address the powers of the state to write gun law against the rights of their citizens. California and New Jersey both lazily relied on lower federal cases that inserted the "state's right" and "militia right" into the jurisprudence of the RKBA / 2nd Amendment to sustain their laws.

As an example, California's gun control scheme rests upon a series of 9th Circuit and state court decisions, with the cornerstone being Hickman v Block . . . a holding that dispensed with a citizen's claims on standing, saying that since the 2nd only protects a state right, no citizen has any claim of a 2nd Amendment right. Hickman has been central in every recent decision upholding gun control in the 9th Circuit's jurisdiction. After Heller, the 9th recognized that Hickman was unsound, in a post-Heller appeal of Nordyke v King a 3 judge panel noted:

". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."

Nordyke v King, (April 20, 2009) ​

The 9th quickly set aside that decision and the case was eventually settled by the parties without the constitutional issue being addressed / settled but it isn't over. When Hickman finally falls, the legal support for hundreds if not thousands of gun laws evaporates.

What you quote from Heller above is NOT a blanket endorsement of the constitutionality of gun control; it was a warning for jurisdictions to get the laws that can be justified, onto solid constitutional grounds. Far from those laws being unquestionable, footnote 26 has been the basis of directly questioning the validity of many gun laws, even criminal dispossession:

"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. . . ."

US v. Skoien, No. 08-3770, 7th Circuit, (2009)​​

I'm fine with you just relaxing and basking in your unwarranted confidence; the tears of disappointed leftists after the election have been delicious, a fresh flood from surprised anti-gunners will be welcomed in a year or two.

 

I can't like this post enough. Permission to copy and share elsewhere is hereby requested.

 

The characterization "dangerous and unusual" is not an assignment that the government gets to begin its arguments to restrict civilian possession and use of arms. That description is what's left after the protection criteria has been applied.

Only after a type of arm has been shown to NOT be a type of arm that, constitutes the ordinary military equipment and/or is a type usually employed in civilized warfare and/or of a type that can be employed advantageously in the common defence of the citizens or finally, of a type in common use at the time, can the government argue that it is "dangerous and unusual" and the government should be afforded a power to restrict its possession and use.

If the arm meets any of the protection criteria it simply can not be "dangerous and unusual", that empowering definer is off the table. ("The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence" -- Aymette v State)

 

Go right ahead.

Here's another quote from a federal court regarding the quote of that paragraph of Heller by gun control supporters and as I noted, the never included but vitally important footnote 26.

Footnote 26 reads; "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted." -- U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011)​

Well, far from what Shiva_TD says, these laws (and many more) ARE questionable . . . Of course felon disablement of gun rights were/are sustained because they are founded on legitimate exercises of government authority which have been upheld many times under challenges other than the 2nd Amendment, using a wide range of legal reasoning under constitutional and common law.

Now, on the other hand, gun control laws that were upheld by imagining a "collective 2nd Amendment right" and reasoned upon the theories that the 2nd does not secure an individual right, will be struck down.

 

We will need to censure jurists like those found on the 2nd Circuit Court. In their decision in Shew v Malloy, regarding the banning of "assault weapons" and "high capacity magazines" in Connecticut and New York, the majority opinion of the 2nd Circuit Court stated: "In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law‐abiding citizens for lawful purposes. In short, we proceed on the assumption that these laws ban weapons protected by the Second Amendment."

This case should have been decided there.

 

I've noticed that politicians are really bad with math as well. In 1985 Congress revalued the money with the Gold Bullion Coin Act where $50 equaled one ounce of gold if it was in a $50 American Gold Eagle but it was 1.25 ounces if it was five $10 American Gold Eagle coins. We all know that politicians tend to be morons and we have proof. LOL

Not sure of exactly which California, Connecticut and New York laws are being referred to so can you provide the Supreme Court decisions that struck down the laws because they were unconstitutional. I'd be specifically interested in any instances where de facto criminal law has been imposed in violation of Article I, Section 9, Clause 3. I've read a couple of decisions related to cases in California that include Peugh v. United States and Stogner v California but both dealt with sentencing guidelines for sex offenders. I found no cases doing a search related to ex post facto gun laws/regulations so that would be interesting. I've read some right-wing opinion claims that some laws/regulations imposed ex post facto criminal law but didn't find the cases to back up the opinion.

As I noted though, based upon the caveat contained in Heller there are arguably a lot of laws and regulations that could be imposed. For example Heller mentions the CCW laws are Constitutional and if concealed carry in public requires a license then arguably open carry in public could also require a license because both address the same issue of public safety when firearms are carried in public. Some CCW laws require qualification and identification of the specific firearm(s) to be carried in public as well (or at least they used to) and I believe those requirements have been upheld as Constitutional.

It could also be maintained that "common use" isn't a popularity contest. Just because a lot of people own a specific type of firearm (e.g. the Bushmaster) doesn't imply that the ownership reflects a Constitutionally protected "common use" of the firearm.

And as specifically noted in Heller the laws and restrictions on commerce in firearms is completely Constitutional.

 

The case went to the US Supreme Court and the petition to the US Supreme Court was denied leaving in tact the lower Appeals Court ruling.

https://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-1030.htm
http://www.politico.com/story/2016/06/assault-weapons-ban-supreme-court-224538

 

The recently passed ban on "high capacity" magazines violates ex post facto.

If both CCW and open carry are prohibited, then the right to bear arms is completely infringed. Dave Kopel has a well written piece on the issue that I'll find once I'm not on a tablet. I agree that CCW can be restricted by the government, but having done so open carry must be allowed.

How else would common use be defined if not through raw numbers or popularity?

Interesting claim, and likely not to be held in the case of intrastate commerce.

 

Here is a compromise,

Don't take what I have, and I wont shoot you with it.

 

I fully agree with the requirement to get gun control laws firmly established based upon the Constitution as well as the necessity for the burden to be placed upon the government to justify those laws. For example I've always objected to the prohibitions against firearm possession for non-violent drug offenders (as well as laws prohibiting a person from voting that didn't violate any voting laws).;

 

I'm well aware that the previous SCOTUS decided not to review it. That's likely to change with a new conservative SCOTUS.

 

This remains to be seen

 

While we are on the subject of Heller I think it is also important to reflect that the RKBA is a component of the broader right of self-defense, defense of others, and defense of property—and how this will ultimately apply to firearms outside the home. Some gun control advocates have misinterpreted Heller to be a case that defines the entirety of the RKBA. They note that Heller specifically protected the RKBA in the home (which was the issue in Heller), and they argue that this means the RKBA is limited to the confines of the home and has no existence outside the home.

This argument first ignores the plain language of the operative clause of the Amendment: “right to keep and bear arms.” The word “keep” can plausibly be construed to the confines of your home, but this does not address the meaning of “bear” arms:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation. In Muscarello v. United States, 524 U.S. 125 (199, in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id., at 143 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed. 1990)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. District Of Columbia v. Heller, 554 U.S. 570, 584 (200

If you accept the gun prohibitionist interpretation that Heller limits the RKBA to your home, then you must accept that this right to “bear” arms is limited to the path from your couch to your fridge—an absurd result indeed.

Additionally, Heller justifies its statement that the RKBA in the home is the core of the protection because the need for defense there is "most acute.” Id. at 628.

This, of course, clearly implies that self-defense, defense of others, and defense of property is still a right outside the home, even if it is not “as acute” as the home setting. Indeed, the common law right of self-defense—which like its component the RKBA pre-existed our Constitution—secured the right to wherever you are, for self-defense becomes very acute if you are attacked regardless of your location. Nothing about the right of self-defense requires that you meekly acquiesce to a brutal and potentially fatal assault merely because you were attacked outside your home. And if the ancient right of self-defense permits you (as it most certainly does) to use deadly force to repel an attack of deadly force—wherever you are—then surely the RKBA protects a right to be prepared by being peacefully armed for that purpose outside the home. Heller did nothing to change this. It in no way said that you step out of your front door at your peril because you may not bear a firearm to defend yourself outside the home.

Furthermore, if the Heller court intended to limit the RKBA to the home, then it would never have felt the need to include in its list of “presumptively lawful” measures the many prohibitions on bearing arms in “sensitive places such as schools and government buildings.” Id. at 626

Finally, Heller specifically tells us it does not define the outer limits of the RKBA:

JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 720-721. But since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. Id. at 635

Now I think one of the most important things you need to understand from Heller is it did not establish what test(s) should be used for considering a challenge to a law. McDonald did clarify the field somewhat when it held the RKBA is a fundamental right—which generally secures the most stringent and protective legal test, that of “strict scrutiny.” But so far this test seems to be applied only when a law interferes with the “core” of the right—within the home.

Indeed this test is now applied to arms within the home in the 4th Circuit, where I live. But outside the home the 4th Circuit reasons that since Heller says the self-defense component is not as acute here the test is intermediate scrutiny. See it here in action (in a case of a man charged with having a loaded handgun in his car while in a part of Virginia managed by the national park service). Watch how the Court explains that one reason why it will not use strict scrutiny outside the home is it might require the Court to strike down too many laws:

Were we to require strict scrutiny in circumstances such as those presented here, we would likely foreclose an extraordinary number of regulatory measures, thus handcuffing lawmakers' ability to “prevent[ ] armed mayhem” in public places, see Skoien, 614 F.3d at 642, and depriving them of “a variety of tools for combating that problem,” Heller, 554 U.S. at ___, 128 S. Ct. at 2822. While we find the application of strict scrutiny important to protect the core right of the self-defense of a law-abiding citizen in his home (“where the need for defense of self, family, and property is most acute,” Heller, 554 U.S. at ___, 128 S. Ct. at 2817), we conclude that a lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home. Accordingly, we hold that 36 C.F.R. § 2.4(b) will survive Masciandaro's as-applied challenge if it satisfies intermediate scrutiny — i.e., if the government can demonstrate that § 2.4(b) is reasonably adapted to a substantial governmental interest. See Chester, 628 F.3d at 683; cf. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to content-neutral time, place, and manner restrictions on speech); Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (applying intermediate scrutiny to commercial speech in light of its “subordinate position in the scale of First Amendment values&#8221. United States v. Masciandaro, 638 F.3d 458, 470-471 (4th Cir. 2011) (emphasis added by Bryan)

You see how weak this “outside the home” standard is? The words “reasonably adapted” and “substantial government interest” will vary in the eye of the particular beholder—and may mean totally different things to your legislator than you.

These Circuit Court opinions tend to feed off each other, and as they are currently developing we see a lot of room for mischief. This is why the primary battlefield on the RKBA remains in the legislatures that control the passage of these laws.

---

And indeed, gentlemen, there exists a law, not written down anywhere but written in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not by theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will have to wait for justice, too--and meanwhile they must suffer injustice first. Indeed, even the wisdom of the law itself, by a sort of tacit implication, permits self- defense, because it does not actually forbid men to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill. When, therefore, an inquiry passes beyond the mere question of the weapon and starts to consider the motive, a man who has used arms in self-defense is not regarded as having carried them with homicidal aim. Cicero , Selected Political Speeches, p. 222 (M. Grant, trans. 1975)

 

You've posted this drivel before.
You're still wrong. If necessary to exercise my right to self-defense, I have every right to kill someone.

- - - Updated - - -

Thanks for your opinion.

 

I have a conceal carry permit, if some one comes at me or mine with the intent of doing bodily harm, I am a gonna blow his or her guts out no matter where I am at, that is the only law or right I need.

 

Under the law, in certain situations, a person is allowed to use "deadly force" so the definition of that term is important.

http://legal-dictionary.thefreedictionary.com/Deadly+Force

"Likely to" and "Will cause" are not the same. A "Right to Kill" is a "Will Cause Death" authorization. The "Likely to" results in the death being likely but not certain and the death is incidental to the actual act of self defense. You cannot for example shoot the assailant, where they are knocked to the ground and fundamentally incapacitated, no longer representing a threat, and then keep on shooting them until you kill them.

Because a firearm is "likely to cause" serious injury or death, and we don't have an equally effective non-lethal weapon when it comes to incapacitating an attacker, our statutory laws allow the use of the firearm but the laws never granted any person the Right to Kill another person intentionally. Of course the instant that the assailant no longer represents an immediate threat, either because they've been incapacitate or have turned to flee, then the use of deadly force is no longer allowed under the laws in any state to my knowledge.

http://criminal.findlaw.com/criminal-law-basics/self-defense-overview.html
http://legal-dictionary.thefreedictionary.com/Deadly+Force

The above addresses the statutory law (License) to accommodate an inappropriate weapon for self defense and not to the Natural Rights of the Person (Liberty) where the following criteria must be met.

"A Natural Right is inherent in the person, not dependent upon another person, does not violate another Natural Right, and does not impose an involuntary obligation upon another person."

Obviously the Natural Right of Self Defense and the Natural Right of Life cannot be in conflict based upon the criteria for Natural Rights but because we don't have an appropriate weapon that can incapacitate the attacker without causing harm to them our laws accommodate that reality. Someday we will and it's only a matter of time before that happens and then even "incidentally" causing the death of the attacker (except in rare cases of a freakish accident) will become unacceptable.

 

I don't argue with that but if you shoot them and that results in their becoming incapacitated (i.e. ends the attack) you can't just keep shooting them until they die.

 

Thank you for agreeing with me, in that If necessary to exercise my right to self-defense, I have every right to kill someone.

 

We've had a few offers of "compromise" on firearm related regulations.

1) Mandatory background checks on all firearm purchases in exchange for reciprocity of CCW licensing between all states.

2) Voluntary access to the FBI NICS database for private individuals in exchange for making the sale/transfer to a prohibited person a felony regardless of whether the seller knew or not because the seller would have the means to verify that the person was not prohibited.

Then there was one related to removing the noise suppressor (silencer) from the NFA restrictions but I forgot what the trade was.

Anything else come to mind?

 

Correct, that is the law. When the threat has ceased, you cannot continue to defend yourself.
However, when defending ones self, they should continue to fire until the threat has stopped.
The goal is to stop the threat at any cost including killing the attacker.