Good riddance. It only took 16 years longer than it should have. A secret government list that the public can't audit, has no means of due process, and prevents you from going about your life has no business in a free society.
It doesn't mean the list is going away, it just means people proven to be US citizens will be expunged (rightfully so). Anyone NOT proven to be US citizens (and located outside the US), and thus not protected by US Constitutional rights will likely remain on the list.
I've commented on this before. It's a myth that the US constitution only protects citizens.
The constitution explicitly delineates between rules that apply to "people" and rules that apply to "citizens." Some rights apply to one group and some both.
'A federal judge ruled on Wednesday that a federal government database that compiles people deemed to be “known or suspected terrorists” violates the rights of American citizens who are on the watchlist'
Non-citizens are not excluded from the U.S. Constitution or the Bill of Rights; for example, protections around criminal prosecution (the Fifth Amendment) apply to anyone in the U.S., whatever their citizenship. Non-citizen residents also get representation in Congress.
Because they live in the US, and therefore by law should have representation. (Note that they still can't vote, so the influence is limited.)
Permanent residency is very much a thing allowed by law. Dismissing them as foreigners is a bit harsh, when some of them have been in the US longer (and legally) than anywhere else in their lives.
Sometimes it's not possible. For example an India does not allow dual citizenship, to become US citizen they would have to give up their citizenship.
If your extended family and friend live in India, that might not be an option.
Furthermore, for Greek citizens it is absolutely impossible to get rid of their citizenship. They can burn their passports, commit crime, but they will forever stay a Greek citizen.
As if most Indian citizens living in the US even have an option of getting US citizenship.
There is a 150 year waiting list for someone from India who is here on a work visa to even get a green card much less citizenship.
The fastest route to citizenship for someone from India working here is:
1. Get pregnant
2. Wait nine months for your child to be born in the US
3. Wait 21 more years until they are old enough to sponsor someone for a green card (and don't forget to make sure that their income is high enough to support both themselves and you single-handedly)
4. Wait another year to actually get the green card
5. Wait five more years to qualify for citizenship
Many would happily become citizens but can't because they're not here legally. That's the WHOLE thing the Dreamers group is, they've been here living for most of their lives but were brought here as children but they they can't become a citizen without leaving and waiting 10 or so years to start over from square one.
> It doesn't mean the list is going away, it just means people proven to be US citizens will be expunged (rightfully so). Anyone NOT proven to be US citizens (and located outside the US), and thus not protected by US Constitutional rights will likely remain on the list.
You are just making up fake remedies based on fake law: the Constitution does not protect only US citizens, nor has the court decided on a remedy, either the completely ludicrous nonenyou suggest or any other.
That may be the case. But they can no longer use it to deny you from traveling. It would become fairly obvious there is a list when you go to board and find out you can't by all the airlines.
No, but the airlines can just not sell you the ticket.
This just pushes the watchlist into the private sector. Airlines who fly persons A, or B, or C will be subject to additional insurance premium X. So guess what will happen? Just as bars, and restaurants have a list of people they don't let in anymore, the same will manifest itself with airlines. As soon as you present your ID, you'll be turned away by the airline's computer.
This is kind of the issue, the Constitution only really protects you from the government.
> the Constitution only really protects you from the government.
And that is why it's important to have those checks and balances, make sure they are followed, and enforced by the law. If the government wants to place you on a no-fly list then they should have a good reason why with evidence to back that reasoning.
I'm pretty sure the TSA uses a similar approach. I know a woman who shares the same name as someone on the watch list, but no other similarities, and she routinely gets detained and harassed when flying. She basically has to plan an extra day every time she has a flight, since she has no idea how long it will take before they let her into security.
My name got a hit on a watch list when I flew into Australia one time, several years ago.
I was taken into a side room by 2 plain-clothes policemen, who politely asked my several questions about why I came to Australia. At the end of it all, they apologised and explained that my name matched one on a watch list, but my age, hair colour, build etc didn't match - "but it's procedure". They also said it would happen every time I went to Australia (I never did go back tho).
It seemed incredible to me that they would use only a matching name as their reason to be suspicious of someone!
As I said though, they were very polite about it, and I never felt like I was under any kind of threat or danger, and they didn't invade my privacy (they didn't look at my devices, and didn't even search my bags). A stark contrast to my experiences at US border control, I must say...
I’ve seen checkboxes on air travel and bank documents specifically for this reason. Check here if you have a name similar to someone well known/infamous. If your name’s Osmama Bin Laden or Charles Manson check here to avoid extra screening.
One would think that an infamous person would check that box too. The idea seems kind of absurd, either your system knows the difference between Bin Laden and for example a 5 year old kid with the same name or it doesnt.
I've heard from some people who had this problem. It's not so much "avoid extra screening" as "ensure extra screening and do it up front".
If you sign up with name, birthdate, and address, maybe the system comes up with an 85% likelihood that you're that Manson. But if you check the box, you can add in data like place of birth and SSN which prove you aren't the infamous murderer, so the system (or more realistically, a human with override powers) can clear you. That's way better than being silently blacklisted, or having each interaction delayed until it can be separately verified.
Presumably, Manson wouldn't want to check that box because he'd be likely to get arrested, and if he did then the subsequent data would all just confirm there's a problem. It's not a great system, but it's a decent improvement on just making a decision without the extra caution.
I had that thought as well, but I would think that it would just prompt a quick second look by the TSA (or whoever).
They Check the box, then the screen agent takes a closer look, "Hmm, this nine year old indian girl named Charles Manson is probably not the 70+ year old dead man that we were worried about"
Perhaps if you check the box the system doesn’t allocate the biggest clown in the circus to your check and you get someone who can reason like, it says Osama but the terrorist Osama is dead. So it must be someone else.
I’d imagine the system would even show the wanted person next to the person in front of you. But then again the TSA is probably using an abstraction over an Access DB built by the lowest bidder in the early 2000s.
Regardless of the attached feelings, the motivation is the standard authoritarian delusion - a belief that more control will straightforwardly translate to better outcomes, or more commonly prevent bad outcomes.
We see it across our society - it's not just the politicians, but the whole mass media cum social media narratives of the government needing to "do something" in response to something bad having happened.
In reality society is not a monolithic top-down entity, but rather full of individual actors that each have their own motivations and respond to incentives in their own way. The idea that lawmakers can simply declare something to be a certain way and it will effectively happen that way is a naive fallacy. And unfortunately bad ideas do not fail fast in the modern age due to a surplus of resources that allow them to keep going indefinitely.
Nobody views themselves as a bad person. If you want to understand actual motives, it is important to remember this. Your assertion is surely applicable to some sadist cops, but not to the average voter that gets riled up by the political/media establishment.
You seem to base this on lack of due process, however I've only heard of red flag laws that specifically require due process before a judge. Are there others? If so, it would be useful to distinguish them. Otherwise, the statement is generalization.
It’s not clear to me that you can take away someone’s second amendment rights even with due process, just as you couldn’t take away someone's first amendment rights with due process. (You couldn’t, for example, create a “red flag” law that imposed prior restraints on the political speech of specific people, even if it required a signed order from a judge.)
Due process is the baseline required to deprive someone of “life, liberty, or property.” If you could take guns away with merely due process, then you wouldn’t need the second amendment, because guns are also property. That right merited it’s own amendment, with additional protections.
Restraining orders which have roughly the same level of of due process can limit your freedom of assembly and association granted by the first amendment.
Of course the Second Amendment is not unlimited, just like the First. My point simply is that due process, by itself, is not enough to take away the right. You need to be able to point to an inherent limitation of the concept of “the right to keep and bear arms.” As Judge Barrett points out, while the concept of the right to bear arms was not unlimited, it doesn’t necessarily exclude felons (and, as her sources show, “dangerous people” either). The New Hampshire proposed amendment, for example, would have excluded only people who had engaged in rebellion.
Sure, but the response above was arguing that due process could NOT be used to limit access to guns. That the 2nd was absolute, or nearly so. Which is poppycock. We already limit access to machine guns. We already have age limits on access (typically 18 for long guns and 21 for handguns). And, as you mentioned, felons are prohibited.
This line of reasoning concludes that the existence of a federal or state law implies its constitutionality.
Given that the system requires a law to be passed before a challenge in court, this reasoning is inherently fallacious, since if it were true, no law could be ruled unconstitutional.
Things like the NFA and other laws that come expressly into conflict with an unlimited interpretation of the second amendment have been challenged in court on constitutional grounds and those challenges have failed.
As far as the US system is concerned that means some forms of limits on the second amendment /are/ constitutional and the 2nd amendment is thus definitively not unlimited unless and until the court issues a ruling that contradicts the previous rulings.
and, in addition, red flag laws are not lacking due process... a judge rules on them after presenting arguments from a close party to the person. i don't believe there are any red flag laws that allow just anyone to bring proceedings but i could be wrong.
A closed hearing from only a single party is not due process.
Then, the subject of the order must fight (at great expense) to regain their rights, which is a de facto presumption of guilt.
No hearing. No charges. No grand jury. No due process.
Due process might be a 30-day order to confiscate guns. If they can't get a grand jury indictment or involuntary commitment to a mental institution in those 30 days, the gun owner gets their guns back automatically and can't be subject to another red flag for 10 years.
And many people take issue with this on the principal that if you're safe enough to not be in prison you're safe enough to vote, have guns and enjoy every other freedom.
due process of a judge does not provide the benefits one would expect. far too often most are merely rubber stamps and even if they do grant authority beyond what they are permitted by law the circuit courts have upheld warrants and such in good faith
Due process seems to only affect a specific circumstance. For example if you want to drive around but you are stopped at a checkpoint that is supposed to find inebriated drivers, a court will rule on whether that was an undue restraint of your constitutional rights and if the court goes against you it will not waive the rights of free movement or association entirely.
One of these things is very much not like the others. Red flag laws have been associated with huge reductions in gun-related suicides. The confiscation orders are also only temporary. You are being disingenuous lumping them in with terror watch lists and no fly lists that provide no due process or way to get off them, all in exchange for little to no benefit.
This is not a personal swipe. Conflating terror watch lists, no fly lists, and red flag laws is so prima facie absurd, there’s no other way to put it. I have described the behavior, not attacked the person.
Calling someone disingenuous is a fancy way of calling them a liar, which is obviously attacking the person. It breaks another guideline, too, in the most literal way possible: "Assume good faith". You have no way of knowing that exabrial's view isn't sincerely held. Since most people's are, that ought to be the null hypothesis.
Disingenuousness isn't a behavior—something somebody says or does—but a state that one has to infer. I think what may have happened is that you made that inference, or it made itself, so rapidly as to not to notice that you were making it [1]. I say that because you used this very interesting phrase:
> so prima facie absurd
On a non-siloed [2] site like HN, one commonly runs into views that are more divergent from one's own than is usual in real life or on the siloed internet. Once the distance between some other view and our own exceeds a certain limit, this other view strikes us as more than just wrong. It seems absurd, impossible that anyone could hold it sincerely. This is not a pleasant experience; it feels a bit like being assaulted, and there is an immediate impulse to push back with a force that goes beyond just counterargument. This is natural and we've all felt it, but it's the moment that the HN guidelines are asking all of us to interrupt. For thoughtful conversation, people need to hold steady until that initial reflex passes and there's a chance for a slower, more reflective response [3] to kick in. This is a skill that can be learned, and one can think of HN as an experiment in having a large group of strangers work on learning it together.
Most views that seem absurd to us are not absurd in any universal way, but are legitimately held by people who we just normally don't talk about these things with because they're not in our strongly-connected component [4]. HN is an experiment to see whether we can have thoughtful conversation between components. It's easy to do that within one's component, but hard outside it. The question is whether we can do it enough for a richer overall graph to develop, or whether turbulence will shatter what few edges we do have and cause the whole thing to break down and become disjoint.
1. I don't mean to pick on you personally; this applies to all of us.
I personally would have phrased the start of that sentence: "It is disingenuous to lump them in with..."
You're saying the same thing, but with language that focuses on the argument rather than the person. Not only is the former what you really intended to criticize anyway, but it tends to make people respond better, because they don't feel personally attacked. That elevates discussion and is good for everyone.
Being descriptive about behavior is not a personal attack even if it puts someone in a negative light. “You’re a mass murder” can be a purely descriptive statement even if it says bad things about the individual.
"Being descriptive about behavior" can certainly be a personal attack. It just depends. Most of us wouldn't like the worst behavior we ever did to be repeated in every context that we were mentioned.
More importantly, disingenuousness is not a behavior. It isn't something a person says or does. You have to infer it from something they say or do. Internet users are far far too quick to make this leap, and it breaks the site guidelines to do that on HN.
In other words you agreed with what I said, thanks.
Anyway, that’s a completely different argument. You assume the reason someone used such language was because they simply disagreed.
I am not saying it’s an accurate assessment, but an argument it’s self is evidence. Calling this absurd based only on the argument is fine if you have enough evidence as with say a modest proposal: http://www.readwritethink.org/files/resources/30827_modestpr...
Now, if you disagree with that assessment fine, but don’t assume the assessment is always disingenuous. Someone may honestly believe the original statement is so far from a rational argument that it can’t be serious. They could simply be leavening their https://en.m.wikipedia.org/wiki/Overton_window.
Granted they might have simply been using abusive language because they have poor debating skills. Either way it’s a sign to stop a debate and go onto something more productive.
> In other words you agreed with what I said, thanks.
Let me be clear. This is not a situation where you would bring up dishonesty if you had proof, and there is no proof.
I agree with what you're saying about Bernie Madoff's autobiography itself, but strongly state that it is not analogous to this situation.
So if your 'what about' was a total tangent, I agree with your post. If you were trying to use it for an argument by analogy, I do not agree with that argument.
> You assume the reason someone used such language was because they simply disagreed.
More that they lack empathy! The comparison accused of being 'disingenuous' is not an inherently ridiculous one. All it takes is strongly valuing the second amendment to make that comparison. It's not in the same ballpark as a modest proposal. Anyone who honestly believes that the statement is far from a rational argument is not even trying to understand.
this here is why I don't consider HN a very good place for actual discourse. What you get is a lot of overly polite people afraid of getting on the bad side of dang.
If you don't drop it he'll start to harass you, to goad you into stepping over a line that he can then use as an excuse to up the ante, as it were.
It's best to just move on and realize you can't actually speak like a normal human being on these boards.
I’ve been uncivil on HN from time to time and have never felt harassed by dang. If you’re being followed around, I suspect it’s because of a repeated and consistent pattern of unproductive soap boxing.
I watched it happen to someone else, and it started because we were having a back and forth discussion and dang stepped in to berate the other person. I ended up defending the other person as I didn't consider anything they said to be problematic.
OTOH, I value actual discourse over politeness. But dang decided that person didn't need to be on HN.
But thank you for the assumptions, I appreciate them.
Since you appreciate my assumptions, then I assume what I said applied to who you were interacting with.
It’s very hard on an online forum to know if two people engaging in a debate have a shared intention in their communication. I trust dang to have a holistic view of good and bad behavior on HN.
> Red flag laws have been associated with huge reductions in gun-related suicides.
I upvoted your comment, because you implicitly raise a very popular, and I believe very dangerous point: That results justify taking away rights. Dangerous, because the 2nd amendment is not the only one that can be sacrificed for safety.
The 2nd amendment has become an absurd right because due to technological advancement it must necessarily be severely limited for the good of society - you can't carry an RPG or a machine gun or most kinds of arms that have been invented subsequently to it's introduction. Retaining a right but in a defunct state is itself dangerous as it makes it possible to contemplate broad limitations to other rights.
Could this line of reasoning be applied to other amendments of the US constitution? For example, could one claim that the right to free speech is only limited to forms of communication that existed at the time the amendment was ratified, which would exclude video or online communication? What about the fourth amendment and what it covers? Should we exclude forms of stored information that weren't available in the 18th century?
I think the poster wasn't making a principled argument that rights granted by the constitution only apply to 18th century technology, but that, at some point, pragmatism must be considered. I know I railed against pragmatism in my post, but that was aimed at over-reliance on it - it doesn't mean it should be (or even could be!) ignored.
While there's a gray area where there can be disagreement as to whether it is sufficient justification, after a certain point, pragmatism must prevail. Using the 2nd amendment as example, lets say we allow guns and rifles. And grenades? RPGs? Tanks? Chemical weapons (nerve gas, not pepper spray)? Biological weapons (smallpox, not guard dogs)? The only thing that can stop a bad guy with a bioengineered plague, is a good guy with a bioengineered plague?
> pragmatism must be considered. I know I railed against pragmatism in my post, but that was aimed at over-reliance on it - it doesn't mean it should be (or even could be!) ignored.
It should always be ignored. If the states want to ban people from having tanks and jet fighters, they can adopt a new amendment. There's already a process to account for these types of things.
It's not that difficult. Conventional arms serve the political autonomy and self-defense of the individual. Weapons of mass destruction and untargetable contagions do not.
That sounds more like a post-hoc justification, and I'm sure you could find similar ones for other rights - I gave just one out of many possible examples. Private property is great, until you're faced with a monopoly or environmental damage, free speech is wonderful, until you run into libel and threats, being "secure in their persons, houses, papers, and effects" likewise only applies as long as is "reasonable".
"For example, could one claim that the right to free speech is only limited to forms of communication that existed at the time the amendment was ratified, which would exclude video or online communication?"
Yes. Maybe not simply video but what about a deep-fake video designed to deceive people that is indistinguishable from a genuine video? At some point unique cases arise that require careful judgement. This is what the judicial system is for, to provide "judgement" on things which were not anticipated by the law.
Sometimes those unique cases were only once unique but become ubiquitous due to changes in technology, geography, climate, or society.
right to privacy is an example. There's talk about this all over the place but it was only evident that people had an expectation and desire to exercise this right after it started getting abused by technology and technology companies.
The bill of rights contains what it does because the founders had just had experience with many of those rights being curtailed.
Private militarized ships were a thing when the Bill of Rights was written, so private citizens did have the technological capability to level entire villages or sink commerce ships full of unarmed citizens if they felt; hell with a letter of Marque there were endorsed by the government to do so. Beside the original intention of the amendment was a failsafe against government tyranny, which makes it necessary to keep up with their level of technology.
>>the original intention of the amendment was a fail-safe against government tyranny
Citation needed. There's a constant debate about what the "framers' intent" of any part of Bill of Rights actually were. You say it was to prevent government tyranny (presumably including a future tyrannical U.S. government). I say it was specifically to ensure access to a fighting force specifically to fight the British and foreign threats in order to establish a new government.
The framers were obviously varied in their opinions and intentions, but some of them were quite clear:
>"To disarm the people...[i]s the most effectual way to enslave them." - George Mason, father of the Bill of Rights
>"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." - Elbridge Gerry, contributor to the Bill of Rights
>"[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." - Alexander Hamilton
>"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe, delegate to the Continental Congress
Here's the thing: Both the Federalists and Anti-Federalists opposed a standing army and saw it as a tool of oppressors. If you want a second amendment, you need to also support defunding the military and a return to militias and mercenaries. But that's not usually the argument presented. Also there's been a federal standing army basically since the US was founded.
Now, let's go to Madison, the father of the Constitution and all that. He firmly opposed a professional (i.e. standing) army when he wrote the constitution. Tool of tyrants, yadda yadda. However, President Madison who exists 30 years in the future, comes out and says "I could never have believed so great a difference existed between regular troops and a militia force, if I not witnessed the scenes of this day." in response to 2 state militias getting demolished by the British Army.
IDK. They put the 2nd amendment in, and then immediately undermine the philosophical point of governance it's meant to make. Democracy is weird, government is hard, and coming up with 100% accurate statements about the unified sentiments of a group of dozens/hundreds of people from 250 years ago is impossible. I guess that's my point?
Why not? If the 2nd amendment is in place to prevent the need for a standing army by allowing for militias to exist and serve as the defense force therefor the maintenance of a standing army is unneeded. The other option is that you support a standing army which is a tool of oppression.
Either you support the 2nd amendment as a means of national defense or your support handing the tools of oppression to the government, per the founding fathers.
Where did you get the idea that the only purpose of a “well-regulated militia” is to completely replace a standing army? Just because some of the founders were against the idea of standing armies doesn’t mean that they saw it as an “either/or” proposition.
> The 2nd amendment has become an absurd right because due to technological advancement it must necessarily be severely limited for the good of society
No, it became absurd because it's underlying purpose was abandoned and the governments in the US at all levels adopted professional armed internal and external security services, and thebwholet point of having an RKBA to support the viability of well-regulated militias was so that those militias would be what states and the federal government would rely on exclusively, beyond very minimal cadres, for armed security services.
The whole absurd mythology around the RKBA being to provide the ability for citizens to provide a reserve capacity to fight the professional Government forces in the event the government becomes tyrannical is a product of trying to rationalize the amendment once it's underlying premise has been abandoned.
> you can't carry an RPG or a machine gun or most kinds of arms that have been invented subsequently to it's introduction.
I'm not convinced there is a fundamental reason why bearing most modern heavy weapons within reasonable time, place, and manner restrictions is incompatible with public safety; clearly “carry everything everywhere” maximalism isn't, but then that's never been understood by the courts to be the scope of the RKBA even when it concerns whatever weapons the court felt were within it's coverage.
Wouldn't this line of thinking then apply to any rights that have their scope significantly changed by later disruptive technology, including commercial flight?
e.g. Free movement across the US was fine while it was on foot, horseback, or even train, but once commercial flight allowed for coast-to-coast movement in a couple of hours one can't apply the same rights.
> you can't carry an RPG or a machine gun or most kinds of arms that have been invented subsequently to it's introduction
You actually can, subject to local regulations, and it is permitted in some States. An American can own a ballistic missile if they register it and store it safely. Even in the 1990s, buying a truckload of high explosives was cash and carry.
Most Americans are surprised to the extent this is true because, as a practical matter, it has never been evident in most of the country. Just because you legally can does not mean anyone exercises that right, outside of very rare outliers with money to burn.
The significant limitations on the second amendment are not the ones banning new technology. Laws preventing open carry or conceal carry, requiring permits, red flag laws... They all erode the ability of citizens to defend themselves.
You're missing parent's point. Parent is merely pointing out that the right exists in a state of limbo because some arbitrary line is being drawn in our national debates that determines the degree of technological advancement that the right permits.
I think the parent commenter is also living in a bit of a bubble and thinking that all of America lives in a monoculture. There are still points in this country that are patrolled by a single sheriff and a couple of deputies and can be more than 10 minutes out. This doesn't mean they need an arsenal at their disposal, but supposing that they they need NO guns for farm work, hunting or protection from animals or people is either disingenuous or unimaginative.
I totally disagree. The people have the right to own whatever they want. It's not about "the good of society" it's about ensuring the populace maintains the ability to check tyranny if tyranny arises. Of course this is gonna have trade-offs.
>Mixing binary components together constitutes manufacturing explosives. Persons manufacturing explosives for their own personal, non-business use only (e.g., personal target practice) are not required to have a Federal explosives license or permit.
i.e "the kind of explosives most non-experts in non-military settings are best served by are free to use for personal use (state law notwithstanding)"
Exactly - so they shouldn't be able to buy themselves more rights by hiring "registered/official" security. Sure it's technically available to everyone, but they can choose their clients, they have to jump through regulatory hoops (and, realistically, political connections), and are unaffordable to most. The end result is a widened power gap.
I see it's already been addressed, but private citizens owned warships, cannon, artillery pieces, and even semi-automatic rifles at the time the second amendment was written.
It's only part of the premise, not its entirety. A large part is a sense of justice, or ideology, that tempers the pragmatism, and acts as an instictual signal that a law might be harmful in the long term.
Compare it to the 'do no harm' in medicine: say a doctor kills a healthy patient, so that his organs can save five others. At first, many lives are saved, but when this becomes widespread, how long until no-one dares come near a hospital? Or how likely is a patient to admit to having suicidal thoughts, if it results in police going through their private home, confiscating guns, or even committing them for their own good?
Absolutist, 'ideological' positions such as do no harm, and doctor/lawyer-patient/client confidentiality, are important guards against unwanted second-order effects.
It depends on the law. Take the fourth amendment. It doesn’t prohibit searches and seizures. It only prohibits “unreasonable” searches and seizures. Or the fifth amendment. It doesn’t prohibit depriving someone of life, liberty, or property, but permits it subject to due process.
Other provisions are less loosey-goosey. The first and second amendments are categorical prohibitions. You can’t establish a national religion even if you think the results will be tremendously beneficial. The taxation clause is similarly clear. We needed an amendment to create the income tax, even though it was necessary to a modern state.
Correct, with everything from speed limits, to smoke free areas, to dumping out toxic chemicals on your own land.
I'll never understand how a significant amount of the population can entertain the idea that "gun rights" are central to liberty, or that unlimited liberty above long term survival of the species is somehow desirable.
Because th long term survival of our species does not depend on gun control. Mass shootings kill few people relative to just about anything. All deaths by rifles and shotguns are still fewer than those by blunt object. We could allow hand grenades and rpgs and still survive as a species. We are harder to kill than roaches. All that said, I am in favor of limiting the number of gums per month that can be purchased to slow mule purhases. And expanding unrecorded background checks universally to the point I can/must do one on my phone if I want to do a private sale.
> Red flag laws have been associated with huge reductions in gun-related suicides.
The constitutionality of a law does not hinge on it's effectiveness.
I haven't formed an opinion as to whether red flag laws are constitutional or whether they are or are not similar to watch lists, but that's a terrible reason to suggest they are dissimilar.
In order for the government to restrict a right under the Constitution they must have a compelling government interest, and they must write the law in a way that is narrowily tailored in a way that accomplishes the government goal in the least restrictive way over that person Constitutional right.
That's very different from saying "to restrict a right it must be effective". Many effective laws have been struck down as not narrowly tailored. And very often narrow tailoring will hamper the effectiveness.
> That's very different from saying "to restrict a right it must be effective".
No, it says exactly that.
It is very different than saying “If a law restricting a right is effective, it is Constitutional”, which is not the same as “to restrict a right, it must be effective” (one states a sufficient condition, the other a necessary one.) Nevertheless,being effective is a relevant differentiator between one proposed restriction and another that explains why they might be seen differently Constitutionally, as while a law which is effective at serving some government interest may be unconstitutional, one which is not is almost by definition is not narrowly tailored to serve a compelling government interest.
If I read it right, red flag laws go through a judge who signs off on individual cases. This is different from the others where the judicial branch is out of the loop.
Sure, there's a solid argument that red flag laws have a 1) a lot more due process than no fly lists and 2) enough due process to make them constitutional. As I said, I don't know the details of the different red flag laws, and haven't formed an opinion on that.
But the comment I was replying to made a very different and I think highly indefensible argument: That the difference between red flag laws and no fly lists was the former was more effective.
It's pretty clearly the case that a process where the individual is not involved up front but retains the ability to challenge an unfavorable outcome can, for some things, be the process that is Constitutionally due. It's less clear exactly what the boundaries are for that, because the Constitution doesn't really explicit provide rules for determining what process is due for any particular action, leaving it in practice for courts to evolve standards.
They did respond to the claim of "requires due process to remove" red flag laws are temporary so in order to remove them all that is needed is the passage of time.
There hasn't been a test of the constitutionality of red flag laws with regards to red flag laws. However there is clearly a "compelling government interest" and it could be argued that it is the least restrictive in order achieve this goal.
"Just wait to get your rights back" is not a great plan. Habeas corpus could be the nearest precedent - you can't lock some one up for a year and claim he just needs to wait. More importantly, once you're in the justice system, it's all but impossible to get out. The accused will inevitable be forced to somehow prove he's not a homicial maniac, because the premise of "flagging" is guilty until proven innocent. That's supposed to be what judges are for, but still, it's not perfect.
In this case the removal is referring to the removal of the right. So, red flag laws do not require time to remove your right to own guns while they do require time to restore your right.
In the US, these absolutely don’t need due process to remove. You are only protected against deprivation of life, liberty, or property (without compensation) by the Fifth Amendment. Your right to enter the US or fly on a plane is not protected by due process.
> Justice Stevens, writing for the majority, found that although the "right to travel" was not explicitly mentioned in the Constitution, the concept was "firmly embedded in our jurisprudence."
America is based on the idea that rather than having an enumerated list, you enumerate the most fundamental and simply say the feds have no right to trample on any thing not explicitly given them in the constitution.
All of these cases sounds like "administrative proceedings", which according to Cornell LII, have a (somewhat controversial) history of limitation due to the 5th?
The whole point of constitutional rights is they can't be abridged without due process (and a good reason), even if it is especially convenient. I bet you appreciated this when Pres. Trump tried to pull all those shenanigans around birthright citizenship, and every one reminded him he'd actually need an amendment, and couldn't just "do" it.
If you want one thing protected because it's a constitutional right, you sort of have to support all of them. You can't really pick and chiose with respect to their sanctity. I've found it to be a good position because it annoys both the left and the right on a regular basis. In reigns in both sides a little, and I think that's a good thing.
Everything seems reasonable to some people when it is applied to someone they don't agree with. Instead think about how a government can and will abuse a law. Taxes in the US were supposed to be temporary to pay for a war. Imagine using red flag laws and no fly lists to totally decimate the opposing political party, doesn't sound so good to give the government these powers. More people are killed with hammers and clubs each year in the US than with guns it just doesn't make the news like high profile gun violence.
> More people are killed with hammers and clubs each year in the US than with guns
This is blatantly false.
You appear to be repeating a sound bite from far-right web sites that claims that "more people are killed each year by hammers and fists than by AR-15s".
The above statement excludes about 97% of the people killed by guns. Guns kill vastly more people than fists or clubs in the US - the numbers are on the order of > 10,000 killed by guns, < 800 killed by fists and clubs.
A suicide is certainly different from a homicide, but counting them in this context still makes sense, seeing how suicide incidence correlates with access to effective means [1][2].
Are you sure? "People named Robert" is about 1% of the relevant population (15-25 year old men) since ~0.5% of people born in that birth range were named Robert, and while AR-15 pattern rifles are extremely common I'm not sure what proportion of them are actually called that.
From this data [0] there were 248 people killed by rifles - all rifles, of any kind - and 660 killed by "personal weapons", a category that includes "hands, fists, feet, etc." in the US in 2014. Assuming people named "Robert" kill people at the same rate as other male names, that would be 6.6 murders - so let's round down and call it 6 to account for the occasional "not hands" killing. That would mean that for AR-15 murders to match "Robert's hands" murders you'd need ~3% of rifle murders to be with that gun.
So it seems plausible to me that the two are closely comparable.
It is considered the same as homicide for the purpose of counting gun deaths. The reason for counting them the same is that both are deaths by gun. Likewise, hammer homicides and accidents are counted the same too in that stat.
And I would contend that very important nuance is all too often lost, it people tend to use it in reference to gun homicide, and often make comparison against other forms of homicide. Doesn't make sense to compare gun homicide + gun suicide to, say, hammer homicide.
Can you find a single case of hammer suicide? It’s a very poor choice.
Anyway, the real issue is you seem to be trolling rather than bringing anything meaningful to the discussion. What’s your actual point within the context of watch lists?
> due process is only required for deprivation of life, liberty, or property
This is incorrect.
The Fifth Amendment expands that coverage[1] to which the Fourteenth adds the equal protection clause [2].
As a result, the “Supreme Court of the United States interprets the clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights“ [3].
I see nothing wrong with denying anyone guns for a limited period of time because their state of mind is in question. I don't see who is losing out when this happens.
Personally I don't see anything wrong with denying people guns. <- that's a full stop ;-) However in the US it is your constitutional right to bear arms. This has been widely (virtually universally in the US) regarded to mean that it is your right to not be denied a gun (without due process). Questioning someone's state of mind is not due process. It really doesn't matter if we are talking about guns or we are talking about hamsters: if you have a right enshrined by your constitution it's pretty darn important that you don't have that right stripped away simply because someone levels an accusation at you.
It would be pretty weird to have a right to bear hamsters...
> However in the US it is your constitutional right to bear arms.
Only established by the supreme court in 2008.
Abortion is a "constitutional right" likewise. And the american right see no issues with extreme restrictions.
There is no amendment saying either people have an individual right to possess a firearm, nor an individual right to have an abortion. These are inferences.
What the second amendment says is that because the US needs defence (given no contemporary standing army), the right to bear arms is necessary in general.
An individual right in the time of standing armies is not written anywhere in the constitution and was derived, by interpretation, only in 2008.
My point is that what counts as a "constitutional right" is a matter of history, precedent and agreement -- they are conventional not just written in some stone tablet. And it is quite reasonable to contest these conventions.
It was established when the Bill of Rights was ratified. The Supreme Court never held that there was no individual right to bear arms.
>There is no amendment saying either people have an individual right to possess a firearm, nor an individual right to have an abortion. These are inferences.
I'd argue it is the only reasonable interpretation. Interpreting "people" as some sort of collective right is absurd in view of the other uses of "right of the people" in the Bill of Rights, such as the first amendment. Nobody would argue the "right of the people . . . to petition the Government for a redress of grievances" is limited to some collective right. Or the 4th amendment, certainly, you wouldn't say that is a collective right. And the 10th literally distinguishes between the states and the people.
Though I don't agree with it, there is a decent argument that it's an individual right defined in scope in relation to a well-regulated militia. United States v. Miller, the only case before Heller that really discussed the second amendment, seems to take this view. Short barrel Shotgun bans were okay because it wasn't related to a well-regulated milia. But that doesn't imply you have no right to bear arms that are relevant to a milia like handguns and battle rifles.
In other words people did not have individual right to bear arms as the states could take it away. Which is perfectly reasonable in this context as a state could decide to limit some weapons to it’s specific state militia, or have some other laws that provided for mutual defense while limiting weapon ownership.
Early precedent was that only the federal govt was limited for all of the bill of rights. For example in 1876 United States v. Cruikshank found that the 1st and 2nd amendments only applied to the federal govt.
The issue I am bringing up is Incorporation is not a neutral stance. The 2nd amendment was in effect keeping the states armed not individuals. It’s a reinterpretation to say that it applies to people rather than as a limitation on just the federal government.
Incorporation doesn’t say anything either way. The fact that the first amendment didn’t apply to the states until it was incorporated via the 14th says nothing about whether it was initially viewed as a collective right or a personal right. Same for any other right in the bill of rights.
Most evidence points to the fact that the second amendment was viewed from inception as an individual right. Especially if you look at the state proposals for the second amendment, which allow exceptions for things like individual circumstances (e.g. people who had participated in a rebellion).
McDonald said nothing new, or what wasn’t already obvious.
Considering how concise the constitution’s language is, the second amendment’s wording is clearly representing something.
What that is and why it’s there is debatable. But, plenty of evidence exists that many states did not want this to be unlimited, the language was not direct, and the implementation gave states the option to limit things. That is plenty of room for debate, and in fact this topic has seen plenty of them over time.
This argument is just as applicable to the first amendment. Which is to say that with what we know now about the protection of civil liberties, the idea of the Bill of Rights not being individual rights is as ridiculous as the idea that only men have the right to vote.
Suggesting all of the Bill or Rights just applies to people is incorrect.
The tenth amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Is not about individual freedom, it’s about what freedom the states have and the limitation on the federal government.
What it actually says is that a militia is necessary to protect a free state. Then and now, “militia” generally refers to those non-professional soldiers that may be called upon in times of great need. This would seem to at least cover everyone subject to the Selective Service Act, which is a large percentage of the male population.
There’s also an argument that the 2nd amendment envisages a potential need for the populace to defend themselves from the government, as was considered necessary only a few years prior to its enactment.
You should really read Scalia's decision in Heller. Scalia's decision in Heller did not establish the 2nd as an individual right, it carefully explained why it always meant that.
Your belief about what the second amendment means and what it was meant to mean when written is incorrect and thoroughly debunked in that decision.
> Scalia's decision in Heller did not establish the 2nd as an individual right, it carefully explained why it always meant that.
That's what every decision that established a particular interpretation of the Constitution as the official one does, so the “did not establish” part is not only unnecessary, but incorrect.
The fourteenth amendment has been interpreted to mean all sorts of things that weren't actually in it. That's establishing new rights based on inferences about what maybe was supposed to be but didn't quite make it into the document.
The 2nd is a very clear piece of writing. There's no ambiguity about it, and Scalia carefully deconstructs all of the BS that other people have written and tried to make it out to be, in explaining how it has always meant exactly what it said.
I think the debate on abortion is/was on when a life begins.
And not, whether a doctor has a right to perform medical procedure, killing a child at request of a mother.
To make the comparasing work for the debate on 2nd amendment,
I would the suggest, a comparable question should be:
Can a person end somebody else's life in an act of self-defense, within the framework of existing legal system?
If the answer is 'No', the rest of the debate on 2nd amendment would have to rest on decision for its next argument:
This is a completely separate argument made for 2nd amendment: is that it is a deterrent against an unconstitutional tyranny of government. But that discussion, does not have an analog in the abortion argument, at least in my view.
Were individual gun ownership restrictions or even considerations of restrictions ever done in any manner in colonial America? Not that I've ever heard. Which makes me believe the 2nd amendment was not about individual gun ownership as you say.
Yes, colonial British subjects had restrictions on ownership of weapons. They had soldiers quartered in their homes. They had taxes without representation. They had their right of free assembly restricted. They had their religious freedoms restricted.
The founding fathers wrote the bill of rights specifically to cover these things that British rule had done to the people who left Britain.
Some colonial Americans had armed ships. "No standing army" is hard to overemphasize; the defenders of the country were merely good citizens rather than a small class of professional full-time soldiers.
Free speech was explicitly mentioned as being protected, yet it has been curtailed in many ways. Constitutional protection is inherently limited, with a constantly shifting definition of what it entails.
Consider rifling was invented and society made a choice was that allowed? Yes. Various types of ammunition for example have failed this test. Explosives similarly evolved over time and have been curtailed even if people can significant amounts of black powder.
fair enough, I still think it is good to deny a person a gun, especially when theres red flags going off, but I agree that there should be an appeals process. I guess the reason there isn't (if there isn't, what do I know) is because authorities do not want suspicious people to find out why they are suspicious... but that should mean either nobody gets the right to own a gun, or everyone, ... unless authorities do disclose why some person should be denied a gun...
We already have a fairly robust* process for deciding that someone's fundamental day-to-day freedom should be taken away -- i.e., for deciding to put them in prison. Is there any inherent reason we couldn't have a similar process for gun ownership?
How is taking away guns different from sending someone to prison or executing them? The legal system and due process is already what protects people from the government.
Temporary detainment for example is perfectly legal for a wide range of things, as long as an appeals process exists it’s not seen as a major issue.
All too often, officially labeling people one doesn't like as "crazy", "unbalanced", etc. has been used to marginalize/destroy them. I don't want crazy people to have guns, either, but I worry about the path we go down here because it's very, very difficult to objectively find the line between crazy and sane.
(Historical examples of such abuse include people having the wrong religion, the wrong sexual orientation, and the wrong political beliefs.)
I realize that's a common position, but it strikes me as strange. It seems to assume that crazy people are the ones committing violent crimes. If that was actually the case though we would have huge numbers of mass murders and killings resolved with the defendant being declared not guilty by reason of insanity. That's not the case though, a finding of not guilty by reason of insanity is an extremely rare situation, almost unheard of in the court system.
The reality is that overwhelmingly it is not the crazy but the sane who commit the violence and the mass murders.
It makes more sense, based on not guilty by insanity statistics, to allow crazy people to have guns, and disallow the sane from having them.
It's a mistake to assume that the legal definition of insanity used to determine whether a defendant can stand trial is the only one relevant to conversation.
Someone who commits mass murder can be legally sane if they are cognizant of the concept of right and wrong, are not severely mentally handicapped, are capable of understanding and responding to questions, etc. Yet I doubt anyone would consider a person capable of shooting up a synagogue to be sane. I don't think it would be "strange" to consider that someone with suicidal thoughts or someone in the heat of passion should be trusted with a firearm simply because they can also sign their own name.
Well the discussion was about "crazy" people, people who are not just colloquially crazy (ie Bob is crazy if he thinks we can get this fix done by the weekend) but clinically insane.
> someone with suicidal thoughts
I don't think someone with suicidal thoughts is crazy. In fact I've never heard of anyone that doesn't have suicidal thoughts at some point in their life. That's a normal part of human existence. Different from an attempted suicide though. And someone attempting suicide is also not insane simply because of that.
> or someone in the heat of passion
That doesn't sound like insanity to me either. I don't even know how something like that could be evaluated. How would a gun seller know someone is in the "heat of passion"? The phrasing suggests a temporary emotional state of some kind. Perhaps the idea is if they are ranting and screaming at the gun seller and claiming they are going to use the gun to commit a mass shooting. And in that case gun sellers don't sell guns. Someone who in this heat of passion who intends to commit violence presumably is going to act normal while buying the gun. Not insanity, not something that can be determined at point of sale.
> I doubt anyone would consider a person capable of shooting up a synagogue to be sane
Antisemitism is pretty common among those known to be sane. No physician would diagnose madness simply based on antisemitic beliefs. There have been groups in history that mass murdered Jews, and other groups, who were the predominant people and majority of their society. They were not insane in the general case so it's not correct that someone capable of committing atrocities, including genocide, is not sane.
Is a previous diagnoses of madness by a qualified medical professional using accepted standards of practice a common or even not-infrequent attribute of mass shooters and murders? Not that I can see. So we're back to someone not known to be insane - a sane person - doing this crime and the label only being applied after the fact.
Again, I propose that the insane are more responsible gun owners than the sane because so few murder convictions involve those actually determined at any point to be insane by anyone qualified to make such a determination. It's easy to say killers are crazy. How does that help prevent crime? It is counterproductive in fact because it suggests that restricting civil and constitutional rights of people with diagnosed mental illnesses (about 1/5 the US population is on psychiatric drugs which require a diagnosis to be prescribed) is a solution when this group is not in fact the group that is committing these crimes and therefore there is no reasonable premise for restricting said rights.
Do you see a problem with denying someone the ability to vote in an election, or to petition the government, or to have an abortion, or to be free of unreasonable searches, for a limited period of time because their state of mind is in question?
All of those examples are clearly terrible, right? If merely "questioning" someone's state of mind is enough to strip a fundamental right, then a bad actor could trivially strip that right from people when they need it most.
I suspect what you're getting at is that you disagree with gun ownership being treated as an important right like "not being thrown in prison for no reason" or "being able to criticise the government" or "voting", but given that it is a protected right in the US, it's nonsense to suggest that a right should not be protected, or that merely having a right temporarily removed is not a significant infringement.
We are having mass shootings at a minimum of one a month. Ordinary person-on-person gun violence happens daily. Ideally, neither of these would be regular occurrences, but they are.
Are we to just throw our hands up in the air and say "oh well"?
Would you still think that if you were among those shot, as you lay there bleeding to death?
Let me tell you this - I'm politically liberal, and I support 2nd Amendment rights. Reading the various arguments presented in this article's thread, I agree with many of the 2nd Amendment viewpoints addressed about the nuances and such of the right.
Even so, I feel that something needs to be done to get our current out-of-control situation under control.
The problem is, I'm not sure that circle can be squared, so to speak. The consensus seems to be that if you want an intact 2nd Amendment, then you have to be willing to be among the dead victims in a shooting.
I'm not sure that is what the Framers intended the 2nd Amendment to be about.
In fact - just thinking about the wording of the 2nd Amendment right now - isn't it more focused on the right of the people to keep and bear arms, for the protection of country (or State?), being part of the militia - against internal or external threats to it?
That is, again thinking about it, it doesn't seem to indicate that such people are free to carry or use their weapons at just any time they wanted to, but for when there was a perceived threat against the collective, not the individual? Of course, they would need to always have access to their weapon, so they should be able to carry it, in case that threat arrives when they are away from home or something...
This is more a exercise in reading the wording of that particular amendment - the nuances of the words, comma placement, etc. Maybe my above "re-interpretation" is not compatible; I know it certainly isn't the interpretation of the courts today.
It feels like I want to have my cake and eat it, too. I don't want to be the victim, or my loved ones to be victims, of potential future random gun violence.
At the same time, I want to keep the 2nd Amendment intact. For me that would mean the ability to hunt, the ability to shoot predators or varmints on my land, the ability to protect myself and my fellow citizens if needed, the ability to practice (ideally in a controlled range), and the ability to own the guns I want and keep them in a safe manner, with proper training.
Is it possible for both to be accomodated? I certainly hope it can - but maybe I'm just nursing along a fantasy...
You present an (at least arguably) compelling argument for changing our list of protected rights.
You do not present a compelling (or even coherent) argument for simply ignoring our list of protected rights.
> I feel that something needs to be done to get our current out-of-control situation under control.
There are a lot of things that can be done that are completely consistent with the 2nd Amendment. If we need more than that, we'll need an amendment. For good or ill, that's how the system works.
> Are we to just throw our hands up in the air and say "oh well"? [...] I want to keep the 2nd Amendment intact
I mean...if you want to do something that violates the 2nd amendment, but you want to keep it intact even more, then yes, you'll just have to give up on doing anything. If you don't want to do anything that violates the 2nd amendment, there's no point even discussing this.
I occasionally consider how this could be used with the other things in the bill of rights.
A couple people swear that person C has questionable state of mind and their free speech is taken - social accounts frozen, ability to address city council, publish things, use the mail.. do this 6 weeks before an election or council votes for example. Before an IPO?
I believe that almost half of those on fbk would get almost half of people kicked, and vice versa..
If search and seizure rights could be suspended groups could go door to door finding something to remove entire populations from the voting block.
just a couple of people saying they are concerned, what things could happen with the other rights?
How groups in power could use these things is an interesting consideration.
Their state of mind as determined how and by whom though?
This just makes it easier for whoever happens to be in power to deny rights to [disliked or marginalized group]
Also the connection between gun violence and mental health is extremely tenuous, and I would add that firearm homicides in the states are at a multi-decade low right now, though the media would have people believe otherwise
A high percentage of ex parte temporary protection/restraining orders are later found to be unwarranted when the restrained party has their chance to argue against the order.
Also, lazy family law attorneys often include requests for protection orders as a matter of course in divorce filings. These often have similar firearm restrictions as so-called red flag laws.
My country has a history of institutionalizing dissidents with a reference to their mental health. I am not based in the US but I would be heavily against restricting any rights on that basis.
"Files released by the F.B.I. in 2011 under the Freedom of Information Act showed that the F.B.I. was permitted to include people on the watchlist even if they had been acquitted of terrorism-related offenses or the charges are dropped."
This sounds like an open shut case of abuse by the executive branch. It's the judicial branch's job to determine guilt, to still effectively sentence someone who's been cleared in court must be a huge overreach of the executive branch.
Good. There is no excuse for treating citizens this way. None. Not 9/11. Not the Boston bombings. Not anything else. They are citizens. If the government thinks they were criminals it should indict and put them on trial. Otherwise leave them alone. And if another attack ten times worse than 9/11 happens? So be it. The government should figure out another way that's not unconstitutional and doesn't treat people like animals to conduct their operations. Better thousands die under freedom than thousands live under tyranny. After all, as others have said and we have seen especially since 9/11, those who are willing to give up freedom for security will have neither.
I don't understand. What's "Freedom" and how do I, as a US citizen, actually have it?
"Freedom" and "Liberty" are all great, noble words that make for great talking points and sound bites. They're also just sort of vague concepts and opinions more than absolute, specific things. You say this isn't what freedom looks like. If 51% of the population disagrees with you, who's right?
Fact of the matter is, you can't have both "freedom" and "democracy" (or really any government) in any real way. It's all trade offs.
Best bet isn't "freedom" or "liberty" since those are extremes that presumably exist solely in a binary (it's either free, or it's not, no shades of gray) and instead aim for "fair" and "consensus". At least those are possible.
These are the more abstract philosophical meanings of freedom and liberty:
> the state of being free within society from oppressive restrictions imposed by authority on one's way of life, behavior, or political views
> the absence of arbitrary restraints, taking into account the rights of all involved
> to be free is to be self-determining, autonomous
And the more concrete applicability is that of:
> "giving oneself their own laws", and with having rights and the civil liberties with which to exercise them without undue interference by the state
Fundamentally, it is the idea of rights. Things that you are allowed, and that no one can take away from you, even if democratically ruled against by the majority. Such as: the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life.
Democracy in that system isn't supposed to supersede liberty and freedom. What happens is that free people can come together, and if they agree, they can be governed by the rule of law, laws which must be clearly laid out, which can not take away fundamental rights, and which are enacted fairly and with due process. If the individual does not agree to this, they should be free to branch out and have different laws to be governed under. That last part is the idea of the states retaining power over themselves, with the possibility to even decide to remove themselves from the US if they so wish.
All this is very much possible. Though some people argue it necessitates a virtuous culture as a prerequisite. In the sense that it requires people to be reasonable, rationale and of the same belief that freedom and liberty matters most.
There are exceptions put in place by the state against literally every right you listed (except maybe "conscience" since IDK what specifically you're getting at there, but it's not really important).
Democracy has to, by it's nature as a collective institution, impede the freedom of individuals to do what they themselves want for the social good. If it's a scale, and democracy is "more free" anarchy would be "most free" (not a concept I believe in, again I'm posing that freedom is a binary concept, not a scale itself).
My point is that when it comes to the governing of large groups, you cannot have a free society. You cannot have freedom, and also have private ownership and capitalism and all the things we currently have. You can pay service to "liberty" all you want, but I can't "give myself my own laws" that allow me to go against the state. The state will always serve as an impediment against freedom and true self determination. And I don't think that's a bad thing (To be clear, I'm a socialist not an anarchist, which is also why I think societal requirements are more important than individual liberty).
There are fundamental rights, and they have to be black/white, because they protect the minority against the majority. For everything else, it is decided on by elected representatives.
If you operate in a political system where democracy can overrule all rights, it is not a liberal democracy. The US is a liberal democracy, and that is why the judge ruled that it was not constitutional, even though the democratically elected representatives put in place the watch-list. So here is a great example of liberty at play, even though the majority ruled to have a watch-list, it was ruled out because it went against the fundamental rights of a minority.
> You can pay service to "liberty" all you want, but I can't "give myself my own laws" that allow me to go against the state.
You can! You can freely renounce your citizenship and freely move elsewhere. The state is not allowed to hold you back from doing that.
Now, when it comes to secession, it gets more complicated. Some people argue it is a fundamental right, as per the constitution, that said, the wording is very vague and unclear about it. So we could say the constitution doesn't really guarantee that you are free to secede. That doesn't mean it shouldn't be a guaranteed right though! Some people think it should, and if it isn't there in the constitution, maybe it should be added.
> The state will always serve as an impediment against freedom and true self determination
That's the thing though. The state are just the powers that be. The idea of liberty and freedom are moral, which is why it requires a culture of it. While democracy is a system, not a moral. People who believe in liberty fight for it. That's fundamental to preserve freedom. The freedom to "give myself my own laws" should exist. Any person should be allowed to take their private property and secede from the US, and make it a new self-ruled region. If California wants out for example, they should be allowed to leave the union. Such would dictate the idea of liberty. But, it would work similar to copy-left open source licenses. In their new found independence, they need to continue to uphold liberty. If they do not, then it is a fundamental right that the newly governed should similarly fight for it until they have it.
So you see, it is much more an ideology. People should not be allowed to restrain your freedoms, unless what you are doing is forcing theirs to be restrained.
And this can work quite easily within a democracy. Basically, people assemble for all kind of matters, and decisions and rules are put in place in agreement with the majority, with the idea that it will benefit most. Once in a while though, it affects an individual negatively. It is that person's right to come forward and say that their liberty is being restrained from the ruling of the majority. If true, then the ruling should be abolished, even though it was beneficial to most people.
We disagree fundamentally on basically every point you've made. I do not have the time or energy to debate you on any of this. You have no convinced me of the existence of liberty or freedom actually existing outside of the minds of men, and have continued to show what I believe to be the logistic contortions needed to continue to believe in these concepts actually being implemented in the real world. None of this makes you a bad person, and I wish you well in life.
Hey, no hard feelings whatsoever. By the way, I'm not saying that that's the right or best ideology. I'm just saying that there's a definition issue. You take freedom at face value, as in, I can do whatever I want without anyone trying to stop me. But people who support freedom and liberty aren't saying that. They're saying that liberty trumps all, even the rule of the majority. That there are no good reason to justify taking away someone's freedom except to protect someone else's. And that this rule is above the rule of democracy. Democracy is used only to decide on things that don't affect people's freedoms. If it does, it is overstepping its bounds, and the courts are there to judge on that. And if the system fails to uphold the liberty of its people, that the people should fight to have it back.
Hopefully we are now following the UK's lead and starting to face our demons. Finally, a judge with an iota of common sense! Why did it take so long to call the government out on something which is, so clearly, a violation of due process? Let's get this judge on the supreme court, he or she clearly knows how to do the job!
The cynical view of this would be that a large number of online domestic white people have reached the threshold that had been used to add people to the terrorist watchlist, or that there's an anticipation of pressure in this direction. If incel reddit has to be added to the terrorist watchlist, a lot of people from what are considered very nice families would be getting turned down at the gate.
Nothing has changed in the arguments against the watchlist during the period it has been in existence.
Perhaps, the NRA has been already declared a domestic terrorist organization by San Francisco. I think everyone wants to avoid TSA agents questioning passengers when the last time they had sexual intercourse was and pulling out a taser and handcuffs if it's too long.
Yes, because non-citizen residents still pay sales taxes. Many of them have jobs and pay income taxes. One of the core tenants of the US experiment in democracy is no taxation without representation. This holds pretty true unless you happen to live in Washington D.C. or in Puerto Rico where they have no voting powers in congress.
The bill of rights doesn't mention anything about citizenship either. Lots of people at the time it was written wouldn't even have recognized that as a valid concept.
This taxation thing keep getting banged around a lot, but I don't think it's quite right. Many of the rights, like due process, is something fundamental we'd expect of any civilised nations.
I wouldn't want to exclude tourists from that, and they probably aren't paying tax.
It’s a “debate” created for political reasons. If the right to bear arms was a right people like Larry Tribe believed in, they’d never engage in the contortions they do with the text.
If I say “for X purposes, do Y” I’m telling you to do Y. You can’t do Z just because you think that serves X purposes better.
And even if you believe the right must be connected to militias, those aren’t necessarily formal organizations. The Minutemen, for example, where self-organizing independent militias that were composed of just whoever brought a gun with them. They comprised 1/4 of the militias that fought in the Revolution. Many of the state militias, too, were BYOG. You think the framers just forgot how they won the war they had just fought? The point obviously is to protect the possibility of such militias being formed by preventing the government from disarming ordinary citizens.
Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine. But then you don’t need to rely on the tortured reading of the “militia” phrasing. Just say it’s an outmoded right that we are not going to enforce.
> Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine.
As opposed to what? Textualist? The Constitution is not an unambiguous, coherent document that can have a rigorous interpretation without masses of precedent and case law. It was intentionally ambiguous so that broad swathes of people would vote in favor of it, thinking it said what they wanted. We've been arguing about it ever since. The usual criterion is to maintain stability so we know what to expect, but occasionally someone manages to engineer a major reversal, like the reading of the 2nd amendment in the 20th century switching to allow everyone and his brother to have firearms without restraint.
I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors.
Part 1: The US Constitution grants enumerated powers to the US Federal Government. If there is any ambiguity in the Constitution as to whether or not the US Federal government can do something, then the answer is 'they can't.'
Part 2: If you believe the constitution is tyrannical in itself, that future generations owe no allegiance to it, then you logically support secession. Why should anyone be bound by any agreement made in the past, perpetually, without external remediation? Secession is the answer; in order for the Constitution to be valid, it has to be voluntary, and it's not voluntary unless secession is legitimate.
>Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time.
You know perfectly well that's not what the doctrine of a "living Constitution" is about. Constitutional scholarship is not made up of people who agree with you and people just making shit up.
It's "the right of the people to bear arms," not the right of the well-regulated militia. Furthermore, "regulated" in the context of 18th century refers not to government oversight[1], but to such a thing being regular.
[1] The modern definition of "regulated" to mean this comes mainly from the creation of the FDA and other such government agencies which made meat, drug, and other such products regular as opposed to varied.
>Furthermore, "regulated" in the context of 18th century refers not to government oversight[1],
While that's true, it doesn't mean that the militia was meant to be free of government control. The constitution provides for congress calling forth the militia and The Militia Acts of 1792 gave the president the power to call upon the militia to quell invasion or rebellion.
This was set in stone in DC vs Heller. Of the two dissents, the Stevens dissent is one of the poorest examples of judicial reasoning on display and nearly ensures this will never be overturned.
Even without considering the full phrasing of the 2nd to be related to militias, there's still considerable room for regulation. If one actually reads Scalia's Heller opinion, it explicitly says that regulation, of gun posession is of course not ruled unconstitutional. Nor are restrictions on the types of firearms unconstitutional.
Being an adult citizen, which is exactly what the founders meant, and is really not at all open to interpretation. In the parlance of the time, well-regulated meant well-equipped, and militia meant every armed adult male. This is crystal-clear in the federalist papers, and various writings, passages, and speeches from the exact same people who wrote the damn thing.
The Federalist papers are not, as I recall, crystal clear on this issue (that is, what "well-regulated" means". If anything, they say the opposite.
From "Concerning the Militia":
"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss"
This pretty clearly carries the implication that being "well-regulated" is more than just well-equipped.
It is, however, clear that the intention was to continue the policy of citizens bearing arms, even treating that as an implicit part of the culture of the time. Madison says, in "The Influence of the State and Federal Governments Compared", as an offhand remark, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, ...", and in comparison to Europe, it is expected that Americans can be trusted with guns: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.” – Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788
I ask who are the militia? They consist now of the whole people, except a few public officers.” – George Mason, Address to the Virginia Ratifying Convention, June 4, 1788
“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776
“No free man shall ever be debarred the use of arms.” – Thomas Jefferson, Virginia Constitution, Draft 1, 1776
Be careful with lists of quotes like this. Go back and examine the full context of the text and what the text was being written for. I have in many cases followed up on such quotes and found that the surrounding text made them mean something entirely different or sometimes even the opposite.
Case in point: when Ben Franklin argued "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.", he was actually arguing for the authority of the Federal government to tax the states in order to fund a frontier defense against Native American raids[0, 1], not making some general crypto-minarchist statement about the dangers of ceding personal liberty to the authority of governments.
What? The context shows that what Franklin meant is completely the opposite of what people claim.
He wasn't warning against the dangers of giving up one's rights to the creeping authoritarianism of the state, he was complaining that people were giving up the "essential Liberty" provided by an effective Federal government for the "temporary safety" purchased by refusing to fund it.
Or to quote from the NPR article, "(...) far from being a pro-privacy quotation, if anything, it's a pro-taxation and pro-defense spending quotation."
Nah. It's a really shallow analysis to call his statement "pro-taxation and pro-defense spending", and far more of an inaccurate generalization than how the quote's usually used. Franklin was writing to answer the problem of the governor being bribed by the Penns to provide security and veto the taxation, rather than the state using its legitimate authority to tax the Penn's lands and provide that security. The alternative was undermining the integrity of the democratic state, not "refusing to fund it".
Interestingly enough, the context is being used here to invert the meaning of Franklin's beliefs, rather than clarify them.
> "The great object is that every man be armed. Everyone who is able might have a gun.” – Patrick Henry [1].
The citation given is incorrect and the two quotes are from unrelated debates. It is not at all clear that "everyone" here refers to citizens at larger rather than members of the state militia, that is, the duly constituted state militia, not the ad hoc militia of able bodied men.
> “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams [2]
This was in the context of a proposed amendment to the body of the constitution, that was rejected. And even here the caveat "peaceable" is thrown in, which is a loophole big enough to throw a whole busload of bans through.
I'm not going to pick through the remainder, which I assume are similarly ambiguous.
Either way I think this is a fruitless approach (namely attempting to clarify the preamble) -- the preamble to the amendment is clearly the motivation of it, but the body of the amendment carries the force. In the interests of public safety, the courts have reluctantly allowed the right to be infringed, and frankly, this is what everyone, including the NRA, wants. If courts rules that it was illegal to restrict the ownership or bearing of arms in any way, there would be a new amendment to supersede the second in a week.
The Patrick Henry quote seems pretty clear to me. He says every man, not every militia man so I'm inclined to believe the direct quote unless you have evidence to the contrary.
Also, He is speaking against congress limiting it. The following two paragraphs in that citation are talking about how men in government can't be trusted to keep their word not to infringe / create tyranny.
> And even here the caveat "peaceable" is thrown in, which is a loophole big enough to throw a whole busload of bans through.
While "peaceable" isn't defined in stone here, I would take it to mean a person who hasn't been convicted of violent crimes or has intent to commit such crimes. That wouldn't really open the floodgates to bans other than ones we already have for criminals / people making threats. It could possibly justify red flag laws though.
> If courts rules that it was illegal to restrict the ownership or bearing of arms in any way
I don't think that would happen and it wouldn't be what they wanted back then either. Several other quotes mention peaceful men bearing arms which I think would keep the no felons can buy guns laws.
> The Patrick Henry quote seems pretty clear to me. He says every man, not every militia man
I provided a link to the original source. He is arguing about who is responsible for arming the militia -- congress or the states, or whether citizens in the militia are responsible for bringing their own armaments. The important thing, he notes, is that every man have a firearm, whether by his own provenance or the state's or congress's provisioning.
Directly quoting, he says, in light of the organization of the militia being subject to both federal and state oversight, as to whether the members of the militia should be required to arm themselves:
> So that our militia shall have two sets of arms, double sets of regimentals, etc., and thus at a very great cost we shall be doubly armed --- The great object is that every man be armed --- But can the people afford to pay for double sets of arms, etc.? Every one who is able may have a gun.
Read the link and I dare you to offer an interpretation that explains why, during the discussion of arming the militia he engages in a total non sequitur of mentioning that all people should have guns?
Peaceable is certainly not set in stone, and you're welcome to your interpretation, but a reasonable alternate interpretation is that you have to comply with the idea that owning certain armaments is de facto non-peaceable.
It would be very easy to revisit Heller in this light and say that gun violence is a problem in DC, and thus owning a handgun is a non-peaceable act in itself.
In this case we are living in the alternate reality where Samuel Adams's proposal was adopted into the text of the consitution. I'm arguing that his phrasing would allow for more restrictive gun laws than the current 2nd amendment. So using his quote to defend a less restrictive gun policy seems counterproductive.
> This pretty clearly carries the implication that being "well-regulated" is more than just well-equipped.
In that context, it seems that to the writer, "well-regulated" meant trained, likely continuous training kept up at somewhat regular intervals (in how to use their weapon, and how to care for it so that it is ready to use), and that they should keep their knowledge up ("evolutions") on more recent advances in weaponry so that they have some idea how to care and use those as well.
> "...the governments are afraid to trust the people with arms."
Today, there are many people who are showing that they cannot be trusted with arms. They use them instead of reason, they use them for illegal purposes, they use them as toys, they don't take regular training to understand them, they - in short - don't act like militiamen should act. They certainly don't seemingly act "well-regulated".
Are these the kind of citizens the Framers - and perhaps the Federalist papers - had in mind to keep and bear arms?
So my understanding of it was that the framers were generally tepid about the idea of standing armies, especially standing armies managed by the federal government. They wanted instead the armies to consist of militias organized by the states, and the command structure to ultimately roll up to the Commander-in-Chief.
The expectation was varied over who would arm the militias -- Congress, the states, or the people bringing their own weapons. To preserve the possibility of the last option, they wrote the second amendment so that when people went to join the militia, they would already have their own guns (and other armaments, like cannon, horses, etc.) that they could bring along.
This involves a whole bevy of unstated assumptions about firearm ownership based on the experience fighting the British. So if I were to rephrase the amendment to remove the brevity, I think it would read something like this: "In order that the states may raise and maintain a militia that is well-organized and trained, people must own and be prepared to bear their own personal armament in service of that militia, and therefore Congress may not forbid people from owning arms and by doing so prevent the states from raising militias outside of Congress's authority."
So I personally feel that this sentiment, while noble for the time, is outdated and no longer applicable, especially since the remnants of state militias are insignificant compared to the deployed power of the federal standing army, and we don't expect that to change. But it is what it is, and we have a process already for modifying the constitution when its dictates are no longer applicable, as we did with slavery, as we did with the voting age, as we did with income taxes. We should be using the power of amending the constitution to update it to reflect the reality of firearm ownership in the present time.
I guess the one thing if you accept my interpretation of the amendment that might be open to interpretation is that the states could arguably have the power to regulate the right to keep and bear arms as they see fit; the debate was mostly federal vs. state rather than government vs. individual, even if in the end it is expressed as an individual right that enforces the state's right.
That last bit breaks the site guidelines by being a personal attack and flamebait. Please don't do that on HN, regardless of how wrong another commenter is or how strongly you disagree. It leads to dumber, nastier threads.
