Gun Sense and Nonsense

[groovedaddy]

The Supreme Court brushed past flimsy arguments by the gun lobby this week to uphold an important restriction on gun ownership that protects public safety.

The 7-to-2 decision upheld a broad reading of a 1996 federal law written by Senator Frank Lautenberg, Democrat of New Jersey, that bars people convicted of crimes involving domestic violence from owning guns. A narrow interpretation of the law, excluding domestic abusers convicted of a generic charge of battery, would have rearmed thousands of dangerous people.

The ruling was the court’s first on guns since last year’s landmark decision striking down the District of Columbia’s ban on possessing handguns in the home. It was an encouraging sign that the court sees no blanket constitutional barrier to common-sense regulation of firearms. It is notable that not even the two dissenters in the case — Chief Justice John Roberts and Justice Antonin Scalia — asserted that depriving domestic abusers of guns raises a Second Amendment issue.

Unfortunately, the same good sense on gun violence did not prevail in Congress. On Thursday, the Senate voted, 61-to-37, to end a longstanding affront to democracy by giving residents of Washington a voting representative in Congress. In a classic bit of political horse trading, the measure would actually enlarge the House by two seats: one for the overwhelmingly Democratic District of Columbia, and one for Utah, whose population growth justifies a seat that would likely go to the Republicans.

http://www.nytimes.com/2009/02/28/opinion/28sat2.html?th&emc=th

[gorfle]

1. More detail...

"Among other things, the amendment’s wacky provisions would make it much harder for police to trace crime guns by repealing all registration requirements. The amendment also would bar Washington from enacting laws or regulations that may discourage private gun ownership or use, including by children or felons. It would lift a ban on gun possession by anyone voluntarily committed to a mental institution in the last five years and end a ban on .50 caliber sniper rifles and military-style semiautomatic assault weapons. All of this under the phony guise of complying with last year’s Supreme Court ruling."

While I am glad to see moves to prevent registration, I'm disturbed by allowing felons and mentally ill people to own firearms. I don't see how they can circumvent the federal background checks which screen these people from owning firearms.

The 7-to-2 decision upheld a broad reading of a 1996 federal law written by Senator Frank Lautenberg, Democrat of New Jersey, that bars people convicted of crimes involving domestic violence from owning guns. A narrow interpretation of the law, excluding domestic abusers convicted of a generic charge of battery, would have rearmed thousands of dangerous people.

Cue Iverglas, champion of those who have suffered from Civic Death.

[iverglas]

2. eh?

Cue Iverglas, champion of those who have suffered from Civic Death.

Denying someone the exercise of a right is not the same as taking the right away from them.

Taking rights away from people (which simply makes no sense, when fundamental / human rights are in issue, which they aren't here anyway, since they are supposed to be unalienable) is the essence of civil death. Not civic death.

The present US SC decision actually has nothing to do with that issue. It has to do with the interpretation of legislation that denies the exercise of a right.

The denial, in my own humble opinion, is sufficiently specific to pass constitutional scrutiny. It is clearly related to the goal -- to reduce "domestic violence" (a concept in need of a new name), not overbroad, not excessive, etc.

It is the blanket prohibition that comes with conviction for any felony that, in my own humble opinion, would not pass constitutional scrutiny where I'm at. Of course, there is no such blanket prohibition where I'm at.

Disenfranchisement based on status as "a felon" is a rather better example of an element of civil death.

[gorfle]

3. Denying vs. taking.

Denying someone the exercise of a right is not the same as taking the right away from them.

In what way is it different? If I deny you the ability to exercise a right haven't I taken it away from you?

Taking rights away from people (which simply makes no sense, when fundamental / human rights are in issue, which they aren't here anyway, since they are supposed to be unalienable) is the essence of civil death. Not civic death.

I suppose you can say that any unalienable right cannot be taken away. But if I stand over you with the power of the government and prohibit you from ever exercising it, I have effectively taken it away from you.

The present US SC decision actually has nothing to do with that issue. It has to do with the interpretation of legislation that denies the exercise of a right.

And does so in such a manner so as to be indistinguishable from simply taking away the right.

The denial, in my own humble opinion, is sufficiently specific to pass constitutional scrutiny. It is clearly related to the goal -- to reduce "domestic violence" (a concept in need of a new name), not overbroad, not excessive, etc.

It is the blanket prohibition that comes with conviction for any felony that, in my own humble opinion, would not pass constitutional scrutiny where I'm at. Of course, there is no such blanket prohibition where I'm at.

Disenfranchisement based on status as "a felon" is a rather better example of an element of civil death.

So you are OK with the denial of rights for some felonies then?

[iverglas]

5. denying EXERCISE OF RIGHT vs. taking away RIGHT

Really, we have been over and over this so many times I don't now what more can be said.

In what way is it different? If I deny you the ability to exercise a right haven't I taken it away from you?

No. Simply: no.

If you are incarcerated for 30 days for drunk driving, you are denied certain exercises of your right to liberty during that time.

Your right to liberty has NOT been taken away from you.

You have to be released at the end of the 30 days. If your RIGHT to liberty had been taken away from you, you could just be kept there.

And no, that isn't answered by saying that your right to liberty is restored at the end of the 30 days. That's just nonsense.


But if I stand over you with the power of the government and prohibit you from ever exercising it, I have effectively taken it away from you.

And that is where there is a problem with life-long blanket prohibitions, and they do seem to run over into the realm of civil death. And thus also why they are completely impermissible and incoherent in societies that recognize rights.

I'm certainly on board with firearms possession being a "civil right". It is a right acquired by virtue of membership in a particular society, not by virtue of being a human being. Like voting, the right to enter and leave the country, etc. Removal of that right could then indeed be considered to be a component of civil death, along with the right to vote, the right to contract, and such like.


And does so in such a manner so as to be indistinguishable from simply taking away the right.

Well, there's a point there. The way in which it is done where I'm at -- based on an individual assessment of a firearms licence applicant -- is not the same. I favour individual assessment. It's hard to see what factors might remove someone convicted of "domestic violence" from the existing blanket prohibition, but there could be. The individual would still be entitled to an assessment, and there would then be a denial of the exercise a right, not the removal of a right, if that were the result. The individual could always reapply to exercise the right on the usual conditions, e.g. obtaining a licence.


So you are OK with the denial of rights for some felonies then?

No, not otherwise than on an individual assessment. And not the "denial of rights" -- the denial of the exercise of rights. And only some rights, only based on that assessment and a determination that there is justification for denying the exercise of the right in the individual case. Not, for instance, the right to vote.

[gorfle]

8. Well of course.

If you are incarcerated for 30 days for drunk driving, you are denied certain exercises of your right to liberty during that time.

Your right to liberty has NOT been taken away from you.

You have to be released at the end of the 30 days. If your RIGHT to liberty had been taken away from you, you could just be kept there.

So what you are saying is that a temporary restriction on rights is "denial" of exercising rights, while a permanent restriction on rights is "taking away" of rights.

If so, in the case of people who have lost their right to keep and bear arms due to being convicted of domestic abuse, since it is permanent, their right has been taken away, not denied.

And no, that isn't answered by saying that your right to liberty is restored at the end of the 30 days. That's just nonsense.

You are quibbling over semantics. Whether my right to liberty was taken away or denied for 30 days the effect is the same.

If your ass is forced to sit in jail for 30 days, whether you lost your right, were denied your ability to exercise your right, or loaned your right to a pink elephant, the bottom line is, for the duration of time your government has specified, you don't have that right.

And that is where there is a problem with life-long blanket prohibitions, and they do seem to run over into the realm of civil death. And thus also why they are completely impermissible and incoherent in societies that recognize rights.

But you already said:

The denial, in my own humble opinion, is sufficiently specific to pass constitutional scrutiny. It is clearly related to the goal -- to reduce "domestic violence" (a concept in need of a new name), not overbroad, not excessive, etc.

Since people who have been convicted of domestic violence crimes will lose their right to keep and bear arms permanently, by your own definition they have had their right taken away and this would be in the realm of civil death.

So which is it? Is such a measure "impermissible and incoherent" or is it "sufficiently specific to pass constitutional scrutiny"?

I'm certainly on board with firearms possession being a "civil right". It is a right acquired by virtue of membership in a particular society, not by virtue of being a human being. Like voting, the right to enter and leave the country, etc. Removal of that right could then indeed be considered to be a component of civil death, along with the right to vote, the right to contract, and such like.

I don't think I understand the concept of a "civil" right vs. other kinds of rights. To my mind, rights are things we have by virtue of being free human beings. What makes them civil is the fact that we have codified them into a civil work of law. But I'm not a lawyer so I don't know the actual definitions here.

We have rights enumerated (not granted) by our Constitution, and firearm ownership is one of those rights. As such, I would say it is a right you have by virtue of being a human being. Like being able to freely speak your mind, we freely have the right to own the tools to defend ourselves. Whether these are "civil" rights or not I don't know. They are codified by law that only applies in our society - does this make them "civil" rights? Again, I don't know.

Well, there's a point there. The way in which it is done where I'm at -- based on an individual assessment of a firearms licence applicant -- is not the same. I favour individual assessment. It's hard to see what factors might remove someone convicted of "domestic violence" from the existing blanket prohibition, but there could be. The individual would still be entitled to an assessment, and there would then be a denial of the exercise a right, not the removal of a right, if that were the result. The individual could always reapply to exercise the right on the usual conditions, e.g. obtaining a licence.

I would assume that once you've been assessed once and found unfit to own firearms that this assessment would never change? For example, if you've been convicted of domestic violence you would never be found fit to own firearms? In which case we are talking about a permanent denial of rights, which is effectively the removal of the right.

No, not otherwise than on an individual assessment. And not the "denial of rights" -- the denial of the exercise of rights. And only some rights, only based on that assessment and a determination that there is justification for denying the exercise of the right in the individual case. Not, for instance, the right to vote.

It sounded to me like you were saying you were OK with the denial of exercising the right to keep and bear arms for people convicted of domestic violence. Are you saying you are not OK with the denial of exercising the right to keep and bear arms for people convicted of domestic violence?

[Taitertots]

4. Wow

Denying someone the exercise of a right is not the same as taking the right away from them.

[iverglas]

6. glad to have been of assistance

[gorfle]

9. lulz...

And locking a door is not the same thing as nailing it shut.

But if you're on the other side of the door, can you tell the difference?

[benEzra]

10. Don't worry, they can't do that.

While I am glad to see moves to prevent registration, I'm disturbed by allowing felons and mentally ill people to own firearms. I don't see how they can circumvent the federal background checks which screen these people from owning firearms.

They can't. That was cluelessness on the part of the reporter, as even nonviolent felons are barred for life from so much as touching a gun, or a single round of ammunition, as is anyone ever adjudicated mentally incompetent.

Also, a VOLUNTARY "commitment to a mental institution" can be an Iraq vet who just watched the rest of his squad blown up by an IED checking himself into a hospital for treatment of PTSD, someone who seeks inpatient treatment for postpartum depression, etc. There are already mechanisms in place to take guns from those who are a danger.

[spin]

7. Florida law and restraining orders...

790.233 Possession of firearm or ammunition prohibited when person is subject to an injunction against committing acts of domestic violence; penalties.--

(1) A person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence, and that has been issued under s. 741.30.

http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0790/Sec233.HTM

Note: Florida is a very gun friendly state but they DO enforce this law.

edited because of fat fingers