A gun rights thread focused on legal reasoning . . . With a twist.

[Abatis]

I would like to have this discussion looking through the lens of the legal reasoning for the recognition of the right to abortion.

The right to abortion is a derivative right of the right to privacy. The right to privacy was recognized and secured in a landmark case known as Griswold v. Connecticut, 381 U.S. 479 (1965).

The Griswold Court held that the, "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion)."

Justice Harlan's famous dissent in Poe discusses the special nature of the rights recognized and secured in the Bill of Rights as forming a "rational continuum" of liberty . . .

Griswold only cited Harlan's dissent but it was quoted by Justice O'Connor in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), expressly elevating Harlan's famous dissent to the opinion of the Court:

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."​

​
Here's a couple questions I would like answered by the left-leaning brain trust here:

1) Since the right to arms is recognized by the Court as a component in the "rational continuum" of liberty, how can a link in that "continuum" be attacked / denigrated / ignored or even removed by liberals without weakening the doctrine upon which rights they cherish rest?

2) In the minds of liberals, are rights that are recognized to exist only in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights, MORE respected, MORE vital and MORE secure than a right that is actually enumerated in the Bill of Rights?

3) Can liberal hostility for the the 2nd Amendment and gun rights (and liberty in general) be employed by right-wingers to argue that recognizing and securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights is legally illegitimate -- because the premise of an unbroken "continuum" of liberty is obviously NOT true and thus the supposed foundational reasoning for Griswold, Roe, P.P. v Casey, Lawrence v Texas, etc., is unmitigated BS?



P.S. - Just to head off the derails, I am pro-choice and I endorse the penumbral rights theory -- I consider it a serviceable work-around for Slaughterhouse until Slaughterhouse is revisited by the Court (and hopefully overturned).


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[Stelakh]

1) Since the right to arms is recognized by the Court as a component in the "rational continuum" of liberty, how can a link in that "continuum" be attacked / denigrated / ignored or even removed by liberals without weakening the doctrine upon which rights they cherish rest?

2) In the minds of liberals, are rights that are recognized to exist only in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights, MORE respected, MORE vital and MORE secure than a right that is actually enumerated in the Bill of Rights?

3) Can liberal hostility for the the 2nd Amendment and gun rights (and liberty in general) be employed by right-wingers to argue that recognizing and securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights is legally illegitimate -- because the premise of an unbroken "continuum" of liberty is obviously NOT true and thus the supposed foundational reasoning for Griswold, Roe, P.P. v Casey, Lawrence v Texas, etc., is unmitigated BS?

I think it important, first and foremost, to recognize two essential items when coming to a conclusion on "gun rights."

The first of these is that in stating there are "gun rights" means to proceed from an entirely erroneous assumption - and this leads to the over-arching conclusion that the "right to own guns" can be ignored and/or removed by those who wish to take the Second Amendment at face value. Taken in this perspective, the right to own firearms is not enumerated in the Bill of Rights.

There is, in fact, absolutely no mention of a right to own guns in the Constitution of the United States of America. There of course is the right to "bear arms," but "arms" is a broad term that is not defined with specificity in the Constitution. The Federal government could issue legislation which states that we as citizens are permitted to keep and bear halberds, swords, pitchforks, tridents, hammers, axes, knives, daggers, pikes, etc. but specifically forbid the ownership of firearms and still be absolutely in line with the Second Amendment.

Secondly, and as essential as this first point, is that the Supreme Court has repeatedly ruled that no right guaranteed by the Constitution is absolute. In fact, the Constitution itself carries only one instance when "Congress shall make no law respecting..." and that is limited with specificity to the First Amendment. But even the First Amendment is not without limitation. This is why such legal and prosecutable legal concepts as libel, defamation, incitement to riot and so forth are extant and enforceable.

And this is the crux of the true debate on firearm ownership. No "emanation" or "penumbra," by their very definitions, is set in a rigid and black-or-white construct. The Second Amendment is not without limitation any more than the right to access to abortion is. This is why it is illegal to carry a baby to term and then terminate the pregnancy while the mother is in labor.

Everything has limits. In a reasoned and logical approach to this issue, recognizing those limits is the first step.

In the interest of full disclosure, I am neither Republican nor Democrat, Liberal nor Conservative. I own guns, and I am pro-choice.

And for some of you: Yes, I'm back. I'm sure you'll be upset to hear that I was stronger than the car that hit me and continue to survive and thrive. If you've missed me, I'm sure you have had the opportunity to reload.

 

[kaz]

I would like to have this discussion looking through the lens of the legal reasoning for the recognition of the right to abortion.

The right to abortion is a derivative right of the right to privacy. The right to privacy was recognized and secured in a landmark case known as Griswold v. Connecticut, 381 U.S. 479 (1965).

The Griswold Court held that the, "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion)."

Justice Harlan's famous dissent in Poe discusses the special nature of the rights recognized and secured in the Bill of Rights as forming a "rational continuum" of liberty . . .

Griswold only cited Harlan's dissent but it was quoted by Justice O'Connor in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), expressly elevating Harlan's famous dissent to the opinion of the Court:

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."​

​
Here's a couple questions I would like answered by the left-leaning brain trust here:

1) Since the right to arms is recognized by the Court as a component in the "rational continuum" of liberty, how can a link in that "continuum" be attacked / denigrated / ignored or even removed by liberals without weakening the doctrine upon which rights they cherish rest?

2) In the minds of liberals, are rights that are recognized to exist only in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights, MORE respected, MORE vital and MORE secure than a right that is actually enumerated in the Bill of Rights?

3) Can liberal hostility for the the 2nd Amendment and gun rights (and liberty in general) be employed by right-wingers to argue that recognizing and securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights is legally illegitimate -- because the premise of an unbroken "continuum" of liberty is obviously NOT true and thus the supposed foundational reasoning for Griswold, Roe, P.P. v Casey, Lawrence v Texas, etc., is unmitigated BS?



P.S. - Just to head off the derails, I am pro-choice and I endorse the penumbral rights theory -- I consider it a serviceable work-around for Slaughterhouse until Slaughterhouse is revisited by the Court (and hopefully overturned).


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Privacy is best protected by the 10th amendment. Unfortunately, that is one of the ones we ignore

 

[christiefan915]

Excellent post Stelakh.

 

[NOVA]

Excellent post Stelakh.

I guess you two think the right to bear arms means our right to wear short sleeve shirts cannot be infringed...

The left will stretch the 14th Amendment right to privacy to include a womens
right to kill her unborn child....ie, a derivative right of the right to privacy...and that IS A STRETCH.

Yet will twist and spin the simplicity of the words in the 2nd Amendment that plainly state our right to bear arms and whose interpretation as such, has stood for
over 200 years as being misunderstood....

I find the these conclusions completely the opposite.....

The 14th Amendment in no way makes abortion a Constitutional right,
killing the unborn is not privacy, nor is it a right unless your argument is
self defense...ie...you life is in danger by the pregnancy....abortion being legal or illegal is outside the Constitution and should be up to each state.

while

the 2nd Amendment makes our right own and bear arms plain, being stated in simple English....its meaning was clear 200 years ago and it remains so today.

 

[Buckly J. Ewer]

I guess you two think the right to bear arms means our right to wear short sleeve shirts cannot be infringed...

The left will stretch the 14th Amendment right to privacy to include a womens
right to kill her unborn child....ie, a derivative right of the right to privacy...and that IS A STRETCH.

Yet will twist and spin the simplicity of the words in the 2nd Amendment that plainly state our right to bear arms and whose interpretation as such, has stood for
over 200 years as being misunderstood....

I find the these conclusions completely the opposite.....

The 14th Amendment in no way makes abortion a Constitutional right,
killing the unborn is not privacy, nor is it a right unless your argument is
self defense...ie...you life is in danger by the pregnancy....abortion being legal or illegal is outside the Constitution and should be up to each state.

while

the 2nd Amendment makes our right own and bear arms plain, being stated in simple English....its meaning was clear 200 years ago and it remains so today.

Clearly BLABO is an active member of a well regulated militia and as such should not be infringed from buying an 18th century muzzle loading musket...
Poor BLABO

 

[Buckly J. Ewer]

A gun rights thread focused on legal reasoning . . . With a twist.

 

[Abatis]

I think it important, first and foremost, to recognize two essential items when coming to a conclusion on "gun rights."

The first of these is that in stating there are "gun rights" means to proceed from an entirely erroneous assumption - and this leads to the over-arching conclusion that the "right to own guns" can be ignored and/or removed by those who wish to take the Second Amendment at face value. Taken in this perspective, the right to own firearms is not enumerated in the Bill of Rights.

That is a problem only for people who read the 2nd Amendment as a permission slip for the citizen, that whatever right we might have is conditioned / qualified / restrained by whatever limits can be squeezed from the text. Happily though SCOTUS has been quite clear and boringly consistent in explaining that the right to arms is a pre-existing right, not granted by the 2nd Amendment thus not in any manner dependent upon the Constitution for its existence.

There is, in fact, absolutely no mention of a right to own guns in the Constitution of the United States of America. There of course is the right to "bear arms," but "arms" is a broad term that is not defined with specificity in the Constitution. The Federal government could issue legislation which states that we as citizens are permitted to keep and bear halberds, swords, pitchforks, tridents, hammers, axes, knives, daggers, pikes, etc. but specifically forbid the ownership of firearms and still be absolutely in line with the Second Amendment.

Wrong, because such a law would run afoul with the Supreme Court's criteria for what types of "arms" are protected by the 2nd Amendment.

Secondly, and as essential as this first point, is that the Supreme Court has repeatedly ruled that no right guaranteed by the Constitution is absolute.

Why does it always seem that whenever I hear that statement what's being unsaid is the person feels the Court considers any restriction on the right to be permissible? Who among the gun rights community is arguing for an absolute right? Who among the gun rights side is arguing against the restrictions of 922(g)(1-9)? The only people I ever hear discussing in any fashion an "absolute right" are those arguing for absolute power to restrict the right to arms.

In fact, the Constitution itself carries only one instance when "Congress shall make no law respecting..." and that is limited with specificity to the First Amendment. But even the First Amendment is not without limitation. This is why such legal and prosecutable legal concepts as libel, defamation, incitement to riot and so forth are extant and enforceable.

But none of those "restrictions" bind the exercise of lawful, legitimate action protected by the 1st. Your mala in se examples are more equatable to the RKBA / 2nd Amendment with crimes like brandishing a firearm, assault with a deadly weapon, manslaughter and murder . . . To say that your examples are equatable with mala prohibita laws that restrict the simple (and in any other situation lawful) possession and use of arms that is not in and of itself harmful, threatening or dangerous, is not legitimate and is actually duplicitous.

And this is the crux of the true debate on firearm ownership. No "emanation" or "penumbra," by their very definitions, is set in a rigid and black-or-white construct. The Second Amendment is not without limitation any more than the right to access to abortion is. This is why it is illegal to carry a baby to term and then terminate the pregnancy while the mother is in labor.

True, which is why I constructed my questions as I did (especially #2).

Everything has limits. In a reasoned and logical approach to this issue, recognizing those limits is the first step.

That you are looking to stake out the limits on the right and ignoring the limit of legitimate governmental power, is telling. The right to arms is not a right because the 2nd Amendment is there . . . The right to arms exists because no power was ever granted to government that would allow it to have any interest in the personal arms of the private citizen. IOW, I don't have the right to keep and bear arms because of what the 2nd Amendment says, I have the right because of what the body of the Constitution doesn't say.

Enumerated rights are merely "exceptions of powers never granted".

Speaking to what the 2nd Amendment "does", I have no significant problem with the protection sphere SCOTUS has established under the 2nd Amendment for the protected types of arms. I find deficient their guidance on the standard of scrutiny that must be applied to challenged laws and their guidance on incorporation is lacking as well.

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[kaz]

I would like to have this discussion looking through the lens of the legal reasoning for the recognition of the right to abortion.

We should be free to own guns and we should be free to get an abortion.

The difference is that guns are in the bill of rights and abortion isn't. Which means the right to own guns cannot be infringed by the States either while abortion is up to the States. Where I support the States preserving the right to an abortion

 

[christiefan915]

I guess you two think the right to bear arms means our right to wear short sleeve shirts cannot be infringed...

The left will stretch the 14th Amendment right to privacy to include a womens
right to kill her unborn child....ie, a derivative right of the right to privacy...and that IS A STRETCH.

Yet will twist and spin the simplicity of the words in the 2nd Amendment that plainly state our right to bear arms and whose interpretation as such, has stood for
over 200 years as being misunderstood....

I find the these conclusions completely the opposite.....

The 14th Amendment in no way makes abortion a Constitutional right,
killing the unborn is not privacy, nor is it a right unless your argument is
self defense...ie...you life is in danger by the pregnancy....abortion being legal or illegal is outside the Constitution and should be up to each state.

while

the 2nd Amendment makes our right own and bear arms plain, being stated in simple English....its meaning was clear 200 years ago and it remains so today.

I'll take a lawyer's reasoning over yours, thank you.

 

[canceled.2021.1]

I'll take a lawyer's reasoning that agrees with me over yours, thank you.

FTFY

 

[SmarterthanYou]

I think it important, first and foremost, to recognize two essential items when coming to a conclusion on "gun rights."

The first of these is that in stating there are "gun rights" means to proceed from an entirely erroneous assumption - and this leads to the over-arching conclusion that the "right to own guns" can be ignored and/or removed by those who wish to take the Second Amendment at face value. Taken in this perspective, the right to own firearms is not enumerated in the Bill of Rights.

There is, in fact, absolutely no mention of a right to own guns in the Constitution of the United States of America. There of course is the right to "bear arms," but "arms" is a broad term that is not defined with specificity in the Constitution. The Federal government could issue legislation which states that we as citizens are permitted to keep and bear halberds, swords, pitchforks, tridents, hammers, axes, knives, daggers, pikes, etc. but specifically forbid the ownership of firearms and still be absolutely in line with the Second Amendment.

Secondly, and as essential as this first point, is that the Supreme Court has repeatedly ruled that no right guaranteed by the Constitution is absolute. In fact, the Constitution itself carries only one instance when "Congress shall make no law respecting..." and that is limited with specificity to the First Amendment. But even the First Amendment is not without limitation. This is why such legal and prosecutable legal concepts as libel, defamation, incitement to riot and so forth are extant and enforceable.

And this is the crux of the true debate on firearm ownership. No "emanation" or "penumbra," by their very definitions, is set in a rigid and black-or-white construct. The Second Amendment is not without limitation any more than the right to access to abortion is. This is why it is illegal to carry a baby to term and then terminate the pregnancy while the mother is in labor.

Everything has limits. In a reasoned and logical approach to this issue, recognizing those limits is the first step.

In the interest of full disclosure, I am neither Republican nor Democrat, Liberal nor Conservative. I own guns, and I am pro-choice.

And for some of you: Yes, I'm back. I'm sure you'll be upset to hear that I was stronger than the car that hit me and continue to survive and thrive. If you've missed me, I'm sure you have had the opportunity to reload.

this post is an absolute piece of unadulterated horseshit. it was very heavily debated and commented on during the run up to the ratification of the bill of rights that 'arms' meant ALL weapons and that 'shall not be infringed' meant that the feds had ZERO power to limit or restrict the arms of the people. To even partially believe your crap about restricting us to simple weapons completely negates 'shall not be infringed', and is therefore moot.

as to no right being absolute.....the bill of rights was a concession to the anti federalists who feared that the new central government would restrict or limit the rights of the citizens, thus these rights were guaranteed via the BoR to ensure ratification. allowing for the government to then restrict or limit these rights to satisfy your own need for emotional security betrays the very reasons that the BoR was included in the first place.

 

[ChoppedLiver]

I think

Like a gun-grabbing libtard.

Taken in this perspective, the right to own firearms is not enumerated in the Bill of Rights.

There is, in fact, absolutely no mention of a right to own guns in the Constitution of the United States of America. There of course is the right to "bear arms," but "arms" is a broad term that is not defined with specificity in the Constitution. The Federal government could issue legislation which states that we as citizens are permitted to keep and bear halberds, swords, pitchforks, tridents, hammers, axes, knives, daggers, pikes, etc. but specifically forbid the ownership of firearms and still be absolutely in line with the Second Amendment.

Arms.

Plural.

And it doesn't exclude a damn thing.

What part of that do you completely fail to understand?

Secondly, and as essential as this first point, is that the Supreme Court has repeatedly ruled that no right guaranteed by the Constitution is absolute. In fact, the Constitution itself carries only one instance when "Congress shall make no law respecting..." and that is limited with specificity to the First Amendment. But even the First Amendment is not without limitation. This is why such legal and prosecutable legal concepts as libel, defamation, incitement to riot and so forth are extant and enforceable.

Does, "Shall not be infringed" ring a bell with you?

I am pro-choice.

You're a libtard, no matter what you claim or don't claim to be.

 

[Buckly J. Ewer]

Like a gun-grabbing libtard.



Arms.

Plural.

And it doesn't exclude a damn thing.

What part of that do you completely fail to understand?



Does, "Shall not be infringed" ring a bell with you?



You're a libtard, no matter what you claim or don't claim to be.

The racist child has nothing to contribute beyond petulance and tears...

 

[kaz]

There is, in fact, absolutely no mention of a right to own guns in the Constitution of the United States of America. There of course is the right to "bear arms," but "arms" is a broad term that is not defined with specificity in the Constitution

Guns are arms, dumb ass. The right is far beyond "guns," but it clearly includes them. Did that even sound good to you?

 

[kaz]

The racist child has nothing to contribute beyond petulance and tears...

Treading on your turf?

 

[Abatis]

The racist child has nothing to contribute beyond petulance and tears...

Damn funny that you have the balls to berate someone for their contribution to this thread.

Your lack of knowledge and understanding is only exceeded by your complete lack of self-awareness.