View Full Version : My Layman's Take on Rights

04-22-2009, 2:28 PM
As we have now learned that the 2nd Amendment is an individual right granted to citizens in the 9th District, I wanted to discuss a bit how much the government can regulate a right. I know nothing of law, so this is my simple take.

As an analogy, I'm going to use the 1st Amendment and just some "obvious logic":

The right of free speech is in no way preemptively regulated. That is the government can not keep track or filter what we say. We have no laws which physically disable us from being able to say anything. There is no government database of all words we speak, even in public. However, there are limitations to free speech. We can not yell "fire" in a crowded theater. Note, that even though yelling "fire" is illegal, anyone still has the physical ability to so. And government can not take this away.

Now I will make the leap to the 2nd Amendment. We should not be preemptively regulated in the RKBA. It should be assumed that we will always be lawful with our guns, and no attempt to regulate the purchase or bearing of arms should be made. But, as we can not yell "fire," we should not be allowed to brandish a gun, so as to endanger others, unless there is just cause.

So from this simple logic test, we should all have the right to CCW and LOC anywhere in public, and own any firearm we please. We should not be allowed to endanger others through brandishing. But there should be no government regulation on the purchase, exchange and carrying of weapons.

Seems so simple.

04-22-2009, 2:38 PM
just to make things a little more crazier with your yelling fire example:

would it still be illegal to yell fire in a crowded theater if there really was a fire?

what if you were an actor/actress in the production, and the script called for you to yell fire? Would that also be illegal?

Point being: even the simple "common sense" examples we like to use aren't really that simple.

04-22-2009, 2:43 PM
on the fire in a crowded theater thing, Judge Oliver Wendell Holmes was jailing people who opposed the draft and America's entry into WWI.

04-22-2009, 2:56 PM
I am with you mt friend.....it seems so simple to those of who actually believe in and live by a code of personal responsibility.

04-23-2009, 1:22 PM
You will need to research and familiarize yourself with the various tests used in constitutional analysis of government action against individual rights, i.e., the "strict scrutiny," "intermediate scrutiny," and "rational basis" tests. The $64,000 question which Heller left unanswered is which of these tests would be utilized to apply to challenged laws and regulations on Second Amendment grounds (that issue was not squarely before the Court.)

My prediction is that in well-pleaded, well-lawyered cases with good facts, lower courts will apply intermediate scrutiny to gun control mesures (i.e., whether the regulation furthers important governmental interests that are furthered by substantially related means), and the battles will be over whether the proposed law or regulation actually does further the government interest in question. I also believe that the Supreme Court will basically punt on those issues, leaving us with a body of jurisprudence created by the circuits.