PDA

View Full Version : 2nd Amendment as defence for ANY weapon charge


Falstaff
06-23-2010, 12:25 PM
To me the 2nd is very clear. There is no grey area there, we have the right to keep and bear arms. Period. Has anyone used this as a defence to any weapon charge? I hear about people getting charged with felonies for having a baseball bat in their vehicle, that's apalling to me. How do these state courts get around the fact that we have a right to bear arms? I read a story in liberal rag somewhere titled "the troublesome 2nd amendment", that tells me even they know it's pretty cut and dried and they are on thin ice when walking on it..

I just don't get it I guess, it seems awefully damn simple to me.

N6ATF
06-23-2010, 12:28 PM
We don't have the RKBA. Nor do we have the right to be free from unreasonable searches and seizures, even though that right is incorporated against the states.

Welcome to the People's Republic of Kalifornia, where the Constitution is nothing but toilet paper to the government.

383green
06-23-2010, 12:31 PM
To me the 2nd is very clear. There is no grey area there, we have the right to keep and bear arms. Period. Has anyone used this as a defence to any weapon charge?

Rarely with any success, as far as I know. Until about a year or so ago when the Heller decision was released, the 2nd was not considered to confer an individual right to keep and bear arms (that is, it was treated as a collective right). And currently, the 2nd is not considered to be binding upon state law, though we expect that to change in about a week when the McDonald ruling is expected to be released.

You and I may both believe that there's no gray area and no way to misconstrue "shall not be infringed", but the courts have not agreed with us for well over a century. That may finally be about to change.

Dr Rockso
06-23-2010, 12:44 PM
To me the 2nd is very clear. There is no grey area there, we have the right to keep and bear arms. Period. Has anyone used this as a defence to any weapon charge? I hear about people getting charged with felonies for having a baseball bat in their vehicle, that's apalling to me. How do these state courts get around the fact that we have a right to bear arms? I read a story in liberal rag somewhere titled "the troublesome 2nd amendment", that tells me even they know it's pretty cut and dried and they are on thin ice when walking on it..

I just don't get it I guess, it seems awefully damn simple to me.

Because until 2008 there wasn't judicial precedent stating that the 2nd Amendment protected an individual right, and until McDonald is decided that protection is not enforceable against state governments. There will be a lot of cases post-McDonald to hash that stuff out.

ZombieTactics
06-23-2010, 1:08 PM
It's the slippery document of "but it doesn't mean" ... starting with (1A) "it doesn't mean you have the right to shout fire in a crowded theater".

Actually I think the 1A does mean I have the right to shout fire in a crowded theater. If I do so, I should be charged with public endangerment, or inciting a riot (assuming that a danger or riot occurs), not "engaging in unlawful speech". The fact that I did so by shouting something idiotic is incidental.

There should be no "gun laws" per se ... but rather only laws against murder, robbery or destruction of property ... or attempts/conspiracies to do so. The tools or means which one uses to commit such crimes are incidental.

chaled
06-23-2010, 1:14 PM
It's very simple. If you believe the power of your interpretation of the constitution is all you need then by all means do what you feel is right....

Then wake up in handcuffs with a boot print on your face.

Wake up, the Constitution IS just a goddamn piece of paper. If it was indeed the supreme law of the land we probably wouldn't be on Calguns discussing this.

Bhobbs
06-23-2010, 1:25 PM
It's very simple. If you believe the power of your interpretation of the constitution is all you need then by all means do what you feel is right....

Then wake up in handcuffs with a boot print on your face.

Wake up, the Constitution IS just a goddamn piece of paper. If it was indeed the supreme law of the land we probably wouldn't be on Calguns discussing this.

We would be discussing more along the lines of whether or not to mount a javeline launcher on our M2HB with 2 or 3 M203 launches as well.

Legasat
06-23-2010, 1:37 PM
It's the slippery document of "but it doesn't mean" ... starting with (1A) "it doesn't mean you have the right to shout fire in a crowded theater".

Actually I think the 1A does mean I have the right to shout fire in a crowded theater. If I do so, I should be charged with public endangerment, or inciting a riot (assuming that a danger or riot occurs), not "engaging in unlawful speech". The fact that I did so by shouting something idiotic is incidental.

There should be no "gun laws" per se ... but rather only laws against murder, robbery or destruction of property ... or attempts/conspiracies to do so. The tools or means which one uses to commit such crimes are incidental.

^^^^ This! ^^^^

Sinixstar
06-23-2010, 1:40 PM
It's the slippery document of "but it doesn't mean" ... starting with (1A) "it doesn't mean you have the right to shout fire in a crowded theater".

Actually I think the 1A does mean I have the right to shout fire in a crowded theater. If I do so, I should be charged with public endangerment, or inciting a riot (assuming that a danger or riot occurs), not "engaging in unlawful speech". The fact that I did so by shouting something idiotic is incidental.

There should be no "gun laws" per se ... but rather only laws against murder, robbery or destruction of property ... or attempts/conspiracies to do so. The tools or means which one uses to commit such crimes are incidental.

I think the more correct term is instead of "it doesn't mean have the right to shout fire..." we should think about more as "it doesn't mean you're protected if you shout fire...".

You have the first amendment right to scream whatever you want whenever you want to whomever you want. However, you also have the right to face the consequences if that screaming ends up getting someone hurt or killed...

creekside
06-23-2010, 1:57 PM
A quick point on Constitutional law. The Bill of Rights DOES NOT and CANNOT confer any rights that we already did not have.

The Bill of Rights, including the 2nd Amendment, is a tool for recognizing and protecting (from acts of government!) these "inalienable, natural" rights.

The 1st Amendment does not mean that I can't tell you to shut up and get out of my living room. The 2nd Amendment does not mean you can bring your .44 Magnum to my indoor Airsoft range. The 4th Amendment does not mean you can keep your new toy(s) of choice hidden from the prying eyes and fingers of your spouse.

All of these are restrictions on the acts of the government, which in theory is "of and for the people."

Never keep a baseball bat in your vehicle without a glove and a ball. Two balls if you need courage. Can't play baseball with just a bat, after all, right?

advocatusdiaboli
06-23-2010, 2:17 PM
Can't play baseball with just a bat, after all, right?

sure you can if one of the other players brings the balls. (Hey Beavis, he said "balls, heh heh snort snort" :chris:)

bwiese
06-23-2010, 2:26 PM
1. Until/unless we have incorporation RKBA claims in CA get laughed out of court. Look what happened with People v. James and how CA NRA legal team is trying to get that depublished.

2. I expect even after incorporation there will be many 'bad cases' with public defenders throwing Hail Mary passes.

yellowfin
06-23-2010, 3:01 PM
To add to that, we have decades of bad precedent in some states to clean up from the 2A being ineptly summoned as an attempted remedy. Courts not only haven't accepted it, but they've responded very nastily to it and gone the extra mile to spite us as much as possible.