Infringement

[krwada]

One would think that this word has no vagueness inherent in its meaning in any way, shape or form.

Some of the most common rationales I see with "Let us have an adult discussion about common sense gun laws..." is the following:

1. Since you already enjoy a certain right and even with any common-sense restrictions, any further restrictions and regulations do not count as infringement.

2. All rights within the Constitution are not limitless. We, as a people, have placed certain limits on our freedoms in order to preserve a more just and fair society.

So ... I pose to the community ... a few things I need help with here. Plus, I am doing this in the open because I firmly believe that:

Each and everyone of us here at Calguns can benefit by adding to the above anti-2A talking points / list and ways to refute these arguments.

So... what I want to do here is:

1. Open this up for discussion
2. Please add to the above list. Identifying the pillars of the anti-2A is very important. The best approach is to identify the talking points and the associated rhetoric.
3. Let us develop some very quick and easy points to easily refute these talking points.
4. Even adding to the Liberal talking points, social justice, fairness, collectivism ... etc is fair game. I am firmly convinced that these pillars of modern left-wing thought are the foundations of anti-2A thought.

I can say this for certain...

I have had a lot of discussions with anti-2A folks. Their hearts are very hardened, and it will be most impossible to try and sway them.

Fortunately ... the way politics works .... EVERYWHERE ... is as follows:
1. There is 20% firmly entrenched on one side
2. There is 20% firmly entrenched on the other side
3. There is 60% somewhere in the squishy middle.

Yes ... we know who the 20 percenters are ... arguing with either side in a vacuum, in my opinion is pointless

This is how I do it:
1. Survey the situation and the surrounding environment.
2. If there are no 60% squishy middle to be around ... keep quiet and/or defend.
3. If there are 60 percenters around ... take up the fight and win at all costs
4. Make sure I do not launch any ad-hominem attacks.
5. The 1st person who launches any ad-hominem attacks or makes any references to Nazism, or any such names loses.

A lot of Liberals absolutely love engaging with me. However, after a time, they get deeply frustrated and start calling me, "baby-killer", stupid, naive, ignorant, Fascist, (Nazi reference)... etc. Since they start launching these ad-hominem attacks ... this means I am clearly on the right track.

So ... let us open this up for discussion.

Making more ammunition is always good in my book. Especially if it is more ammo for discourse.

[Jimi Jah]

Words, just words, speeches, just speeches...

~ Barack Obama

[RobertMW]

A lot of Liberals absolutely love engaging with me. However, after a time, they get deeply frustrated and start calling me, "baby-killer", stupid, naive, ignorant, Fascist, (Nazi reference)... etc. Since they start launching these ad-hominem attacks ... this means I am clearly on the right track.

So ... let us open this up for discussion.

Making more ammunition is always good in my book. Especially if it is more ammo for discourse.

Identification of the extreme anti-gun-rights supporters

1. Shamelessness: Shame is the feeling that lurks beneath all unhealthy narcissism, and the inability to process shame in healthy ways.
2. Magical thinking: Narcissists see themselves as perfect, using distortion and illusion known as magical thinking. They also use projection to dump shame onto others.
3. Arrogance: A narcissist who is feeling deflated may reinflate by diminishing, debasing, or degrading somebody else.
4. Envy: A narcissist may secure a sense of superiority in the face of another person's ability by using contempt to minimize the other person.
5. Entitlement: Narcissists hold unreasonable expectations of particularly favorable treatment and automatic compliance because they consider themselves special. Failure to comply is considered an attack on their superiority, and the perpetrator is considered an "awkward" or "difficult" person. Defiance of their will is a narcissistic injury that can trigger narcissistic rage.
6. Exploitation: Can take many forms but always involves the exploitation of others without regard for their feelings or interests. Often the other is in a subservient position where resistance would be difficult or even impossible. Sometimes the subservience is not so much real as assumed.
7. Bad boundaries: Narcissists do not recognize that they have boundaries and that others are separate and are not extensions of themselves. Others either exist to meet their needs or may as well not exist at all. Those who provide narcissistic supply to the narcissist are treated as if they are part of the narcissist and are expected to live up to those expectations. In the mind of a narcissist there is no boundary between self and other.

The only problem is that I can see many of these traits in the most extreme pro-gun-rights demonstrators as well. I will say though, it seems to be much more prevalent in the anti' demonstrators.

I must say though, when it comes to the 60% of people you call out, there is one very easy way to sway them more pro-gun, put a gun in their hands. Too many people have been brainwashed that firearms are instant death dealing machines, that by even touching one somebody WILL die. Take them to a range, get them to shoot a 22 rifle, show them that it can be fun, show them HOW MUCH THEY SUCK AT IT to show them that guns are just a tool and that it is the person that is in control of them and dictates what the firearm does. Oh, and with the "they suck at it part," try to rephrase that more along the lines of "it takes practice and concentration to get better at this, just like any other sport or activity" and see if you can't get them to want to do it again, people inherently like competition and want to get better.

[Tincon]

Infringement just means unlawful violation. Obviously not every action which impacts your ability to bear arms infringes on the right. For example, you can't go steal guns from a gun store and then claim you were exercising your 2A rights. The reason being, you were infringing on someone else's property rights (though you may well have been exercising your own 2A rights). So an infringement is a restriction of your rights which is not justified by the protection of anyone else's rights. Does that make sense?

[ChrisC]

A lot of Liberals absolutely love engaging with me. However, after a time, they get deeply frustrated and start calling me, "baby-killer", stupid, naive, ignorant, Fascist, (Nazi reference)... etc. Since they start launching these ad-hominem attacks ... this means I am clearly on the right track.

Funny you say that, especially since those are the same words that gun owners call liberls. So does that mean that they are clearly in the right as well?

[krwada]

Winning

Funny you say that, especially since those are the same words that gun owners call liberls. So does that mean that they are clearly in the right as well?

As you clearly stated ... both sides do this.

The point being ... is for not let our emotions get away from us and to not do this. This is my point.

[krwada]

Your qualifier

Infringement just means unlawful violation. Obviously not every action which impacts your ability to bear arms infringes on the right. For example, you can't go steal guns from a gun store and then claim you were exercising your 2A rights. The reason being, you were infringing on someone else's property rights (though you may well have been exercising your own 2A rights). So an infringement is a restriction of your rights which is not justified by the protection of anyone else's rights. Does that make sense?

I believe your qualifier merits further discussion. As always ... the devil is in the details ... or in this case, the "which is not justified by the protection of anyone else's rights" clause ... What you point out here is most interesting.

I would like to see a bit more clarification from you on this.

As you can see, I am getting a bit confused by the qualifier you present.

Thanks!

[fiddletown]

....Some of the most common rationales I see with "Let us have an adult discussion about common sense gun laws..." is the following:

1. Since you already enjoy a certain right and even with any common-sense restrictions, any further restrictions and regulations do not count as infringement.

2. All rights within the Constitution are not limitless. We, as a people, have placed certain limits on our freedoms in order to preserve a more just and fair society.

So ... I pose to the community ... a few things I need help with here. Plus, I am doing this in the open because I firmly believe that:

Each and everyone of us here at Calguns can benefit by adding to the above anti-2A talking points / list and ways to refute these arguments.....

Except in the real world what matters is what the courts say, and the reality is that the principle that constitutionally protected rights are subject to limited governmental regulation is well established.

So to begin to understand how and to what extent courts are likely to find regulation of the rights protected by the Second Amendment to be constitutionally acceptable, we need to understand the process, standards and applicable case law. And that will be evolving for some time to come.

So if one thinks government has exceeded its powers, the courts are open for business. With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
   1. However, First Amendment jurisprudence is by now quite mature. So the sorts of regulation of rights described by the First Amendment might be interesting.
      
      
   2. While the First Amendment protects freedom of speech, assembly and religion and in effect states that such right shall not be abridged, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
      
      
      1. Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve an important state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
         
         
      2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regular enforced.
         
         
      3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
         
         
         • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

           ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

           
           
         • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

           ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

         
         
         
      4. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
   
   
   
7. So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts. We can not expect perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment.
   
   
8. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

[krwada]

Converting a moderate at the range

Identification of the extreme anti-gun-rights supporters



The only problem is that I can see many of these traits in the most extreme pro-gun-rights demonstrators as well. I will say though, it seems to be much more prevalent in the anti' demonstrators.

I must say though, when it comes to the 60% of people you call out, there is one very easy way to sway them more pro-gun, put a gun in their hands. Too many people have been brainwashed that firearms are instant death dealing machines, that by even touching one somebody WILL die. Take them to a range, get them to shoot a 22 rifle, show them that it can be fun, show them HOW MUCH THEY SUCK AT IT to show them that guns are just a tool and that it is the person that is in control of them and dictates what the firearm does. Oh, and with the "they suck at it part," try to rephrase that more along the lines of "it takes practice and concentration to get better at this, just like any other sport or activity" and see if you can't get them to want to do it again, people inherently like competition and want to get better.

Yes, I have done this a few times. However, this process, while extremely effective, is quite slow.

What I want is a faster process. Some way to help get the tide going ... public discourse, free speech and gaining mindshare appear to be a faster way of doing this.

Of course, the Liberal media has a huge edge against us on this no? However, I think over time ... we can and will have an impact ... even here in Liberal bright blue California.

[A-J]

What's funny/sad is that if we were to spout about gay people, or people of color, the way that the anti-gun crowd spouts about us, we'd be in a world of hurt.

[krwada]

Great post

Except in the real world what matters is what the courts say, and the reality is that the principle that constitutionally protected rights are subject to limited governmental regulation is well established.

So to begin to understand how and to what extent courts are likely to find regulation of the rights protected by the Second Amendment to be constitutionally acceptable, we need to understand the process, standards and applicable case law. And that will be evolving for some time to come.

So if one thinks government has exceeded its powers, the courts are open for business. With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
   1. However, First Amendment jurisprudence is by now quite mature. So the sorts of regulation of rights described by the First Amendment might be interesting.
      
      
   2. While the First Amendment protects freedom of speech, assembly and religion and in effect states that such right shall not be abridged, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
      
      
      1. Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve an important state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
         
         
      2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regular enforced.
         
         
      3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
         
         
         • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
           
         • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
         
         
         
      4. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
   
   
   
7. So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts. We can not expect perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment.
   
   
8. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

Hello Fiddletown
As always ... a great insight and post. Also; I am most certain our politicians in Sacramento are probably maybe as well versed in this as you are no?

Given what you have just said ... that the 2nd amendment litigation is still in its infancy ... Then, can I take this to mean that we may see an acceleration of anti-2A legislation efforts here in the near future of California?

This of course is just speculating here...

[ChrisC]

As you clearly stated ... both sides do this.

The point being ... is for not let our emotions get away from us and to not do this. This is my point.

Exactly, I try to tell people just because the other side does it, does not mean we should do it. But that usually falls on deaf ears.

[mshill]

Exactly, I try to tell people just because the other side does it, does not mean we should do it. But that usually falls on deaf ears.

The more I think about my personal views and the how I express those with respect to social politics, I am becoming much more aware of avoiding hypocritical behavior. While I personally may not approve of some things that people do or say, I have to sometimes bite my tongue because I have to afford them the same freedom of choice (or liberty, or agency) that I want them to afford me.