Should there be prior restraints on 2A?

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View Poll Results: Should there be prior restraints on 2A?

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  • I feel the 2A is equal to all other individual rights in the Bill of Rights

    68 95.77%
  • I feel the 2A needs prior restraints. (See details below).

    3 4.23%
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Thread: Should there be prior restraints on 2A?

  1. #16
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    The 2A makes 1A and the others...possible!
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  3. #17
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    Quote Originally Posted by razor02097 View Post
    you can carry a gun into a restricted zone you will be punished just like you can yell "bomb!" on a plane and get punished.
    That is the point!

    That's why there should be no license required to keep and bear (own and carry) any more than there should be no license speak; no record kept of every firearm owned/transfered any more than there should be no record kept of every word you say and who you say it to; etc.

    As I said before:

    Prior-restraints on everyone because someone might....

    Post violation punishment for real harm....

    It's the old maximum that "A citizen's right to swing his arm/fist end at someone else's nose."

    Or in the vernacular of sports, "No harm, no foul."
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  4. #18
    Senior Member Array Tom357's Avatar
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    Quote Originally Posted by razor02097 View Post
    I don't believe so.

    They don't control your gun any more then they control your mouth (no insult intended)... It is up to the individual whether or not to break the law. If you put it that way then all laws and restrictions are post restraint.
    Not quite. Prior restraint is a legal concept that is primarily applied to publication, but it applies more broadly to all forms of speech. Government censorship that requires an entity to seek governmental permission that requires a license or approval before communicating constitutes prior restraint whenever permission is denied. A governmental injunction, or declaration, or prohibition that prevents future communication from reaching the public is another form of prior restraint.

    There are other limitations on expression that only punish after the fact (so not prior restraint), such as yelling "Bomb" on a plane when, in fact, there is no bomb. Prior restraint would prevent one from communicating that, at all.

    Applying the concept to the 2A, governmental restrictions that require an individual to seek a government license or permit before ownership or carry of a firearm would constitute prior restraint every time permission is denied. Prior restraint could also take the form of a governmental injunction, declaration or prohibition that successfully prevents the purchase or carry of a firearm in specified circumstances or under specified terms and conditions.

    Restrictions that involve punishment only after a violation has occurred may not directly prevent ownership or carry of arms; prior restraint, on the other hand, would actively prevent ownership or carry in anticipation of wrongdoing, even though wrongdoing may not have occurred.
    ...you can carry a gun into a restricted zone you will be punished just like you can yell "bomb!" on a plane and get punished. That is putting it as simple as possible...
    Simply put, you are not prevented from communicating altogether in advance of boarding a plane (no prior constraint); and, being punished after the fact for yelling "bomb!" on a plane, when there is no bomb, would not result in your ability to communicate being taken away (though it might make you think twice about speaking in certain places). The difference is that, depending on the law, carrying into a restricted zone might result in the confiscation of your firearms (interrupting your right to own and carry at that point), and you might be prevented from ever owning and carrying firearms legally from that point on (arguably prior constraint on future ownership and carry).

    IANAL, but that's my take on the concept.

    I don't think the law ought to punish the law abiding in anticipation of future wrongdoing, in a misguided effort to prevent illegal acts by those who ignore the law, anyway. Prior constraint should be extremely limited, if at all, and accompanied by a realistic means to petition for restoration of rights.
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  5. #19
    Member Array subcool20's Avatar
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    I don't see how this issue is confusing. ...The right to keep and bear arms shall not be infringed...
    If you read it, I mean seriously read it there is no other way to interpret it.

  6. #20
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    Quote Originally Posted by DaveH View Post
    Given that Heller has confirmed that 2A is an individual right, I am very confused by posts that I see here on defensivecarry.com, which seem to suggest that somehow 2A is a lesser individual right than others.

    OMHO, citizens have rights vs. subjects are granted privileges by their masters.

    I believe the RKBA is an inherent right – not a privilege. Also, I believe that 2A is/or should be equal to all other individual rights in the Bill of Rights – that’s to say that there should not be prior restraint on the RKBA -- e.g., no prior restrain such as “yes, but not here”, “yes, but not when”, “only if you prove you are worthy, first”, etc.

    However, in reading many posts here on DC, my opinion appears to be a minority opinion, if judged by volume.

    On the one hand, many applaud “constitutional carry.”—e.g., at http://www.defensivecarry.com/vbulle...ska-model.html 92.64% agreed with the idea of “constitutional carry.”

    On the other hand, many posters appear to want to see prior restraints on who can carry, prior restraints on when we can carry, prior restraints on where we are allowed to carry, etc.

    So, please answer this poll solely based on what you think the law of the land should be. (Please do not interject: 1) personal practices / what you would personally do -- given the freedom to do or not do things like carry and drink, carry without training/practice, etc or 2) this is what we do in "x" State).

    If you think there should be prior restraint on the RKBA for all citizens, please discuss, the whats and whys.
    I'm afraid you are not seeing the big picture. This discussion has not touched on the 10th Amendment to the Bill of Rights that when written guaranteed States Rights. Challenges to states rights has been argued from day one. A coupe things that come to mind are States rights regarding the issue of slavery and what lead to the Civil War. There were many other challenges throughout history. Another big issue was civil rights. When it was convenient for States to claim States Rights in the 60's they did so until the Feds stepped in and over ruled the States. Not too long ago, there was something called the Commerce clause which excludes issues like gun control.
    The Feds seem to be gaining more power now over individual states. It should be clear though that States will cling to the sovereign immunity of states when it is to their advantage. The question should be, How much federalization do we want? I think we can conclude that every state that issues "May Carry" permits or "No Carry" is still exercising States rights regardless of the Second Amendment. The Heller decision is somwhat unique. DC is not a State. How has Heller affected McDonald vs. Chicago?

    It is difficult to have your cake and eat it too. Do you really want more big government?
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  7. #21
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    Quote Originally Posted by SIGP250 View Post
    ...
    This discussion has not touched on the 10th Amendment to the Bill of Rights that when written guaranteed States Rights....
    Good point, if one thinks the RKBA relies soley on the Federal 2A.

    If you don't think that A2 is incorporated, feel free to consider the question at the Federal level of treaty, law, and regulation only -- issues of all Federal prior restraints, such as assault rifle bans, class 3 restrictions, actions being proposed by whomever at that level, etc.

    As Virginia and other States also have a State Constitution RKBA, feel free to consider that, also.

    BTW -- I personally do not feel that the RKBA was established by 2A or by the State constitution -- but that it is a basic human right that should not be abridged.

    IMHO, there is no need to muddy the water with an issue that McDonald v. Chicago may answer soon.

    My concern is the apparent willingness of folk to treat RKBA as a lesser Right than other Rights.
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  8. #22
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    Quote Originally Posted by DaveH View Post
    Good point, if one thinks the RKBA relies soley on the Federal 2A.

    If you don't think that A2 is incorporated, feel free to consider the question at the Federal level of treaty, law, and regulation only -- issues of all Federal prior restraints, such as assault rifle bans, class 3 restrictions, actions being proposed by whomever at that level, etc.

    As Virginia and other States also have a State Constitution RKBA, feel free to consider that, also.

    BTW -- I personally do not feel that the RKBA was established by 2A or by the State constitution -- but that it is a basic human right that should not be abridged.

    IMHO, there is no need to muddy the water with an issue that McDonald v. Chicago may answer soon.

    My concern is the apparent willingness of folk to treat RKBA as a lesser Right than other Rights.
    Heller, IMO is not an earth shaking decision simply because DC is not a state. The Federal government is powerless to challenge itself. To address your question specifically, Yes. I believe it is entirely possible to see more gun control. From my perspective,
    2A rights may be eroded but highly unlikely to be repealed. Change seems to work best when we work within the system. NRA seems to understand this. Have you ever wondered why Ted Nugent is not a national spokes person for NRA? It is because he is perceived as an over the top nut by too many. People that think they are helping the cause might actually be hurting it. If we loose credibility we loose power.

    I do feel that a drivers license is a privilege. Concealed carry is a privilege not an absolute right. Government requires law. Break the law you pay. Go to jail, you loose some of your rights.

    How much government is the will of the people. People can be swayed by a minority or a grass roots movement. It can work for you or against you depending on what side of the fence you are on. It is way too idealistic to believe that we live in a pure democracy. Pure democracy equates to pure communism and pure communism is an unachievable utopia.
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  9. #23
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    The way this country boy sees it is this. All these possession, tranport, purchase laws do nothing but try to prevent a future event that may or may not happen.
    Prior restraint is a fools tool. " I fear that someone somday may do something bad, so I'll make it so that no one can have something. Problem solved" The problem is that the guy/gal who is willing to respect these laws are not the problem, never have been, never will be.
    The unintended (giving the benefit of the doubt to our lawmakers) consequences are that the common man/woman is prevented access to the very tools needed to protect themselves, their communities, and possibly their country from the folks that would otherwise not think twice about violating the very laws that "handcuff" the rest of us.

    It's like this. Someone, somewhere, may at sometime say something to cause the death fo someone else. So, lets remove the tongues of everyone. Afterall they can write what they need to, no one really needs there tongue.

    Now i know that the tongue is used for other things than just talking, but,... so is the gun.(used for more than just criminal activity)

    MikeV
    Last edited by MIKEV; May 6th, 2010 at 08:20 AM. Reason: (....) for clarification

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