Prof. Nicholas Johnson: Undermining Our Conversation on the RKBA

[Kirk Freeman]

Professor Nicholas Johnson, Fordham University School of Law, discussing the inanity of rewriting of the Constitution to justify unlimited federal power and how it impacts the right to keep and bear arms.

Put your tweed jacket on and find your pipe.

Undermining Our Conversation About the Right to Arms | Online Library of Law and Liberty

 

[ATOMonkey]

I only have a leather jacket with tweed arm patches...

 

[spencer rifle]

 

[GodFearinGunTotin]

Tagging for later.

 

[Kirk Freeman]

Preparing for the INGO Faculty Lounge discussion:

 

[T.Lex]

For me, there should be no conceptual difference between regulating the first amendment and the second. (For that matter, I'm not convinced we can't treat all of them the same - even beyond the BOR.)

Are there limits? Sure.

Should the onus be on the gov't to justify the reasons for the limits? Absolutely.

 

[ModernGunner]

For me, there should be no conceptual difference between regulating the first amendment and the second. (For that matter, I'm not convinced we can't treat all of them the same - even beyond the BOR.)

Are there limits? Sure.

Should the onus be on the gov't to justify the reasons for the limits? Absolutely.

Good response, T.Lex.

 

[hooky]

For me, there should be no conceptual difference between regulating the first amendment and the second. (For that matter, I'm not convinced we can't treat all of them the same - even beyond the BOR.)

Are there limits? Sure.

Should the onus be on the gov't to justify the reasons for the limits? Absolutely.

What limits should there be?

 

[Kirk Freeman]

What limits should there be?

Whatever can pass strict scrutiny: criminal misuse, limited time, manner, place.

 

[hooky]

Whatever can pass strict scrutiny: criminal misuse, limited time, manner, place.

Is this really a limit on the right itself or a point where it infringes on another's rights?

 

[Kirk Freeman]

That may be one way to look at it.

Strict Scrutiny legal definition of Strict Scrutiny

 

[hooky]

Thanks for the link.

 

[GodFearinGunTotin]

That may be one way to look at it.

Strict Scrutiny legal definition of Strict Scrutiny

Seems to me that with Johnson's contention in mind regarding enumerated federal powers, those levels of scrutiny are instrumental in rationalizing the .gov's disregard for the powers to which they should remain constrained.

 

[88GT]

For me, there should be no conceptual difference between regulating the first amendment and the second. (For that matter, I'm not convinced we can't treat all of them the same - even beyond the BOR.)

Are there limits? Sure.

Should the onus be on the gov't to justify the reasons for the limits? Absolutely.

Yeah, that's worked out so well for us in the past.

The idea of regulating a right protected from such regulation seems a bit....faulty.

 

[T.Lex]

Yeah, that's worked out so well for us in the past.

The idea of regulating a right protected from such regulation seems a bit....faulty.

Every right is subject to regulation - it is the only practical way to govern.

The issue is the rules that control how that regulation happens.

Ultimately, in the American system, the courts decide whether a regulation of a right is appropriate or not, based on the rules.

There is a whole body of law around strict scrutiny that, to me, strikes an appropriate balance. We don't have to reinvent the wheel, just repurpose an existing wheel.

IMHO.

 

[IndyDave1776]

Every right is subject to regulation - it is the only practical way to govern.

The issue is the rules that control how that regulation happens.

Ultimately, in the American system, the courts decide whether a regulation of a right is appropriate or not, based on the rules.

There is a whole body of law around strict scrutiny that, to me, strikes an appropriate balance. We don't have to reinvent the wheel, just repurpose an existing wheel.

IMHO.

While I understand your point, the problem is that the above-mentioned idea readily converts into courts overriding and disregarding the very clear law they are supposed to obey. What part of 'shall not be infringed' is negotiable. We have a right to keep and bear arms. The Indiana constitution adds the purpose of defending ourselves and the state. It does not grant us a right to harm or endanger people with those arms. There is no need for regulation here, merely recognition of what constitutes the right and respecting that without adding red herrings. Criminal misuse of arms exists outside the scope of keeping and bearing. As such, I fail to see where there is any argument for infringing on keeping and bearing that would hold water with any person capable of rational thought.

 

[T.Lex]

...the above-mentioned idea readily converts into courts overriding and disregarding the very clear law they are supposed to obey.

They are, in a sense, the most powerful branch of gov't, because they interpret the law. But, they have no enforcement. And, the law can always be changed.

What part of 'shall not be infringed' is negotiable.

First, it isn't a negotiation.

Second, "infringed" does not mean "interpreted." The 2A doesn't say, "shall not be interpreted by a duly empowered court." So, courts get to interpret "infringed." Good thing, too - see Heller.

Third, based on the laws in place at the time the constitution was written, I don't think "infringed" meant what you think it meant, either.

We have a right to keep and bear arms. The Indiana constitution adds the purpose of defending ourselves and the state. It does not grant us a right to harm or endanger people with those arms. There is no need for regulation here, merely recognition of what constitutes the right and respecting that without adding red herrings. Criminal misuse of arms exists outside the scope of keeping and bearing. As such, I fail to see where there is any argument for infringing on keeping and bearing that would hold water with any person capable of rational thought.

I'm all for focusing on actions as the paradigm for criminal laws. It is easier, and probably most effective.

So, if an otherwise law-abiding felon has a gun, no problem?

What about a paranoid schizophrenic?

I don't mean to be confrontational, and these may be some of the red herrings you mention, I'm just curious about your perspective on the boundaries of this otherwise absolute right. I'm confused by your statement that there is no need for regulation, only recognition. How can the law recognize a limit without that limit being a regulation?

 

[singlesix]

Why do I come upon this type of threads late at night, bookmark for when I'm awake.