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View Diary: The NRA of counter-earth's extremist view of the first amendment (34 comments)

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  •  Hm. Not a bad solution. (2+ / 0-)
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    wenchacha, cany

    IIRC in 1st Amendment

    You have Totally Free Speech,
    then unprotected speech, or less than protected.
    (also time place/manner v. etc)

    Point being you start with the base of the idea (functional Democracy) and you accept that some speech is un-necessary/ and can be made illegal.

    Seems to make sense for guns. Ok have your "self Defense/hunting weapon". But like 1st amendment lets apply this level of scrutiny to your right to own this gun
    lower level for these, etc.

    Works for me. Govt has a good argument against assault weapons, can limit it (so it's not guns there are categories like speech, hm).

    If you don't follow me I enjoyed.

    •  I didn't follow you, but I would be interested (1+ / 0-)
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      in hearing your professional opinion on the merits of using this logic as a serious framework for a legal defense of gun control limits.

      I'm a NY-PA engineer, and you're a ClevelandAttorney. I'm listening.

      "...pero mi corazón me aconseja, que los nacionalismos - ¡qué miedo me dan!" - Enrique Bunbury (El Extranjero)

      by JustGiaco on Thu Jan 03, 2013 at 07:18:22 AM PST

      [ Parent ]

      •  I suppose I was tapping into (1+ / 0-)
        Recommended by:

        First just the Comic's kind of Satire about the 1st Amendment.

        As someone points out you do not have constitutional rights to "Say anything". This does not just apply to the first Amendment, but rather differing levels of scrutiny apply throughout congressional law (ex- discrimination* race, strict scrutiny, gender middle of road (* as any law differing on basis like that is discriminatory not as a pejorative).

        In short Constitutional Law has long carved out what level to view a law (of scrutiny).  I only mentioned a few classes in first Amendment because I see a bit of a connection to fire-arms.

        It's hard to be brief so I hope I do not confuse more. I went with 1st amendment as it was the comic. 1st Amendment the judges long since have understood why it was included. Whether

        1.Search-for-truth rationale- Knowledge is best obtained through a clash of viewpoints

        2.Self-governance rationale- Responsive government is best achieved through unfettered political debate

        3.Self-fulfillment rationale- Autonomy self realization are important for individuals

        But as we all know that doesn't mean you can say anything. As I point out below there are different classes some "totally unprotected" others "less than protected". I am only looking at content based speech (time/place manner is another strand ie can't demonstrate without permit, etc.).

        Yes we are entitled to free speech but we are because of something like one of the above rationales. Because

        1.Advocacy of Imminent Lawless Action
        2. Obscenity (not swearing, I don't want to describe)
        3. Child Pornography
        4. Fighting Words
        5. True Threats

        Do not really further, they are unprotected and a 1st Amenmdement challenge to them would be difficult (the argument if you're doing would first to say it wasn't one of these categories). But, assuming it is. You get the highest scrutiny.

        Let's say (Advocacy of Immeninent Lawless Action). Congress passes a law saying any interference with war effort is illegal (state action check).

        Now you would normally apply strict scrutiny but you look to see if unprotected.

        Let's say these people are prosecuted (and we'll ignore "overbreadth and vagueness issues", sorry for so many terms its well complicated)

        Defendant A says at rally:“We’ll take the fucking street later!” and get rid of this law . . .

        Defendant B says at rally"If we catch any of you going in
        any of the stores of ppl that support this, we’re gonna break your damnneck. . . …

        These are taken from cases (not exact quote/circumstance). Defendant A- Hess, B- Claiborne Hardware.

        In each case, the Supreme Court held that
        defendant’s speech did not fall within the punishable
        boundaries of Brandenburg because it called not for
        imminent lawless action but illegal conduct down the

        Brandenberg is a test when they carved out this unprotected category. They don't do often and when they do they try to avoid restricting CONTENT too much as CONTENT is important. So in reality they'd say this is "Advocacy of Lawless Action" does it meet the Brandenberg test which created that as unprotected speech.  Again the answer is probably no.

        Now lets say Defendant C says (and I'll say what Brandenberg is) at Rally: I am going to take this gasoline (holds up), follow me to 123 Main Street where I am going to set some congress building on fire.

        That is probably going to fail Brandenberg, and not free Speech.

        1.) The aim and Purpose of the speaker must be to get someone else to violate the law.
        2.) Statements must be made in content and context which it’s likely someone will violate the law.
        3.) It all has to happen under conditions in which the lawless conduct is imminent-it’s going to happen Right now

        Now the "Law" I just made something up fast would probably get struck down under other ideas, but what the speaker said is not constitutionally protected. As with these other 8 or so areas (maybe 9 now with Citizens?) each has a test.

        What I was I suppose tying it to was the problem in calling everything guns. Hand-gun/Auto/etc. Sure a bullet can kill but a snub-nosed 38 isn't going to do the same as 30 clip Military Issued Assault Weapon. So Guns to me is a catch-all, and I could see some sense in dividing based on related purpose to the second amnemdnet such that a restrictive law would have to pass muster under some test. Maybe guns that bear a greater semblance to the 2nd Amendment purpose would be ok, but maybe a gun that bears no real purpose to Self Defense etc (in Heller), should not be afforded THE SAME PROTECTIONS.

        I probably could've said that in greater brevity. It is not a solution to guns in general, but viewing some as having nothing to do with Heller and how it interpeted the second amendment (Self Defense Right). I could see that a step to limiting access. As in ok OH eliminated the idk sale of weapons of such and such power. Did they eliminate all weapons? No? or your right to access others for self defense with ease? I don't know how it would go.

        I guess I am just pointing out that we ignored that the SCOTUS limits the 1st Amendment. Speech is certainly different than guns, except they certainly come in a variety of ways and purpose (and that is how you have some unprotected speech, I don't see why some unprotected "guns" (again I'd prefer to call the most problematic what they are because you say gun someone gets about something you aren't focusing on)

    •  Ok I always get bothered when I can't remebered (1+ / 0-)
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      So for record (pre Citizens United)

      1.Advocacy of Imminent Lawless Action
      2. Obscenity (not swearing, I don't want to describe)
      3. Child Pornography
      4. Fighting Words
      5. True Threats

      Less Than Protected

      1. Defamation (basically)
      2. Commercial Speech
      3. Lewd Profane, Indecent

      I was saying above, different levels of scrutiny.
      So instead of everything is Guns. Unprotected-Crazy Assault Weapons, etc etc  Less than etc, etc (stil has to pass const muster. and IIRC Heller was mostly about self defense).

      •  The fatal flaw (0+ / 0-)

        in your argument - is that there is no basis for ranking "crazy assault weapons" as somehow more dangerous than any other weapon.

        A bullet to the head will kill you - regardless if it's from a glock, an AR-15, or your dad's old deer rifle in the back of the closet.

        You can try to make an argument that weapons like AR-15s are inherently more dangerous due to their characteristics, but that is not shown in the actual crime statistics, nor in the military research that's been done over the years about the effectiveness of different types of weapons.

        You may THINK assault weapons are more dangerous because that's what you've been told, or they look scary, or for whatever reason - but the fact is, guns are dangerous. Period. Trying to break it down in categories is an exercise in futility and there are constantly so many exceptions to any rules you make that it's pointless. This is exactly why the original AWB had over 800 exceptions and exemptions for firearms that technically fit the "assault weapons" definition, but were deemed "safe", and the new proposal has an additional 100+ on top of that.

        •  If they're just as dangerous (2+ / 0-)
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          Sychotic1, wader

          Then I suppose we could issue "old deer rifles" to the infantry.

          Sure a Remington 700 will kill just as effectively as an AR-15 once.

          There's a reason spree shooters like semi-autos with high capacity magazines. They allow you to put a lot of lead downrange in a very short time.

          If the pilot's good, see, I mean if he's reeeally sharp, he can barrel that baby in so low... oh you oughta see it sometime. It's a sight. A big plane like a '52... varrrooom! Its jet exhaust... frying chickens in the barnyard!

          by Major Kong on Thu Jan 03, 2013 at 12:44:29 PM PST

          [ Parent ]

    •  We already have.... (0+ / 0-)

      Levels of scrutiny that apply when determining the level of government encroachment on rights. Strict Scrutiny applies to fundamental rights (the 2nd is) and suspect classes. There's also intermediate and rational basis.

      Where your protected speech and whatnot comes in is based on the criteria it's weighed under strict scrutiny.

      You can be assured without question that should someone pass an AWB it will be challenged in the courts, and the same analysis will be applied.

      The problem is - government has to show an overwhelming public interest, they have to show that the law they passed is tailored specifically to meet that public need and not over-reaching in scope, and that there's no less restrictive way to achieve the same goal. In the context of an AWB - if the public interest is reducing homicides by firearm - going after assault weapons isn't a very smart move. Less than 300 deaths per year as the result of "assault weapons" - yet over 6000 per year by handguns. If it's about saving lives - why start there?

      The reason is that if you can make the case stick on assault weapons, you've pretty much paved the way for anything else. That's the fear a lot of people have, and it's a pretty well founded one - considering that's the stated strategy of groups like the brady campaign against HANDGUN violence. (why are they so focused on AW's then?).

      Anyways - this comic is amusing - but the points they try to make are so far off the mark it's not even funny. At least for anyone who pays attention to the law and how it actually works.

      •  How can one have strict scrutiny and allow gun (0+ / 0-)

        regulations, as Heller clearly says one can. Not precisely WHAT, but the general can.

        202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

        by cany on Thu Jan 03, 2013 at 11:21:44 AM PST

        [ Parent ]

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