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

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  •  I suppose I was tapping into (1+ / 0-)
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    wader

    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
    road.

    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)

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