Let’s talk Liberty, Shall We?

Sorry I’ve been a little absent lately; work had me out of town on travel. I don’t know about others but when I travel on business; it makes for some really long days. I’m normally at the location early in the morning, staying till business close and often getting another hour or two of work back at the hotel.

I knew the travel is coming up so there is no excuse for not scheduling post; other than lackawanna/motivation.

Today, I would like to expand on a comment and conversation from over at Perfectly Frank.

Can I suggest one? The topics you’ve suggested (like Liberty for example) feel way to broad to me. I’m sorry if that is insulting to you. Right now I have no idea what you’ll take as insulting and what you won’t.

How about “Smart Guns”. Can we talk about those? Can we talk about the left’s assertion that the NRA nearly put Smith and Wesson out of business over smart guns? As a technologist I may be biased, but I’d REALLY like to understand the logic there.

P.S.S. Microstamping also seems like another good candidate for a “narrow” debate topic, if you’d rather

Yes. The topic of liberty is very broad – but that is exactly the conversation we should be having before we even think about discussing anything like smart guns or microstamping. To me, starting a conversation at smart guns is pointless unless we have decided at least the broad outlines of what rights, what liberty, what freedoms we have. And what restrictions on those freedoms is ‘reasonable’.

So in the interest of debate, how about some less broad topics regarding liberty?

How about topic idea #1 — The right to keep and bear arms is a fundamental liberty.

As it actually says in the Constitution, As it is has been held in court after court. Including two recent Supreme Court Decisions (Heller and Mcdonald). Until we have agreement that liberty; everything else is useless to talk about. To steal a phrase, we need a national conversation on just exactly what does it mean to “keep and bear”.

Should people be allowed to carry a firearm in most places? Should most people, including felons, have the right to keep and bear arms. Talk to me about why we allow felons to drive, to marry, to speak, to have protection against unreasonable search and seizure but we don’t allow them to own and carry a firearm. Are they not worthy of protecting their lives with firearms?

Talk to me about why the ‘full faith and credit’ clause applies to my driver’s license but not my concealed carry license? Do my rights stop at the state border?

What type of “arms” is covered under that fundamental right is another area of topic. Before we get to microstamping or smart guns; tell me why I shouldn’t be able to own a howitzer cannon, a shoulder launched anti-aircraft missile or a Phased plasma rifle in the 40-watt range. Little difficult to put a stamp on a plasma burst, eh.

Topic idea #2 — Governmental restrictions on liberty should be narrowly tailored.

For many people, this will be “DUH”. There is an entire doctrine of court decisions regarding this.

Strict Scrutiny

This is the highest level of scrutiny applied by courts to government actions or laws.

The U.S. Supreme Court has determined that legislation or government actions which discriminate on the basis of race, national origin, religion, and alienage must pass this level of scrutiny to survive a challenge that the policy violates constitutional equal protection.

This high level of scrutiny is also applied whenever a “fundamental right” is being threatened by a law, like the right to marriage.

Strict scrutiny requires the government to prove that:

  • There is a compelling state interest behind the challenged policy, and

  • The law or regulation is narrowly tailored to achieve its result.

Let’s really have an interesting conversation on what ‘narrowly tailored’ means. I don’t need a license to speak in public but I need one in Texas to exercise my right to carry a firearm outside of my home. Shouldn’t we agree on this incredibly important subject; or at least have a basic agreement; before we move onto yet another law?
And we definitely need to come to an agreement that prohibiting an entire class of firearms, such as the Washington D.C. Gun ban, the Assault Weapon ban tried to do, is not narrowly tailored. We have to agree that it is wrong to ban 10+ round magazines because someone used them to commit a crime. 

That brings up something else you said Frank,

More than one republican leading member of the Supreme Court has stated publicly that the second amendment is not about giving all guns to all people with no rules.

That is a straw man argument; unless you can come up with a quote with those words. What was said in the Heller decision.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

And very importantly but often overlooked is that Footnote #26 which says.

26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Now, I’m not a lawyer and I did stay in an Holiday Inn but that was last week; so  take this for what it is worth. But I don’t see that as the blanket protection of existing laws. I see it as a simple statement that a.) the Supreme Court was not asked to determine the status of those laws and b.) they are clearly not stating those laws are constitutional at this time. They could be…..but that is another court case or dozen to come.

Topic #3 Liberty will result in the loss of lives.

It is not cold and heartless to say this but simply a reflection of reality. We could save lives by banning air-travel; hundreds of people die each year in plane crashes. But we accept that having the freedom to travel is worth the risk and the loss of life. We could save lives by making everyone eat in government ran cafeterias that serve only healthy and nutritious meals; but family meals are important and the freedom to choose more so. We could save lives in tens of thousands of ways but we choose, deliberately, willfully and knowingly to allow liberty even if it costs lives to do so.

We have to come to an agreement that people will choose to do idiotic things; people will choose not to become proficient with devices; that people will make bad decisions about narcotics, alcohol, etc and the safety of themselves and others. Trying to mandate perfect decision making process with anything is ridiculous but that is the basis for many gun control laws. Things like ‘Safe Storage’ or even Smart Guns.

 

Topic #4 – I have the Liberty to defend myself, my family and/or friends/others.

Not just in my home but on the road, in stores, in church – with few exceptions; people should be free to use the most effective means of self defense, yes or no?
This is one of the important ones we have to talk about. I have health issues — Asthma to be exact – which means some self defense products like O.C., pepper spray, mace, etc are really hazardous to my health even if used correctly. My wife is physically weaker than many women (due to breast cancer surgery) much less than most men; she shouldn’t have to try to wrestle or fight hand to hand to defend herself. My daughter, my sons, etc shouldn’t have to try to fight off multiple attackers with just a TASER. We should be able to decide for ourselves what means of self defense we want to use.

We already have a process in place, and it seems to work quite well, to determine if someone used violence in self defense or not. Banning firearms from places where people go doesn’t make much sense to me. Which brings up another thing you said — the part in bold this time.

 

More than one republican leading member of the Supreme Court has stated publicly that the second amendment is not about giving all guns to all people with no rules. Just like the first amendment gives free speech, it doesn’t allow you to walk into a movie theatre and yell fire.

 

That is a really bad analogy. See it is still perfectly legal to walk into a theater and yell fire if there is a fire. What gun control advocates like you want to do would be the equivalent of muzzling people when they go out in public so they couldn’t yell, much less yell fire. Currently to carry a firearm in public, in the State of Texas, I have to get a license in which I have to pass a background check, pass a proficiency test, pass a knowledge test, be approved by the state !!!! Could you imagine the same restrictions on you if you wanted to simply go to the theater and talk?

And yes, I have the liberty to defend myself with firearms that you may not think are appropriate. You don’t get to decide what is right for me. Several states have ‘approved rosters’ of firearms that can only be sold in there states. That is ridiculous. Many gun control advocates argue that I don’t need (show me in the Bill of Rights where NEED is mentioned) an AR-15 or a magazine with more than 10 rounds or a small concealable pistol or a cheap firearm (Saturday Night Specials). You want to make those restrictions then I get to demand you exercise your free speech with just a quill pen and parchment. Or stand on a soapbox in the public square.

 

Want to keep going on the subject of liberty? We certainly can narrow it down and discuss it. I think it should be very clear why I wanted to start with such a broad topic before we move onto something like microstamping or smart guns.

So Frank and everyone else, please join the discussion.

5 Responses to this post.

  1. Posted by Frank on 09.02.15 at 08:11

    Hi Bob. I like the way you’ve zero’d in on a few topics here. I’ve started writing a reply and will try to finish it this evening on the train.

  2. Posted by Daddy Hawk on 09.02.15 at 08:11

    Bob, you and I are more or less on the same page when it comes to these topics. One thing that I think hampers any discussion or debate is the willful ignorance of history and the constitution by those who support gun control. It is not now nor has it ever been about safety or saving lives. It had always been about control and limiting the rights of certain groups. so, perhaps another topic would be at what point does someone’s desire to control another trump an individual’s liberty and rights? Denial of Rights via due process of law is one thing, but what happens when the laws are capriciously or arbitrarily applied so as to improper limit or deny rights? Equal protection under the law is a fine ideal, but I have never seen it practiced in reality.

  3. Posted by Bob S. on 09.02.15 at 08:11

    Daddyhawk,

    I think we, and many other gun owners, are on the same page.

    I also absolutely agree with you about the ignorance of history and our rights for many of the gun control advocates. That is what I’m trying to work through with Frank here. Still waiting on his reply though.

    I do think that gun control is morphing; some areas more so than others. I think it used to be mostly about limiting the rights of certain groups. Now I think it is simply more about limiting rights. Of everyone.
    This where it gets a little hard to discern though. Because while the laws are promulgated to restrict everyone’s rights — there is clear and disparate impact on some groups. In Texas this is clearly seen with the Concealed Handgun License; the financial and time costs are a burden for everyone but greater with those with lower income.
    I believe that gun control advocates are fine with the disparate impact and will simply keep pushing until no one can afford to exercise their rights.

  4. Posted by Frank on 09.02.15 at 08:11

    Hey Bob. Sorry this took me a little longer than expected. Work has been crazy and your site is now blocked by our office web filters under the categorie of “Weapons”. So I’m doing this from my phone between meetings.

    Topic #1 – The right to keep and bear arms is a fundamental liberty.

    Yes, the right to keep and bear arms, in a limited fashion, is currently considered a fundemental liberty. This has swayed back and forth but, for about 7 years the conservative leaning Supreme Court has held that the right to bear arms extends past its original intent of protecting state militias. It is my beleif that gun owners rights should be protected for sport, hunting and the protection of the home. Nobody reasonable should be debating that at present. As stated by Cheif Justice Warren Burger in the 1980s

    “Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing – or to own automobiles. To ‘keep and bear arms’ for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago. ‘Saturday night specials’ and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.[25]”

    It is however important that the goverment’s job of protecting its citizens is kept in tact. Therefore there should be limits as stated by Justice Antonin Scalia

    “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[52][53]”

    Even the right to have a weapon to protect your home should have certain restrictions. The gentelman who was using his yard in Flordia as a shooting range should have been subject to some law enforcement. Instead, concerned citizens who owned shooting ranges had to give him free passes and urge him to stop. Hunting is even subject to a fair number of laws and regulations.

    Topic #2 – Governmental restrictions on liberty should be narrowly tailored.

    In our civilized society this is for the court to decide. There are many nuanced cases brought against many of our liberties that the supreme court has had to rule on. Each one comes with a complicated set of arguments that should have their time in court and be subject to strict scrutiny. You’ll get no argument for me there. This is why we have the court system and checks/balances that we do. The state courts and Supreme Court have had to rule on abortion for example and yet many states still try to enact laws that require invasive procedures before a lady can get one. One would hope that this too is subjected to strict scrutiny.

    I don’t currently have references but I’m sure the right to freedom of speech and even religion have also been challenged before the courts and that new laws have had to be scrutinitized. If you bring a law through the court systems that states you believe people should be licensed to speak in public I’m sure the courts will rule on it. I personally hope they continue to require strict background checks, licensing rules, and laws for either concealed or open carry of weapons in public, in all states.

    Topic #3 – Liberty will result in the loss of lives.

    There is no doubt that there is contention in law making between Liberty, Freedom and the Safety. If one takes a strict Libertarian view of the world, the world would be a very unsafe, unclean and unfair place. Vacinations would be optional. Large numbers of people would be kept from voting. City streets in civilized countries would be used to defecate in. Everyone could have any manner of explosive device or extremly dangerous firearm and could chose to use them anywhere. In a real world, laws, our court system and our law enforcers have to strike a balance between what is safe, healthy and what represents the balanced freedoms of our people.

    Topic #4 – I have the Liberty to defend myself, my family and/or friends/others.

    This is a tough one Bob, no doubt there. Since entering into this debate publicly I have learned of a number of people who seem to have reasonable arguments for carrying guns with them to their work sites or as they’re running errands where they live. These are dangerous places for certain, where it takes way too long for law enforcement to get to them. Again, through background checks, licensing and rules for approving open/concealed carry, its my hope that these people are able to lawfully protect themselves.

    I will also say that one of my basic philosphies is that I hope fewer and fewer feel the NEED to carry a weapon in public. I hope fewer and few people feel they need to keep a firearm locked and loaded under their pillow. People and cultures evolve. Laws have to evolve with them. I don’t know what comes first, more restriction or fewer people feeling the need to carry weapons. But it is my hope that we collectively evolve to be more peaceful and that as we do, our laws are brought in line with our beleifs to ensure the massive proliferation of weapons in this country doesn’t backslide for some reason.

  5. Posted by Bob S. on 09.02.15 at 08:11

    Frank,

    opic #1 – The right to keep and bear arms is a fundamental liberty.
    Yes, the right to keep and bear arms, in a limited fashion, is currently considered a fundemental liberty.

    I think that is a non-answer. Either the right to keep and bear arms (RKBA henceforth) is a fundamental right equal to the right to free speech, exercise or not religious beliefs, or it is not. The Right to keep and bear arms predates the Constituation; therefore any limitations on that right should be extremely limited.

    Your answer shows we still don’t have an agreement here. What limits my right to keep and bear arms? Keep in mind I will ask you to apply the same limits to your other rights — want to blog — same restrictions as the RKBA.

    This has swayed back and forth but, for about 7 years the conservative leaning Supreme Court has held that the right to bear arms extends past its original intent of protecting state militias

    Riddle me this Batman — how can we have state militias — an organization where each individual is supposed to bring their own firearm — without each individual having protection for said firear?

    The idea that it was ONLY for state militias was throughly trashed in the Heller decision. I hope you take time to read that text in detail if you haven’t.

    But let’s take your idea and run with it. If the 2nd Amendment is primarily in regards to militias; then shouldn’t I be able to own, with limited interference from the federal government such arms as fully automatic rifles and handguns, anti-tanks weapons, anti-aircraft missiles, even tactical nuclear warheads?

    The Founding Fathers had just fought off their government using the equivalent weaponry to what the military had; shouldn’t I be allowed to posses today’s equivalents?

    It is my beleif that gun owners rights should be protected for sport, hunting and the protection of the home.

    So I can protect myself in my home, my wife can use a firearm to stop a rapist in the home but not in the work place or on the streets on in stores? Gee, the Bureau of Justice Statistics shows that 2/3rds of all violent crime happens outside the home or the immediate area. Isn’t that giving the criminals pretty much a free pass?

    And why should my rights stop at my property line. You say you are using your right to free speech at work — maybe we should require you to leave any computing device at home instead. See how silly it is?

    Nobody reasonable should be debating that at present.

    Please tell it to your fellow gun control advocates; you know the extremists like the ones calling for a complete gun ban. Or the ones that think we shouldn’t use firearms for self defense but depend on the police for protection. Or even the federal government who fought against changing the gun control laws in Washington D.C. 8 years ago.

    . ‘Saturday night specials’ and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.[25]”

    So inexpensive weapons aren’t recreational? I note that Justice Burger left out self defense outside of the home. Which according to the McDonald decision was most acute in the home but not the only place where self defense is needed. Nor does it address the defense against tyranny or mobs. Wonder if the people caught in the Rodney King riots in L.A. would agree that machine guns needed to be regulated. Maybe we could ask Reginald Denny.

    It is however important that the goverment’s job of protecting its citizens is kept in tact.

    Then the government is doing a very poor job. Can I sue them for failing to protect me? Nope. I can request around the clock protection? I can but I won’t get it.
    I can get a piece of paper –restraining order– from the government. Want to do an experiment on how well that protects you?
    Sign a waiver allowing me to do violence to you and then hold the restraining order in front of you. I get 6 minutes to do what ever I want — at the end of that time the ‘police’ will arrive and attempt to stop me. 6 minutes is the average response time for a high priority 911 call. Think the government can and will protect you?

    And if not, shouldn’t people be allowed to do so themselves?

    I think I’m running out of room and I’ve one covered the first one.
    Be back for more later