Supreme Court: Right to bear arms protected by highest category of liberty recognized
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Thread: Supreme Court: Right to bear arms protected by highest category of liberty recognized

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    Ancient Gaseous Emanation Popeye's Avatar
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    Default Supreme Court: Right to bear arms protected by highest category of liberty recognized

    It's the Constitution that has the final say

    Judge Andrew P. Napolitano
    August 7, 2019


    Last weekend’s mass murders in El Paso, Texas, and Dayton, Ohio, have produced a flood of words about everything from gun control to mental illness to white nationalism. Most of those words have addressed the right to keep and bear arms as if it were a gift from the government. It isn’t.

    The U.S. Supreme Court has twice ruled in the past 11 years that the right to keep and bear arms is an individual pre-political liberty. That is the highest category of liberty recognized in the law. It is akin to the freedoms of thought, speech and personality. That means that the court has recognized that the framers did not bestow this right upon us. Rather, they recognized its pre-existence as an extension of our natural human right to self-defense and they forbade government — state and federal — from infringing upon it.

    It would be exquisitely unfair, profoundly unconstitutional and historically un-American for the rights of law-abiding folks — “surrender that rifle you own legally and use safely because some other folks have used that same type of weapon criminally” — to be impaired in the name of public safety.

    It would also be irrational. A person willing to kill innocents and be killed by the police while doing so surely would have no qualms about violating a state or federal law that prohibited the general ownership of the weapon he was about to use.

    With all of this as background, and the country anguishing over the mass deaths of innocents, the feds and the states face a choice between a knee-jerk but popular restriction of some form of gun ownership, and the rational and sound realization that more guns in the hands of those properly trained means less crime and more safety.

    Can the government constitutionally outlaw the types of rifles used by the El Paso and Dayton killers? In a word: No. We know that because in the first Supreme Court opinion upholding the individual right to keep and bear arms, the court addressed what kind of arms the Second Amendment protects. The court ruled that the Second Amendment protects individual ownership of weapons one can carry that are of the same degree of sophistication as the bad guys have — or the government has.

    The government? Yes, the government. That’s so because the Second Amendment was not written to protect the right to shoot deer. It was written to protect the right to shoot at tyrants and their agents when they have stolen liberty or property from the people. If you don’t believe me on this, then read the Declaration of Independence. It justifies violence against the British government because of such thefts.

    Governments are the greatest mass killers on the planet. Who can take without alarm any of their threats to emasculate our right to defend our personal liberties?

    In theory, all of this was known by President Donald Trump when he addressed the nation last Monday and attributed the weekend slaughters to mental illness, the freedom to express hateful ideas on the Internet and violent video games. He should have consulted his lawyers before he spoke.

    Federal law prohibits records of mental deficiencies, unless they result in involuntary institutionalization, from entering the government’s databases that are consulted in background checks. And the Supreme Court has already ruled that the government cannot censor, ban or punish opinions expressed on the Internet or games played there.

    Then he condemned hate. Do you believe his condemnations? He has, after all, praised the white supremacists at Charlottesville, Virginia, in 2017 as “good people,” even though one of them pleaded guilty to the first-degree murder of a young black woman, and even though, as a candidate and later as president, he argued that the Southwest United States was being “invaded” and “infested” by Hispanics.

    That white supremacy ideology — “let’s repel the Hispanic invaders because the feds won’t do so” — resonates in the El Paso killer’s manifesto, which he published about 20 minutes before he began killing. That ideology is far more widespread than most Americans realize. The FBI recently demonstrated as much. This form of hatred of people because of their immutable characteristics breeds violence.

    We know that some among us love to hate. That is their right, but they have no right to act violently beyond their perverse thoughts. And all people have the right to repel such violence by using guns to do so.

    The president also offered his support for “red flag” laws. These horrific statutes permit police or courts to seize guns from those deemed dangerous. Red flag laws are unconstitutional. The presumption of innocence and the due process requirement of demonstrable fault as a precondition to any punishment or sanction together prohibit the loss of liberty on the basis of what might happen in the future.

    In America, we do not punish a person or deprive anyone of liberty on the basis of a fear of what the person might do. When the Soviets used psychiatric testimony to predict criminal behavior, President Ronald Reagan condemned it. Now, the president wants it here.

    The United States is not New Zealand, where a national legislature, animated by fear and provoked by tragedy, can impair fundamental liberties by majority vote. In America, neither Congress nor the states can outlaw whatever handguns or rifles they want to outlaw or infringe upon the right to own them.

    The government can no more interfere with Second Amendment rights than it can infringe upon any other rights. If this were not so, then no liberty — speech, press, religion, association, self-defense, privacy, travel, property ownership — would be safe from the reach of a fearful majority.

    That’s why we have a Constitution.




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    The difference between a Socialist and a Communist is that the Socialist doesn't have all the guns yet.

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    Senior Member LRDGCO's Avatar
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    Very powerful. Very well written. And I am not often a Napolitano fan. Thanks for posting.

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    Judge Nap said that!
    Guess they are correct when they say even a broken clock is right twice a day.
    Levant likes this.

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    ALERT: Op-Ed

    Dear Mr. Napolitano: Disclaimer: I'm removing the inflammatory bias so we can get to the heart of the matter.

    With all of this as background, the feds and the states face a choice between restriction of some form of gun ownership, and the realization that more guns in the hands of those properly trained means less crime and more safetyy.
    Proper training and safety requirements are unacceptable restrictions on the population by way of permitless carry.

    The court ruled that the Second Amendment protects individual ownership of weapons one can carry that are of the same degree of sophistication as the bad guys have – or the government has.
    Really? Where's my grenade? I want a rocket launcher., some C4 and a jet fighter and a red fire engine.

    Red flag laws are unconstitutional. The presumption of innocence and the due process requirement of demonstrable fault as a precondition to any punishment or sanction together prohibit the loss of liberty on the basis of what might happen in the future.
    Ever hear of warrants? And red flags laws don't have punishments. No one's going to be jailed or flogged. The template for CPS isn't unconstitutional and red flag laws aren't different whether it's children or guns.

    In America, neither Congress nor the states can outlaw whatever handguns or rifles they want to outlaw or infringe upon the right to own them.
    [Only registered and activated users can see links. ]

    The government can no more interfere with Second Amendment rights than it can infringe upon any other rights. If this were not so, then no liberty – speech, press, religion, association, self-defense, privacy, travel, property ownership – would be safe from the reach of a fearful majority.
    Felons can't own guns.

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    Senior Member NGF Addict! Stamps6's Avatar
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    “A person willing to kill innocents and be killed by the police while doing so surely would have no qualms about violating a state or federal law that prohibited the general ownership of the weapon he was about to use.” BINGO!!!

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    Red flag laws are unconstitutional. The presumption of innocence and the due process requirement of demonstrable fault as a precondition to any punishment or sanction together prohibit the loss of liberty on the basis of what might happen in the future. Ever hear of warrants? And red flags laws don't have punishments. No one's going to be jailed or flogged.

    The template for CPS isn't unconstitutional and red flag laws aren't different whether it's children or guns.

    I no longer have children at home but plenty of guns and you may say I'm crazy and have my guns taken away from me on YOUR word through the CPSs? Damn Due Process? Maybe one of your Grandchildren will do that to you because they are Liberal and hate guns.

    We don't need any new gun laws.
    BigNastyCowboy likes this.

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    Quote Originally Posted by up2it View Post
    Red flag laws are unconstitutional.
    Let's grind on this one, OK?

    FEDERAL red flag laws for guns do not exist. It's not accurate to assign attributes to the vacuous. There are many proposals on the table, and what any final ones will actually contain is not known.

    At the state level, red flag laws for guns are not unconstitutional, right?

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    Not yet. They are being challenged in the courts.
    BigNastyCowboy likes this.
    The difference between a Socialist and a Communist is that the Socialist doesn't have all the guns yet.

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    Quote Originally Posted by BigNastyCowboy View Post
    Let's grind on this one, OK?

    FEDERAL red flag laws for guns do not exist. It's not accurate to assign attributes to the vacuous. There are many proposals on the table, and what any final ones will actually contain is not known.

    At the state level, red flag laws for guns are not unconstitutional, right?
    Still without due process. That is in the Constitution. If you do away with due process, then our Nation becomes a Dictatorship. You want That? I don't and won't!!
    BigNastyCowboy and Wag like this.

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    Quote Originally Posted by up2it View Post
    Still without due process. That is in the Constitution. If you do away with due process, then our Nation becomes a Dictatorship. You want That? I don't and won't!!
    The "due process," objection is repetitive, compact, and [Only registered and activated users can see links. ].

    Of course I agree that due process is a requirement and even if I didn't, I would just be wrong because it's right there in the Constitution which we both have studied in some detail.

    So I agree with you.

    Seventeen states and the District of Columbia already have laws that allow “extreme risk protection orders.”

    The laws authorize courts to issue orders allowing police to temporarily confiscate firearms from a person deemed by a judge as posing a risk of violence.

    Often, requests for the orders come from relatives and friends concerned about a gun owner who expresses suicidal thoughts or threatens to harm others.
    The judge has the option of denying confiscation. Also, the judge will set the terms of "temporary," either by a set term (six weeks) or by mitigation (release by mental evaluator) or other.

    By "request for the orders," we're talking about affidavits signed under oath by those making the requests. Judges don't "rubber-stamp" requests. They look at the merits of a case and act accordingly.

    I think you'll agree that it doesn't get any more "due process" than that.

    Again, you and I are on the same page. I'm not in favour (at all) of random gun-grabbing.
    Last edited by BigNastyCowboy; 08-14-2019 at 09:48 AM. Reason: Formatting

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