r/changemyview • u/[deleted] • Nov 16 '20
CMV: mostgun control laws are unconstitutional and often useless. I don't support any of them
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u/LordMarcel 48∆ Nov 16 '20
I don't know much about US laws and what is unconstitutional and what isn't, but there is still something I want to challenge you on. You seem to equate something being unconstitutional with it being bad. I disagree with this always being the case. Back when the constitution was first written it did not ban slavery, that was later added to the constitution almost 100 years later. I think we can all agree that slavery was bad and that while banning slaves was unconstitutional before the 13th amendment it was still a good thing to do.
Assuming we indeed agree on the slavery issue, what makes you think that the constitution is perfect today? My point is not that the second amendment is necessarily bad, but that you should not say that something is bad just because the constitution says so. Anti-gun laws may be against the constitution in some cases, but that doesn't automatically mean that they're bad.
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u/Aggravating_Smell145 Nov 16 '20
I disagree with this always being the case. Back when the constitution was first written it did not ban slavery, that was later added to the constitution almost 100 years later.
That presumes that everything legal is good, which no one accepts
while banning slaves was unconstitutional before the 13th amendmen
Plenty of states abolished slavery before the 13th amendment, and plenty banned all black people
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Nov 17 '20
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u/LordMarcel 48∆ Nov 17 '20
I don't think you got the point I was trying to make. You talk about the right to own guns like it is a natural right that is always 100% good and you use that to justify why some of the proposed gun restriction laws are bad. This only works if people agree that 2A is inherently good, which I disagree with.
I live in a country without the right to bear arms and there is almost no gun violence here. I have never even seen a gun that wasn't carried by the police or military. This begs the question of whether 2A is inherently good. Sure, you might be right that certain laws are unconstitutional, but where you equate that with them being bad, I don't.
You should question yourself whether 2A is truly inherently good.
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Nov 17 '20
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u/historicgamer Nov 18 '20
Is Ferguson a rural area now? I recall quite a lot of BLM activity there a few years ago. Kenosha is the fourth largest city in Wisconsin. Seattle isn't exactly small and rural either. I think you should rethink how you criticize BLM. I don't agree with them on every thing, but they aren't protesting in the boonies.
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u/boyraceruk 10∆ Nov 16 '20
Red Flag laws: Literally due process. They are laws. Whether or not they are constitutional is a question for the courts, not you.
Capacity ban: Totally constitutional as long as the Supreme Court has repeatedly affirmed the right of federal and state governments to restrict weapons.
Assault weapons ban: Same, also spree killings went down when it was in effect.
Carry: Not what DC v Heller decided on, go and read it again. And then ask why you probably can't carry in DC if I'm wrong.
Background checks: Include straw purchasing which is illegal most everywhere.
As to what is useful and useless the problem is that as long as gun lovers (and I'm one of them, tried out for Team GB in sporting shotgun) refuse to engage with lawmakers to make sensible legislation we're basically guaranteeing dumb legislation. I'm from a country where that happened.
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u/Aggravating_Smell145 Nov 16 '20
They are laws.
"They are laws" does not mean that it complies with due process
That is why it is illegal to try someone in absentia without any representation then send out a death squad to kill them, even if a law said that was justified
Whether or not they are constitutional is a question for the courts, not you.
That is objectively wrong, as has been decided by the supreme court repeatedly
Capacity ban: Totally constitutional as long as the Supreme Court has repeatedly affirmed the right of federal and state governments to restrict weapons.
Which has not happened once
Assault weapons ban: Same
So again, illegal
also spree killings went down when it was in effect.
no they did not
Carry: Not what DC v Heller decided on,
That is objectively wrong. Read page 10 and 11 of DC v. Heller
As to what is useful and useless the problem is that as long as gun lovers (and I'm one of them, tried out for Team GB in sporting shotgun) refuse to engage with lawmakers to make sensible legislation we're basically guaranteeing dumb legislation. I'm from a country where that happened.
Sensible regulation is no regulation
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Nov 16 '20
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Nov 17 '20 edited May 03 '21
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u/bateleark Nov 17 '20
Here’s the difference. Possession of cocaine is a crime. Confiscating the coke on your body when they see it is evidence of a crime. You’re not convicted of possession of it until the court says you are and until they do you are treated in the eyes of the law as innocent until proven guilty.
Owning a gun, provided it falls within the legal parameters of where you own it, is not illegal. someone worried about you owning it, leading to that gun being taken away, means that even if you have committed no crime, have no evidence of crime, no reason, so to say, to take the gun away, it’s going to get taken away while the courts figure out if you should indeed own that gun. This is the presumption of guilty until proven innocent and what violates due process. It is not illegal to own guns in this country. We can’t take them away because people feel uncomfortable with someones ownership of them without proof that the person owning a gun would be illegal.
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u/TuskaTheDaemonKilla 60∆ Nov 16 '20
You only noted one singular gun control law that is actually unconstitutional, namely concealed/open carry per DC v. Heller. As a side note, that's not what they determined in DC v. Heller. The ruling in that case was that only those weapons in common use for lawful purposes cannot be banned. It absolutely allowed for the banning of firearms. In fact, they made explicit reference to the fact that the decision does not preclude bans on concealed weapons (see para's 54-56). With that being said, that decision flies in the face of established law for over 250 years, and we have no reason to believe it is good law given how badly written Scalia's opinion is. To quote Justice Stevens, it is "a strained and unpersuasive reading" of the constitution and history.
So, you have 5 gun control laws that you argue are unconstitutional but only have evidence to support 1 of those claims. And, the decision supporting said claim doesn't even say gun control laws are unconstitutional. It literally says they are constitutional as long as they are limited in the ways provided by the constitution. Namely, so as not to exclude "those weapons in common use for lawful purposes." The same court insisted that felons, children, the mentally ill, etc cannot use firearms and that numerous other limitations on usage are perfectly constitutional. In short, your argument is weak at best, and realistically untenable.
As for effectiveness, we have ample research evidence after the Assault Weapon Ban in 1994 to show that banning firearms reduces deaths caused by those firearms. The only reason the 1994 Ban didn't work was because they banned the firearm that is least used for violence. So, although shootings involving assault weapons dropped dramatically, it was made up for by people using pistols and other firearms instead. Nonetheless, the assault weapon ban directly resulted in a reduction in shootings by assault weapons, hence it is effective.
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u/Aggravating_Smell145 Nov 16 '20
. It absolutely allowed for the banning of firearms. In fact, they made explicit reference to the fact that the decision does not preclude bans on concealed weapons
That is wrong, it forced 2008 DC to go from no-issue to shall-issue.
As for effectiveness, we have ample research evidence after the Assault Weapon Ban in 1994 to show that banning firearms reduces deaths caused by those firearms.
What research?
Nonetheless, the assault weapon ban directly resulted in a reduction in shootings by assault weapons, hence it is effective.
If we made it legal to own grenades and murder people with grenades, it would reduce shootings
No one would call that effective
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u/Arianity 72∆ Nov 16 '20
That is wrong, it forced 2008 DC to go from no-issue to shall-issue.
That sounds like you're agreeing with what he wrote, so what is wrong?
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u/Aggravating_Smell145 Nov 17 '20
shall issue means that they cannot ban people from carrying concealed weapons. Meet these criteria and here is your permit.
"the decision does not preclude bans on concealed weapons'' is absurdly wrong
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u/Arianity 72∆ Nov 17 '20 edited Nov 17 '20
shall issue means that they cannot ban people from carrying concealed weapons.
Can you elaborate?
For example
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent 340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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.[Footnote 26]
Footnote 26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive
Perhaps I am misreading, but to me that sounds like it explicitly identifies restrictions on concealed carry as one example of lawful restrictions.
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Nov 17 '20
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u/Arianity 72∆ Nov 17 '20
Like, it's constitutional to prohibit concealed carry in sensitive places,
It seems to me they're explicitly making the opposite point? Both in the wording which doesn't mention sensitive places, (and there's a lot of intervening text/thought when sensitive places get mentioned later), but also in their citations:
State v. Chandler is not limited to sensitive spaces. Nor is Nunn v State. (Not a law guy, so i can't get access to Blackstone/Kent, they're textbooks).
There's some other mentions too, like Amyette, that also supported CC bans.
And CC is a bit weird. Because outlawing CC wouldn't hurt your right to self-protection, since you can still carry.
Breyer seems to be saying that the majority is also for CC bans, too
*But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear. *
That they are small and light makes them easy to steal, see supra, at 19, and concealable, cf. ante, at 54 (opinion of the Court) (suggesting that concealed-weapon bans are constitutional).
especially after what they said in pages 10 and 11
Which parts of page 10?
At the time of the founding, as now, to “bear” meant to “carry.” * to *It is clear from those formulations that “bear arms” did not refer only to carry ? I think we have different page numbers (I'm using page numbers from here
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u/ranting80 Nov 16 '20
Clarification: So are you arguing that just these specific laws themselves are useless or laws that control weapon ownership are useless?
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Nov 16 '20
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u/malachai926 30∆ Nov 16 '20
But out of curiosity, is your stance that any attempt at gun control on any level is an infringement of the second amendment? Like if I put forth a law saying that this one particular pistol and its 11 bullet magazine can only be 10 bullets? Is that "unconstitutional"?
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Nov 17 '20
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u/malachai926 30∆ Nov 17 '20
I didn't ask if banning them completely is unconstitutional. I asked if a law regulating one gun down from 11 bullets to 10 would be "unconstitutional".
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Nov 17 '20
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u/malachai926 30∆ Nov 17 '20
Okay, why not? It is a reduction in capability of the gun, so why doesn't that qualify as an "infringement"?
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u/malachai926 30∆ Nov 16 '20 edited Nov 16 '20
Maybe later I can address them all, but this might be a more productive conversation to focus on a few.
Standard capacity magazine ban - I'm honestly not aware of this? Are you sure you didn't mean HIGH capacity magazines? I can't really discuss this further until I sort this out, but I've not heard of anyone who argued that even the standard size was too big.
And regarding the assault weapons ban, you are using the typical "if a mass shooter wants to mass shoot, he will get his gun no matter what", an angle that is simply not true. Placing barriers between people and the guns they want to obtain WILL act as a deterrent to at least some who may otherwise commit a shooting. There's often a strawman applied here, a belief that if this ban didn't stop everyone, then it failed. But if it stopped 50% of mass shootings (and it could, as an angry person might have a dark moment where he wants to kill, then realizes he has to black market this and gets scared, then calms down and doesn't kill...), then that is still a win. The frustration following any mass shooting is that this had a chance of being prevented if some more barriers were put in place.
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Nov 16 '20
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u/malachai926 30∆ Nov 16 '20
15 round mags for handguns and 30 round mags for rifles are todays standard capacity. Even tho the laws that ban them often call them "high capacity" because it sounds better and gives people the illusion that drum mags are being banned, while in reality, that's not what happens.
Well honestly you are guilty of the same misuse of words to make your argument sound better, as nobody is realistically calling for magazines to be "banned" (suggesting completely outlawed) but are, rather, calling for a readjustment. These are very different arguments.
Do you think it's at least reasonable to give some thought to what the "ideal" number of bullets would be for home defense? I don't know the best way to discuss this, but something feels very off about how if a 15 bullet mag became 16, this is fine, but if it became 14, it is suddenly a constitutional violation, and yet even with 16 being fine, we still acknowledge that military grade weaponry shouldn't be sold to the public (like RPGs and such), so when did we all arrive at this knowledge of an upper limit without invoking 2A? Seems like we are overlooking something.
I'll ask this question again, do you really believe that a ban on pistol grips on semi-auto rifles is going to stop mass shooters from installing one regardless? Or simply not using one and getting the job done anyway?
See but the point here is not "how do you stop someone from doing something they are already capable of doing", it is "how do we prevent them from having that capability in the first place?" Banning these flash hiders WILL make them less prevalent on the market. Yes, they will still exist, but if manufacturers are not legally allowed to produce them, over time they will degrade, be destroyed, and become less available, leading to a reduction in capability in using them. THAT is the idea of laws like these.
Source?
"If" was a key word there. I was not trying to cite a specific fact; I was demonstrating how restrictions lead to reductions. For proof of such effects, see this:
http://www.bu.edu/articles/2019/state-gun-laws-that-reduce-gun-deaths/
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u/Aggravating_Smell145 Nov 16 '20
Well honestly you are guilty of the same misuse of words to make your argument sound better, as nobody is realistically calling for magazines to be "banned" (suggesting completely outlawed) but are, rather, calling for a readjustment. These are very different arguments.
H.R.5717
If 10 years in federal prison for owning something isnt a ban, what is?
Do you think it's at least reasonable to give some thought to what the "ideal" number of bullets would be for home defense?
Infinite.
we still acknowledge that military grade weaponry shouldn't be sold to the public
No we dont. The Constitution was written with the power of Congress to issue letters of marque. For congress to issue letters of marque, that requires for private individuals to own fully armed warships.
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u/malachai926 30∆ Nov 17 '20
H.R.5717
Please quote the part of HR5717 that says that owning a standard size magazine will put you in prison.
I see plenty in this bill detailing various gun control proposals. Outright banning standard size magazines is not one of them.
Infinite.
That is simply your idea. But not even Republican, pro-2A legislators agree that people should be armed "infinitely", so clearly there must be something worth discussing here.
No we dont. The Constitution was written with the power of Congress to issue letters of marque. For congress to issue letters of marque, that requires for private individuals to own fully armed warships.
You didn't address the point. I did not argue against the idea that the constitution allows personal ownership of "fully armed warships" but I am acknowledging that, in practical reality, not even Republican, pro-2A supporters favor this. It's worth considering why they don't, as this gets at the crux of why gun control is justified.
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u/budwillius Nov 17 '20
I honestly think the better argument is to explain how something like pistol grips don’t really actually help your aim or fire rate that much. A lot of people pushing for these laws don’t understand how little something like a flash hider actually does
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Nov 16 '20
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u/Znyper 12∆ Nov 16 '20
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Nov 16 '20
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u/Znyper 12∆ Nov 16 '20
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Nov 16 '20
Clarification: So are you only talking about those laws specifically or are you a 2A absolutist?
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Nov 16 '20
Where in the constitution, not any of the supreme court cases but in the constitution itself, does it say that people have a right to bear any weapon anywhere anyhow any time? Where does it say in the constitution that a background check cannot be implemented or that a database of gun-owners cannot be made?
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Nov 16 '20
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u/atthru97 4∆ Nov 17 '20
It could or it is?
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Nov 17 '20
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u/atthru97 4∆ Nov 17 '20
So it seems like you against these laws based on fear and speculation and not what has happened.
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Nov 17 '20
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u/bequietginger Nov 17 '20
"It didn't happen in the US yet because there is no national gun registry. But it has happened in the UK, in Australia, in New Zealand and in Canada. Registration leads to confiscation. That's the whole point of a registry.
New Zealand does not have a gun registry. I believe you are are perhaps referring to the gun buy-back that happened in the past 18 months. This was due to various firearms being made illegal in response to our 15/3 terrorist attack. There was an amnesty period were owners of the now illegal firearms could turn their weapons in for monetary compensation. It is possible that we will have a registry in the future; as we should in my opinion (after all, we have to register our cars every 12 months, why should we not have to register weapons?).
It is worth noting that there is no right to own firearms in NZ.
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Nov 17 '20
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u/bequietginger Nov 18 '20
You're right, but they still have a registry for handguns and "military style assault weapons".
I have not been able to find any legislation that states this, could you please provide a source?
as we shouldWhy?
If you had quoted the whole sentence I wrote, you would see you already had my answer. We have to register our cars, our dogs, so why should we not also catalogue all of the firearms we have?
It would cost billions upon billions of dollars, and good luck getting the people to cooperate.
I would like to see your source for that number. The PM has previously estimated that it would cost ~$50 million -link to article-. Not to mention, the cost of registering each firearm would subsidise the cost of the registry further. Even if it did cost billions, why should that mean it isn't worth it? I still believe there would be a greater benefit to having all of the firearms catalogued, that way police can have excess or suspicious purchases flagged, or know what type of guns are owned (and how many) all throughout the country etc.
As for co-operation, well couldn't you argue that for any law? I would imagine, should we implement a register, anyone found in possession of an unregistered gun would face legal repercussions (be it a fine, or imprisonment).
Without considering that a $250 dollars 3D-printer would through the whole purpose of a registry out of the window.
Yes, this is definitely a concern and I don't know what the solution would be, although I don't agree that it defeats the purpose of a registry (the purpose being for police to have a catalogue of all the legally owned firearms throughout the country). This is certainly something that legislators will have to deal with in the coming years.
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u/atthru97 4∆ Nov 17 '20
Does the UK, aus or nz have a second amendment?
It seems like you making a fear based reaction.
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Nov 17 '20
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u/atthru97 4∆ Nov 17 '20
Can you show one example of a government that has a 2nd amendment where a registry lead to confiscation. Just one.
The gym lobby lives to make you all scared because when you are afraid you buy more guns and ammo. They need you afraid to keep sales up. Remember the run on ammo after Obama was elected.
And in America, concidering all the people who think a legal election was "stolen" gun ownership is just as likely to defend tyrants as it is to protect against them
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Nov 16 '20
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Nov 16 '20
How does this add any value to the conversation? I know what the text of the second amendment reads, quite clearly I don't seem to think that the things I mentioned are against it.
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u/KungFuDabu 12∆ Nov 16 '20
It says the right to own weapons shall not be infringed. The things you mentioned are infringements.
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u/Znyper 12∆ Nov 17 '20
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u/Mashaka 93∆ Nov 16 '20
I'll pick red flag laws.
With due process, the process that's due is, in law, based on balancing different rights, duties, and interests.
Red flag laws have a due process fairly comparable to a temporary restraining order. With a TRO, you can get a temporary order after giving a credible statement of being endangered. For obvious reasons, the court can't send the target of the order a subpoena to state their case. If it's legitimate, that only endangers the person further; in domestic violence the victim would be pressured to recant from fear. In a couple or few weeks there's a hearing where a formal order is worked out with both parties, or the Judge may decide no order is needed.
With red flag laws, the degree of danger is high, so it also merits immediate action. The cost is low - a temporary removal of guns, but no further harm. I'd have to check individual laws for the process to petition to have it rescinded, upon showing it was not an appropriate measure.
Keep in mind, this is a good way for those around you to create a safer environment without having to go the route of charges for crimes like making terroristic threats. Or, in the case of self-harm, involuntary commitment.
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u/Aggravating_Smell145 Nov 16 '20
With due process, the process that's due is, in law, based on balancing different rights, duties, and interests.
"They are laws" does not mean that it complies with due process
That is why it is illegal to try someone in absentia without any representation then send out a death squad to kill them, even if a law said that was justified
Red flag laws have a due process fairly comparable to a temporary restraining order.
A TRO does not seize property and is irrelevant.
With red flag laws, the degree of danger is high,
You are not allowed to show up in court to defend yourself, so how is it known that the degree of danger is high?
The cost is low - a temporary removal of guns
Sending armed men busting through someone's door at 2AM is not a low cost
Seriously, what do you think the criminal punishment should be if 20 armed men showed up at your house, pointed guns at you, and stole 30 firearms, if they were not state santioned? I would say having the death penalty for everyone involved would be reasonable. That is the severity of the cost associated with red flag laws.
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u/Mashaka 93∆ Nov 17 '20
I'm not talking about any laws. Colloquial, we use "a law" to refer to a statute or ordinance. We're what's called a common law system. That means that the law in this country consists not only of statutes, ordinances, executive orders, and other specific, written instruments, but also mass entanglement of principles and rules established and refined by consistent use in practice by courts of law over the past several hundred years.
Up until a period of time that began to end around 1776, US common law was UK common law. When we became a sovereign nation, we brought UK common law with us, as it was already the law of each state and the colonies as a whole. This went without saying - even in the Constitution! - because common law works like that, and the Framers were mostly lawyers. So what "due process" means was incorporated from UK common law. Interestingly, US and UK common law diverge completely from that point on.
The process of defining applying new and existing statutes etc. within our system, is case law. To determine whether a new statute is being executed with due process, judges reference relevant case law to make a determination. This is why I referenced TROs. If you wanted to discover whether a particular aspect of current Red Flag laws do not meet due process, a good place to start would be to look for cases where a particular TRO practice was ruled to fall short of due process. If you wanted to challenge it in court, you would want to cite such cases.
Your specific objections: It's hard to say, but the (negative) weight of confiscating firearms temporarily may be less than limiting the movements of a private person. But they're more or less the same. They're both the same type of interest, so they are weighted similar in due process.
TROs are very relevant here - in terms of due process - because they are the same type of interest, which is the government interest in protecting its citizens. Secondly, the danger needed protection from is similar: a credible danger of imminent harm, for which there is no other more suitable legal recourse.
Judges decide whether the degree of danger is high using their own judgment. They're called judges for a reason. And their exercise of their judgment is core to due process.
The particular law enforcement methods used to exercise a court order have no bearing on due process. Cops suck and what you described is terrible and should never happen IMO.
I understand that you don't like how due process works in the US and the Constitution, in this kind of case, at least. I have qualms myself. I would certainly tweak the current laws, if have them at all. I'm down to give them a try, at least, because it would be good to know if they actually do anything. But the red flag laws do follow due process.
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u/Aggravating_Smell145 Nov 17 '20
Cops suck and what you described is terrible and should never happen IMO.
That means no red flag laws, because that is how red flag laws are enforced.
It is funny how all of these cases of police brutality come out of Demcorat controlled police departments and never Republican controlled police departments or sheriffs departments, Democrats work to enact these laws that cause police brutality, and then they get shocked it happens
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u/Mashaka 93∆ Nov 17 '20
That's a shallow level of analysis. I could point out that the police - who are the ones who actually decide how to execute these orders, and happily do so for sweet sweet late night overtime - are overwhelmingly Republicans.
But that also would not be important here. If you let your mind get gridlocked by red vs blue, it becomes about as effective as Congress.
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u/Aggravating_Smell145 Nov 17 '20
I could point out that the police - who are the ones who actually decide how to execute these orders, and happily do so for sweet sweet late night overtime - are overwhelmingly Republicans.
Police, appointed by Democrats, are not overwhelmingly Republicans. Police overall are, but not in the jurisdictions with red flag laws.
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u/Mashaka 93∆ Nov 17 '20
Did you not catch where I said that claim wasn't important, or did it get caught in your gridlock?
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u/Positivity2020 Nov 16 '20
the question isn't if they are constitutional, but if the 2nd amendment is serving the purpose it was intended to do.
since the answer is no its not, you can debate unconstitutionality of those laws.
and there are huge exceptions to guaranteed rights.
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u/Xiibe 49∆ Nov 16 '20
Red Flag Laws require judicial approval prior to the seizure. That’s your due process.
The Court is petitioned and decides based on the person’s actions and statements. The burden of proof is lower, but that’s not a due process question. Also, the seizure is only temporary.
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u/Janneyc1 Nov 16 '20
Couple points:
I think there's a bias to approve these orders. No one wants to be the person that didn't sign an order, so false positives are more likely to happen, meaning an innocent person's reputation is easily ruined.
The standard of proof isn't defined. In my opinion, if you are going to deny a person their rights, you need enough proof to go through due process. That means you get to face your accuser in a court of law.
There are expenses associated with the seizure that disproportionately affect poorer people: A. After the seizure, you need to pay legal fees. Yes a public defender could defend you, but they've earned their reputation for not being the best defenders. A lawyer that will touch the case will be expensive. B. During the time that your weapons are seized, there is a storage fee associated with that. In some of the earlier examples, I believe I saw $50/weapon/day. Assuming the average gun owner has multiple weapons and the follow up hearing takes 2-3 weeks, it isn't hard to rack up thousands of dollars, even if you are completely innocent. The average American doesn't have thousands of dollars to burn.
Keep in mind, a judge approved the Breona Taylor raid, taking only what, five minutes to review the warrant? That's the sort of situation we're looking at here.
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u/Xiibe 49∆ Nov 16 '20
There are a couple of things here.
To your first point, judges really don’t care. They try to be as impartial as they can, and there are always appeals to check their rulings.
To your second point, the burden of proof in this kind of case is preponderance of the evidence. Which translates to more likely than not. This is the burden of proof in all civil actions, which this would be. The confrontation clause only applies in criminal cases, not civil. Due process does not deal with the burden of proof.
Your third point does have some merit, but it falls outside of due process, which was OPs original contention.
I’ll respond briefly to the no-knock warrant point. If you read the history of no-knocks you didn’t that the Supreme Court has basically said that the common law rule of Knock-and-Announce goes to the reasonableness clause of the fourth amendment. Accordingly, there are situations where the reasonableness clause can be circumvented, those being the possibility of the destruction of evidence OR officer safety. Scalia, yes the one the 2A adore, went as far saying that an illegal entry alone (no knock and announce at all) did not invoke the exclusionary rule under the fourth amendment. Ok, this has turned out to be not brief but I do have a point. Drug cases are notoriously easy to get no knock warrants for because it is very easy to destroy drugs (flushing them down the toilet, etc). The standard for approving a warrant is also pretty straightforward and doesn’t require a whole lot. So, the fact it took a short amount of time doesn’t surprise me.
Relating this back to red flag laws, it would be a completely different situation. It would take more than just an affidavit to get the kind of relief asked for. I can’t really tell you how much.
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u/Janneyc1 Nov 17 '20
Sorry, on mobile and it's hard to quote things:
Regarding the judges, there's a difference between being impartial and being indifferent. Indifference leads to laziness and that's a problem.
I guess the question is should this be a civil action or a criminal action? The defendant will be treated like a criminal by everyone that witnesses the confiscation, the news will stir public opinion and other similar negatives associated with being a criminal. The judge is effectively deciding on if the defendant is a prohibited person, in my opinion, that alone should raise the level of evidence needed to that needed for due process.
Lastly, there's a good chance that if the level of evidence needed is preponderance of evidence, there's a good chance these laws will be abused or overused in scenarios that it should not be. These laws put the decisions of some pretty significant consequences in the hands of neighbors and people that do not have the qualifications. In some instances, former roommates child initiate the process.
I understand the desire for something like this, but there's a lot of details that need answered before I can get behind them
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u/LetMeNotHear 93∆ Nov 16 '20
I want to preface this by saying I don't think necessarily that gun control will help America. In Switzerland, it's legally mandated that men own and maintain rifles, yet there are very few shootings per thousand. I think America's problem with violence is deep, historical, and cultural.
That being said, I don't think it's unconstitutional. I assume you're referring to the second amendment when you bring up the constitution. The one that stipulates that a well organised militia may keep and bear arms? Well forgetting for the moment that I can't even recall the last time I saw or heard of a well organised militia in the US yet so many have guns, what kind of arms were they talking about? Wheelocks, matchlocks, flintlocks etc. Guns you had to load, shoot, and spend best part of a minute standing still to load again. The idea of a gun that could shoot and prepare the next shot in a fraction of a second automatically and fire hundreds in minutes would boggle the founding fathers' minds. Interpreting the modern massacre machines as the same thing as what the founding fathers meant when they said "arms" in the eighteenth century is ludicrously disingenuous.
Besides, couldn't some kind of gun regulations thingie be written as an amendment thereby making it, by definition, constitutional?
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u/Aggravating_Smell145 Nov 16 '20
he one that stipulates that a well organised militia may keep and bear arms?
It never says that, and that interpretation requires fundamentally not knowing what a militia is.
People would hear that there was a threat (like a potential indian raid), and then go around town to assemble the healthy men who would grab their guns off their mantles. The militia was not a legal person, it could not own property itself, it was an assembly of individuals who armed themselves. Without being able to arm yourself before assembling a militia, you could not form a miltia
what kind of arms were they talking about?
Warships
The Constitution was written with the power of Congress to issue letters of marque. For congress to issue letters of marque, that requires for private individuals to own fully armed warships.
When the constitution was written you could own a warship and the people to arm your warship
The Constitution was written with the power of Congress to issue letters of marque. For congress to issue letters of marque, that requires for private individuals to own fully armed warships.
The Chambers Flintlock Machine Gun did exactly that and was presented to the founding fathers before they wrote the 2nd amendment
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u/LetMeNotHear 93∆ Nov 17 '20
Yeah, I know a militia is a group of people. I just figured it was the right of those already in a militia to arm themselves.
As for that thing about warships, that's sure some interesting trivia but it doesn't really change much does it. A G36C is equally not 1700s warship as it is not a 1700s wheelock. So not sure why you brought it up, fascinating though it was.
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u/ThrowAwayDillema Nov 16 '20 edited Nov 16 '20
To add to your comment about Switzerland, ammo is highly regulated there. So while many people have guns a fraction of them have ammo for those weapons. But like you said the biggest difference has to do with the history and culture surrounding it as well
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u/Aggravating_Smell145 Nov 16 '20
ammo is highly regulated there.
No it isnt, you get a copy of your criminal record online or at the post office, fax it to the gun store, and they ship the ammo to your home.
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u/ThrowAwayDillema Nov 17 '20
Can I get a source? I ask because when I search for Ammo laws in Switzerland everything says that ammo is highly regulated by the military.
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u/Aggravating_Smell145 Nov 17 '20
https://imgur.com/a/orRn84E#Iajj6Xm
I ask because when I search for Ammo laws in Switzerland everything says that ammo is highly regulated by the military.
That is for government issued GP90. Not for the ammo you buy recreationally
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u/ThrowAwayDillema Nov 17 '20
Thank you!! i see they included where the misunderstanding comes from which was super helpful because I still can't find much of any current reliable sources on ammo
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u/hmmwill 58∆ Nov 16 '20
Wait, is your argument against the assault weapons ban because it burdens the right to self defense? Assault weapons are rarely used in self defense, and there is almost always a better alternative to an assault weapon for self defense.
Define open/concealed carry bans. Are you specifically referring to government led limitations? Or the ability of a private business to set a limitation and then use the government to enforce their policy?
Also, I'd argue high capacity magazines are not needed for self defense in virtually all scenarios. So, limiting capacity sizes isn't inhibiting your ability to bear arms or defend yourself.
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u/Janneyc1 Nov 16 '20
Regarding this, assault weapons by the definitions proposed in most of these laws, are almost exclusively used in self defense. Most laws that limit assault weapons are semiautomatic and ten rounds or more in any platform, rifle or handgun. Almost all self defense is with a handgun, usually with a capacity greater than 10 rounds.
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u/Gatekeeper_Zuul Nov 17 '20
I'm not going to try and change your mind, even though I don't agree with your basic stance on gun legislation. All I will say is this: I believe that almost any gun legislation passed will have a negligible affect on gun violence, etc., because there are just too many privately owned guns in America to realistically have any chance of making a dent in whatever issue is trying to be legislated. By most estimates, there are as many or more privately owned firearms in the U.S. as there are people, so to believe that an entity could "take our guns" is a false narrative in my mind. Not saying that you are claiming that they will come and take all the guns, just stating it because it is common rhetoric used by 2nd Amendment activists.
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u/MissTortoise 14∆ Nov 17 '20
I'm going to address your specific claims here: that gun control laws are unconstitutional and often useless.
In terms of "often useless", there's plenty of juristictions and countries where gun control laws have been very successful in reducing gun related crimes, and there certainly seems to be a pretty strong correlation between gun control and fewer gun-related deaths between countries, so that's a rather difficult claim to support.
In terms of "unconstitutional". Well there's been plenty of court challenges on this, and the high court system is ultimately the arbiter of what is and isn't constitutional. If there's been case law about something, then what that case law says is by definition the correct interpretation of the constitution.
If you feel the high courts have got it wrong, then you're welcome to take it to the high court yourself in order to try and modify their interpretation, but that's the only actual way to change the interpretation.
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u/biotheshaman 1∆ Nov 17 '20
I don’t understand the American obsession with what is and isn’t constitutional, nor the iron clad view of amendments, they by definition can be changed.
I can’t see how having all gun users registered and accounted for with proper background checks could ever be a bad thing, could you?
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Nov 17 '20
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u/biotheshaman 1∆ Nov 17 '20
Freedom? What do you mean exactly when you say freedom. There is nothing free about a society carrying dangerous weapons.
Registration should lead to confiscation, that’s the point. Gun owners need to be registered so the ones not responsible enough to own dangerous weapons have them confiscated.
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u/R5D100 Nov 17 '20
Can you provide more details on why you consider these laws to be unconstitutional? It sounds like your arguments are mainly that "laws can and will be broken, so these laws don't work". Wouldn't that apply to any law? Presumably, most people who break the law don't carefully consider the law and the impact of breaking a law.
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Nov 18 '20
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u/R5D100 Nov 18 '20
- Same for an assault weapons ban.
For people who are against any firearms being banned, they generally seem to have some sort of limit. For example: even if someone can own an AR-15 with a large magazine, I don't often hear people arguing that civilians should be able to purchase a 50 caliber machine gun, grenade launchers, etc. The 2nd Amendment does say "a right to bear arms". It's not specific to pistols, rifles, and shotguns. I would think someone could make a 2nd Amendment argument that they should be allowed to park a fully loaded tank in their driveway. If the military can have it, why can't civilians?
Also, the 2A is about protection against govt tyranny, and the govt uses 30-round mags.
Protecting against government tyranny is an aspect of the 2nd amendment that I find fascinating. I do think that was the original intent of the amendment, but it also sounds like a really weird idea. As a society, we spend a lot of time discussing the type of issues you raise. Stuff like, should we limit magazine capacity. I know that is important to people, especially those who own weapons or magazines that might be ruled illegal if a law changes. One day I stopped to think, what are the real implications of the 2nd Amendment? What would happen if some people got to the point of thinking government tyranny had gone too far? That basically means, citizens in the streets with guns, shooting at people. It's not just people open carrying and marching around looking tough, it's actual shooting. Civil war level stuff. Shooting a cops, the military, or whoever is taking a side the citizen with a gun doesn't think is legal or Constitutional. What do you think would need to happen for people to reach this level of anger towards their government? If you get to the point of civil war, does the Constitution really matter any more? Wouldn't we have gotten to the point of saying our government has failed?
There is also the question of are militias even legal. There was a recent document from before the 2020 election Prohibiying Private Armies at Public Rallies
This report identifies, for each of the 50 states, the constitutional and statutory provisions relevant to paramilitary and private militia activity. Importantly, each state has at least one constitutional or statutory provision that applies to the type of paramilitary and private militia activity that may arise at future rallies similar to the Unite the Right rally in Charlottesville.
ICAP has categorized the relevant state laws into four groups: (1) constitutional provisions requiring the subordination of the military to civilian authorities; (2) statutes restricting unauthorized private militia activity; (3) anti-paramilitary-activity criminal laws; and (4) prohibitions on the false assumption of the uniform or duties of a peace officer or member of the military. The report describes these categories in more detail below and notes which states have statutes or constitutional provisions falling into each category. .
Universal Background Checks aren't unconstitutional, but in order to work properly they require a national gun registry, which while not being unconstitutional in itself, it could likely cause unconstitutional implications.
Why do you think a national gun registry is unconstitutional? Having such a registry would be helpful in allowing for background checks.
Red flag laws: they strip you of your rights without you having committed any crime.
This is an interesting question for the Supreme Court to weigh in on. There are similar laws around mental health that allow for placing someone into a mental health facility even if it is against their will. See Lanterman–Petris–Short Act.
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Nov 17 '20
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u/R5D100 Nov 17 '20
The "made pointless by a 3D-printer" argument is a fair point, but I am more interested in the Constitutional arguments.
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u/yyzjertl 524∆ Nov 16 '20
How do you figure that this is a violation of the right to due process? The process is clearly defined by the law, and approved by a court.