2nd Amendment Reductio?

[mijopo.livejournal.com]

I read an interesting story this morning about a man in Massachusetts, of all places.  To summarize, a man observed the Tucson shooting and said, among a few other things,  "1 down and 534 to go" and for that reason had or may have his gun license revoked.  Here's what I'd like to understand: isn't this in violation of the man's first and second amendment rights if one insists that the second amendment guarantees an individual's right to bear arms?  The whole point of the second Amendment if we're to believe defender's of the "individual right to bear arms" interpretation is that each individual may (should?) be carrying what amounts to an implicit threat to do harm to members of the government should they decide that they don't like what the government is doing.  Surely, the Second Amendment means nothing at all if it allows for the government to remove the arms should they gain any sort of evidence that the individual is considering acting on that threat.  

x-posted to my journal

Comments

[rasilio.livejournal.com]

I don't see it as a violation of his second amendment rights but it may be a violation of his first amendment rights. The question is whether there is any reasonable cause to believe that he had an active intent to "continue the job" as opposed to his just voicing dissatisfaction.

If there is reason to believe that he intended to commit further violence then criminal proceedings leading to the loss of his 2nd amendment rights are justified.

[mijopo.livejournal.com]

But doesn't this render the Second Amendment incapable of accomplishing what it's allegedly supposed to accomplish? The Second Amendment is allegedly supposed to provide people a mechanism to address dissatisfaction with government, but you're saying that the government can take that means away if there's good reason to think they might actually use it. Why provide it in the first place? Wouldn't that be like saying we're going to distribute fire extinguishers in case of fire but there's a good chance they'll malfunction in high temperatures.

[squidb0i.livejournal.com]

This

[farchivist.livejournal.com]

I think this is where they got his active intent from: In his blog Corcoran writes, “It is absolutely, absolutely unacceptable to shoot indiscriminately. Target only politicians and their staff and leave regular citizens alone.”

[torpidai.livejournal.com]

I'm not aware of you, "Merkins" constitution, but surely as it is just the 2'nd amendment, could it not me "Amended" again if it suits what the govenment have programmed people to prefer?

Whine whine whine with you lot, in the mistaken belief "You have rights", "It's my right 'cos the American constitution says so..." BS, What would happen if all the arabic nations (Or the soviet nations for that matter) or even the eastern ones, all learned to play nice together, then wage war on you and win? Then, if they decided, they could remove your "percieved right" to carry, hence it is not a right, it's a privelige afforded you by the state!

Damn my analogies, Do you lot allow convicts to carry? I'm sure you disallow some members of your society from carrying, or even those states allowing only open carry, did your glorious constitution cover these matters?

Signed british ex-convict with a desire to carry a Glock 9mm (After a few shots at the Target range obviously)

[mijopo.livejournal.com]

Yes, of course it could be amended and you're right that in the event of a takeover by a foreign power the rights now protected in the Constitution might longer be protected.

And I agree, the Constitution doesn't spell out implementation very clearly in many cases, if that's your point, and this has been a source of frustration wrt the 2nd amendment in particular.

[notmrgarrison.livejournal.com]

The fact that rights can be violated does not imply that rights don't exist.

[fizzyland.livejournal.com]

Also, I believe my desire to purchase a flamethrower and perhaps a rocket launcher should be protected by the second amendment, for home defense purposes of course.

[rasilio.livejournal.com]

Actually you misunderstand the statements of rights in the Constitution.

The Constitution does not grant rights but recognizes and protects those which all people have regardless of governmental rules.

In otherwords the belief of the Constitutional framers was that you have the right to free speech even if the government outlaws it.

That said the idea that anyone could "take over" America is laughable. we might not quite be able to take on the whole world in an offensive war and win but given our naval and aerial superiority the odds of a foreign soldier landing on US Soil outside of Hawaii or uninhabited parts of Alaska are Nil

[farchivist.livejournal.com]

Then, if they decided, they could remove your "percieved right" to carry, hence it is not a right, it's a privelige afforded you by the state!

I've always maintained that every 'right' the Constitution gives is exactly that. Nobody pays attention though.

[underlankers.livejournal.com]

In my opinion this was the right thing to do but then I'm not one of the ones who thinks that shotguns and homemade mortars and explosives would suffice to win a second civil war against a US government gone into totalitarian territory.

[dv8nation.livejournal.com]

Yep. Beer-gutting rednecks Vs real soldiers not an even fight. It would be amusing to watch though.

[mijopo.livejournal.com]

Well, just to clarify, I'm not so much arguing that it was the wrong thing to do, I'm suggesting there's a tension between claiming it was the right thing to do and maintaining an unassailable "individual right to bear arms" reading of the 2nd amendment.

[geezer-also.livejournal.com]

Hmm, it seems like you have set up a false argument. But perhaps I misunderstand.
I read the article. There seemed to be an implied threat.....
'No arrest', 'temporary', and 'investigation' seem to be the key words. This would likely to have been done if the implied threats were against private citizens.

[mijopo.livejournal.com]

I'm not sure I follow, what argument have I made that is 'false'? The point I was making is that this guy's right to bear arms was removed or is being removed, as I understand it. Can you explain how the fact that he may get the right back at some point and that he wasn't arrested "falsifies" anything?

[dwer.livejournal.com]

his guns and ammo were impounded. No criminal charges have been filed. Threats to federal politicians are taken very seriously, and even more seriously now. The First Amendment isn't a suicide pact.

Yes, the Second Amendment could be Amended (like Prohibition was), but 2/3 of the states have to ratify, I believe. The Amendment process is difficult, on purpose.

[mijopo.livejournal.com]

http://community.livejournal.com/talk_politics/862822.html?thread=65047142#t65047142

That said, and strictly fwiw of course, this little piece of annoying phraseology: "The First Amendment isn't a suicide pact" has about the same standing with me as, well, any another trite saying that indicates people prefer vague aphorisms to assembling a clear argument.

[a-new-machine.livejournal.com]

JSYK, the current precedent on threatening speech doesn't quite make it a suicide pact, but it *does* make it a very hard standard to satisfy. Technically, it's judged under the "clear and present danger" standard, which has an immediacy element. If he said this to a mob with pitchforks (or firearms) at the ready, then yeah, it'd be illegal. However, seizing property is positive action for a government, and positive acts need to be legally supported. The First Amendment would probably protect this speech, because it fails the clear and present danger test. (Of course, inferior courts sometimes apply the bad-tendency test anyway, even though it's technically been dead since WWI, but the modern precedent says they shouldn't)

[the-rukh.livejournal.com]

According to certain 2nd amendment people who don't believe that the founding fathers intended the citizenry to form the body of the army to protect their land from foreign invasion and therefore only fight just wars, the second amendment is exactly for killing governments you don't like.

[paedraggaidin.livejournal.com]

The First Amendment is not absolute (and this is coming from an actual card-carrying ACLU member :P). There are many forms of speech which are either less protected than other forms (e.g profanity, commercial speech, student speech) or altogether unprotected (e.g. perjury, libel, fighting words). A threat may be protected or unprotected, depending on the context and likelihood of it actually causing harm.

I think this is obviously a threat, but I don't think it rises to the "clear and present danger" level to warrant state action. However, the moral of the story is: don't make threats.

[mijopo.livejournal.com]

http://community.livejournal.com/talk_politics/862822.html?thread=65053286#t65053286

[meus-ovatio.livejournal.com]

The 2nd Amendment protects the country's ability to defend itself. This investigation does not harm or impinge upon the country's ability to defend itself. Strangely enough, the hyper-individualist interpretation of the 2nd amendment didn't exist even in the Old West, where towns, counties and sherriffs regularly took people guns, banned guns within city limits, and otherwise invoked all sorts of gun-control measures with nothing more than the power of the badge, epic beards and icy stares.

[dwer.livejournal.com]

it helped that the bears were particularly epic.

[anadinboy.livejournal.com]

how can celebrating a death be classed as a threat? For his statement to be a threat he would have to have been the person who knocked off the '1' in the '1 down' comment.

[a-new-machine.livejournal.com]

It's the "534 to go" bit that's a threat - a statement that the other Congress members should and (under certain readings) will be struck down in the same way.

[gunslnger.livejournal.com]

Depends on whether you think requiring a gun license violates the 2nd Amendment. If it does, then yes, this action violates both his 1st and 2nd Amendment rights. If it doesn't, then it only violates his 1st Amendment rights. In addition, it's being punished for a crime that he hasn't been convicted of.

[a-new-machine.livejournal.com]

Depends on if revoking the license is punishment for a crime. The government can take all sorts of action against you without proving you've violated a criminal statute. He's certainly being deprived of "life, liberty or property," but of course the due process required is a flexible thing depending on the nature of the interest invaded by government action.

[anfalicious.livejournal.com]

I'm pretty sure "don't let the crazy people have the bang bangs" is pretty high up there in the rulebook of the well regulated militia.

Your ability to say "fire!" and all that

[reality-hammer.livejournal.com]

Depends on some things like a) threats against government officials; b) whether being convicted of such affects your right to own a gun and c) how and when these words were spoken.

Clearly if the guy is standing outside the offices of a member of Congress loading his weapon(s) while saying this then it should be considered a threat.

If he's saying it over a cup of coffee while talking shop in a diner, then no.