Originally posted by Sparko
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Originally posted by oxmixmudd View Post
No - what is silly is you trying to equate a random massacre of multiple people with a single weapon in a few minutes with the effect over time of ideas communicated through speech. You won't even acknowledge a gun is a weapon whose primary and almost exclusive purpose is to kill or destroy. It is, in fact, one of the most limited weapons there is in terms of what it can be used for outside killing and maiming. In that sense it is equivalent to a bow and arrow, only much more powerful in range, delivered energy, and number of shots. Knives, even explosives have orders of magnitudes more non-violent use capability than a gun.
Why does that matter? Because the 2nd amendment is trying to grant us a capability for self-defense on an individual basis. It is not actually about guns, it is about self-defense. The right to bear arms grants a self-defense capacity, but it does not ONLY grant a self-defense capability. And that is where the problems are (I am including the idea of an armed citizenry as a defense against an invasion by a hostile force in 'self-defense')
So, the actual right being protected is the right to self-defense. Does that make a difference? Well, indeed it does in that if we acknowledge that then we can tailor our response to the problem of guns to that which limits their offensive use outside of a self-defense paradigm, while impinging only minimally on their defensive use. For example, a person that is violent can be denied the right to own a gun because they have shown a propensity to use a gun outside a self-defense paradigm. So why not at least attempt to ensure that people are psychologically stable (to the extent possible) if they desire to own a gun? Why not require extensive background checks in the purchase of any gun any where, instead of excluding private gun sales or gun shows? Why not make it very, very hard on a criminal that is found with a gun of any kind? These types of limitations do not keep me from owning a gun, from being able to defend myself - UNLESS I have shown I'm likely to go beyond self-defense in my use of the gun.
The right to bear arms doesn't grant any misuse of the gun. It doesn't even grant the right of self-defense. That is a right we have regardless of the 2nd amendment. A gun is just one tool we could use to accomplish that. We could use a knife, a lawyer, or our fists. Laws regulate how we can use guns. Just like they regulate other weapons. Removing the right to own guns is just not a viable solution. Enforcing the laws we already have would be a good start. Prosecute gun murders and crimes with severe penalties and sentences. Punish those who misuse guns rather than punishing those who do not.
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Originally posted by oxmixmudd View Post
Unfortunately, that only works if the violation of others rights is a sufficiently rare occurrence or on a sufficiently small scale individual event enforcement is sufficient to retain order and actually protect people's rights. We are at or past that point with Guns. We need a broader solution.
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Originally posted by Sparko View Post
That's silly. I guess it's time to remove the free press since recently it has contributed to violent protests across the country causing thousands of injuries, and millions in property damage. We need a broader solution.
Why does that matter? Because the 2nd amendment is trying to grant us a capability for self-defense on an individual basis. It is not actually about guns, it is about self-defense. The right to bear arms grants a self-defense capacity, but it does not ONLY grant a self-defense capability. And that is where the problems are (I am including the idea of an armed citizenry as a defense against an invasion by a hostile force in 'self-defense')
So, the actual right being protected is the right to self-defense. Does that make a difference? Well, indeed it does in that if we acknowledge that then we can tailor our response to the problem of guns to that which limits their offensive use outside of a self-defense paradigm, while impinging only minimally on their defensive use. For example, a person that is violent can be denied the right to own a gun because they have shown a propensity to use a gun outside a self-defense paradigm. So why not at least attempt to ensure that people are psychologically stable (to the extent possible) if they desire to own a gun? Why not require extensive background checks in the purchase of any gun any where, instead of excluding private gun sales or gun shows? Why not make it very, very hard on a criminal that is found with a gun of any kind? These types of limitations do not keep me from owning a gun, from being able to defend myself - UNLESS I have shown I'm likely to go beyond self-defense in my use of the gun.
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Originally posted by Mountain Man View Post
If someone uses a protected right to infringe on the rights of another (such as defamation, or committing murder), then you punish the person for the specific act. You don't try to broadly deny that right to everybody.
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Originally posted by oxmixmudd View Post
Unfortunately, that only works if the violation of others rights is a sufficiently rare occurrence or on a sufficiently small scale individual event enforcement is sufficient to retain order and actually protect people's rights. We are at or past that point with Guns. We need a broader solution.
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Originally posted by Mountain Man View Post
If someone uses a protected right to infringe on the rights of another (such as defamation, or committing murder), then you punish the person for the specific act. You don't try to broadly deny that right to everybody.
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Originally posted by oxmixmudd View Post
well that was embarassing ...
Yes, I do 'know' the difference between the Bill of Rights and the Declaration of Independence. But I also have this tendency to be a bit dyslexic (which means in my case that sometimes dissimilar names of similar objects get reversed, or likewise similar names of dissimilar objects).
I have more than once had a red face over it, as those that don't tend to deal with that are often not particularly understanding of those that do.
But I deal with it, and that means I should have been more gracious in responding to you when that is effectively what I thought you did.
Please accept my apology on that.
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Originally posted by oxmixmudd View Post
Not so. Free speech is also curtailed and restricted where its exercise infringes on the rights of others, as in the 'yelling fire in a crowded theatre' example. Its not merely causing harm, it is when the exercise of one right infringes on the capacity to exercise another.
Thanks for the information on that, but the reality is infringement is a real legal principle wrt the exercise of rights. As your article notes, freedom of speech is not absolute. Likewise, I can't use my right to bear arms to take your right to free speech, nor your right to life. And so your exercise of your rights is limited to that which does not take away my rights.
With Guns, there is a responsibility to make it less likely a person owning a gun uses it to take away other people's rights. I also believe that the 2nd amendment's problem is more clearly defined by recognizing the fact it isn't actually a right, but rather a solution for granting a right - the right to self defense. That is what the 2nd amendment is about. Making it more difficult for a foreign power to invade or oppress. And more difficult for even our own government to oppress. Unfortunately granting free access to Guns doesn't only solve the problem of self defense, it also creates a problem as well. It gives the unscrupulous or mentally unstable the power to immediately and permanently remove the rights of others.
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Originally posted by CivilDiscourse View Post
Yup, that's why I said "Yelling fire" really isn't speech. I mean, an actor could be on stage yelling "fire" as part of the play, and it doesn't cause a problem.
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Originally posted by Sparko View Post
I suppose we should outlaw fishing then, since fishing poles are designed to kill. and bow and arrows.
Jim, I am sure you are not against killing of animals or even people in self-defense are you? If not, then your argument above is nonsense. You are concerned about murder. Which is a misuse of a gun (or any weapon). And we have laws against that.
I am sure someone can stand up in a theater and yell something that could start a riot and end up killing people. As you even mentioned, yelling fire in a crowded theater when there isn't one can cause a panic and get people hurt.
What if someone yelled out that the people in the front row were cops responsible for killing someone? You don't think those words could possibly end up getting some people killed?
The second doesn't give me the right to hurt you with my gun. It only restricts the government from infringing on my right to own a gun (and yours). We have laws against misuse of firearms. Shooting off a round in a crowded theater is just as illegal as yelling "fire" when there isn't a fire.
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Originally posted by Mountain Man View Post
In that case, the crime is "inducing panic" and not "abuse of free speech", just as killing someone with a gun without cause is "murder" and not "abuse of the right to bear arms".
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Originally posted by Sparko View Post
You don't know that the Bill of Rights is the first 10 amendments to the Constitution that guarantee our civil rights??
I was saying I was glad you had nothing to do with writing those.
Yes, I do 'know' the difference between the Bill of Rights and the Declaration of Independence. But I also have this tendency to be a bit dyslexic (which means in my case that sometimes dissimilar names of similar objects get reversed, or likewise similar names of dissimilar objects).
I have more than once had a red face over it, as those that don't tend to deal with that are often not particularly understanding of those that do.
But I deal with it, and that means I should have been more gracious in responding to you when that is effectively what I thought you did.
Please accept my apology on that.
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Originally posted by oxmixmudd View Post
The fact you are having this discussion is evidence to the contrary.
Hunting is killing. Sport - in this case- is acquiring sufficient skill to be better at killing.
which is either killing, incapacitating, or threatening to kill. Guns are weapons designed to kill or maim. All you are doing is saying sometimes it is ok to kill or maim, or that it is ok to hone ones skill at killing or maiming with said gun.
Now you are doing the same thing MM does - changing my words into something else and arguing against that something else. I said kill, not murder.
No, it doesn't. Guns are for killing or maiming. They are weapons and almost useless for any other purpose.. Words can be weapons, but are much, much more than merely weapons.
Knives and words are much more than just weapons.. Guns are just weapons and wholly impractical for any other purpose.
Jim, I am sure you are not against killing of animals or even people in self-defense are you? If not, then your argument above is nonsense. You are concerned about murder. Which is a misuse of a gun (or any weapon). And we have laws against that.
Sorry. As I said - not in a crowded theatre. The potential to immediately and permanently strip from you all your rights with a gun means it requires more careful regulation than the other elements we call rights. Yes, you have a right to defend yourself ( which is the actual right the 2nd amendment aims to define ), but you do not have the right to take my life from me. As worded, the 2nd amendment clumsily grants both.
The second doesn't give me the right to hurt you with my gun. It only restricts the government from infringing on my right to own a gun (and yours). We have laws against misuse of firearms. Shooting off a round in a crowded theater is just as illegal as yelling "fire" when there isn't a fire.
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Originally posted by Mountain Man View PostVery good. Your argument establishes "a general or universal principle" that if the exercise of a right causes harm, then that right should be denied or at least restricted. You then try to carve out an arbitrary exception for the First Amendment and other protected rights.
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As far as yelling "Fire!" in a theater is concerned...
Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known -- yet misquoted and misused -- phrase in Supreme Court history: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Without fail, whenever a free speech controversy hits, someone will cite this phrase as proof of limits on the First Amendment. And whatever that controversy may be, "the law"--as some have curiously called it--can be interpreted to suggest that we should err on the side of censorship. Holmes' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood.
[...]
...those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they'd realize it was never binding law, and the underlying case, U.S. v. Schenck, is not only one of the most odious free speech decisions in the Court's history, but was overturned over 40 years ago.
First, it's important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU's Gabe Rottman explains, "It did not call for violence. It did not even call for civil disobedience."
[...]
The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a "clear and present danger" to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.
Two similar Supreme Court cases decided later the same year--Debs v. U.S. and Frohwerk v. U.S.--also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. (Read Ken White's excellent, in-depth dissection of these cases.) Together, the trio of rulings did more damage to First Amendment as any other case in the 20th century.
In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).
Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as the final word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it's "worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech." Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, "the most famous and pervasive lazy cheat in American dialogue about free speech."
https://www.theatlantic.com/national...-quote/264449/
It's worth noting that Justice Holmes recognized his mistake, and his decisions in later cases laid the groundwork for ultimately overturning U.S. v. Schenck.
With Guns, there is a responsibility to make it less likely a person owning a gun uses it to take away other people's rights. I also believe that the 2nd amendment's problem is more clearly defined by recognizing the fact it isn't actually a right, but rather a solution for granting a right - the right to self defense. That is what the 2nd amendment is about. Making it more difficult for a foreign power to invade or oppress. And more difficult for even our own government to oppress. Unfortunately granting free access to Guns doesn't only solve the problem of self defense, it also creates a problem as well. It gives the unscrupulous or mentally unstable the power to immediately and permanently remove the rights of others.Last edited by oxmixmudd; 06-08-2021, 08:34 AM.
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