Thoughts on Gun Control

[Trygon]

How do you propose mental health cases be handled, Cydra? I can tell you with confidence, in your described situation, I would be a multiple-murderer by this point.

 

[Alvis Alendran]

I doubt it's been thought of beyond 'whatever they do in Switzerland'.

This is a very simplistic scenario, where the idea that just drag-and-dropping how another nation works without adjusting for culture, history, or even just general population levels.

The idea that you could simply apply a mandatory military service onto a nation the size and scope of the US is...frankly, kind of ludicrous.

Most of your other posts seem to indicate you want a hands off government. I fail to see how forced military service is ANYTHING but pretty damned invasive and hands on.

Now, as to actually using Rome as an example. First off, you're wrong. Rome did not require that all of it's citizens bear arms. It permitted them to possess and use weapons in some cases. Roman law was very protective of the individual’s right to defend himself and his property from violence, whether offered by a thief on a darkened highway or a soldier in search of plunder. Which sounds all fine and good. But...that's is kind of what the current policy on weapons in the US is already. And it's been working out fabulously.

Also the idea of using an ancient culture as an example is rather ill conceived, as the weapons that they used at the time were very usually close quarters, and didn't have nearly the destructive force that even a simple handgun of today does.

For more information on Rome and the laws that they held on self defence and possession of weaponry privately... Roman Law

The Switzerland approach...it just seems like such a bad idea. You are talking about arming, in entirety, a country that hold 316+ million people. You can fit all of Switzerland's people in New York City, with room for a million more. Add to that the fact teh US military training does seem to have the effect of creating people with a fairly high level of aggression and detatchment. This is important for a soldier to have, but not once he's reintegrating back into society. Now obviously, there are certainly people who go through the military training, adn come out perfectly fine. These individuals are well adjusted and go about their lives. But for every person like that, there's others that took to it just a little...too well. And by increasing the number of people that go through this training, you increase the number of people that should NOT go through it.

Less than 0.5% of the population in the US serves in the military. So increasing the number of peopel that go through that training by 200 times...I'm sorry, but that sounds like a recipe for disaster, not positive social change.

 

[Cydramech]

How do you propose mental health cases be handled, Cydra? I can tell you with confidence, in your described situation, I would be a multiple-murderer by this point.

You could already be one. It's not hard to murder in this world we live in right now. In any metropolitan area, the police are only 15 minutes behind. A murderer can be on any corner, and the police can do nothing about it. Not unless you're interested in a complete totalitarian state, anyways.

On the other hand, you sure won't be able to murder someone so easily when they know how to defend themselves. Just as we've seen with this "knockout" crap; something all the victims share - the common denominator - they all were obviously vulnerable. Only when one fought back did any of them punks actually even possibly regret what they did.

When I look at MS-13, the Bloods N Crips, I only wonder one thing, "why the hell don't they take advantage of this simple fact?" Every neighborhood I see that claims to be "gun free", I only see another neighborhood not just waiting, but asking to be victimized. I would even ask myself why I don't ever bother, and sure enough I would if I didn't have any convictions.

Meanwhile, in the wild west there only ever was one Billy the Kid (who was more of an anti-hero). Contrary to popular culture, the wild west was a whole less wild than anywhere else; kids were trained and armed growing up, and for all the reputation the wild west gets, the fact is no one was going to just get away with murder or violence in general.

If anything got wild, it was the federal government, the same government that continuously murdered the natives of the land. Otherwise, everyone was living quite peaceful.

I doubt it's been thought of beyond 'whatever they do in Switzerland'.

This is a very simplistic scenario, where the idea that just drag-and-dropping how another nation works without adjusting for culture, history, or even just general population levels.

The idea that you could simply apply a mandatory military service onto a nation the size and scope of the US is...frankly, kind of ludicrous.

One could say the same about every other federal program in existence. Every single one started out small.

Most of your other posts seem to indicate you want a hands off government. I fail to see how forced military service is ANYTHING but pretty damned invasive and hands on.

I want no government, that is my first goal. But if I cannot have that, then there is only one thing left: to require that the people arm themselves at all times. Yes, it is invasive but it's at the end of the day the best way to keep violence at bay.

Now, as to actually using Rome as an example. First off, you're wrong. Rome did not require that all of it's citizens bear arms. It permitted them to possess and use weapons in some cases. Roman law was very protective of the individual’s right to defend himself and his property from violence, whether offered by a thief on a darkened highway or a soldier in search of plunder. Which sounds all fine and good. But...that's is kind of what the current policy on weapons in the US is already. And it's been working out fabulously.

There are more than 80 Million Gun Owners in the U.S., and not one has committed a crime or been involved in a crime. In the city I was born in, Kennesaw, made gun ownership mandatory and gun-related crimes did in fact drop there, as well as gang-related crime while Atlanta just got worse. Both my mother and stepmother would've been raped, murdered, or both if they were not packing heat; I wouldn't even be here had I not learned to fight and look like I'm packing heat.

But alas, you're going to pick your own crime stats no matter what.

[video=youtube]https://www.youtube.com/watch?v=Ooa98FHuaU0[/video]

Also the idea of using an ancient culture as an example is rather ill conceived, as the weapons that they used at the time were very usually close quarters, and didn't have nearly the destructive force that even a simple handgun of today does. For more information on Rome and the laws that they held on self defence and possession of weaponry privately... Roman Law

Despite the destructiveness, a handgun or even a machine gun is a whole lot simpler to wield than anything we've seen in history. As Edward Abbey once said,

The tank, the B-52, the fighter-bomber, the state-controlled police and military are the weapons of dictatorship. The rifle is the weapon of democracy. Not for nothing was the revolver called an “equalizer.” Egalite implies liberte. And always will. Let us hope our weapons are never needed — but do not forget what the common people of this nation knew when they demanded the Bill of Rights: An armed citizenry is the first defense, the best defense, and the final defense against tyranny."

Swords, axes, polearms, etc. - the further you go back in history, the harder the day's weapon got to be. Up until the creation of the rifle, only the richest and wealthiest families could afford to train, and not just because of material costs but because to wield a melee weapon required extensive training a lot more than any rifle of the modern era.

The Switzerland approach...it just seems like such a bad idea. You are talking about arming, in entirety, a country that hold 316+ million people. You can fit all of Switzerland's people in New York City, with room for a million more. Add to that the fact teh US military training does seem to have the effect of creating people with a fairly high level of aggression and detatchment. This is important for a soldier to have, but not once he's reintegrating back into society. Now obviously, there are certainly people who go through the military training, adn come out perfectly fine. These individuals are well adjusted and go about their lives. But for every person like that, there's others that took to it just a little...too well. And by increasing the number of people that go through this training, you increase the number of people that should NOT go through it.

Less than 0.5% of the population in the US serves in the military. So increasing the number of peopel that go through that training by 200 times...I'm sorry, but that sounds like a recipe for disaster, not positive social change.

This was said about every other federal program too. You'll always have a small group of people that shouldn't go through something, but apparently we're only to worry about that with mandatory gun ownership?

No, I don't think so. When people are trained to defend and arm themselves, this group of people you think of only cower away. And I'm pretty sure that we all know for a fact only the most insane criminals go after anyone that isn't vulnerable, and they're the kind that even MS-13 or the Bloods N Crips won't tolerate.

Also, I did forget something else. It must also be noted that as kids are trained through Martial Arts, they're all the less likely to turn to violence. Why? Self-control through proper discipline (I mean discipline, not abuse). Plus, this whole idea that if you did something wrong as a child makes you a criminal for life is like a self-fulfilling prophecy; there's no real point to being a law-abiding citizen if you're already a criminal.

 

[Trygon]

I fail to see how having a gun protects anyone from someone feeling a screaming urge to shed blood, anyone's blood, as much of it as possible. Let me fill you in, K?

I am not a murderer. However, at one point in my life, I took a combat knife of exceptional size against my family. I was quickly physically suppressed, and when the mist lifted, I made necessary changes to ensure it would never happen again. It hasn't, but I always remember the feeling, of complete insanity, being prepared to kill anyone just for being in front of you...

How would a gun have protected my parents from me striding into the room and blowing them away with mine? Initiative is EVERYTHING with guns. Having one is precisely zero protection from a motivated person who's got the drop on you.

See, you have this... Talismanistic ideal, of a firearm... It scares me. It doesn't keep you safe. It's not even a particularly good weapon for many of the situations in which you'd imagine wanting one. If I'm being mugged, I'll take a knife (Close-quarters hand-to-hand). Home invasion? Pepper spray, actually (Area denial and maximizing pain response in target). So, why the fetishizing of guns?

I actually think it's for the same reasons arms races as a whole happen. Some people can't stand to imagine that others might have an immediate forceful advantage over them, so they seek to 'even the score'. In this mindset, the gun BECOMES one's power, and thus is worshipped. Rather like the 1950s deification of the atom, innit? You have this idea that the only people who get hurt by guns are weaklings who should have had their own guns. But I am here to tell you about a time when the lack of guns immediately saved lives, and I think it happens a lot more than you imagine.

 

[Cydramech]

I fail to see how having a gun protects anyone from someone feeling a screaming urge to shed blood, anyone's blood, as much of it as possible. Let me fill you in, K?

Tell that to all of them gang members out there that have attempted robbing shop owners only to find out they were themselves armed, mkay?

I am not a murderer. However, at one point in my life, I took a combat knife of exceptional size against my family. I was quickly physically suppressed, and when the mist lifted, I made necessary changes to ensure it would never happen again. It hasn't, but I always remember the feeling, of complete insanity, being prepared to kill anyone just for being in front of you...

"Bro, do you even lift?"

I've been trained to use any item as a weapon, and I've been trained to shoot-to-kill. I've been shot at, and I have been charged with attempted murder just with using my own body (during an avg. street fight I was the one that broke a kid's jaw with a single kick that required the medical ops to cut a hole into his neck just to let him breath while they had to use a saw to detach his jaw from the upper portion of the mouth). I have 3 brothers, two of which are former gang members; a long time ago, my old man befriended cop killers and coyotes (people that helped smuggle or escort people illegally across the border).

How would a gun have protected my parents from me striding into the room and blowing them away with mine? Initiative is EVERYTHING with guns. Having one is precisely zero protection from a motivated person who's got the drop on you.

Why don't you tell me how you think you'd have gotten away when your parents would've had you shot? You may think you have the initiative, but that ain't always reality. 9 times out of 10, no thief goes out of their way to rob someone they believe is packing heat.

See, you have this... Talismanistic ideal, of a firearm... It scares me. It doesn't keep you safe. It's not even a particularly good weapon for many of the situations in which you'd imagine wanting one. If I'm being mugged, I'll take a knife (Close-quarters hand-to-hand). Home invasion? Pepper spray, actually (Area denial and maximizing pain response in target). So, why the fetishizing of guns?

I actually think it's for the same reasons arms races as a whole happen. Some people can't stand to imagine that others might have an immediate forceful advantage over them, so they seek to 'even the score'. In this mindset, the gun BECOMES one's power, and thus is worshipped. Rather like the 1950s deification of the atom, innit? You have this idea that the only people who get hurt by guns are weaklings who should have had their own guns. But I am here to tell you about a time when the lack of guns immediately saved lives, and I think it happens a lot more than you imagine.

Being mugged, I can take that gun and pull the trigger a whole lot quicker than you can cut with your knife. You will absolutely never ever have your knife out before I get my gun out - it just isn't going to happen. Done it before, can do it again.

I can also say without a doubt, if someone pulled their knife out on me, well I personally don't even need a gun or anything. I'm that 6'0 titan that's going to slam anyone even twice my size into the ground, and there's nothing a knife can do to stop me unless they go straight for the head - but good luck with that much, because it sure ain't happened yet while it really does take a trained user to actually use a knife properly.

Meanwhile, pepper spray isn't going to do shit against a proper criminal; in fact, it's rather ineffective in the long-term since all it is IS pepper, and has to be sprayed at the eyes for it to be useful. Same with tasers too.

 

[LadyYunaFFX2]

Sigh

Okay ... I don't like I'm bringing this up a second time but clearly I have to.

I made this for opinions and points of views. Not for debates.

Those can go to PMs if you want but damnit please don't just flood my thread with these back and forth arguments.

Seriously ... come now people. No more.

-LadyYunaFFX2

 

[Cydramech]

Sigh

Okay ... I don't like I'm bringing this up a second time but clearly I have to.

I made this for opinions and points of views. Not for debates.

Those can go to PMs if you want but damnit please don't just flood my thread with these back and forth arguments.

Seriously ... come now people. No more.

-LadyYunaFFX2

That's fair; it is your thread after all... and I love Yuna.

 

[LadyYunaFFX2]

....

Three strike rule; I hope everyone has heard of it. Because I'm following it, even on my own thread. If I have to do this again one more time, I'll [reluctantly but still] ask darkangel76 or anyone with the correct authority to close this.

I really don't want to. But seriously, this wasn't made for fights or debates. This was made during the time when the US began to consider enforcing gun control. I made this out of genuine curiosity on whether people agreed/disagreed of it being a possibility or not. Nothing more, nothing less.

That being said ... I don't mind if people type input or whatnot here. In fact, go for it. But really, careful on what gets included here because I will be watching this closely.

-LadyYunaFFX2

 

[Trygon]

You're clearly just too tough to be in danger, Cydra. Everyone should be like you.

Per Yuna's post and my well-supported stance in this thread, I think I'll take my leave.

 

[captain_jay_conrad]

•A legal perspective on gun-control•

I normally refrain from commenting upon such contentious topics as this. However, as a practicing attorney, I believe there are some important legal insights which I may be able to contribute to this topic. Let me preface my post with this, before continuing with my post―the points of view I'm about to share are a combination of my personal opinions, experiences in owning, firing and maintaining various types of firearms; as well as practicing as a criminal defense attorney, and reference to United States law―including the United States Constitution and the changing legal precedence in regards to the topic of gun-control. Nothing which I'm about to state is meant to spark a fierce debate, or to belittle or demean the views held by the diverse membership of the Blue Moon community.

Now that I have addressed my disclaimer, I'm going to proceed with my contribution to the topic. Gun-control presents a unique and difficult challenge, from the legal perspective. This is because the right to keep and bear arms is what is known as a “fundamental right”. That is to say, as Broomhandle previously mentioned, the right of the people to keep and bear arms is engrained in our society. Moreover, it is guaranteed in the Constitution's “Bill of Rights”―which is collectively the first ten amendments to the Constitution. Specifically, the right to keep and bear arms is found in the Second Amendment, which states:

A Well Regulated Militia, being necessary to the security of a free State, the right of the People to keep and Bear arms, shall not be infringed. (sic)

Now, examining the text of the Amendment, it is not difficult to see why a fierce legal debate ensued with respect to the proper interpretation of the language contained therein. Many legal scholars contended that, since the National Guard probably serves the function of “a well regulated militia”, therefore, the rest of the Amendment is rendered moot. However, such arguments neglect to mention the clause pertaining to “the right of the people”. Since the Bill of Rights, by its nature, enumerates certain unalienable rights and freedoms to United States citizens, it naturally follows that the subjective clause would be “the right of the people” clause, as opposed to the clause pertaining to “a well regulated militia”, which merely serves the purpose of a pretext, advancing one of many justifications for including the right within the Bill of Rights in the first place. Additionally, even if the “militia clause” served the function of being the subjective clause, that does not, per se, eliminate the right to keep and bear arms.

Rather, the language of the Tenth Amendment would control, and it states, in no uncertain terms:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.

In other words, if the Second Amendment was rendered obsolete by the “militia clause”, the courts would be bound to examine the constitutions of the several states, all of which contain their own Bill of Rights, and their own amendment pertaining to the right to keep and bear arms. (But they all vary with respect to their extent and scope). If this were the case, Congress might enact a law, signed by the President, restricting the right to keep and bear arms, effectively superseding the constitutions of the various states, pursuant to Article VI's Supremacy Clause. However, recent Supreme Court decisions have settled the matter of interpretation.

In the landmark case of District of Columbia v. Hellar , 554 U.S. 570 (2008), the Supreme Court held that the Second Amendment applies to Federal enclaves―essentially Federal territories―and protects an individual's right to keep and bear arms for traditionally lawful purposes, such as self-defense within the home. While Hellar did not address the question of whether Second Amendment protections extended beyond Federal enclaves into the several states, the later Supreme Court case of McDonald v. Chicago, 561 U.S. 3025 (2010) specifically held that Second Amendment Protections extend to the several States pursuant to § 5 of the Fourteenth Amendment.

Consequently, these two Supreme Court decisions significantly hinder both state and Federal legislatures from enacting laws which substantially curtail a citizen's rights to keep and bear arms. While neither decision prevents “reasonable restrictions”, they also failed to define what constitutes a “reasonable restriction”. Therefore, the topic of gun control is likely to see further litigation in the foreseeable future. Perhaps the most likely source of contention will arise from the issue of mental illness. Of course, this comes with significant legal questions of its own.

For example, who shall determine the applicable standards of mental competency, and once determined, which governmental agencies shall enforce such standards? On top of that, what sort of court process will be utilized by those individuals deemed mentally unfit, to appeal such determinations? And, also, is such a finding of mental unfitness a permanent bar to the right to keep and bear arms, when the threat of substantial danger to the individual and to others, is significantly reduced via proper treatment? I contend, if such an individual is permanently barred, despite undergoing legally authorized treatment, which practically eliminates the threat of harm to either the individual, or to society, then you risk violating said individual's Equal Protection Rights, as found in the Fourteenth Amendment.

Indeed, this topic presents many delicate and significant factors which must be considered, before any drastic or sweeping gun-control measures could legally be enacted. Of course, no one likes to see innocent people harmed by the actions of a depraved individual. However, America is a nation of laws, and must go to great efforts to ensure that the rights of the people are not violated, through rapid legislation, and without giving the proper amount of attention to unintended consequences, or to the significant deference traditionally afforded to fundamental rights.

Now, Havoc mentioned earlier certain restrictions which included not only the aforementioned “mental health” restriction, but also certain restrictions regarding limitations on the ability to purchase ammunition at a shooting range, or requiring every bullet within the house to be accounted for and locked up. These restrictions seem reasonable on the surface. However, significant legal questions again arise, as to the practicability of enforcement, and the Constitutional ramifications that arise therefrom. In other words, looking back at the Supreme Court Decision of Hellar , we can see that the Court held that the Second Amendment's protections apply to a citizen going about traditionally lawful activities, including self-defense of the home. From a strict interpretation of the language, of both the case and the Second Amendment itself, there runs a risk of any such restriction failing to pass Constitutional muster. Moreover, to keep an accurate account of how many rounds of ammunition one has, especially when one has multiple different types of firearms, many utilizing different size and types of ammunition, would be a nightmare for gun owning citizens. For instance, one could easily own several thousand rounds of .45 ACP ammunition for an M1911 Colt, and an equal or greater number of 9mm ammunition for say a World War I era Luger, or a semi-automatic Uzi pistol.

Perhaps such restrictions might fall under the “reasonable restrictions” allowed within the language of McDonald, however, this would create an opening for increased litigation over the issue, as one could logically argue that such restrictions are violative of an individual's Second Amendment rights. Moreover, it also follows that when such a requirement is enacted, a governmental agency will be allowed into the house, without having to procure a search warrant to begin with. This is the case with those of whom obtained a Federal license allowing the owning and operating of fully automatic firearms. Such a license can be procured pursuant to “The Firearm Owners Protection Act of 1986” (FOPA) 27 CFR § 479.105(d). However, to have this apply to semi-automatic firearms and pistols, would seem to be unreasonable, as per the logic used in both Hellar and McDonald. Moreover, should any agency enter into the gun owners home, without first procuring a warrant, supported by probable cause, demonstrating that the gun owner had committed some sort of criminal act, then such actions would violate the gun owner's Fourth Amendment right against unreasonable searches and seizures.

This ties into another point Havoc made earlier, regarding the need to have an automatic rifle, or any type of Ak-47 or Ar-15, and I'd assume that includes something like an SKS as well. That makes sense too, on the surface. Fully automatic weapons are restricted by the aforementioned FOPA. However, not all AK-47's, AR-15's, or SKS' are “fully automatic”. Indeed, most of those types of firearms fall under the category of “semi-automatic”. I think there has been a lot of confusion over what this term actually means.

A semi-automatic firearm is a type of firearm that loads a round into the chamber, using a mechanical mechanism which loads the next round into the chamber, once the gun is discharged. (Via the escaping gases from the previously fired round). This process is known as “auto-loading” which is different than say a revolver or a bolt-action rifle. A “fully automatic” firearm, on the other hand, is what people usually think of when the term “automatic weapon” is used. That is, these guns will continue firing as long as you hold the trigger down, whereas a semi-automatic rifle, whether it is a traditional hunting rifle, or a semi-automatic AK-47 will only fire once per trigger pull.

Therefore, any sort of “assault-like” rifle, which is in actuality, semi-automatic, will not fit into the category of “fully automatic” as defined in FOPA. Moreover, the term “assault rifle” has a very specific definition under United States law―as particularly defined in FOPA―which is to say, that in order to be an “assault rifle”, the rifle must necessarily be “fully automatic”. That definition aside, it makes sense that many would not see a need for such a rifle. But, the threat of danger posed by such rifles is no more significant than any traditional semi-automatic hunting rifle.

As previously stated, this issue presents a highly complicated one, and the legal nuances to it are significant, and difficult to manage. However, I hope what I have added here helps clear up some of those legal ramifications, and clarifies a bit about the legal aspects of gun-control.

 

[LadyYunaFFX2]

Whistles as finishes reading up Jay's post, smiles

Thank you. That is actually one of the best contributions thus far. I genuinely appreciate the input, especially from a legal point of view. Lovely post and excellent points. Thank you very much.

-LadyYunaFFX2

 

[Cydramech]

[snip]

I further contend, in relation to the point on automatics: there is no such thing as a full-automatic assault rifle. The only full-automatic weapons we have are in the manner of machine guns & submachine guns, both of which are generally overrated (after all, with the one you must deal with significant recoil which depending on the ammunition used can require multiple individuals to control (AKA, the SAW or Squad Automatic Weapon) and the other is highly inaccurate and weak for any non-short distance).

Furthermore, there are other drawbacks to such arms: the larger the magazine, the bigger the chance the gun gets jammed. Especially the old circular magazines you saw used on the Tommy guns, as they jammed quite easily and still in fact do. Thus, the seasoned gun owner already will not be using magazines sporting more than 30 rounds of ammunition, which is the standard for assault rifle magazines to begin with.

I'd just take a TAC-.50 McMillan Tactical Rifle and 2 high-caliber handguns (preferably either the .50 AE Desert Eagle and/or the S&W500).

 

[Trygon]

*latches to Jay's leg*

Never leave us. Please. You live here now, in the Academy.

 

[captain_jay_conrad]

Haha! Well, I do like it around here! I promise to lurk around a bit.

 

[Ivory11]

Switzerland has more guns per capita than America, and they have very little violence.

I am both pro and anti gun control, i am pro gun control if proper education isn't given to those seeking a firearm, and I am anti gun control if America and other such countries follow the European example of having the people highly educated in gun safety and firmly made aware of the consequences and responsibility of having a gun.

 

[captain_jay_conrad]

I think we can all agree that safety is an important aspect of this issue, which needs to be addressed. However, to be able to compare any sort of safety initiatives in the United States, to European laws will prove extremely difficult. The reason for this is that European law and American law are fundamentally different, in so much as the structure of the United States government drastically differs from that of both individual European Nations, as well as the European Union itself. In the United States the unique set of problems one will encounter, with respect to gun-safety regulations rests in the Federal format we have―what is referred to in law as the “tenets of Federalism”.

That is, the Second Amendment to the United States Constitution is designed explicitly to prevent the Federal government from creating any sort of centralized restriction hampering or encroaching upon the right to keep and bear arms. It’s because the language within the amendment itself speaks directly to that issue. Indeed, the heart of our Federal system rests on the notion that states are better equipped to deal with unique and distinct characteristics and problems faced by their respective populations.

The Constitution itself addresses this in Article I § 8, requiring the Federal Legislature to trace its governing authority back to the “four corners” of the Constitution. In other words, unlike the states, which possess, “plenary”, or near unlimited powers, Congress is restricted to the powers delegated to it via the Constitution itself. You could call this system the contractual agreement between the several states and the Federal government.

Now, on this surface, this creates the illusion that the Federal government is toothless. The Constitution addresses this via Article VI’s Supremacy clause, which states that the United States Constitution itself, and the laws passed by the Federal Legislature, which are in agreement therewith, can supersede the various laws of the several states. Even so, Congress must still clearly demonstrate an explicit intent to override the laws of the several states.

Furthermore, Congress is constrained in what it can pass, for if it passes any law contradictory to the Constitution itself, then the law will be challenged. The Supremacy Clause bars any Federal legislation which is contrary to the language of the United States Constitution. Moreover, this position is supported by well-established precedence dating back to the earliest days of judicial review.

In 1803, the Supreme Court held in Marbury v. Madison, 5 U.S. 137 (1803), when Congress enacts a statute, law, or act, which conflicts with the Constitution itself, then the law enacted by Congress is null and void. In other words, it has no binding effect whatsoever. That being said, does that mean that the Federal Government always abides by this doctrine, or even properly applies this standard? Not necessarily.

Congress has stretched the limits and boundaries on that, especially when considering their justifications for legislative authority. The largest area of abuse of this nature occurs in the area of “regulating commerce”. Article I § 8, Clause 3, allows Congress to regulate the interstate commerce of the United States. However, the reach and scope of that constitutional provision has been expanded exponentially, and to such a degree that the current trend within the Supreme Court is to reign in that authority. In fact, in 1995, over, surprisingly enough, an attempt restrict the ownership and access to firearms, the Supreme Court started reigning in congressional authority pursuant to the Commerce Clause.

The issue came to a head in the case of United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995). Chief Justice William Rehnquist held that “[p]ossession of a gun near a school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.”

In other words, Rehnquist was saying that, if you wanted to enact this kind of law, it would have to be done at the state level, because the states possess the plenary power to address and pass such legislation. Whereas a federal law under this sort of authority, has no basis in an enumerated power, and therefore cannot pass Constitutional muster.

Another important consideration to keep in mind here, is that this decision was rendered before the more current Supreme Court Cases, that I mentioned in my earlier post, had been decided. Therefore, at that time questions remained as to whether the Second Amendment’s protections extended to the several states. This question has since been addressed by the aforementioned cases, which further bolsters the position that the Federal government probably will not be able to enact such standards.

So, as you can see, it would be extremely difficult to enact any sort of over-arching, or centralized gun safety initiative in the United States, because it goes against the legal fabric of our system. I don’t believe European Nations run into quite this strict of a boundary. Also, if I’m not mistaken, Switzerland follows a Civil Law system, whereas the United States follows a Common Law system.

In other words, there is a centralized Civil Code of law within Switzerland which is binding upon every area within the country, and the courts are able to determine the legality of certain aspects of the code, only within the limits of the case being decided before the court at that time. (In a sense, the court is unable to overturn the statutes enacted by the Swiss Legislature). However, in the United States, Constitutional interpretation of laws is not strictly limited to the case at bar. Rather, the decisions have lasting impact, over every other case of that type and style. (Which is to say that the United States Supreme Court has the power to strike down almost any sort of legislative actions, as violative of the Constitution).

I believe that these sorts of differences make it all but, and maybe even, impossible to pass a European style gun-safety requirement in the United States, as you would see in Switzerland. So, while it is a nice thought, and I agree that safety needs to be a part of it. Even that solution will run into significant legal hurdles, which again demonstrates just how complex this issue can really be.

 

[Ivory11]

all in all, it comes down to education.

If you have no education, you get a place like Afghanistan and Pakistan, a bunch of stupid people ruled by a holy book with guns and explosives (Sorry to any Pakistani members who read this, but you can't deny there are thousands of stupid people with guns and bombs in your country that kill for allah, and if you're reading this... I'm amazed this site isn't banned there)

If you are big on education and gun safety, a high abundance of firearms is no problem at all, my uncle is a bogan (Australian redneck) and he's always told me "A bitch shoots someone, a man punches" in short, if someone has wronged you, made you furious, has made a firm enemy out of you, don't shoot 'em, just punch them! you see, that is a KIND of gun safety education, not to use it on other people, and guess what? he's never even had a close call despite using guns since he was a kid.

and Switzerland, they're so big on the education that it isn't even a problem.

you see America's gun problems lie in those few who have weapons but have an education somewhere between Afghanistan/Pakistan and my Uncle, know how to properly use a gun and how to use it safely, but not know that using a gun to settle scores is a really bad idea (EXCEPTION TO THOSE MANIACS WHO ACTUALLY GO ON RAMPAGES)

In short, given America's mentality and educational system, it's not a good idea for guns to be sold in corner shops, but things like gun ranges are a good thing, because they can work for people to both familiarize themselves with firearms, and they can be used for gun safety and use classes, for you can't just take guns away in America, guns are a part of American culture! instead private ownership should be much more strict, gun ranges should have to hold classes on gun safety, compulsory to members while at the same time offering the chance for ordinary americans to familiarize themselves with firearms.

and I would just like to point out, that to any Americans on this issue, pro or anti gun, you should go to one of those ranges, a LOT of fun, very educational and a very safe environment.

 

[captain_jay_conrad]

http://news.yahoo.com/court-overtur...e-blow-california-gun-024135756--finance.html

Just recently, a new example of how difficult gun control measures will be to enact in this country was handed down by a Federal appellate court in San Diego. The old law required that residences show good cause to receive a carry conceal permit. (That is, even after going through the strenuous training and life fire proof of competence). The court struck down this "good cause" requirement within the licensure procedure.

It's just a single example, but the fact that it occurred within the 9th Circuit Court of Appeals is surprising, and the fact that the vote was 2-1 on the three judge panel is also telling. It will be interesting to see how this develops, as I'm certain that it will once again head to the Supreme Court, to determine whether this restriction falls within the undefined "reasonable restrictions". We shall see.

 

[The Badger]

I didn't go through all of the comments here, because quite frankly? There were a lot of them. I'm just going to spit my two cents on the issue and you can do with it what you will. These "mass shootings" if you will, are not a causation of having access to firearms but rather a symptom of several other problems which are much, much harder to address than "gun control." Frankly, it's a lot easier to blame a tool, an inanimate object, and scream profanities at people who can see a tool for what it is, while rallying around dead children, than it is to say, I don't know, voice that we need to quit treating mental illness as something other than a phase, something that's a fashion accessory, or something that we can just "beat out of" our kids. Our mental healthcare system is, quite frankly, a fucking joke. We don't have psych classes in 90% of our high schools, we don't teach most of our police departments how to truly, and properly, deal with someone undergoing mental trauma/mental instability, and we really don't know how to handle a lot of the other things to go with it. We even attach stigmas to a lot of mental disorders and diseases, telling people to just get the fuck over it!

Enough about that though, there's also a huge misunderstanding when it comes to firearms, we have people who want to ban firearms or firearm accessories, politicians that can't even be bothered to know what they want to ban such as barrel shrouds and the ever-infamous 'shoulder thingy that flips up.' Most of these things are purely cosmetic and have little, if anything, to do with the actual operation of the firearm. It's a fear campaign for the most part, and people so often want to cite dated, or false statistics about gun crime, when in truth? We're at an all time LOW when it comes to gun crime. Harvard even released a mother-fuckin' study that shows the correlation of areas with high, LEGAL, gun ownership and low crime. Gun Control doesn't work, and most of the people chanting for it, don't know, or don't want to know that. Hell, half of the things they want? They don't know are in place. If you've ever been forcefully committed to a mental hospital? It's on your record. It's why Adam Lanza, the Newtown Shooter, couldn't legally buy a firearm. He got rejected because of his background. That whole "Gunshow Loophole" shit? It doesn't exist. You wanna buy a gun at a gunshow? You have to fill out a 4473 Form! The only sale, in which a background check doesn't apply, is a private sale from one private citizen to the other, and only then, the firearm can't be a Class III/NFA weapon.

Yes, folks. Turns out? Without a Class III License and a NFA Stamp on each piece of Class III Hardware you own? You -can't- own a real "M16" or an "AK-47" and after you legitimately get the needed licensing and pay the fees? They wind up costing around twelve thousand or so dollars. Also, point of note? An AR-15 isn't an assault rifle, it's a semi-automatic sporting rifle, deal with it.

Sorry, I'm tired, I'm passionate on the subject, and I can be a right ass.

Gun violence is on the decline, gun ownership is on the rise. We don't need anymore gun control than what we have. Politicians are moronic, don't listen to them. Hell, don't listen to me if you don't wanna, but seriously. Do your own research and stay informed.

 

[captain_jay_conrad]

Badger, very well stated. The legal protections for gun rights are strong, and there's a reason for it. I admit that I didn't get into the statistics so much, as I'm not fresh on them. The case law and Constitutional interpretation, on the other hand, I watch very closely, as the decisions were coming out while I was still in law school, and I've always been fascinated to see how the Supreme Court works their magic. (Even if it can be extremely maddening at times). And you're absolutely right on the gun show loop hole as well.

As for being a "right ass", I actually love the way you phrased that. I usually state that I'm so far to the right I'm to the left! But, you're also right on the myriad of other problems that exist here. And like I said before, there's a whole tangled web on how to get that process worked out.

 

[LadyYunaFFX2]

Since it's recent and an example of why I want ... well ... some form of caution to be taken ...

Death over loud music? Really?

I have been following this trial heavily with it being so similar to Zimmerman's. I ... am seriously on the verge of tears to see the court system possibly failing. I realize that may be an entirely different topic [that I'm almost ready to make in fact] but it leads to the misuse of a gun.

Seriously? Loud music? How does that begin to threaten you unless you're paranoid or something? I can't begin to comprehend it. It just really fucking depresses me that people like this man and Zimmerman can get away with such bullcrap.

And it makes me bring back my point from ... I think my first post or one of them for sure. I'm not saying we should altogether remove right to bear arms. But it really, really does need to be better monitored. There are clearly some people who shouldn't be allowed to own the damn things. That man and Zimmerman are but two of the small and numerous examples of why.

-LadyYunaFFX2

 

[The Badger]

...The Zimmerman case, ah..

What I'm about to do, is going to piss people off, but please; bear with me.

Zimmerman, was justified in his shooting. With that said, Zimmerman is an absolute scumbag and had no justification in following Trayvon Martin, but allegedly, he didn't throw that first punch. No one knows what really happened, but that's the thing, you can't convict a man when there's a chance, a REASONABLE DOUBT, that he's not guilty. That's the thing, that's what a jury has to do. You're not supposed to convict a person, unless there's beyond a reasonable doubt.

Was Zimmerman guilty of being a piss poor human being? Absolutely.
Was Zimmerman guilty of being a racist? Probably.
Was Zimmerman overzealous and trying to be a cowboy? More than likely.
Was he guilty of murder, instead of killing a man in self defense? Not so much.

As for your argument, we could apply the same thing to computers. Do you know how many COMPUTERS are used daily to rob people of their money, or steal their identities? How many Kitchen Knives, or baseball bats are used in murders, home invasions, and general felonies? How many lighters commit arsons?

You could argue that the numerous amount of responsible owners outweigh that, and they do.

It's the same with firearms. There's over EIGHTY MILLION gun owners in America alone, and the margin of those that use guns to commit crimes are so marginally small that it's almost laughable. It's the fact that it's now a media interest, so they constantly flood the screen with images of "Gun Violence" and bad statistics that they almost brainwash people. Hell, they almost GLORIFY mass shooters to the point that no fuckin' wonder fame hungry, deranged ass, people try to shoot up areas. They want to be remembered, mostly.

Just sayin'. There's a lot of emotion here, and so very rarely do people want to look at the facts.

 

[captain_jay_conrad]

There's something to remember when it comes down to any criminal prosecution. The standard of proof is very very high for criminal cases. As it should be, the state basically carries an unlimited budget to go "after" criminals, and the supposed criminals usually have little to no money. Being a criminal defense attorney myself, I always make sure that the jury is made aware of the standard of proof, which is "Beyond any reasonable doubt" or as the prosecution likes to say "Beyond 'a' reasonable doubt". But the truth is, if there is ANY question, whatsoever, as to the reasoning behind the accused's actions, then you cannot convict. That's because life imprisonment or the death penalty comes with this, or some great loss of freedom on the other side.

Basically, when it comes to murder (unjustified killing) there are two types of defenses: (1) justified homicide―killing for the purposes of self-defense, or defense of others; or, (2) Excused homicide, (unreasonable self-defense, defense of others. Lacking the prerequisite "mens rea" or guilty mind, due to duress―someone threatened you, a loved one, or a family member, with violence, or death, if you did not commit the act. Or, involuntary intoxication―someone forced you to take drugs, alcohol, or any intoxicating, mind altering substance which causes you to not have the capacity to know what you were doing―note this also applies to insanity.) Murder has very strict definitions.

Pursuant to Florida Code Annotated § 782.04―Murder in the First degree is: (1) The unlawful killing of a human being; (2) When perpetrated from a premeditated design (means planned out ahead of time), to effect the death of the person killed, or in the attempt to perpetrate any life threatening felony (of which the most common are: Burglary, robbery, rape, assault, home-invasion, etc.). That's the definition of First degree murder. The prosecution, wisely did not attempt to prosecute Mr. Zimmerman based upon that offense.

The charge they did use, which rules out lesser included offenses, such as First degree manslaughter―the unjustified killing of a human being, without malice of forethought, or with design, based on an incomplete/unreasonable argument of self-defense, or defense of others), unless listed on the indictment―which it was not, is defined as follows, pursuant to Florida Code Annotated § 775.082 (b) (2), as:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life.

Again, the defense of self-defense is an absolute defense to murder in the second degree. Therefore, if there is ANY reason to believe that Zimmerman (not a reasonable person, or third person, but Zimmerman himself, at the time, under the circumstances as they were) felt in danger for his life, then there is reasonable doubt as to the claim of whether he committed murder, and rather acted in self-defense. I'll parse the facts of the case out (albeit not to the same detail as the actual attorneys involved), but as I saw them, when watching the entire case, as it unfolded. Please note, that everything I'm saying here is not meant to belittle, or to deny you your opinions with respect to the case. I'm just hoping to share some of my insights, as a criminal defense attorney.

For starters, I need to explain that there are differences in the prerequisite levels of proof in court cases, depending on whether it is criminal or civil in nature. As previously stated, criminal law carries the highest burden of proof, which is carried by the state. That proof is the "beyond a/any (defense attorneys and prosecutors fight over this all the time!) reasonable doubt, meaning about 90% certainty. In civil law, it's a whole different scenario. The standard of proof for that case is "by a preponderance of the evidence" which means "more likely than not". In other words, about 51%.

Thus, "Beyond a reasonable doubt" is down the lines of 90% certainty, the preponderance of the evidence standard is 51%. That's why O.J. Simpson was not convicted of murder, but was found liable for wrongful death. The standards of proof played a major role in the case. Does that make it right? Probably not, but it's how the system works, and it won't change anytime soon.

As with Zimmerman, it is a perfect example of poor judgment, perhaps racial animus, although he did tutor a lot of black children (He being Zimmerman of course). There was something about the way the media covered it, however, that bothered me. This attempt to racialize it from the get go, calling him a "white-hispanic", that in and of itself is charged language. Zimmerman's mother is Paraguayan, if memory serves me correctly, and they have more African blood than most of the other South American countries, except for Brazil.

But, let's examine what happened in the case of Zimmerman. A few days before the shooting occurred, there were break-ins in the area. The homeowners who reported it stated that a black male in his teens about six-foot tall broke into the house. A string of these burglaries occurred. This is inside a gated community in a prosperous area in Florida. All of the sudden, a new person fitting the description of prior burglaries comes to the area, is peeking through windows on a rainy night. Here you have Zimmerman, out in his truck, doing whatever he was doing, and he spots a guy wearing a hoodie, peaking into a window.

Because it's raining, burglaries have happened before, and most burglars do not engage in burglary without being armed in some sort of a fashion, Zimmerman, a carry concealed license holder, who has gone through the training to receive the license to carry the hand gun, calls the "non-emergency" line to speak with a dispatcher (who by the way, is not a police officer, or a person who holds any legal authority whatsoever). He states that an unknown assailant is peeking in windows, in the same gated community where recent burglaries occurred. She asked him to describe the assailant.

Zimmerman responds that he's about six-feet tall, athletic build, black, waring a hoodie. This is a standard style description, what police get from eye-witnesses all the time. I remember the prosecution trying to tie that in as a "wanabe cop". Just because someone takes criminal justice classes, doesn't, in and of itself, make some one a wanabe cop. Zimmerman originally had intentions to become a lawyer, as I had. I took criminal justice classes in college, I would have provided a physical description similarly. The police do ask what race a suspect is, so that they narrow down their search pool.

Yes, during the phone call with the dispatcher, Zimmerman stepped out of his car, because he couldn't read the sign. In wet conditions, at night, when watching a suspicious stranger, after burglaries have occurred, peeking in windows, not but a few blocks away from the site of the burglaries, adrenaline flows, and I would have difficulty knowing where I was. Whether right or wrong, when one gets scared, the body does amazing things. It disorients you, causes rapid heart beat, and loss of concentration.

Now, Zimmerman was stupid for attempting to ask Trayvon who he was, and what he was doing. This, however, is not, in and of itself, racial profiling or anything illegal. Zimmerman was simply attempting to determine what the person was doing, and why they were doing it in the rain, at night, again, a few weeks after a string of burglaries occurred. What happened next, is what determines the case.

If the prosecution could determine, beyond any reasonable doubt, that What Zimmerman did was target this young man, pull the trigger, in cold blood, with NO grounds for self defense (including the wounds, which, being the son of two plastic surgeons, I can tell you were not self-inflicted), then yes, it would be murder. However, Not only did the prosecutors not prove this without a reasonable doubt, they attempted to target Florida's stand-your-ground law, which WASN'T even argued by the defense. Thus, they weren't out to seek justice, or the truth, they were out to take down a LAW.

A courtroom for murder is not the place to do that. That's unethical at best, and criminal at worst. Now, to draw a comparison, to another case where I think the police and prosecution botched it, O.J. Simpson. I also agree there was not enough evidence to convict O.J. Yes, there was blood in the car, that blood probably matched Nicole Brown Simpson and Ron Goldman. But, because the police department couldn't verify that the tests weren't contaminated, I'm sorry, that creates "Reasonable doubt". We have such a strict system, for a reason. Before our court system was established, the standard procedure was "Guilty until proven innocent".

That was the law of the land, even in England, which was better than some of the absolutist states, such as France. As the great legal scholar Blackstone once postulated, "It is better to let one-thousand guilty men go, than to imprison one innocent man!" That was with respect to the Star Chambers in England, which could whisk you away in the middle of the night, not tell you what your charge was, and hold you indefinitely. Our Founders shied away from this, because they understood the unjustness of it.

Now, does that mean that our system is without flaw? No, absolutely not. And, if the prosecution could have met the legal standards for guilt, I would be preaching that a guilty verdict was correct with regards to Zimmerman right now. However, based on the evidence, as it was presented to the jury, and how I would have argued the case...I honestly do not think the jury made a mistake. They ruled how the law requires it, and the prosecution rushed this case. I don't know why, or for what purpose, but they should have done a better job in presenting the evidence. Because, as I see it, they had no case.

With respect to him carrying a firearm, in Zimmerman's case, he did have the license. He went through the educational courses for procure a carry concealed firearm, and that, in turn means he fits the criteria for carrying it. Now, whenever anyone is convicted of a crime, they lose the license, along with the right to keep and bear arms. This is true even after they have served their time (which is a historically new trend, as of the latter half of the twentieth-century). It's hard to say how someone could be responsible or irresponsible in this case. And, while the article speaks to loud music, I don't recall that coming up in the case. Again, the legal positioning allows for a lot of maneuvering when it comes to evidence. (Such as evidence with respect to Martin having specialized tools in his locker, which might be described as a burglary kit). Or, the fact that Zimmerman had been accused of domestic disturbances in the past. Usually such things are not brought up because the lawyers stipulate not to mention them. This saves on time, and expenses. (Nothing irritates taxpayers more than wasting time on fruitless arguments. A trial is always a gamble, and it's always with someone else's money...that's not a fantastic combination.)

Please forgive me if it seems like I'm belittling your point of view. That's not my intention at all. Rather, I'm just trying to explain how the criminal justice system works, because, even as a practitioner, this field of law can be very difficult to understand. Especially when emotions are on high, due to the shocking nature of what happens in our own back yards. I just hope this helps explain away any confusion regarding the matter.

 

[The Badger]

You're not offending me, man. I understand how the system works, as someone with a degree in criminal justice, myself. Albeit, not to your level of education by any means. I was mostly throwing out a layman's break down of things in my personal opinion.

 

[captain_jay_conrad]

Thanks man, I get worried that my writing can sound a bit stand offish. We lawyers bite people's heads off for a living! Haha, by the way I love that quote from Hemingway.