Judge Rules Terrorism Watchlist Violates Constitutional Rights
nytimes.com
nytimes.com
This just pushes the watchlist into the private sector. Airlines who fly persons A, or B, or C will be subject to additional insurance premium X. So guess what will happen? Just as bars, and restaurants have a list of people they don't let in anymore, the same will manifest itself with airlines. As soon as you present your ID, you'll be turned away by the airline's computer.
This is kind of the issue, the Constitution only really protects you from the government.
And that is why it's important to have those checks and balances, make sure they are followed, and enforced by the law. If the government wants to place you on a no-fly list then they should have a good reason why with evidence to back that reasoning.
This creates bad incentives. Why would we allow foreigners to influence congress?
Permanent residency is very much a thing allowed by law. Dismissing them as foreigners is a bit harsh, when some of them have been in the US longer (and legally) than anywhere else in their lives.
Isn't that contradictory? Why not require them to be a member of the club to influence the club?
>when some of them have been in the US longer (and legally) than anywhere else in their lives
And not electing to become a citizen.
There is a 150 year waiting list for someone from India who is here on a work visa to even get a green card much less citizenship.
The fastest route to citizenship for someone from India working here is:
1. Get pregnant
2. Wait nine months for your child to be born in the US
3. Wait 21 more years until they are old enough to sponsor someone for a green card (and don't forget to make sure that their income is high enough to support both themselves and you single-handedly)
4. Wait another year to actually get the green card
5. Wait five more years to qualify for citizenship
The constitution explicitly delineates between rules that apply to "people" and rules that apply to "citizens." Some rights apply to one group and some both.
'A federal judge ruled on Wednesday that a federal government database that compiles people deemed to be “known or suspected terrorists” violates the rights of American citizens who are on the watchlist'
You are just making up fake remedies based on fake law: the Constitution does not protect only US citizens, nor has the court decided on a remedy, either the completely ludicrous nonenyou suggest or any other.
* red flag laws
* no fly lists
All well intentioned. All ripe for abuse. All unconstitutional. All rights require due process before they can be be removed.
And sure in some cases it works but if you have no way to fight the claims, there is nothing stopping it being abused.
(Historical examples of such abuse include people having the wrong religion, the wrong sexual orientation, and the wrong political beliefs.)
I realize that's a common position, but it strikes me as strange. It seems to assume that crazy people are the ones committing violent crimes. If that was actually the case though we would have huge numbers of mass murders and killings resolved with the defendant being declared not guilty by reason of insanity. That's not the case though, a finding of not guilty by reason of insanity is an extremely rare situation, almost unheard of in the court system.
The reality is that overwhelmingly it is not the crazy but the sane who commit the violence and the mass murders.
It makes more sense, based on not guilty by insanity statistics, to allow crazy people to have guns, and disallow the sane from having them.
Someone who commits mass murder can be legally sane if they are cognizant of the concept of right and wrong, are not severely mentally handicapped, are capable of understanding and responding to questions, etc. Yet I doubt anyone would consider a person capable of shooting up a synagogue to be sane. I don't think it would be "strange" to consider that someone with suicidal thoughts or someone in the heat of passion should be trusted with a firearm simply because they can also sign their own name.
> someone with suicidal thoughts
I don't think someone with suicidal thoughts is crazy. In fact I've never heard of anyone that doesn't have suicidal thoughts at some point in their life. That's a normal part of human existence. Different from an attempted suicide though. And someone attempting suicide is also not insane simply because of that.
> or someone in the heat of passion
That doesn't sound like insanity to me either. I don't even know how something like that could be evaluated. How would a gun seller know someone is in the "heat of passion"? The phrasing suggests a temporary emotional state of some kind. Perhaps the idea is if they are ranting and screaming at the gun seller and claiming they are going to use the gun to commit a mass shooting. And in that case gun sellers don't sell guns. Someone who in this heat of passion who intends to commit violence presumably is going to act normal while buying the gun. Not insanity, not something that can be determined at point of sale.
> I doubt anyone would consider a person capable of shooting up a synagogue to be sane
Antisemitism is pretty common among those known to be sane. No physician would diagnose madness simply based on antisemitic beliefs. There have been groups in history that mass murdered Jews, and other groups, who were the predominant people and majority of their society. They were not insane in the general case so it's not correct that someone capable of committing atrocities, including genocide, is not sane.
Is a previous diagnoses of madness by a qualified medical professional using accepted standards of practice a common or even not-infrequent attribute of mass shooters and murders? Not that I can see. So we're back to someone not known to be insane - a sane person - doing this crime and the label only being applied after the fact.
Again, I propose that the insane are more responsible gun owners than the sane because so few murder convictions involve those actually determined at any point to be insane by anyone qualified to make such a determination. It's easy to say killers are crazy. How does that help prevent crime? It is counterproductive in fact because it suggests that restricting civil and constitutional rights of people with diagnosed mental illnesses (about 1/5 the US population is on psychiatric drugs which require a diagnosis to be prescribed) is a solution when this group is not in fact the group that is committing these crimes and therefore there is no reasonable premise for restricting said rights.
It would be pretty weird to have a right to bear hamsters...
Only established by the supreme court in 2008.
Abortion is a "constitutional right" likewise. And the american right see no issues with extreme restrictions.
There is no amendment saying either people have an individual right to possess a firearm, nor an individual right to have an abortion. These are inferences.
What the second amendment says is that because the US needs defence (given no contemporary standing army), the right to bear arms is necessary in general.
An individual right in the time of standing armies is not written anywhere in the constitution and was derived, by interpretation, only in 2008.
My point is that what counts as a "constitutional right" is a matter of history, precedent and agreement -- they are conventional not just written in some stone tablet. And it is quite reasonable to contest these conventions.
There’s also an argument that the 2nd amendment envisages a potential need for the populace to defend themselves from the government, as was considered necessary only a few years prior to its enactment.
It was established when the Bill of Rights was ratified. The Supreme Court never held that there was no individual right to bear arms.
>There is no amendment saying either people have an individual right to possess a firearm, nor an individual right to have an abortion. These are inferences.
I'd argue it is the only reasonable interpretation. Interpreting "people" as some sort of collective right is absurd in view of the other uses of "right of the people" in the Bill of Rights, such as the first amendment. Nobody would argue the "right of the people . . . to petition the Government for a redress of grievances" is limited to some collective right. Or the 4th amendment, certainly, you wouldn't say that is a collective right. And the 10th literally distinguishes between the states and the people.
Though I don't agree with it, there is a decent argument that it's an individual right defined in scope in relation to a well-regulated militia. United States v. Miller, the only case before Heller that really discussed the second amendment, seems to take this view. Short barrel Shotgun bans were okay because it wasn't related to a well-regulated milia. But that doesn't imply you have no right to bear arms that are relevant to a milia like handguns and battle rifles.
In other words people did not have individual right to bear arms as the states could take it away. Which is perfectly reasonable in this context as a state could decide to limit some weapons to it’s specific state militia, or have some other laws that provided for mutual defense while limiting weapon ownership.
Over time the supreme court has begun applying the bill of rights to states as well in a process known as Incorporation: https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
I am not saying it’s unjustified, just new.
Most evidence points to the fact that the second amendment was viewed from inception as an individual right. Especially if you look at the state proposals for the second amendment, which allow exceptions for things like individual circumstances (e.g. people who had participated in a rebellion).
McDonald said nothing new, or what wasn’t already obvious.
What that is and why it’s there is debatable. But, plenty of evidence exists that many states did not want this to be unlimited, the language was not direct, and the implementation gave states the option to limit things. That is plenty of room for debate, and in fact this topic has seen plenty of them over time.
The tenth amendment: 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.
Is not about individual freedom, it’s about what freedom the states have and the limitation on the federal government.
The founding fathers wrote the bill of rights specifically to cover these things that British rule had done to the people who left Britain.
Your belief about what the second amendment means and what it was meant to mean when written is incorrect and thoroughly debunked in that decision.
That's what every decision that established a particular interpretation of the Constitution as the official one does, so the “did not establish” part is not only unnecessary, but incorrect.
The fourteenth amendment has been interpreted to mean all sorts of things that weren't actually in it. That's establishing new rights based on inferences about what maybe was supposed to be but didn't quite make it into the document.
The 2nd is a very clear piece of writing. There's no ambiguity about it, and Scalia carefully deconstructs all of the BS that other people have written and tried to make it out to be, in explaining how it has always meant exactly what it said.
I think the debate on abortion is/was on when a life begins.
And not, whether a doctor has a right to perform medical procedure, killing a child at request of a mother.
To make the comparasing work for the debate on 2nd amendment, I would the suggest, a comparable question should be:
Can a person end somebody else's life in an act of self-defense, within the framework of existing legal system?
If the answer is 'No', the rest of the debate on 2nd amendment would have to rest on decision for its next argument:
This is a completely separate argument made for 2nd amendment: is that it is a deterrent against an unconstitutional tyranny of government. But that discussion, does not have an analog in the abortion argument, at least in my view.
*Not flawless, of course, but what is?
More people are imprisoned in the United States than were in the Soviet gulags or Nazi Germany.
More black people are in the prison/parole system than were enslaved before the passage of the 13th Amendment.
Temporary detainment for example is perfectly legal for a wide range of things, as long as an appeals process exists it’s not seen as a major issue.
Why is the bearing of arms protected? Because the founders sought distributed defense instead of centralized authoritarianism.
Consider rifling was invented and society made a choice was that allowed? Yes. Various types of ammunition for example have failed this test. Explosives similarly evolved over time and have been curtailed even if people can significant amounts of black powder.
A couple people swear that person C has questionable state of mind and their free speech is taken - social accounts frozen, ability to address city council, publish things, use the mail.. do this 6 weeks before an election or council votes for example. Before an IPO?
I believe that almost half of those on fbk would get almost half of people kicked, and vice versa..
If search and seizure rights could be suspended groups could go door to door finding something to remove entire populations from the voting block.
just a couple of people saying they are concerned, what things could happen with the other rights?
How groups in power could use these things is an interesting consideration.
This just makes it easier for whoever happens to be in power to deny rights to [disliked or marginalized group]
Also the connection between gun violence and mental health is extremely tenuous, and I would add that firearm homicides in the states are at a multi-decade low right now, though the media would have people believe otherwise
Have you a good source for that? I seem to find lots of unclear sources. I found a source that they are down from their peak in 1993 (this source was 2013: https://www.pewsocialtrends.org/2013/05/07/gun-homicide-rate...), but that the last 10 years has been a climb back up (https://edition.cnn.com/2018/12/13/health/gun-deaths-highest... which I sourced from wikipedia, and granted is overall deaths rather than just homicides)
Also, lazy family law attorneys often include requests for protection orders as a matter of course in divorce filings. These often have similar firearm restrictions as so-called red flag laws.
All of those examples are clearly terrible, right? If merely "questioning" someone's state of mind is enough to strip a fundamental right, then a bad actor could trivially strip that right from people when they need it most.
I suspect what you're getting at is that you disagree with gun ownership being treated as an important right like "not being thrown in prison for no reason" or "being able to criticise the government" or "voting", but given that it is a protected right in the US, it's nonsense to suggest that a right should not be protected, or that merely having a right temporarily removed is not a significant infringement.
Are we to just throw our hands up in the air and say "oh well"?
Would you still think that if you were among those shot, as you lay there bleeding to death?
Let me tell you this - I'm politically liberal, and I support 2nd Amendment rights. Reading the various arguments presented in this article's thread, I agree with many of the 2nd Amendment viewpoints addressed about the nuances and such of the right.
Even so, I feel that something needs to be done to get our current out-of-control situation under control.
The problem is, I'm not sure that circle can be squared, so to speak. The consensus seems to be that if you want an intact 2nd Amendment, then you have to be willing to be among the dead victims in a shooting.
I'm not sure that is what the Framers intended the 2nd Amendment to be about.
In fact - just thinking about the wording of the 2nd Amendment right now - isn't it more focused on the right of the people to keep and bear arms, for the protection of country (or State?), being part of the militia - against internal or external threats to it?
That is, again thinking about it, it doesn't seem to indicate that such people are free to carry or use their weapons at just any time they wanted to, but for when there was a perceived threat against the collective, not the individual? Of course, they would need to always have access to their weapon, so they should be able to carry it, in case that threat arrives when they are away from home or something...
This is more a exercise in reading the wording of that particular amendment - the nuances of the words, comma placement, etc. Maybe my above "re-interpretation" is not compatible; I know it certainly isn't the interpretation of the courts today.
It feels like I want to have my cake and eat it, too. I don't want to be the victim, or my loved ones to be victims, of potential future random gun violence.
At the same time, I want to keep the 2nd Amendment intact. For me that would mean the ability to hunt, the ability to shoot predators or varmints on my land, the ability to protect myself and my fellow citizens if needed, the ability to practice (ideally in a controlled range), and the ability to own the guns I want and keep them in a safe manner, with proper training.
Is it possible for both to be accomodated? I certainly hope it can - but maybe I'm just nursing along a fantasy...
You do not present a compelling (or even coherent) argument for simply ignoring our list of protected rights.
> I feel that something needs to be done to get our current out-of-control situation under control.
There are a lot of things that can be done that are completely consistent with the 2nd Amendment. If we need more than that, we'll need an amendment. For good or ill, that's how the system works.
> Are we to just throw our hands up in the air and say "oh well"? [...] I want to keep the 2nd Amendment intact
I mean...if you want to do something that violates the 2nd amendment, but you want to keep it intact even more, then yes, you'll just have to give up on doing anything. If you don't want to do anything that violates the 2nd amendment, there's no point even discussing this.
well intentioned, ripe for abuse, unconstitutional, requires due process to remove.
Does this mean that you agree with them and are still willing to forego due process because of the purported benefits you list?
This punts the question. What is imprisonment if not a restriction on free movement and association?
https://www.law.cornell.edu/constitution-conan/amendment-5/a...
https://en.wikipedia.org/wiki/Freedom_of_movement_under_Unit...
https://en.wikipedia.org/wiki/Saenz_v._Roe
> Justice Stevens, writing for the majority, found that although the "right to travel" was not explicitly mentioned in the Constitution, the concept was "firmly embedded in our jurisprudence."
As evidence of how these can be so easily abused, I present that time the government prevented an American citizen from entering the country to testify in a trial involving her mother against the Government about being on the No Fly list!: https://www.techdirt.com/articles/20131208/00164525497/witne... or https://papersplease.org/wp/2013/12/07/no-fly-trial-day-5-pa... or https://www.courthousenews.com/government-secrecy-vexes-judg...
There hasn't been a test of the constitutionality of red flag laws with regards to red flag laws. However there is clearly a "compelling government interest" and it could be argued that it is the least restrictive in order achieve this goal.
That's totally BS and everyone knows it. Nobody ever got back something that was taken by police without fighting an uphill legal battle.
Prison time is temporary, so in order to remove your incarceration all that is needed is the passage of time, and then you're free!
No personal swipes in HN comments, please.
Synonyms: dishonest deceitful underhand underhanded duplicitous double-dealing two-faced...
You get the idea.
This is not controversial.
The circumstances of the discussion are not comparable in any way to interviewing a mass murderer about his recent autobiography.
Notice I am not saying Madoff is in general is dishonest, only a specific action.
Really disliking an opinion is not proof that they've been dishonest.
Anyway, that’s a completely different argument. You assume the reason someone used such language was because they simply disagreed.
I am not saying it’s an accurate assessment, but an argument it’s self is evidence. Calling this absurd based only on the argument is fine if you have enough evidence as with say a modest proposal: http://www.readwritethink.org/files/resources/30827_modestpr...
Now, if you disagree with that assessment fine, but don’t assume the assessment is always disingenuous. Someone may honestly believe the original statement is so far from a rational argument that it can’t be serious. They could simply be leavening their https://en.m.wikipedia.org/wiki/Overton_window.
Granted they might have simply been using abusive language because they have poor debating skills. Either way it’s a sign to stop a debate and go onto something more productive.
Let me be clear. This is not a situation where you would bring up dishonesty if you had proof, and there is no proof.
I agree with what you're saying about Bernie Madoff's autobiography itself, but strongly state that it is not analogous to this situation.
So if your 'what about' was a total tangent, I agree with your post. If you were trying to use it for an argument by analogy, I do not agree with that argument.
> You assume the reason someone used such language was because they simply disagreed.
More that they lack empathy! The comparison accused of being 'disingenuous' is not an inherently ridiculous one. All it takes is strongly valuing the second amendment to make that comparison. It's not in the same ballpark as a modest proposal. Anyone who honestly believes that the statement is far from a rational argument is not even trying to understand.
More importantly, disingenuousness is not a behavior. It isn't something a person says or does. You have to infer it from something they say or do. Internet users are far far too quick to make this leap, and it breaks the site guidelines to do that on HN.
You're saying the same thing, but with language that focuses on the argument rather than the person. Not only is the former what you really intended to criticize anyway, but it tends to make people respond better, because they don't feel personally attacked. That elevates discussion and is good for everyone.
To ascribe motive to what you consider the absurdity of the comparison (“disingenuous”) is, as dang described it, ad hominem.
The fact that I can draw this distinction without indicating any agreement or disagreement with your actual argument helps emphasize this point.
I think you could make a very interesting comment on the distinction between the red flag lists and the others without discussing the poster.
If you don't drop it he'll start to harass you, to goad you into stepping over a line that he can then use as an excuse to up the ante, as it were.
It's best to just move on and realize you can't actually speak like a normal human being on these boards.
OTOH, I value actual discourse over politeness. But dang decided that person didn't need to be on HN.
But thank you for the assumptions, I appreciate them.
It’s very hard on an online forum to know if two people engaging in a debate have a shared intention in their communication. I trust dang to have a holistic view of good and bad behavior on HN.
2-3mm restraining/protection order requests are made per year in the US (often as boilerplate in divorce filings). Many are bogus.
Disingenuousness isn't a behavior—something somebody says or does—but a state that one has to infer. I think what may have happened is that you made that inference, or it made itself, so rapidly as to not to notice that you were making it [1]. I say that because you used this very interesting phrase:
> so prima facie absurd
On a non-siloed [2] site like HN, one commonly runs into views that are more divergent from one's own than is usual in real life or on the siloed internet. Once the distance between some other view and our own exceeds a certain limit, this other view strikes us as more than just wrong. It seems absurd, impossible that anyone could hold it sincerely. This is not a pleasant experience; it feels a bit like being assaulted, and there is an immediate impulse to push back with a force that goes beyond just counterargument. This is natural and we've all felt it, but it's the moment that the HN guidelines are asking all of us to interrupt. For thoughtful conversation, people need to hold steady until that initial reflex passes and there's a chance for a slower, more reflective response [3] to kick in. This is a skill that can be learned, and one can think of HN as an experiment in having a large group of strangers work on learning it together.
Most views that seem absurd to us are not absurd in any universal way, but are legitimately held by people who we just normally don't talk about these things with because they're not in our strongly-connected component [4]. HN is an experiment to see whether we can have thoughtful conversation between components. It's easy to do that within one's component, but hard outside it. The question is whether we can do it enough for a richer overall graph to develop, or whether turbulence will shatter what few edges we do have and cause the whole thing to break down and become disjoint.
1. I don't mean to pick on you personally; this applies to all of us.
2. https://hn.algolia.com/?sort=byDate&dateRange=all&type=comme...
3. https://hn.algolia.com/?sort=byDate&dateRange=all&type=comme...
4. See https://news.ycombinator.com/item?id=20886068 in this thread for an example.
I upvoted your comment, because you implicitly raise a very popular, and I believe very dangerous point: That results justify taking away rights. Dangerous, because the 2nd amendment is not the only one that can be sacrificed for safety.
While there's a gray area where there can be disagreement as to whether it is sufficient justification, after a certain point, pragmatism must prevail. Using the 2nd amendment as example, lets say we allow guns and rifles. And grenades? RPGs? Tanks? Chemical weapons (nerve gas, not pepper spray)? Biological weapons (smallpox, not guard dogs)? The only thing that can stop a bad guy with a bioengineered plague, is a good guy with a bioengineered plague?
It should always be ignored. If the states want to ban people from having tanks and jet fighters, they can adopt a new amendment. There's already a process to account for these types of things.
Yes. Maybe not simply video but what about a deep-fake video designed to deceive people that is indistinguishable from a genuine video? At some point unique cases arise that require careful judgement. This is what the judicial system is for, to provide "judgement" on things which were not anticipated by the law.
Sometimes those unique cases were only once unique but become ubiquitous due to changes in technology, geography, climate, or society.
right to privacy is an example. There's talk about this all over the place but it was only evident that people had an expectation and desire to exercise this right after it started getting abused by technology and technology companies.
The bill of rights contains what it does because the founders had just had experience with many of those rights being curtailed.
Citation needed. There's a constant debate about what the "framers' intent" of any part of Bill of Rights actually were. You say it was to prevent government tyranny (presumably including a future tyrannical U.S. government). I say it was specifically to ensure access to a fighting force specifically to fight the British and foreign threats in order to establish a new government.
>"To disarm the people...[i]s the most effectual way to enslave them." - George Mason, father of the Bill of Rights
>"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." - Elbridge Gerry, contributor to the Bill of Rights
>"[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." - Alexander Hamilton
>"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe, delegate to the Continental Congress
Now, let's go to Madison, the father of the Constitution and all that. He firmly opposed a professional (i.e. standing) army when he wrote the constitution. Tool of tyrants, yadda yadda. However, President Madison who exists 30 years in the future, comes out and says "I could never have believed so great a difference existed between regular troops and a militia force, if I not witnessed the scenes of this day." in response to 2 state militias getting demolished by the British Army.
IDK. They put the 2nd amendment in, and then immediately undermine the philosophical point of governance it's meant to make. Democracy is weird, government is hard, and coming up with 100% accurate statements about the unified sentiments of a group of dozens/hundreds of people from 250 years ago is impossible. I guess that's my point?
That doesn’t follow from this:
“Both the Federalists and Anti-Federalists opposed a standing army and saw it as a tool of oppressors.”
Either you support the 2nd amendment as a means of national defense or your support handing the tools of oppression to the government, per the founding fathers.
The most effective ways of fighting a modern military are bombs (IEDs), air superiority, and nuclear deterrence.
This really isn't true. Look up Destructive Devices and the sale listings for tanks and jets.
i.e "the kind of explosives most non-experts in non-military settings are best served by are free to use for personal use (state law notwithstanding)"
e.g. Free movement across the US was fine while it was on foot, horseback, or even train, but once commercial flight allowed for coast-to-coast movement in a couple of hours one can't apply the same rights.
I see it's already been addressed, but private citizens owned warships, cannon, artillery pieces, and even semi-automatic rifles at the time the second amendment was written.
No, it became absurd because it's underlying purpose was abandoned and the governments in the US at all levels adopted professional armed internal and external security services, and thebwholet point of having an RKBA to support the viability of well-regulated militias was so that those militias would be what states and the federal government would rely on exclusively, beyond very minimal cadres, for armed security services.
The whole absurd mythology around the RKBA being to provide the ability for citizens to provide a reserve capacity to fight the professional Government forces in the event the government becomes tyrannical is a product of trying to rationalize the amendment once it's underlying premise has been abandoned.
> you can't carry an RPG or a machine gun or most kinds of arms that have been invented subsequently to it's introduction.
I'm not convinced there is a fundamental reason why bearing most modern heavy weapons within reasonable time, place, and manner restrictions is incompatible with public safety; clearly “carry everything everywhere” maximalism isn't, but then that's never been understood by the courts to be the scope of the RKBA even when it concerns whatever weapons the court felt were within it's coverage.
You actually can, subject to local regulations, and it is permitted in some States. An American can own a ballistic missile if they register it and store it safely. Even in the 1990s, buying a truckload of high explosives was cash and carry.
Most Americans are surprised to the extent this is true because, as a practical matter, it has never been evident in most of the country. Just because you legally can does not mean anyone exercises that right, outside of very rare outliers with money to burn.
I'll never understand how a significant amount of the population can entertain the idea that "gun rights" are central to liberty, or that unlimited liberty above long term survival of the species is somehow desirable.
Compare it to the 'do no harm' in medicine: say a doctor kills a healthy patient, so that his organs can save five others. At first, many lives are saved, but when this becomes widespread, how long until no-one dares come near a hospital? Or how likely is a patient to admit to having suicidal thoughts, if it results in police going through their private home, confiscating guns, or even committing them for their own good?
Absolutist, 'ideological' positions such as do no harm, and doctor/lawyer-patient/client confidentiality, are important guards against unwanted second-order effects.
Other provisions are less loosey-goosey. The first and second amendments are categorical prohibitions. You can’t establish a national religion even if you think the results will be tremendously beneficial. The taxation clause is similarly clear. We needed an amendment to create the income tax, even though it was necessary to a modern state.
If you want one thing protected because it's a constitutional right, you sort of have to support all of them. You can't really pick and chiose with respect to their sanctity. I've found it to be a good position because it annoys both the left and the right on a regular basis. In reigns in both sides a little, and I think that's a good thing.
The constitutionality of a law does not hinge on it's effectiveness.
I haven't formed an opinion as to whether red flag laws are constitutional or whether they are or are not similar to watch lists, but that's a terrible reason to suggest they are dissimilar.
But the comment I was replying to made a very different and I think highly indefensible argument: That the difference between red flag laws and no fly lists was the former was more effective.
It's pretty clearly the case that a process where the individual is not involved up front but retains the ability to challenge an unfavorable outcome can, for some things, be the process that is Constitutionally due. It's less clear exactly what the boundaries are for that, because the Constitution doesn't really explicit provide rules for determining what process is due for any particular action, leaving it in practice for courts to evolve standards.
No, it says exactly that.
It is very different than saying “If a law restricting a right is effective, it is Constitutional”, which is not the same as “to restrict a right, it must be effective” (one states a sufficient condition, the other a necessary one.) Nevertheless,being effective is a relevant differentiator between one proposed restriction and another that explains why they might be seen differently Constitutionally, as while a law which is effective at serving some government interest may be unconstitutional, one which is not is almost by definition is not narrowly tailored to serve a compelling government interest.
This is incorrect.
The Fifth Amendment expands that coverage[1] to which the Fourteenth adds the equal protection clause [2].
As a result, the “Supreme Court of the United States interprets the clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights“ [3].
[1] https://en.m.wikipedia.org/wiki/Fifth_Amendment_to_the_Unite...
[2] https://en.m.wikipedia.org/wiki/Fourteenth_Amendment_to_the_...
This is blatantly false.
You appear to be repeating a sound bite from far-right web sites that claims that "more people are killed each year by hammers and fists than by AR-15s".
The above statement excludes about 97% of the people killed by guns. Guns kill vastly more people than fists or clubs in the US - the numbers are on the order of > 10,000 killed by guns, < 800 killed by fists and clubs.
Even better is that some two-thirds of deaths are suicide, yet we consider this categorically the same as homicide for some reason.
They are not counted the same in homicide stats.
Anyway, the real issue is you seem to be trolling rather than bringing anything meaningful to the discussion. What’s your actual point within the context of watch lists?
[1] https://www.who.int/mental_health/prevention/suicide/pestici...
[2] http://www.idph.state.il.us/about/chronic/Suicide-and-Access...
Right but the AR-15 kills more people each year than the bare hands of people named Robert.
From this data [0] there were 248 people killed by rifles - all rifles, of any kind - and 660 killed by "personal weapons", a category that includes "hands, fists, feet, etc." in the US in 2014. Assuming people named "Robert" kill people at the same rate as other male names, that would be 6.6 murders - so let's round down and call it 6 to account for the occasional "not hands" killing. That would mean that for AR-15 murders to match "Robert's hands" murders you'd need ~3% of rifle murders to be with that gun.
So it seems plausible to me that the two are closely comparable.
0: https://marginalrevolution.com/marginalrevolution/2016/06/fb...
You seem to base this on lack of due process, however I've only heard of red flag laws that specifically require due process before a judge. Are there others? If so, it would be useful to distinguish them. Otherwise, the statement is generalization.
Due process is the baseline required to deprive someone of “life, liberty, or property.” If you could take guns away with merely due process, then you wouldn’t need the second amendment, because guns are also property. That right merited it’s own amendment, with additional protections.
Given that the system requires a law to be passed before a challenge in court, this reasoning is inherently fallacious, since if it were true, no law could be ruled unconstitutional.
As far as the US system is concerned that means some forms of limits on the second amendment /are/ constitutional and the 2nd amendment is thus definitively not unlimited unless and until the court issues a ruling that contradicts the previous rulings.
Then, the subject of the order must fight (at great expense) to regain their rights, which is a de facto presumption of guilt.
No hearing. No charges. No grand jury. No due process.
Due process might be a 30-day order to confiscate guns. If they can't get a grand jury indictment or involuntary commitment to a mental institution in those 30 days, the gun owner gets their guns back automatically and can't be subject to another red flag for 10 years.
Meaningful and lawful arms controls cannot exist in the US without a new amendment modifying the 2nd.
Of course the Second Amendment is not unlimited, just like the First. My point simply is that due process, by itself, is not enough to take away the right. You need to be able to point to an inherent limitation of the concept of “the right to keep and bear arms.” As Judge Barrett points out, while the concept of the right to bear arms was not unlimited, it doesn’t necessarily exclude felons (and, as her sources show, “dangerous people” either). The New Hampshire proposed amendment, for example, would have excluded only people who had engaged in rebellion.
They Check the box, then the screen agent takes a closer look, "Hmm, this nine year old indian girl named Charles Manson is probably not the 70+ year old dead man that we were worried about"
If you sign up with name, birthdate, and address, maybe the system comes up with an 85% likelihood that you're that Manson. But if you check the box, you can add in data like place of birth and SSN which prove you aren't the infamous murderer, so the system (or more realistically, a human with override powers) can clear you. That's way better than being silently blacklisted, or having each interaction delayed until it can be separately verified.
Presumably, Manson wouldn't want to check that box because he'd be likely to get arrested, and if he did then the subsequent data would all just confirm there's a problem. It's not a great system, but it's a decent improvement on just making a decision without the extra caution.
I was taken into a side room by 2 plain-clothes policemen, who politely asked my several questions about why I came to Australia. At the end of it all, they apologised and explained that my name matched one on a watch list, but my age, hair colour, build etc didn't match - "but it's procedure". They also said it would happen every time I went to Australia (I never did go back tho).
It seemed incredible to me that they would use only a matching name as their reason to be suspicious of someone!
As I said though, they were very polite about it, and I never felt like I was under any kind of threat or danger, and they didn't invade my privacy (they didn't look at my devices, and didn't even search my bags). A stark contrast to my experiences at US border control, I must say...
You are more sympathetic than I. I considered at the time that the watch list and no fly list(s!) Were conceived in anger.
Thanks for giving me a chance to reconsider my assumptions.
We see it across our society - it's not just the politicians, but the whole mass media cum social media narratives of the government needing to "do something" in response to something bad having happened.
In reality society is not a monolithic top-down entity, but rather full of individual actors that each have their own motivations and respond to incentives in their own way. The idea that lawmakers can simply declare something to be a certain way and it will effectively happen that way is a naive fallacy. And unfortunately bad ideas do not fail fast in the modern age due to a surplus of resources that allow them to keep going indefinitely.
I agree with you that on the broader society side, "something must be done; this is something; thus we must do it" is pretty pervasive.
EDIT: looks like red flag laws were already listed by the parent comment. Somehow I must have read right past it.
It looked like that was a possibility too.
glad to see cooler heads prevailed.
https://www.aclu.org/blog/national-security/discriminatory-p...
This sounds like an open shut case of abuse by the executive branch. It's the judicial branch's job to determine guilt, to still effectively sentence someone who's been cleared in court must be a huge overreach of the executive branch.
"Freedom" and "Liberty" are all great, noble words that make for great talking points and sound bites. They're also just sort of vague concepts and opinions more than absolute, specific things. You say this isn't what freedom looks like. If 51% of the population disagrees with you, who's right?
Fact of the matter is, you can't have both "freedom" and "democracy" (or really any government) in any real way. It's all trade offs.
Best bet isn't "freedom" or "liberty" since those are extremes that presumably exist solely in a binary (it's either free, or it's not, no shades of gray) and instead aim for "fair" and "consensus". At least those are possible.
> the state of being free within society from oppressive restrictions imposed by authority on one's way of life, behavior, or political views
> the absence of arbitrary restraints, taking into account the rights of all involved
> to be free is to be self-determining, autonomous
And the more concrete applicability is that of:
> "giving oneself their own laws", and with having rights and the civil liberties with which to exercise them without undue interference by the state
Fundamentally, it is the idea of rights. Things that you are allowed, and that no one can take away from you, even if democratically ruled against by the majority. Such as: the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life.
Democracy in that system isn't supposed to supersede liberty and freedom. What happens is that free people can come together, and if they agree, they can be governed by the rule of law, laws which must be clearly laid out, which can not take away fundamental rights, and which are enacted fairly and with due process. If the individual does not agree to this, they should be free to branch out and have different laws to be governed under. That last part is the idea of the states retaining power over themselves, with the possibility to even decide to remove themselves from the US if they so wish.
All this is very much possible. Though some people argue it necessitates a virtuous culture as a prerequisite. In the sense that it requires people to be reasonable, rationale and of the same belief that freedom and liberty matters most.
Democracy has to, by it's nature as a collective institution, impede the freedom of individuals to do what they themselves want for the social good. If it's a scale, and democracy is "more free" anarchy would be "most free" (not a concept I believe in, again I'm posing that freedom is a binary concept, not a scale itself).
My point is that when it comes to the governing of large groups, you cannot have a free society. You cannot have freedom, and also have private ownership and capitalism and all the things we currently have. You can pay service to "liberty" all you want, but I can't "give myself my own laws" that allow me to go against the state. The state will always serve as an impediment against freedom and true self determination. And I don't think that's a bad thing (To be clear, I'm a socialist not an anarchist, which is also why I think societal requirements are more important than individual liberty).
If you operate in a political system where democracy can overrule all rights, it is not a liberal democracy. The US is a liberal democracy, and that is why the judge ruled that it was not constitutional, even though the democratically elected representatives put in place the watch-list. So here is a great example of liberty at play, even though the majority ruled to have a watch-list, it was ruled out because it went against the fundamental rights of a minority.
> You can pay service to "liberty" all you want, but I can't "give myself my own laws" that allow me to go against the state.
You can! You can freely renounce your citizenship and freely move elsewhere. The state is not allowed to hold you back from doing that.
Now, when it comes to secession, it gets more complicated. Some people argue it is a fundamental right, as per the constitution, that said, the wording is very vague and unclear about it. So we could say the constitution doesn't really guarantee that you are free to secede. That doesn't mean it shouldn't be a guaranteed right though! Some people think it should, and if it isn't there in the constitution, maybe it should be added.
> The state will always serve as an impediment against freedom and true self determination
That's the thing though. The state are just the powers that be. The idea of liberty and freedom are moral, which is why it requires a culture of it. While democracy is a system, not a moral. People who believe in liberty fight for it. That's fundamental to preserve freedom. The freedom to "give myself my own laws" should exist. Any person should be allowed to take their private property and secede from the US, and make it a new self-ruled region. If California wants out for example, they should be allowed to leave the union. Such would dictate the idea of liberty. But, it would work similar to copy-left open source licenses. In their new found independence, they need to continue to uphold liberty. If they do not, then it is a fundamental right that the newly governed should similarly fight for it until they have it.
So you see, it is much more an ideology. People should not be allowed to restrain your freedoms, unless what you are doing is forcing theirs to be restrained.
And this can work quite easily within a democracy. Basically, people assemble for all kind of matters, and decisions and rules are put in place in agreement with the majority, with the idea that it will benefit most. Once in a while though, it affects an individual negatively. It is that person's right to come forward and say that their liberty is being restrained from the ruling of the majority. If true, then the ruling should be abolished, even though it was beneficial to most people.
https://int.nyt.com/data/documenthelper/1689-terror-watchlis...
The UK passed a law to make bulk surveillance legal. It took a European court to object to it.
https://www.theguardian.com/world/2016/nov/19/extreme-survei...
https://www.theguardian.com/uk-news/2018/sep/13/gchq-data-co...
Nothing has changed in the arguments against the watchlist during the period it has been in existence.
There's no federal sales tax, and 1/10 of the states don't have state sales tax.
What well regulated militia are you a part of?
If I say “for X purposes, do Y” I’m telling you to do Y. You can’t do Z just because you think that serves X purposes better.
And even if you believe the right must be connected to militias, those aren’t necessarily formal organizations. The Minutemen, for example, where self-organizing independent militias that were composed of just whoever brought a gun with them. They comprised 1/4 of the militias that fought in the Revolution. Many of the state militias, too, were BYOG. You think the framers just forgot how they won the war they had just fought? The point obviously is to protect the possibility of such militias being formed by preventing the government from disarming ordinary citizens.
Now, if you’re a “living Constitution” guy and think that the constitution means whatever you want it to mean in the present time, that’s fine. But then you don’t need to rely on the tortured reading of the “militia” phrasing. Just say it’s an outmoded right that we are not going to enforce.
Just remove it.
You know perfectly well that's not what the doctrine of a "living Constitution" is about. Constitutional scholarship is not made up of people who agree with you and people just making shit up.
As opposed to what? Textualist? The Constitution is not an unambiguous, coherent document that can have a rigorous interpretation without masses of precedent and case law. It was intentionally ambiguous so that broad swathes of people would vote in favor of it, thinking it said what they wanted. We've been arguing about it ever since. The usual criterion is to maintain stability so we know what to expect, but occasionally someone manages to engineer a major reversal, like the reading of the 2nd amendment in the 20th century switching to allow everyone and his brother to have firearms without restraint.
I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors.
> I'm more of a Jeffersonian in this: a Constitution perpetuated this many generations on is a form of tyranny by our ancestors.
Then you must believe secession is constitutional and legitimate.
Part 1: The US Constitution grants enumerated powers to the US Federal Government. If there is any ambiguity in the Constitution as to whether or not the US Federal government can do something, then the answer is 'they can't.'
Part 2: If you believe the constitution is tyrannical in itself, that future generations owe no allegiance to it, then you logically support secession. Why should anyone be bound by any agreement made in the past, perpetually, without external remediation? Secession is the answer; in order for the Constitution to be valid, it has to be voluntary, and it's not voluntary unless secession is legitimate.
Part 2: The reference is to a specific quote from Jefferson. Again, what you're saying just doesn't follow.
From "Concerning the Militia":
"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss"
This pretty clearly carries the implication that being "well-regulated" is more than just well-equipped.
It is, however, clear that the intention was to continue the policy of citizens bearing arms, even treating that as an implicit part of the culture of the time. Madison says, in "The Influence of the State and Federal Governments Compared", as an offhand remark, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, ...", and in comparison to Europe, it is expected that Americans can be trusted with guns: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
Notably...
“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.” – Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788
I ask who are the militia? They consist now of the whole people, except a few public officers.” – George Mason, Address to the Virginia Ratifying Convention, June 4, 1788
“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776
“No free man shall ever be debarred the use of arms.” – Thomas Jefferson, Virginia Constitution, Draft 1, 1776
[0]https://techcrunch.com/2014/02/14/how-the-world-butchered-be...
[1]https://www.npr.org/2015/03/02/390245038/ben-franklins-famou...
He wasn't warning against the dangers of giving up one's rights to the creeping authoritarianism of the state, he was complaining that people were giving up the "essential Liberty" provided by an effective Federal government for the "temporary safety" purchased by refusing to fund it.
Or to quote from the NPR article, "(...) far from being a pro-privacy quotation, if anything, it's a pro-taxation and pro-defense spending quotation."
Interestingly enough, the context is being used here to invert the meaning of Franklin's beliefs, rather than clarify them.
The citation given is incorrect and the two quotes are from unrelated debates. It is not at all clear that "everyone" here refers to citizens at larger rather than members of the state militia, that is, the duly constituted state militia, not the ad hoc militia of able bodied men.
> “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams [2]
This was in the context of a proposed amendment to the body of the constitution, that was rejected. And even here the caveat "peaceable" is thrown in, which is a loophole big enough to throw a whole busload of bans through.
I'm not going to pick through the remainder, which I assume are similarly ambiguous.
Either way I think this is a fruitless approach (namely attempting to clarify the preamble) -- the preamble to the amendment is clearly the motivation of it, but the body of the amendment carries the force. In the interests of public safety, the courts have reluctantly allowed the right to be infringed, and frankly, this is what everyone, including the NRA, wants. If courts rules that it was illegal to restrict the ownership or bearing of arms in any way, there would be a new amendment to supersede the second in a week.
[1] https://archive.org/details/debatesotherproc00virg/page/274
[2] https://archive.org/details/debatesandproce00peirgoog/page/n...
Also, He is speaking against congress limiting it. The following two paragraphs in that citation are talking about how men in government can't be trusted to keep their word not to infringe / create tyranny.
> And even here the caveat "peaceable" is thrown in, which is a loophole big enough to throw a whole busload of bans through.
While "peaceable" isn't defined in stone here, I would take it to mean a person who hasn't been convicted of violent crimes or has intent to commit such crimes. That wouldn't really open the floodgates to bans other than ones we already have for criminals / people making threats. It could possibly justify red flag laws though.
> If courts rules that it was illegal to restrict the ownership or bearing of arms in any way
I don't think that would happen and it wouldn't be what they wanted back then either. Several other quotes mention peaceful men bearing arms which I think would keep the no felons can buy guns laws.
I provided a link to the original source. He is arguing about who is responsible for arming the militia -- congress or the states, or whether citizens in the militia are responsible for bringing their own armaments. The important thing, he notes, is that every man have a firearm, whether by his own provenance or the state's or congress's provisioning.
Directly quoting, he says, in light of the organization of the militia being subject to both federal and state oversight, as to whether the members of the militia should be required to arm themselves:
> So that our militia shall have two sets of arms, double sets of regimentals, etc., and thus at a very great cost we shall be doubly armed --- The great object is that every man be armed --- But can the people afford to pay for double sets of arms, etc.? Every one who is able may have a gun.
Read the link and I dare you to offer an interpretation that explains why, during the discussion of arming the militia he engages in a total non sequitur of mentioning that all people should have guns?
It would be very easy to revisit Heller in this light and say that gun violence is a problem in DC, and thus owning a handgun is a non-peaceable act in itself.
In that context, it seems that to the writer, "well-regulated" meant trained, likely continuous training kept up at somewhat regular intervals (in how to use their weapon, and how to care for it so that it is ready to use), and that they should keep their knowledge up ("evolutions") on more recent advances in weaponry so that they have some idea how to care and use those as well.
> "...the governments are afraid to trust the people with arms."
Today, there are many people who are showing that they cannot be trusted with arms. They use them instead of reason, they use them for illegal purposes, they use them as toys, they don't take regular training to understand them, they - in short - don't act like militiamen should act. They certainly don't seemingly act "well-regulated".
Are these the kind of citizens the Framers - and perhaps the Federalist papers - had in mind to keep and bear arms?
The expectation was varied over who would arm the militias -- Congress, the states, or the people bringing their own weapons. To preserve the possibility of the last option, they wrote the second amendment so that when people went to join the militia, they would already have their own guns (and other armaments, like cannon, horses, etc.) that they could bring along.
This involves a whole bevy of unstated assumptions about firearm ownership based on the experience fighting the British. So if I were to rephrase the amendment to remove the brevity, I think it would read something like this: "In order that the states may raise and maintain a militia that is well-organized and trained, people must own and be prepared to bear their own personal armament in service of that militia, and therefore Congress may not forbid people from owning arms and by doing so prevent the states from raising militias outside of Congress's authority."
So I personally feel that this sentiment, while noble for the time, is outdated and no longer applicable, especially since the remnants of state militias are insignificant compared to the deployed power of the federal standing army, and we don't expect that to change. But it is what it is, and we have a process already for modifying the constitution when its dictates are no longer applicable, as we did with slavery, as we did with the voting age, as we did with income taxes. We should be using the power of amending the constitution to update it to reflect the reality of firearm ownership in the present time.
I guess the one thing if you accept my interpretation of the amendment that might be open to interpretation is that the states could arguably have the power to regulate the right to keep and bear arms as they see fit; the debate was mostly federal vs. state rather than government vs. individual, even if in the end it is expressed as an individual right that enforces the state's right.
[1] The modern definition of "regulated" to mean this comes mainly from the creation of the FDA and other such government agencies which made meat, drug, and other such products regular as opposed to varied.
While that's true, it doesn't mean that the militia was meant to be free of government control. The constitution provides for congress calling forth the militia and The Militia Acts of 1792 gave the president the power to call upon the militia to quell invasion or rebellion.
We still have that - it's called the draft now, though. ("The Militia" is every man of fighting age and condition, in the original definition)
https://news.ycombinator.com/newsguidelines.html
We detached this subthread from https://news.ycombinator.com/item?id=20883656 and marked it off-topic.