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Mon Dec 17, 2012, 04:11 PM

another legal question. Why is operating a motor vehicle a privilege and operating a gun a right?



I am being serious.

what is the legal basis? Is it because - cars have to be operated on shared space such as roads - while guns are used to defend the property you own? ( stand your ground - dilutes the difference even more ).

31 replies, 1631 views

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Reply another legal question. Why is operating a motor vehicle a privilege and operating a gun a right? (Original post)
srican69 Dec 2012 OP
LibAsHell Dec 2012 #1
srican69 Dec 2012 #5
jmg257 Dec 2012 #2
hack89 Dec 2012 #3
yellowcanine Dec 2012 #4
joeybee12 Dec 2012 #6
SugarShack Dec 2012 #13
DefenseLawyer Dec 2012 #7
byeya Dec 2012 #14
yellowcanine Dec 2012 #19
DefenseLawyer Dec 2012 #31
jody Dec 2012 #8
LP2K12 Dec 2012 #9
X_Digger Dec 2012 #10
Recursion Dec 2012 #11
byeya Dec 2012 #12
jody Dec 2012 #15
srican69 Dec 2012 #16
jody Dec 2012 #18
srican69 Dec 2012 #21
jody Dec 2012 #23
srican69 Dec 2012 #29
byeya Dec 2012 #17
jody Dec 2012 #20
bongbong Dec 2012 #25
jody Dec 2012 #28
bongbong Dec 2012 #30
bongbong Dec 2012 #26
byeya Dec 2012 #22
ieoeja Dec 2012 #24
nadinbrzezinski Dec 2012 #27

Response to srican69 (Original post)

Mon Dec 17, 2012, 04:17 PM

1. Because of the stupid fucking 2nd amendment

I have no doubt it was not intended to be interpreted the way it is today by so many (dumb) people, but because it's not explicitly clear, it's going to continue to be brought up.

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Response to LibAsHell (Reply #1)

Mon Dec 17, 2012, 04:21 PM

5. I always have had the faith that law, in the long run, is fair and impartial ...

I am beginning to have doubts .....

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:17 PM

2. The Constitution? n/t

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:20 PM

3. Cars are not in the Bill of Rights. Guns are. nt

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:20 PM

4. Because there were no motor vehicles in 1789?

Seriously, the short answer to your question is that modes of conveyance are not mentioned in the Constitution, guns are. But I do not believe the framers of the Constitution ever intended to ban the right of Congress to regulate guns. They just meant to guarantee the right of gun ownership. It is not the same thing, even though the NRA would like us to think that it is. I think Madison and Jefferson would be appalled at how the 2nd Amendment is being interpreted.

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Response to yellowcanine (Reply #4)

Mon Dec 17, 2012, 04:21 PM

6. +1

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Response to yellowcanine (Reply #4)

Mon Dec 17, 2012, 04:32 PM

13. +1

 

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:22 PM

7. The basis for the "right" is the 2nd Amendment in the Bill of Rights

at least as it has been interpreted. It is certainly debatable whether the 2nd Amendment ever was intended to convey an individual right, and even if it was, whether it necessarily needs to be interpreted that way now. Certainly the language is convoluted enough to give all points of view a decent argument.

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Response to DefenseLawyer (Reply #7)

Mon Dec 17, 2012, 04:32 PM

14. It has only been interpreted that way for 4 years. If you throw you lot with Scalia, Thomas, Alito,

 

Kennedy and Roberts then believe away. The next Supreme Court nominee could very well cast the vote in a 5 - 4 decision that takes the legal precedent back to the 200+ years of case law.

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Response to DefenseLawyer (Reply #7)

Mon Dec 17, 2012, 04:57 PM

19. Even if one concedes that it is an individual right though it does not mean no regulation.

Which is essentially the position of the NRA and the other gun rights groups. The assault weapons ban was not overturned by the SCOTUS, it expired for lack of political will to renew it.

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Response to yellowcanine (Reply #19)

Mon Dec 17, 2012, 09:56 PM

31. Absolutely

Even for a strict constructionist, it says "keep and bear" not "buy and sell". The idea that regulation of gun sales doesn't constitute commerce is ludicrous.

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:24 PM

8. The right to self-defense ranks at or near the top of natural rights. Arms are effective tools for

 

that job and firearms are the most effective, efficient tools for it.

PA (1776) and VT (1777) in their constitutions declared rights.

The following is for PA, VT used the same except for substituting "unalienable" for "inalienable".
A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OR STATE OF PENNSYLVANIA 28 Sept. 1776
"That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
And
"That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power."

SCOTUS said it pre3existed our Constitution and does not depend upon words on paper.

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:24 PM

9. I'd be fine...

with my and others owning/operating a gun being a privledge. However, many just want to do away with all firearms.

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:27 PM

10. We have the "right to travel" (an unenumerated right protected by the ninth)

And a right to own property (English common law, also protected by the ninth, fourth, and fifth).

We don't have a specific right to operate a motor vehicle on public roads.

You have a right to drive a car in your back field until the wheels fall off. Lots of "farm vehicles" are driven by teenagers without licenses or insurance, or heck even registration.

It's when you get out onto public roads that you turn from a right to a privilege.

eta: hit submit instead of preview..

As far as guns, the right to arms pre-dates the constitution, but having an explicit protection helps.

From US v Cruikshank (1876)-

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government... It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection...
...
The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called..."internal police."


Obviously, the line about Congress isn't true anymore in light of the 14th amendment and the doctrine of 'select incorporation', but the core stands.

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:27 PM

11. The Constitution. Also, public roads

The state has a lot of say in how you use cars because they are almost entirely used on public roads. And, for that matter, the state has a lot to say about carrying and using guns in public places.

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Response to srican69 (Original post)

Mon Dec 17, 2012, 04:28 PM

12. Prior to 2008 it was perfectly legit for a jurisdiction to ban handguns. In 2008, the Filthy Five of

 

the Supreme Court held that individuals had the right to own firearms - It was the first time the Supreme Court so held.
Should Obama get the chance to replace one of the FF, then the Constitution will no longer say the 2nd Amendment gives the right to own a firearm.
Don't believe the incessant lies of the rightwingers and gunsuckers.

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Response to byeya (Reply #12)

Mon Dec 17, 2012, 04:43 PM

15. The 4 minority justices recognized the right, citing PA & VT constitutions but held the 2nd was not

 

an individual right.

Their statements however meant that RKBA is an unenumerated right protected by the Ninth Amendment.

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Response to jody (Reply #15)

Mon Dec 17, 2012, 04:48 PM

16. translation please ... I have a PhD in systems engineering but somehow its not helping

me understand your response

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Response to srican69 (Reply #16)

Mon Dec 17, 2012, 04:53 PM

18. Perhaps you need to read the Heller decision. I'm not impressed by your PhD.

 

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Response to jody (Reply #18)

Mon Dec 17, 2012, 05:11 PM

21. what !! really

it took me 4 damn years of my life to earn it ....

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Response to srican69 (Reply #21)

Mon Dec 17, 2012, 05:13 PM

23. Big deal what if I claimed to have two? Would that impress you? nt

 

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Response to jody (Reply #23)

Mon Dec 17, 2012, 05:55 PM

29. Honestly - it would.

as I know what it takes to get one.

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Response to jody (Reply #15)

Mon Dec 17, 2012, 04:52 PM

17. It most certainly does not. You are wrong. You are spreading NRA lies.

 

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Response to byeya (Reply #17)

Mon Dec 17, 2012, 05:04 PM

20. Read the Heller decision and cite passages to rebut my assertion.

 

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=07-290#dissent1

The parallels between the Second Amendment and these state declarations, and the Second Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania's 1776 Declaration of Rights announced that "the people have a right to bear arms for the defence of themselves and the state," 1 Schwartz 266 (emphasis added); 43 of the Declaration assured that "the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed," id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed "hat the people have a right to bear arms for the defence of themselves and the State." Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment's preamble. It confirms that the Framers' single-minded focus in crafting the constitutional guarantee "to keep and bear arms" was on military uses of firearms, which they viewed in the context of service in state militias.

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Response to jody (Reply #20)

Mon Dec 17, 2012, 05:37 PM

25. Delicate Flowers always get the 2nd Amendment wrong

 

For many decades it has been seen by judges, lawyers, and scholars are concerning a collective right.

Only NRA-bots and repigs think the opposite.

http://www.saf.org/LawReviews/SpitzerChicago.htm

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Response to bongbong (Reply #25)

Mon Dec 17, 2012, 05:43 PM

28. Your posts suggest you have not read the Heller opinion and dissent. I would give you a link but in

 

my opinion you wouldn't understand it even if you were able to read it.

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Response to jody (Reply #28)

Mon Dec 17, 2012, 06:15 PM

30. LOL

 

I understand things in my sleep that you couldn't even figure out if you had 10 cans of Red Bull in you.



A reich-wing SCOTUS mis-decision, much like Dred Scott, is something I don't really care about. When more sane judges, with more respect for precedent, get into the SCOTUS Heller will be overturned.

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Response to byeya (Reply #17)

Mon Dec 17, 2012, 05:38 PM

26. Yes, there are a number of parrots spreading NRA lies on DU

 

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Response to srican69 (Original post)

Mon Dec 17, 2012, 05:13 PM

22. In 1981 Morton Grove. IL. banned the ownership of handguns and on appeal the appeals

 

court refused to hear the case thus upholding the law.
It was in effect until after the odious ruling by the 5 justices on the Supreme Court who also stole the election from Al Gore in their Florida intervention.

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Response to srican69 (Original post)

Mon Dec 17, 2012, 05:34 PM

24. It would be a right were we writing the Constitution today in the spirt of those writing it then.


Totalitarianism, not taxes, was the big cause of the American Revolution. Our Declaration of Indpendance would almost certainly have a line item vis-a-vis the MADDness. Among the Whereas list you would find something along the lines of:

- has constrained the ability of people to prosper by blocking their rights of egress on public byways for the purpose of enriching the insurance industry even to the point of establishing roadblocks for unwarranted searches of travelers accepting money from the insurance industry to pay for the police forces enforcing these illegal roadblocks,


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Response to srican69 (Original post)

Mon Dec 17, 2012, 05:39 PM

27. Serious answer, in my mind a flawed interpretation

Of the second and basic HS English and lack of understanding of the social milieu to it

The right to bear arms is dependent on a free state, which is dependent on a well regulated militia.

People who own an infantry weapon should report to military drill once a month.

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