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[BainsBane]

This message was self-deleted by its author (BainsBane) on Thu Feb 7, 2013, 03:50 AM. When the original post in a discussion thread is self-deleted, the entire discussion thread is automatically locked so new replies cannot be posted.

[Spider Jerusalem]

1. That's not the first amendment.

Lawsuits aren't a "free speech" issue. And in any case a suit for civil liability is not a criminal case. The death of a child from playing with a gun is, I'm afraid, not the fault of the gun manufacturers, it's the fault of whoever was negligent enough to leave that gun where a child could find it; if there's any liability in such cases it should be for criminal negligence on the part of the gun owner.

[SayWut]

3. Forget it, he's rolling.

Just like when the Germans bombed Pearl harbor.

[JDPriestly]

4. It's not the First Amendment, but a pink gun??? That looks like a toy not just to a child

but to me and I am a senior. The manufacturer is irresponsible in making a pink gun. What an awful idea.

[jberryhill]

15. Actually, you do raise a first amendment issue

Of course the OP is, as Feinman would say, "not even wrong" about common law civil litigation.

However, if someone wanted a pink gun as a way of expressing themselves, THAT would be a first amendment question.

[BainsBane]

5. where fault lies depends on the circumstance

and in most cases, fault is apportioned; parties often share fault. Take the case of the three year old who picked up the bubble gum pink gun he found outside and killed himself. Why did the manufacturer create a pink gun? Manufacturers of cleaning supplies have been sued for packaging that looks too attractive to kids. Surely a pink gun falls into that category. Certainly the person who left the gun laying around bears primary responsibility, but the manufacturer also bears some. If it is the case for detergent manufacturers, it should be the same for guns. Only the gun lobby has ensured they are not faced with the same legal responsibilities to which other manufacturers are subject. That denies the family of the child killed by the gun equal protection under the law.

I think lawsuits do fall under the First Amendment. They are the way a private citizen has of having a complaint heard against a company or individual. But if not the 1st Amendment, it's a violation of the equal protection clause.

[Spider Jerusalem]

7. No, they don't

lawsuits between residents of the same state are outside the scope of the constitution; Article III, Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

[BainsBane]

12. that's absurd

complete bullshit. There are a lots of state cases the court has ruled on. The Montana election law case, most recently. And you have no information about the location of the gun company vs. the family of the child killed. You are just making stuff up.

You continually change your argument. Jesus, can you people never be honest. Just admit you don't care about the First Amendment or equal protection. You only care about guns.

Here is one case from the First Amendment Center that involved cases involving resident's in the same state.

"In its 1971 decision Boddie v. Connecticut, for example, the Court ordered the waiver of court costs for indigents seeking a divorce — not because of the right to petition, but because marriage and its dissolution have been recognized as fundamental private interests. The Court reasoned that to deny a divorce for lack of ability to pay the state’s court costs was to deny a fundamental right entirely. Though the petitioners in Boddie raised the petition clause as a basis for their challenge, the federal courts at every level viewed the complaint through the prism of due process, which is the right to fair administration of justice."

Additionally: "The most significant confirmation of a petition-based right to seek judicial redress comes not from free-speech jurisprudence but from antitrust law. In a series of cases beginning with Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. in 1961, the Supreme Court recognized that antitrust statutes should not penalize petitioners who join to seek passage and enforcement of laws."

http://www.firstamendmentcenter.org/right-to-sue

[BainsBane]

14. Additional evidence

"In the United States the right to petition is guaranteed by the First Amendment to the federal constitution, which specifically prohibits Congress from abridging "the right of the people...to petition the Government for a redress of grievances."
Although often overlooked in favor of other more famous freedoms, and sometimes taken for granted,[1] many other civil liberties are enforceable against the government only by exercising this basic right.[2] The right to petition is a fundamental in a Constitutional Republic, such as the United States, as a means of protecting public participation in government.[1] . . . While the prohibition of abridgement of the right to petition originally referred only to the federal legislature (the Congress) and courts."
http://en.wikipedia.org/wiki/Right_to_petition_in_the_United_States

[jberryhill]

17. A suit by an individual against a gun company...

...has nothing to do with the first amendment right to petition the government for redress of grievances.

You might notice that all of the cases mentioned in the wrong alley you've gone down involve a suit against a government entity.

In point of fact, you can't even bring a common law action in a federal court against a private individual or entity unless the amount in question exceeds $75,000 and no parties on opposite sides are citizens of the same state.

[BainsBane]

21. It does not need to be in a federal court to involve constitutionality

Bush v. Gore, for example.

I also cited examples from law journals establishing a first amendment grounds for class action law suits.

Regardless of which part of the constitution is involved, whether the First, equal protection, or anti-trust law, Americans have the right to petition the courts for redress. Congress has exempted gun manufacturers from the same legal standards to which other companies are subject. The gun lobby has also restricted first amendment rights in a myriad of ways, like forbidding doctors in FL from asking patients about guns in the home. The fact is that the gun lobby restricts the rights of Americans just as the Slave Power did in the nineteenth-century by imposing the gag rule and similar measures.

[jberryhill]

22. Now go read Article III

I have absolutely no idea wtf Bush v Gore - a case involving federal election law - has to do with it, but you will notice that Article III empowers the Congress to specify the conditions under which courts have jurisdiction over things.

[BainsBane]

25. ruling constitutionality

Looking at the text of the constitution alone is meaningless. The point is how it is interpreted by the courts. You argued that a case needs to be in federal court to involve constitutionality. Bush v. Gore is an example of a case that went from the state supreme court to SCOTUS and was ruled on 14th Amendment grounds.

So in other words, you are perfectly happy with the fact that the gun lobby restricts the rights of American citizens. Let's be honest here for once. The constitution means nothing to you people. Guns are all you care about.

[jberryhill]

28. Oh good lord...

All that time in law school wasted.

I'll say this as clearly as I can. The First Amendment does not guarantee a right to bring a common law tort action against anyone you are upset with.

Bush v Gore was not a common law tort action at all. It got into the federal court because it involved a state determination of a federal Constitutional issue arising from actions taken by the government of the state of Florida.

Good night.

[BainsBane]

30. and what aoubt the FL law that bans doctors

from asking patients about guns? You systematically ignore the points and refuse to be honest about your position. You ignored the First Amendment Center's argument--real life lawyers, not people with a couple of courses. I wonder why you have such a difficult time being honest about your view on the special protections allotted to gun manufacturers?

[jberryhill]

33. "Real life lawyers"

Oh golly. After more than a decade of practice, when do I qualify to be a "real life lawyer" in your opinion?

[BainsBane]

35. I thought you said one year of law school?

Did I misread your post? If so, I apologize. How about addressing the issue about the power of the gun lobby and its special protections afforded by congress?

[jberryhill]

37. I said one year of civ pro and a year and a half of con law

But I just remembered that I took another course in civ pro after the two required semesters.

Believe it or not, law schools offer a variety of courses in all kinds of specialized subjects in addition to the required core curriculum. That's because lawyers do all sorts of things. Typically there are two semesters of civ pro and two semesters of com law.

[jberryhill]

43. Congrats.

I don't see what that has to do with anything. Do we want to discuss the doctorate I earned prior to law school, or are we done with the first amendment right to petition the government for grievances against it?

[BainsBane]

45. well, I would like to discuss the issue of

special protection allotted to gun manufacturers and why that doesn't bother you, but your personality issues are making that difficult. I raised my education because you act like a law degree is supposed to somehow make you smarter than everyone. I'm not a lawyer. I'm not obsessed with the law or proving I know more about it than someone with no law school training (what a triumph for you). This is fundamentally a political issue about the power of the gun lobby and their influence over congress. I thought that since I was on a supposedly progressive discussion board, some here would find that problematic. But instead I meet defenders of corporate business privilege and guns in particular.

[jberryhill]

47. Then start a thread on it

You raised the issue of qualification when you used an appeal to authority by reference to "real life lawyers" in the course of your discussion with someone who is a real life lawyer. I only mentioned it to point out that you had apparently assumed an incorrect fact. YOU were the one implying that lawyers know better.

The question of whether Congress can regulate tort claims like this arises under the authority of Congress to regulate interstate commerce.

It is the same locus of power by which Congress can do things like, oh, enact a law under which health insurers can required to provide contraceptive coverage, for example.

[jberryhill]

48. That FL law does under involve a first amendment issue

But it has nothing to do with tort immunity.

Yes, that Florida law involves a first amendment question and it involves guns. And it is relevant to a first amendment right to file product liability claims... how?

Going to sleep, you can work the shovel without me.

[jberryhill]

31. And by the way

If I said that the Third Amendment makes rape illegal, and you said "no it doesn't", do you think it would be an appropriate response on my part to say that you support rapists?

The problem isn't that you like rapists, the problem is THE THIRD AMENDMENT HAS NO BEARING ON THE QUESTION.

I do not own a gun, and I am in favor of all sorts of gun control measures. That has nothing to do with your mis-reading of basic civil procedure.

[BainsBane]

34. then why do you refuse to address the central question?

You have chosen to be pedantic rather than deal with the issue of special protection for gun manufacturers. And I never mentioned the Third Amendment, not once.

[jberryhill]

38. Holy...

I am addressing your assertion in the OP that the first amendment has anything to do with civil suits between private parties on common law tort claims.

That is what your OP is about, right?

It you said that the Copyright Act banned prayer in public schools, you would be just as wrong, and would have nothing to do with my thoughts on copyright, prayer, or public schools.

[BainsBane]

41. You again refuse to address the question

I have several times repeated my point and asked your views about special protection afforded to gun companies. You are the one who is obsessed with particular parts of the law. Is it that you lack the courage of your convictions, or you don't actually believe anything?

[jberryhill]

40. The title of this thread is:

"What about our FIRST amendment rights?"

The title of the thread is not "how can a federal law regulate product liability claims?"

Silly me. I thought I was addressing the question you chose to ask.

[BainsBane]

42. several posts ago I wrote:

"Regardless of which part of the constitution is involved, whether the First, equal protection, or anti-trust law, Americans have the right to petition the courts for redress. Congress has exempted gun manufacturers from the same legal standards to which other companies are subject. The gun lobby has also restricted first amendment rights in a myriad of ways, like forbidding doctors in FL from asking patients about guns in the home. The fact is that the gun lobby restricts the rights of Americans just as the Slave Power did in the nineteenth-century by imposing the gag rule and similar measures."

Does a law school education mean you can only read titles and not full paragraphs? In history we actually read books, often in several languages.

[jberryhill]

44. And in law school

We learn that changing the topic is not a good way of advancing a point.

There are a lot of laws which determine whom you can sue for what, where you can sue them, and when you can sue them.

I am no fan of the federal law protecting gun makers from product liability suits. It has nothing, zip, zero, nada to do with the first amendment, however.

[BainsBane]

46. I have not changed the topic

You refuse to read. That was about 12 posts ago, and I've repeated the question several times.

The First Amendment is indeed at issue when the gun lobby convinces FL legislatures to prohibit doctors from asking patients about guns in the home, just as it was at issue when Southern states made it illegal to question slavery.

[BainsBane]

6. no where did I or the image

mention criminality. It says suing, which everyone knows to be a civil complaint.

[BainsBane]

11. The Supreme Court supports my position

That the right to sue is indeed covered by the First Amendment.

"When right-to-sue claims do not involve issues of constitutional magnitude, the Court has grounded its First Amendment analysis in associational freedoms inherent in a collective resort to the courts. But when neither constitutional issues nor collective action is present, the Court has addressed claims of the right to seek redress in court as a due-process or equal-protection challenge.

http://www.firstamendmentcenter.org/right-to-sue

[jberryhill]

13. The right to sue THE GOVERNMENT

The first amendment includes the right to petition the government for redress of grievances.

That has nothing to do with suits among private individuals and entities.

[BainsBane]

16. it specifies petitions to the courts

explicitly. A law suit is a petition to the court. https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=63+U.+Chi.+L.+Rev.+239&srctype=smi&srcid=3B15&key=58cc7e2832a346a493e9478914aef809

See my additional links above.

[jberryhill]

19. Sigh...

Yes, all kinds of things can be considered a "petition to the court".

The first amendment right in question is a right to petition the government for a redress of grievances one has against the government.

You are googling combinations of words and pasting together a real trainwreck of context.

[BainsBane]

24. you aren't reading the links

or my overall point. So let's be honest here. Is this accurate: You don't care about the right to due process or the First Amendment, as long as gun manufacturers are protected from lawsuits? That the gun lobby has forbidden doctors from asking patients about guns in the hone doesn't concern you? That ACA prohibits physicians from writing anything down about guns doesn't concern you? The hell with the constitution as long as guns are protected.

[jberryhill]

26. I am reading the links

But unlike you, I happen to have a year of civil procedure and three semesters of Con Law, including and advanced course taught by Joe Biden.

You are reading them, but you are not understanding them.

Take the law review article you mention below. There are a lot of obstacles to suing the government over generalized grievances, and have been ever since Defenders of Wildlife v Lujan. Prisoners have it easier, because habeus petitions get them right in (they are, in general, written like something Orly Taitz would file, but I digress).

You can continue down your path of wrong, but if you understood the reason why birther suits are dismissed by courts before they go anywhere - and not on the factual assertions of the birthers - you would also understand why the topic which keeps coming up in your google results has nothing to do with the Article III jurisdictional rules.

[BainsBane]

27. Did you read the argument by the First Amendment Center?

It is quite explicit. And I've re-edited the OP.

[jberryhill]

29. Yes and you are still entirely off the map

The NAACP case cited therein involved a question of associational standing in a suit challenging government action. The attorney advertising suit involved a free speech claim (regulation of advertising) combined with an associational standing question.

That is why I cited Defenders of Wildlife v Lujan. It is also why you haven't the foggiest notion of why that case involves the issue at hand.

[BainsBane]

32. the ruling was based on political expression

The court ruled that the suit represented a form of political expression and therefore was constitutionally protected. They then site another case involving divorce law with no constitutional issue. Your argument assumes that all legal suits must be successful. The birthers do have the right to sue, and they have done so. They also have had their cases thrown out for lack of merit.

If we have no right to sue, why is anyone allowed to wage a lawsuit? Why don't you care that guns are specially protected under the law? Why don't you care about free speech restrictions on doctors? What course in law school told you that guns were more important than every other right? Where does the constitution privilege the right to profit from murder above all else?

[jberryhill]

36. The birther cases are thrown out for lack of standing

The birther cases are thrown out on preliminary motions involving their lack of standing - ie their lack of right to sue for what they want. You will notice that NOT ONE of them has actually proceeded to trial.

[BainsBane]

18. another source

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ohslj60&div=19&id=&page=

[NYC_SKP]

2. Basic gun safety should be taught in public schools

Or course I mean the kinds of safety training that would teach kids to treat ANY thing that looks like a gun, like a real gun.

To NOT TOUCH IT.

To go tell a responsible adult and their teacher and their police person.

DO NOT TOUCH IT.

PINK GREEN OR PURPLE! DO NOT TOUCH IT!

We could teach that in grades 4, 5, and 6!

What do you think???

[jberryhill]

23. Unless it's a toy gun, right?

[DeSwiss]

10. Good question.

It got caught in a ''Free Speech Zone'' and was never heard from again.....

- K&R

[geckosfeet]

20. That second item is a gun, not a toy. But there are lots of toys that

look like guns. Toy guns even.

But drawing the distiction between real and toy can be tricky. You proved it.