Open Thread on Mandalay Bay mass shooting in Las Vegas

Useful article at Vox.

@Scildfreja

(the american constitution is hundreds of years old. it’s hot garbage and needs to be rewritten. just my opinion.)

Well, the GOP is certainly trying. 27 states have already passed resolutions supporting a constitutional convention. The magic number is 34, then it’s game over for the rights and liberties of anyone who isn’t a heterosexual Christian white male.

Maybe I’m overly pessimistic, but I just don’t see any way to fix broken institutions, laws, and systems by working within those same broken institutions, laws, and systems. The media won’t save us. Congress won’t represent us. The laws won’t protect us. The 25th Amendment is a sham. We don’t have a government any more, not in any meaningful sense. All we have is us.

I hope we’re enough.

IgnoreSandra – Please read what I wrote. I did NOT say it is acceptable to do so. In fact I said THE OPPOSITE, that it is morally “an abuse” of the right of free speech. What I said is that it is LEGAL, and that it should be legal, to do so.

But the reasons it should be legal have nothing to do with justifying it morally. They are the same reasons More used to give the devil the benefit of the law: if I cut down free speech to get at the Devil, and then the devil turns on me, to whom will I turn?

More realistically: if “hate speech” laws become constituionally acceptable, and Trump uses his majority in Congress to pass “hate speech” laws making it illegal to denigrate or attack white males, or heterosexuals, or the confederate flag, or Republican party members, etc., what would you do then?

Ok normally I don’t do this because I find it beyond fucking TIRESOME to explain to gits how Constitutional Law actually works.

Also, because nothing irks me more than getting a lot of condescending responses from people without any sort of degree or understanding in Law. Especially because I do happen to be a lawyer and understand what the fuck I’m talking about, unlike 99% of people talking out of their asses about the Second Amendment.

Let me just preface this by saying I’m not going to be replying further on this topic because constitutional doctrine is UNANIMOUS in regard to this particular debate. In fact, there IS NO DEBATE TO BE HAD HERE, THAT DEBATE ENDED DECADES IF NOT CENTURIES AGO. Thus, I am not going to waste my time arguing with someone who has no legal knowledge about this topic. This is a one time deal.

Ok? Here it goes:

Hereinafter I shall refer to “Constitutional Rights” as “Fundamental Rights”, as that is the proper denomination in most countries.

The idea that Fundamental Rights cannot be limited without infringing the Constitution is inherently wrong for a number of reasons.

Just because a right is considered Fundamental, that does not mean it is absolute or unlimited. Fundamental Rights have both intrinsic and extrinsic limits. The former in relation to their own definition, and the former in regard to other Fundamental Rights. In other words, Fundamental Rights are limited both by their particular definition and by OTHER Fundamental Rights.

This is because rights overlap and enter into conflict ALL THE TIME. Plenty of Fundamental Rights overlap in the Constitution. Think for instance Right to Private Property, which gives you the right to not just own and use the property how you see fit, but also exclude access to whomever you want; versus Freedom of Movement/Transit, which allows you to move unimpeded, without anybody limiting or restricting your movement.

Another example would be the Right to Life, versus Legitimate Defense. On one hand the government recognizes your right to live and at the same time the right to take away someone else’s life.

So is the Constitution contradictory? Are Fundamental Rights meaningless? No, it’s just that Fundamental Rights have plenty of “expressions” and protect the person in more than one way. This is why the Law doesn’t just stop at the Constitutional level and requires laws, passed by Congress, in order to properly establish how these rights work and are exercised.

Think of religious liberty for example. Some of the expressions of this right include:

– The right to exercise your religious beliefs
– The right to express them in public
– The right to congregate in both private and public places
– The right to hold public events
– The right not to be discriminated and persecuted because of your religious beliefs
– Etc.

Problem is, the expression of some rights sometimes overlap with the expression of other rights. So what happens when two Fundamental Rights are at odds???

A Proportionality Test, also known as a Balancing Test.

Normally it is Congress which is called to properly define the content and limits of a Fundamental Right, but these limits can be challenged in the Supreme Court. This is when the SC fulfills its role of determining whether these limits are unconstitutional or not.

And let it be noted that “unconstitutional” doesn’t necessarily mean “going against the Constitution”, because then no Fundamental Rights would ever accept any limits, and the entire document would be contradictory.

A Proportionality Test is only applied when two or more Fundamental Rights are at odds, in order to MINIMIZE THE INFRINGEMENT of BOTH RIGHTS TO IT’S SMALLEST POSSIBLE AMOUNT.

The pre-requisite of the Proportionality Test is two Fundamental Rights at odds, or otherwise what is known as a Constitutionally Protected Concept (i.e. National Security) against a Fundamental Right (but I won’t dwell into that here).

A proportionality test has three phases:

The Test of Adequacy: where the measure being adopted, to limit the expression of conflicting rights, must closely adhere to the purpose the Constitution established for both rights.

The Test of Necessity: where the measure being adopted must be both the most effective and adequate solution to preserve both rights, and absolutely necessary to that end.

The Test of Proportionality: where the measure or limit being adopted has minimized the infringement of both of these rights to its most minimal possible infringement.

That being said, it’s not just the “Right to Bear Arms” at play here. To allow the 2nd Amendment to go by unchallenged or unlimited allows for people to infringe or create an undue burden on the Right to Life and National Security.

Considering there are two Fundamental Rights at play here, it is COMPLETELY LEGITIMATE AND CONSTITUTIONAL TO ESTABLISH LIMITS TO THE SECOND AMENDMENT (AS HAS BEEN DONE BEFORE BY REAGAN) IN ORDER TO PRESERVE THE RIGHT TO LIFE OF OTHER CITIZENS.

@ Skeptic

That is, in fact, part of the right of free speech.

by your metric, so is yelling “fire” in a crowded theater.

human beings have no natural rights of any sort. “rights” are a social construct, and if the society says you cannot publicly abuse another just because they are different than you, then you do not have that right.

sure, if the society says you can, then you do have that right. however, myself, along with a large group of others, many of whom you exchange ideas with here, are working to see that the society says you can NOT publicly abuse another just because they are different from you.

Also voting to ban Skeptic, who is adding nothing to the conversation and just “Well, ACTUALLY”-ing all over the thread. Boring and unhelpful. And kind of a jerk.

FWIW there are a lot of countries with an understanding of free speech that is not as absolute as that of the US who have not fallen into repressive autocracy, so I’m not sure that slope is as slippery as you seem to think it is.

@ viscaria

there are a lot of countries with an understanding of free speech that is not as absolute as that of the US

This is ours (ECHR Signatories)

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

I’m assuming at this point that, since it’s supposedly not time to debate gun control anytime there’s a tragedy, that the endgame is having enough gun induced tragedies that there is literally no time we’re ever allowed to discuss this.

Also…

Weapon vs Tool

I am a Veteran. When we went through Basic Training it was very clear what our M-16 was: A Weapon. Meant to Destroy (yes, they said that, not kill) the Enemy. Pretty much the only thing we referred to as a tool was our Entrenching Tool (although they taught us how to kill with that too). But it was made very clear: your rifle was a weapon, and it was meant to destroy. No ambiguity in the least.

…And Tom Petty died.

Fuck this. Fuck this. Fuck this.

Yeah, I think it’s time for our gracious host to exercise private property rights and show “Skeptic” the door. I have little patience for people playing stupid semantic/dictionary definition games, and even less for those whose understanding of the Constitution is pretty piss-poor.

ITYM “after the CIA launched a revolution against the Shah”. HTH.

“Someone killed a bunch of people, so let’s discuss frees peach rights instead” – shorter Skeptic

No, thanks. I’d rather we express condolences, post some cute kitten pics, and maybe work out how to fix gun laws in the US. US gun violence has been getting worse every year, for a long time. At least the last 30 years in my memory, probably longer in history.

I’m tired of checking news, just to find another “multiple people died in gun violence” at least once a month.