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Old 07-19-2011, 12:20   #21
Spats McGee
Senior Member
 
Join Date: Oct 2010
Location: Arkansas
Posts: 371
Quote:
Originally Posted by FearTheBoomAndBust View Post
. . . . I'm obviously not implying truth or slandering you in anyway. . . .
No, you're not. It's just a hypothetical, and no offense taken. "Jus' two guys talkin'," as it were.

As to the rest of this, I'm not trying to bust your chops here, FTBAB. I just don't see things the way you do, and I can't resist a good discussion.

Quote:
Originally Posted by FearTheBoomAndBust View Post
So then there should be no restrictions placed upon any firearms, any tobacco trade, and most importantly no EXPLOSIVES?
Constitutionally, firearms enjoy protections that alcohol and tobacco do not.

Quote:
Originally Posted by FearTheBoomAndBust View Post
If all of the regulations flys in the face of the US Constitution why has the Supreme Court not overturned it? Answer that question.
Is it maybe because it doesn't violate it? Is it because the Constitution is a living breathing document that is supposed to be interpreted? Is it because maybe just maybe ( I do NOT believe this FYI) the 2nd Amendment doesn't mean what you think it means?
In part, regulation of 2A rights has not been overturned because there hasn't been a decent plaintiff to challenge it. For example, the only people with standing to challenge the restriction on "felon in possession" laws would be felons. There may be some decent plaintiffs who fall into that group. However non-felons lack standing to challenge the restriction, and I would wager that the vast majority of convicted felons make rotten plaintiffs in such challenges. Mind you, that's just one aspect. There are other challenges that (I suspect) have simply not been made that involve the right court and the right plaintiff. For example, there's a young man in Texas right now that is challenging (IIRC) the age requirement (21) to purchase a handgun. If I remember correctly, he's a long-time shooter, Junior ROTC member, and generally desirable plaintiff, and he's in Texas. . .

Quote:
Originally Posted by FearTheBoomAndBust View Post
Maybe it is because regulation of rights is necessary to have the laws that back up those rights?
Can you explain what you mean by this?

Quote:
Originally Posted by FearTheBoomAndBust View Post
I see where your coming from, but lets for argument sake say that I think you are a counterfeiter or a threat to President Obama, but I have no evidence; but hey I know I'm right so I search your home without a warrant to get that evidence. Lets for argument sake (I'm obviously not implying truth or slandering you in anyway) I find a kilo of diacetylmorphine (heroin). That search and seizure was illegal, no warrant. I arrest you anyway and the US Attorney charges you, you (and your lawyer) has to prove to a judge that the search was illegal though, you have to show that you have the right and prove its violated.

I know thats kind of an awkward example because its more of your proving its violated not that you have it but its similar logic.

Also, you have the right to keep and bear arms, the second amendment does not entitle you (directly) to purchase (lets ignore legislative intent). so you are proving to the FFLD that you are entitled to keep and bear the arms, therefore you should be allowed to purchase it.
Well, I don't think that counterfeiting falls under the ATF's jurisdiction, but that's neither here nor there. Let's go with your hypothetical, but I'd like to amend it a little:
Quote:
I see where your coming from, but lets for argument sake say that I think you are a . . . a threat to President Obama, but I have no evidence; but hey I know I'm right so I search your home without a warrant to get that evidence. Lets for argument sake . . . . I find a kilo of diacetylmorphine (heroin). That search and seizure was illegal, no warrant. I arrest you anyway and the US Attorney charges you, you (and your lawyer) has to prove to a judge that the search was illegal though, you have to show that you have the right and prove its violated.
1) Possession of heroin is never mentioned in the Constitution. Its possession is not protected.
2) Warrantless searches of the home are presumptively unconstitutional. ("Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle of Fourth Amendment law,’ ” we have often said, “ ‘that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” Kentucky v. King, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011)) In other words, no, I don't have to prove that the search was illegal. The government has to prove that it was legal. (Ordinarily, this is done by the prosecutor simply saying, "Look, Judge. My guys had a warrant.")
3) Assuming that the search was in fact illegal (as you stated above), the remedy is that the heroin (and any other "fruit of the poisonous tree") will be excluded from my trial. Let's say you happen to stumble across a fully automatic machine gun while you're there. That, too, will be excluded.

This is precisely the opposite from what goes on with 2A rights, at least in the area where purchases of new firearms from FFLs are concerned. If I want to buy a new gun, I have to prove to the FFL that I'm entitled to do so. Bear in mind, though, that the only reason I have to prove it to the FFL is because federal law says so. IOW, the government has decided that I have to prove that I'm entitled to exercise that right before I'm allowed to do so. The 2A is one of the few rights (albeit not the only one) as to which I have to prove entitlement prior to exercise.

Quote:
Originally Posted by FearTheBoomAndBust View Post
. . . .Also, you have the right to keep and bear arms, the second amendment does not entitle you (directly) to purchase (lets ignore legislative intent). so you are proving to the FFLD that you are entitled to keep and bear the arms, therefore you should be allowed to purchase it.
I'll also disagree about the entitlement to purchase. If I'm entitled to possess, I'm entitled to purchase. Otherwise, my right to possess isn't much of a right. Chicago is currently under attack for a similar line of thinking. Its city council dictated range training in order to get a firearms permit, but banned ranges. That was recently struck by the 7th Circuit.

Last edited by Spats McGee; 07-20-2011 at 08:20..
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