Reclaiming the Duties Within Second Amendment Rights Cases

[Tracker]

if you're up for reading legal theory on second amendment cases (Heller)....the argument basically criticizes the lack of specific duties to the duty holder. For example: the duty to D.C. in the Heller case was left vague.

STANDING OUR LEGAL GROUND: Reclaiming the Duties Within Second Amendment Rights Cases
http://arizonastatelawjournal.org/wp-co ... _Final.pdf" onclick="window.open(this.href);return false;

[baldeagle]

Thanks for the pointer. I'm currently working my way through it.

Update: Having now read most of it (I gave up about three pages before the conclusion, I can say that this is a quite ponderous academic exercise from which I learned very little. The one takeaway I got was that rights come with duties. It might be interesting to discuss what the duties of an individual bearing arms in modern society are, but other than that my eyes were glazed over. As a starter for that discussion I'll quote the one thing that stood out to me.

In 1785 the “Recorder” wrote, “It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right, but as a duty; for all the subjects of the realm, who are able to bear arms, are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of the public peace.”

We have had these discussions in the past, and there seem to be two main streams of thought; those who feel they have a duty to assist in the safety of others and those who believe their duty is only to their own family and immediate surroundings.

[Tracker]

I like his argument that the duty holder needs to be the expressed. I have a problem when his point on two separate the universes. The constitution belongs to the former

[MeMelYup]

A person has the duty to protect themselves and family. The police do not have that duty, their duty is to the community. My neighbor does not have a duty to protect me or my family. My neighbors have a duty to themselves and their families, and if I need assistance they may help, but are not obligated to. If I see that a neighbor needs help I may help them, but I am not obligated to protect them.

[baldeagle]

A person has the duty to protect themselves and family. The police do not have that duty, their duty is to the community. My neighbor does not have a duty to protect me or my family. My neighbors have a duty to themselves and their families, and if I need assistance they may help, but are not obligated to. If I see that a neighbor needs help I may help them, but I am not obligated to protect them.

That's your modern understanding of your duty. It wasn't that way when the country was founded.

[jmra]

A person has the duty to protect themselves and family. The police do not have that duty, their duty is to the community. My neighbor does not have a duty to protect me or my family. My neighbors have a duty to themselves and their families, and if I need assistance they may help, but are not obligated to. If I see that a neighbor needs help I may help them, but I am not obligated to protect them.

That's your modern understanding of your duty. It wasn't that way when the country was founded.

I'm raising two teenage boys to be young men full of character and honor. If I turned my back on a neighbor in need I would not be able to look my sons or my wife in the face.

[Tracker]

A person has the duty to protect themselves and family. The police do not have that duty, their duty is to the community. My neighbor does not have a duty to protect me or my family. My neighbors have a duty to themselves and their families, and if I need assistance they may help, but are not obligated to. If I see that a neighbor needs help I may help them, but I am not obligated to protect them.

that's not what the paper is talking about with regards to "duty." In this case "duty" it the government is the" duty holder" whose responsibility is to protect those stated rights. For example. In D.C. v Heller the Court ruled in Heller's favor but the Court did not spell out the duty to D.C., the duty holder, what was expect of the city. Instead of honoring their "duty" to Court's decision, D.C. played word games to keep their gun bans in place.

https://www.gunowners.org/a072808.htm" onclick="window.open(this.href);return false;
Washington, D.C. City Council Ignoring Supreme Court Ruling
-- Discharge petition filed on gun ban repeal
Gun Owners of America

Monday, July 28, 2008

In open defiance of the Supreme Court's decision striking down the Washington D.C. gun control law, the City Council passed an"emergency" law that keeps in place almost all of the law that was ruled unconstitutional. For example, though the Court ruled specifically that the city's ban on handguns violated the Second Amendment, most handguns still cannot be registered because D.C. bureaucrats classify semi-automatic pistols as "machine guns."
Even Dick Heller, who brought the case against Washington's gun ban, was rejected when he tried to register his handgun because any"bottom loading" firearm is a "machine gun" according to the D.C.police.
Similarly, while the Court found that "the requirement that any lawful firearm in the home be disassembled or bound by a "trigger lock" is unconstitutional, the city kept in place the "lock up your safety" law unless the resident is in immediate danger.
The D.C. Council is thus rendering the Supreme Court victory for gunrights meaningless, while leaving residents defenseless.
Congress needs to repeal the District's gun control law to ensure that theSupreme Court decision is not a hollow victory. According to Article I, Section 8 of the U.S. Constitution, Congress has the authority and responsibility to govern the District. It can simply repeal the District's onerous gun law.
Not surprisingly, however, House Speaker Nancy Pelosi (D-CA) has no intention of allowing the D.C. gun ban repeal legislation to come to the floor, even though it is cosponsored by more than half of the members of Congress. To free the bill from the Speaker's death grip, Representative Mark Souder (R-IN) has filed a discharge petition to bring the bill directly tothe floor. Rep. Souder needs 218 cosigners for the petition to be successful. There are currently 109 signers. There are not many days left in this legislative session, so it is vital that the discharge petition moves quickly.

[BigGuy]

A person has the duty to protect themselves and family. The police do not have that duty, their duty is to the community. My neighbor does not have a duty to protect me or my family. My neighbors have a duty to themselves and their families, and if I need assistance they may help, but are not obligated to. If I see that a neighbor needs help I may help them, but I am not obligated to protect them.

That's your modern understanding of your duty. It wasn't that way when the country was founded.

That's my take as well. But with that duty comes risk. And it seems to me that we now live in such a risk averse society that the social norm is now to "let the professionals handle it." That risk aversion has made its way into the laws of the land, and into societal expectations.
When you as a civilian do get involved don't expect protection from the courts of law or public opinion, even when you get it right. There have been many warnings from LEOs and lawyers on this and other boards that even in the best of circumstances, your are likely to take a ride and face civil suite from the perp's grieving friends and family. All they have to do is convince 12 random folks that if you had only waited on the pros, there would have been a different outcome.
It appears to me that society has changed to the point that it won't accept your, make that our, perspective. I don't like it, but my disapproval doesn't change anything. I don't think things will change until society somehow goes back to those old values and view of what is expected of a citizen.

We've got a pretty good LEO contingent on this board. How do you guys feel about John Q. Public jumping into the fray?

[Tracker]

And speaking of Heller here's Scalia's relevant opinion:
" Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

I'd like to pick his brain on what he meant by sensitive places.... such as schools and government buildings. I understand that an international airport is a sensitive place...but a post office or post office parking lot? http://www.reuters.com/article/2015/06/ ... QF20150626" onclick="window.open(this.href);return false;. Living in a town of maybe 2000 my post office parking lot is so sensitive that I can't even leave my gun in the car to walk 20' to get my mail out of the post office box?

And why should someone with a Texas CHL (out of state licenses holders) have to stay 1000' away from school property when traveling in, say, Oklahoma while the Oklahoman gun licensees aren't required to by federal law? What's the sensitivity there? With some small towns you can't drive through them without committing a crime. Or am I reading the following wrong?

http://smartgunlaws.org/federal-law-on-guns-in-schools/" onclick="window.open(this.href);return false;
The Gun-Free School Zones Act (GFSZA) prohibits any person from knowingly possessing a firearm that has moved in or otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable cause to believe, is a school zone.1 The GFSZA also prohibits any person from knowingly, or with reckless disregard for the safety of another, discharging or attempting to discharge a firearm that has moved in or otherwise affects interstate or foreign commerce at a place the person knows is a school zone.2 The GFSZA defines “school zone” as: 1) in, or on the grounds of, a public, parochial or private school; or 2) within a distance of 1,000 feet from the grounds of a public, parochial or private school.3

Exceptions to the possession prohibition include:
Firearm possessors licensed by the state or locality to possess the gun, whose law requires that before the person obtains a license, state or local law enforcement verify that the person is qualified to receive the license;4 or

[Tracker]

A person has the duty to protect themselves and family. The police do not have that duty, their duty is to the community. My neighbor does not have a duty to protect me or my family. My neighbors have a duty to themselves and their families, and if I need assistance they may help, but are not obligated to. If I see that a neighbor needs help I may help them, but I am not obligated to protect them.

That's your modern understanding of your duty. It wasn't that way when the country was founded.

That's my take as well. But with that duty comes risk. And it seems to me that we now live in such a risk averse society that the social norm is now to "let the professionals handle it." That risk aversion has made its way into the laws of the land, and into societal expectations.
When you as a civilian do get involved don't expect protection from the courts of law or public opinion, even when you get it right. There have been many warnings from LEOs and lawyers on this and other boards that even in the best of circumstances, your are likely to take a ride and face civil suite from the perp's grieving friends and family. All they have to do is convince 12 random folks that if you had only waited on the pros, there would have been a different outcome.
It appears to me that society has changed to the point that it won't accept your, make that our, perspective. I don't like it, but my disapproval doesn't change anything. I don't think things will change until society somehow goes back to those old values and view of what is expected of a citizen.

We've got a pretty good LEO contingent on this board. How do you guys feel about John Q. Public jumping into the fray?

Since John Q is only responsible self defense, or coming to the defense of another, and isn't trained to go on an offense she/he should stay out of the fray. JQ's duty (in the normal sense of the term) doesn't extent to policing. This is the kind of think that got Zimmerman in trouble http://concealednation.org/2015/06/dont ... g-members/" onclick="window.open(this.href);return false;