Go through each of the Bill of Rights, and for each produce a scenario where that right would be used by a criminal to protect him or her from planning, executing, and avoiding detection of a crime.
All individual rights are carved out from the default government, which is the one that takes absolute authority over all within its domain. North Korea is closest to this ideal today, but most vanilla monarchies were like this in the west.
Law enforcement officers (and politicians) must confront the simple fact that they must accept the restraints that the law places on them, even if it means letting the bad guy get away with it. Getting the bad guy at any cost ("Tango and Cash" style) makes a fun movie but it undermines the freedoms that our ancestors (by both blood and principal) fought and died for.
Yup and these days I would say that individuals need to go the extra step by using technologies to ensure their rights are never violated. Simply having the right written into law is not good enough anymore.
"The Third Amendment to the United States Constitution places restrictions on the quartering of soldiers in private homes without the owner's consent, forbidding the practice in peacetime."
There's groups out there I'm sure that could make the justification that something like 'the war on drugs' or 'the war on belly fat' means we're not at peacetime.
Because of the lack of any prior Third Amendment jurisprudence, this decision established three important holdings not previously articulated: (1) that the National Guardsmen qualify as soldiers under the Third Amendment; (2) that the Third Amendment applies to state as well as federal authorities, i.e., is incorporated against the states; and (3), that the protection of the Third Amendment extends beyond home owners, that is, those only with a fee simple arrangement, but includes anyone who, within their residence, has a legal expectation of privacy and a legal right to exclude others from entry into the premises.[1] The majority held that the correctional officers' occupancy in the rooms was covered under the legal rules of "tenancy" and was therefore protected under the Third Amendment.
Basically, the state kicked striking prison guards out of their employee benefit housing for national guard troops to use while the national guard was used for overseeing the prison.
Nixon started “the war on drugs”, and it looks like they didn’t try to use that as a defense.
> All individual rights are carved out from the default government
Not sure this is how you meant it. If you mean to say that rights come from governments that is not quite correct, at least not in the US.
Rights, in the US, are not GRANTED by government, they are RECOGNIZED by the US Constitution to exist OUTSIDE OF GOVERNMENT (upper case is for emphasis only). In other words, these rights don't require government in order to exist. We are recognized to have them and government can't do a thing about it other than to respect and protect them.
This is a massive difference with other systems that lots of people, both inside and outside the US are not aware of.
Take the right to bare arms as an example. In most other nations, if it exists, this is a right granted by government to the people. In the US this is a right recognized by the constitution to exist despite and outside of government.
Here's the key difference between "grant" and "recognize": The government can't take away that which it does not own, did not and cannot grant.
An example of a right (well, a privilege) government can take away is your driver's license. They grant it and they can take it away.
In the case of firearms, the US government does not have the ability to confiscate weapons because that is not a right the government granted and, therefore, they don't have unilateral power to cancel that right with a simple bill. In fact, it takes a tremendously complex agreement across all States and the federal government to make any changes to the US Constitution (2/3 majority in the Senate, House and all 50 State Legislatures). Even that does not guarantee government to have the right to eliminate rights.
This is good. This means, among other things, that the government can't take your freedom of speech away because they do not own it, they did not grant it. It is recognized as a fundamental right. All rights in the Bill of Rights are equal in this sense (as far as I know). If we weaken one of them (as many want to do with firearms) you run the risk of opening Pandora's box and exposing the people to government control of rights.
It's an interesting problem.
Coming from this perspective it is hard to understand why people in any nation would want to live in an environment where the government owns and grants rights --and can take them away at will. If the idea is that government works for us --they are our representatives-- why in the world would it make sense that they would be able to take away our rights? Imperfect analogy: It's like a project manager hiring a worker and then having that worker fire the project manager.
PS.: A lot of anti-gun activists keep pointing at places like New Zealand and their gun confiscation and buy-back programs. The typical cry is "We should do the same". Well, we can't. Government did not grant, nor does it own that right. And it can't take it away. In many ways this kind of activism is nothing less than futile and even nonsensical. It's almost like demanding that we change the gravitational constant in that it is about as likely.
This distinction is mostly philosophical and historical in as much as it forms part of how these issues are framed. No person except perhaps a few strange fanatical monarchists goes around in the UK and thinks of themselves as subjects of the queen rather than citizens, for example. The framing of where rights comes from can affect debate, but in and of itself it says very little about to what extent you can expect erosion of rights.
The issue is how many roadblocks you have managed to embed into the public consciousness, not what the law says - laws, even constitutions, can be changed, and regularly are, or tends to be possible to circumvent in all kinds of ways.
The framing can make it politically harder, but only as long as the idea of the importance of a right remains embedded in the public view of the society they live in enough to make changing the law hard. I don't think whether the letter of the law suggest rights are granted vs. recognized matters all that much in practice with respect to that.
I think it's good to encourage people to see rights as inherent rather than granted, but I have no illusions that that means they can't still be taken away.
> This distinction is mostly philosophical and historical
Not in a court of law, where it matters. We can be dismissive, but this distinction has true and legal significance. As I mentioned in one of my notes, this is the reason the government of New Zealand can decide to confiscate weapons while, in the US, it is so close to impossible that it is.
> laws, even constitutions, can be changed, and regularly are
Laws and the US Constitution are two different things.
The US Constitution can be changed, yes, but it virtually impossible. This is particularly true of REMOVING rights in the Bill of Rights.
In order to make any change you need --by law, as spelled out in the constitution:
2/3 majority vote in the US Senate.
AND
2/3 majority vote in the US House of Representatives.
AND
3/4 of State Legislatures approve it (via direct vote or ratifying convention).
The other way is:
2/3 of State Legislatures ask the US Congress (House and Senate) to hold a constitutional convention.
AND
3/4 of State Legislatures approve it (via direct vote or ratifying convention).
In other words, it is just-about impossible, particularly given today's political climate.
There's a practical element to this. Proponents of enhanced gun control (or gun confiscation) are wasting a ton of time, energy and money in an exercise in futility. It would be far more productive to focus on addressing the real causes of gun violence than to try and remove constitutional rights from people who have never and will never harm anyone.
Pretty much the entire thrust of what I wrote was about the legislative process, which makes what happens in a court irrelevant, as they are confined to interpret it.
> The US Constitution can be changed, yes, but it virtually impossible. This is particularly true of REMOVING rights in the Bill of Rights.
The US constitution has been changed on a regular basis. To me the number of substantial changes shows that it is not "virtually impossible", but of course you're free to have an interpretation of "virtually impossible" that is different from mine.
It is unfortunate that Americans always propagate the story that the US system is still special, but I guess the thought is part of the self-image ("we are the greatest country in the world") . It's not 1788 anymore. Yes at the time the US constitution was special, but the world moved on and many countries took inspiration from the US constitution. Generally human rights (as for example defined by the UN declaration of human rights) are considered universal or natural rights and are enshrined like that in the laws and regulations of many countries.
That said, that does not mean we (or governments) do not regulate the rights, take your example of right to bear arms, you are not allowed to bear nuclear arms, or rocket launchers, so there is regulation.
I think you are misinterpreting what I said. This is about a difference in law and not about being special in any way.
Also, don’t fall into generalizations of “Americans” and the whole “greatest country in the world” meme. This isn’t Star Trek, where all Klingons are a uniform cultural and behavioral monoblock.
My opinion of this is that it has to come from movies and perhaps that portion of our mass media that is seen outside of the US.
I remember watching CNN in my hotel room in Munich the first time I traveled to Europe a few decades back. I was absolutely horrified. Seriously. I used to watch CNN almost exclusively here in the US. In case someone wants to come back with a Fox News comment, know that at the time FNN did not even exist (it came on air in 1996).
My first thought after watching CNN in my room in Europe was: Our enemies could not pay for better negative coverage of the US. I mean, it was horrible. Brutally negative. And very different from the CNN programming we were exposed to in the US. It made me realize why so many people had negative views of the US. Not the sole reason, of course, but this was quite shocking.
The other thing you have to realize in terms of the US is that this is far from a mono-cultural population, very far. There's tremendous cultural variety from coast to coast and north to south. And even within each region, cultures vary. I mean, just speaking of myself, while a US citizen, I come from both Latin American and Middle Eastern cultural backgrounds. By that I mean that I speak multiple languages, grew up in multiple cultures and feel at home in any of them.
And so, stereotyping Americans is, well, at the end of the day, fairly ignorant. I don't mean that as an insult but rather as a factual statement. Anyone who lumps "Americans" (as in the entire US population) under one category, culture or school of thought simply does not know what they are talking about.
Since we are talking about this, the term "American" sounds offensive (and ignorant) to a lot of people. How dare they call themselves "American"! That's a continent, not a country!
Well the name of the country is United States of America. In the case of Italy you can call yourself "Italian", France, "French", etc. What are you supposed to do with "United States of America"? Call yourself "United States-ian?". That's how you come to "American". This used to bother me until I understood where it came from and it made total sense.
BTW, there are other countries who do this kind of thing:
Mexico's official name is "Estados Unidos Mexicanos" or "United States of Mexico".
Brazil's official name is "República Federativa do Brasil" or "Federal Republic of Brazil"
In English we call them "Mexican" and "Brazilian" for short, just like people from the USA are called "American".
Thank you for your detailed reply, and I'm totally on board with how "American" is basically a meaningless term that means nothing except for, roughly, the citizenship status of an individual.
> And so, stereotyping Americans is, well, at the end of the day, fairly ignorant.
Any stereotyping is ignorant, and I'm sure you'd agree with that. Muslim, Christian, Catholic, Eastern European, Italian, Indian, Syrian, Computer Nerd, Musician, Redhead, Hipster, Bogan, Redneck, Boomer. No single word can encapsulate anything but one immediate descriptor of any individual.
This appears to be something that's been lost, and is only moving further away, in political discourse around the world, pandering to fear of stereotyped groups. And politicians only use it because it works. Sadly.
Yup. Outrage and emotion coupled with ignorance seems to be the modern formula to get votes. Add to that the weaponization of social media and we have awesome election-winning technology.
> Rights, in the US, are not GRANTED by government, they are RECOGNIZED by the US Constitution to exist OUTSIDE OF GOVERNMENT (upper case is for emphasis only). In other words, these rights don't require government in order to exist. We are recognized to have them and government can't do a thing about it other than to respect and protect them.
Imagine a bakery puts out a sign that says "the bread you can buy here was not baked by a bakery, it was only recognized to be bread". Does that mean that the bread that comes out of their oven that they earlier stuck dough into was indeed not baked by them?
How does the fact that a piece of paper says something make what it says a fact? It is obviously nonsense that rights could exist without a structure to enforce them. Whether you call it "recognized" or "granted" is completely irrelevant, the fact of the matter is: If the government decides to act as if the right did not exist, then the right does not exist, and governments in general are very well capable of acting as if rights did not exist, and the fact that some piece of paper says "recognize" does not inherently change that, governments in general are also very well capable of ignoring pieces of paper.
The only thing that protects rights is sufficiently many people acting to protect them.
No, it isn’t, in a country of laws these things have weight and meaning. If, on the other hand, we are talking about complete anarchy and the end of laws as our guiding principles then, yes, sure, in that case words on paper do not matter. Until then...
That is exactly the point: These things have weight and meaning as a consequence of there being a country of laws that recognizes them. Without a political entity to recognize or enforce them, they are just words. They're not some inherent property of people or nature, but concepts created through law and enforcement of law.
As such how they are worded is no protection - only peoples willingness to resist changes is actual protection against rights being eroded.
I think what's missing from this conversation is the mindset. In the United States, those words on paper are are respected by government and the people demand this to be the case. The culture is such that these things are not optional. Your right to free speech being a simple example.
If don't live in a country that behaves this way it is likely very difficult to understand how this could be.
I lived in Argentina during the time of military rule. I knew that any negative interaction with police could have terrible consequences for me. Even death. Sure, there were laws in place that were supposed to protect me and others, but that didn't stop anyone from committing atrocities because the culture did not honor laws as is the case in the US. I remember being detained with a group of friends coming out of a movie. We where put-up against a wall, spread legs and arms, frisked, interrogated, harassed, laughed-at and held for over an hour. Once the cops were done having their fun they threw all of our ID's on the ground and let us go.
It took me YEARS after coming to the US to not have my blood pressure rise when interacting with cops. I mean, even having a cop car behind me was stressful. After a while you understand that things here are different. When we say "this is a nation of laws" it isn't something that goes on a bumper sticker, it has real meaning. I have a lot of cop friends and even trained at an Aikido dojo for years that was nearly 90% law enforcement. Context is important and the context is culture and laws.
If you want to argue about what would happen if the US government went off the rails and decided to do as they wished against the population. Well, I am sure there's a good movie in there somewhere. Until then, it's just silly.
> No, it isn’t, in a country of laws these things have weight and meaning.
What is your point? Even if noone cares about what that piece of paper says, it still has "weight and meaning"? Or are you just repeating what I said using slightly different words, i.e., in a country where people care about what that piece of paper says, what that piece of paper says has weight and meaning?
> If, on the other hand, we are talking about complete anarchy and the end of laws as our guiding principles then, yes, sure, in that case words on paper do not matter. Until then...
So ... a dictatorship is complete anarchy then? Or are you saying that it is inherently impossible for a government to selectively ignore individual laws or sections of the law? Or is it just yet another rephrasing of what I said, i.e., only if sufficiently many people act to recognize, demand, and enforce the rights, will there be rights?
The point is that your original statement that these rights don't require government in order to exist ist just false. These rights require that they are taken seriously by everyone, from citizens to the heights of government in order to exist in any meaningful sense. It may well be that having them written down in such a clear form as the Bill of Rights helps in forming that consensus, but in the end, the consensus is what determines whether those rights exist or not, not whether these rights are written down or which exact words were used.
And the further point is that there are plenty of people working to undermine those rights, and they don't need to change those words to be successful, they can also change how they are interpreted and how seriously they are taken in order to achieve their goal of undermining those rights, and that is what they usually do.
The very concept of a civilized society requires everyone to living by the laws and rules that society agreed to as their guiding principles. When you live in the US the Constitution, perhaps, the most important of these rules.
If we are going to talk about government derailing and doing as they wish then no piece of paper can protect anyone. At that point it becomes about guns and blood. Which sort of drives the point of the second amendment. That scenario is very, very far from reality in the US for more reasons than one.
The US is one of the few (well, I don't think I know of any other) where you can tell a police officer to go to hell and stop harassing you in a public space due to the rights recognized by the Bill of Rights in the US Constitution. YouTube is FULL of videos showing these kinds of situations. Anywhere else on earth you are far more likely to end-up in jail or worse.
That happens because, at the end of the day, this society is based on a legal set of rules that everyone tends to follow, particularly the important ones. That's the difference.
I know someone is going to bring up the topic of cops doing bad things. Guess what? There are bad cops, bad engineers, bad dentists and bad ice skaters. Humans are not a uniform blob of meat with the same brain. When someone behaves badly, more often than not, they face the consequences of their behavior. This includes violating others' rights.
I know that if you are not in the US the above can be incomprehensible. And that's OK, there's nothing I can say to make you see this realty. It's like a bird trying to explain to a fish what it is like to fly. The lack of context is too extreme.
How does any of that make your original statement true?
Also:
> If we are going to talk about government derailing and doing as they wish then no piece of paper can protect anyone. At that point it becomes about guns and blood.
No, it doesn't, if there is sufficient consensus for authoritarianism. I mean, except for the few people who don't agree, maybe.
> That scenario is very, very far from reality in the US for more reasons than one.
That seems very naive to me if you look at all the efforts to undermine those rights, including by the president himself.
> The US is one of the few (well, I don't think I know of any other) where you can tell a police officer to go to hell and stop harassing you in a public space due to the rights recognized by the Bill of Rights in the US Constitution.
Then ... you are badly informed?
> That happens because, at the end of the day, this society is based on a legal set of rules that everyone tends to follow, particularly the important ones. That's the difference.
So ... you are agreeing then that it's about the consensus, not about the piece of paper?
> I know someone is going to bring up the topic of cops doing bad things. Guess what? There are bad cops, bad engineers, bad dentists and bad ice skaters. Humans are not a uniform blob of meat with the same brain. When someone behaves badly, more often than not, they face the consequences of their behavior. This includes violating others' rights.
And also, more often than not, they don't. But more importantly, you are making the argument against your original claim yourself here. What matters is the consensus, not the piece of paper. What matters is whether consequences are enforced on those who violate rights, not whether some piece of paper says "recognize" or "grant". What matters is whether society at large and government in particular consider those rights important or not, not whether some piece of paper says "recognize" or "grant".
> I know that if you are not in the US the above can be incomprehensible. And that's OK, there's nothing I can say to make you see this realty. It's like a bird trying to explain to a fish what it is like to fly. The lack of context is too extreme.
Erm ... yeah, sure! I gather that it is perfectly comprehensible to you what it is like to live anywhere else, though, right?
I have lived and I am from three different cultures. I have lived and experienced military dictatorships, utterly corrupt Latin American fake democracies and, yes, life in the US. I have traveled and done work in many countries around the world. I am not an expert, but, yeah, I am not an "ignorant American" as many like to paint anyone from the US.
You still don't understand the key difference and I am not sure I can explain it well enough for you to internalize it.
That piece of paper and the words on it mean a lot.
They drive a massive legal system that takes that piece of paper and the words on it very seriously.
And so, if a bad politician, from the President on down to a local city official, a law enforcement person or any inhabitant of the US for that matter, behaves in a way that violates those words, the legal system makes them pay the consequences of their actions.
This does not mean that we are 100% infalible in this regard. Nobody is. There will be bad politicians, cops and people from time to time who will get away with misbehaving. That's just reality.
However, in the US, for the most part, these laws are respected AND enforced. They mean something and, in particular, the Bill of Rights exists outside of government. They can't take away your freedom of speech or engage in unreasonable search and seizure, etc. without suffering devastating legal consequences.
The only way this would not be so is if society as we know it in the US derailed to the point of anarchy. That is very far from reality. Impossible? Nothing is. Highly improbable? Absolutely. This isn't Venezuela. Yet.
I think it's unfortunate to leap from the right to privacy to the right bear arms. These are both good topics for debate and I actually support gun rights but they are different, large questions and this leap is effectively a thread derail.
What is gun control but the government asserting a right to pierce your privacy to the putative end of arms control?
People don't look at it that way because people are used to looking at X and calling it X, Y and calling it Y, but not realizing both X and Y are subtypes of Z, so chipping away at X is chipping away at Z, even if you want to swear up and down the street it's only -X and not -Z. It is -Z and it is -X. Period.
It's why I've begun to fear the legislator that is seemingly able to break the law by making laws they are not empowered to make, and a politicalized judiciary that doesn't spend their time enforcing a strict obeyance of legislation to common language, and administrative lawmakers in the executive that are never double checked.
The world passed on to the generations after us will be a grim place indeed if we keep leaving them more and more shackled by the overwhelming detritus of the legislative hooliganry of our age.
You and I have a natural right to self-defense, I don't know that you or I have a natural right to firearms.
I'm a firearms owner and I love to hunt but I am not sure that people have a natural right to firearms, and from observation many people should not possess them due to personal negligence surrounding the awesome responsibilities attendant with firearms usage/mis-usage.
Although responsibility is important, firearms aren't an "awesome" responsibility. Millions of kids use firearms safely; some quite young. It's in the same ballpark as other ordinary responsibilities like driving, maintaining a swimming pool, using power tools, etc. As far as recreational activities, those involving guns aren't particularly dangerous (statistically).
There are something like 400M civilian-owned guns in the U.S. If it were an awesome responsibility, then we'd all be dead by now. But murder rates are low and either steady or declining.
It's easy to say that other people seem irresponsible, but we need to look at the data. Firearm accidents resulting in death are very rare.
According to Wikipedia some cryptography is on a "munitions list". I'm not very familiar with the law though, so I guess I don't know if that really means it's classified as a weapon.
> > All individual rights are carved out from the default government
> Not sure this is how you meant it. If you mean to say that rights come from governments that is not quite correct, at least not in the US.
> Rights, in the US, are not GRANTED by government, they are RECOGNIZED by the US Constitution to exist OUTSIDE OF GOVERNMENT (upper case is for emphasis only). In other words, these rights don't require government in order to exist. We are recognized to have them and government can't do a thing about it other than to respect and protect them.
> This is a massive difference with other systems that lots of people, both inside and outside the US are not aware of.
> Take the right to bare arms as an example. In most other nations, if it exists, this is a right granted by government to the people. In the US this is a right recognized by the constitution to exist despite and outside of government.
> Here's the key difference between "grant" and "recognize": The government can't take away that which it does not own, did not and cannot grant.
> An example of a right (well, a privilege) government can take away is your driver's license. They grant it and they can take it away.
> In the case of firearms, the US government does not have the ability to confiscate weapons because that is not a right the government granted and, therefore, they don't have unilateral power to cancel that right with a simple bill. In fact, it takes a tremendously complex agreement across all States and the federal government to make any changes to the US Constitution (2/3 majority in the Senate, House and all 50 State Legislatures). Even that does not guarantee government to have the right to eliminate rights.
This argument is a prime example against the point you are trying to make. With guns, the government is constantly eroding that right by narrowing the scope of what constitutes a legally permissible gun. Wicard vs Filburn is another example of government rewriting the limits of their power without the consent of the people. Why did prohibition require an amendment but drugs are scheduled today without the necessity for constitutional amendments?
All organizations seek to expand their influence and power over time.
"State and local governments had outlawed alcohol since the founding."
That's because the scope of state power is very wide in the Constitution. The federal government is much more constrained (or was intended to be), and outlawing alcohol with an act of Congress would be a violation of the 10th Amendment.
Interestingly, even the 1st Amendment did not originally prevent states from infringing on the freedom of speech. It begins "Congress shall make no law...". Later the 14th Amendment changed that through "incorporation", which is a process I don't fully understand.
> The federal government is much more constrained (or was intended to be), and outlawing alcohol with an act of Congress would be a violation of the 10th Amendment.
Commerce clause, among others. There are all kinds of federal regulations and bans that have been upheld as constitutional. Claiming that they aren't really is wishful, not legal, thinking.
> Interestingly, even the 1st Amendment did not originally prevent states from infringing on the freedom of speech
This isn't correct. It's the due process clause that is operative, and the supreme Court has ruled that states can't remove rights, including those technically protected only from the federal gov, without due process.
They said “originally”, i.e. before the 14th Amendment, which contains the due process clause.
Edit: There’s also a “due process” clause in the Fifth Amendment, but it’s not the one used for incorporation (although it’s been used for so-called “reverse incorporation”).
> All organizations seek to expand their influence and power over time
This is true.
IANAL, but my guess is that a lot of this mucking around with firearms regulations is because people have not said "enough!" and taken it all the way up to the US Supreme Court (except for a few cases I am aware of).
In other words, can California (or any State) really prohibit magazines with more than 10 rounds? Can they really prohibit any kind of carry (concealed or not)? Where exactly is it that they --the government-- acquired the right to do such things.
Again, let's get away from firearms and talk about free speech. This is a stupid example, but, let's say that CA passes a law that makes it illegal to say more than 5 expletives in one minute. Do they have the right and power to pass such a law? No, they don't. They don't have the power to restrict speech AT ALL, because this is a right that is recognized --NOT GRANTED-- in the US constitution. Government does not own it and cannot take it away.
Many would then say: Well, you can't yell "fire" in a theater.
Sure you can! Try it! Well, don't, you'll get in trouble for it. Freedom of speech does not mean you are free from the consequences of what you choose to say. That's another common misconception. You can say whatever you want. And you can enjoy the full consequences of what you said.
The same is true of firearms. You can shoot them anywhere you want. And you can enjoy the consequences of your actions just as well. Just like you can drive your car into a tree if you want to.
This is one of those topics that has been completely twisted and contorted by zealots. In the US it is very simple: Our rights do not come from government. Period. Which means they can't take them away. When they do overstep their bounds we have to go to the courts to put them back in their place. That happens from time to time when people have enough.
I'll give you an example of just how ridiculous things can get. Here in California you basically can't protect yourself in any way. You can't conceal-carry a firearm (like in a purse or holster). You can't have a knife larger than something like a Swiss army knife. You can't have nunchuks, a pipe, a wooden staff, a baseball bat, a chain, nothing. You cannot legally go for a walk with some kind of a self-defense weapon other than a really mean dog or perhaps some pepper spray (2.5 ounces or less). In other words, I can't have two pieces of wood tied together with a rope.
If you think about the concept of a truly free human being on this planet and then contemplate the idea of that person not being able to defend themselves against criminals, well, it's truly surreal.
Like I said, IANAL, and I am not pro or anti firearm at all. I am neutral in this regard. I am looking at the Bill of Rights as a whole, not at any particular right. They are all co-equal and even interconnected. I just think some of the things we are seeing at State levels only exist because enough people haven't had enough and there hasn't been a "mother of all challenges" at the Supreme Court level.
I mean, what's the use of having a Bill of Rights in the US Constitution if any schmuck at the State level can defecate all of these rights at will?
In the one case, if your speech causes harm to others (i.e.: you incite a crowd to attack me) the consequences of your actions lead to legal repercussions.
In the other case all you have to do is look at the supreme ruler the wrong way and you are dead.
This is precisely my case: Our laws come from us, not them, not government.
I fail to understand the distinction in a way that would be generally applicable though.
I lack the cultural context for US but in many other cultures, expressing a valid rational position can be actively harmful to one.
At what point something becomes harassment? Can you give me more details?
Suppose I am actively promoting eating beef in public space near a very religious vegan settlement. Is that speech protected or not?
It is targetting people based on their belief but the whole spectrum of who it is not clear at all unless one intends to assume malice and fill in the gaps. All I would be doing is to promote eating beef because it's good and healthy.
Does placing restrictions on where you can talk violates your free speech despite it being public property? Say, a restraining order or something similar.
> Suppose I am actively promoting eating beef in public space near a very religious vegan settlement. Is that speech protected or not?
In the US, yes, absolutely, it is.
As long as you don't become violent or enter their private property you can say anything you want. You can stand there every day of the week for an entire year with a sign that says something like "religious vegans are criminals" and you are absolutely protected by the US Constitution. The police might come and talk to you to make sure you are not a threat (do you a gun illegally?) but as long as all you are doing is exercising your recognize right to free speech you can do that all day long.
You are only going to be the subject of a restraining order if you are a threat. No judge would grant a restraining order against someone peacefully exercising their first amendment right. If they did, if for some reason the group you are protesting lied and they got a restraining order they would be exposed to pretty serious legal consequences.
I don't particularly enjoy these videos, yet they are an example of how serious these rights are in the US. Some on this thread dismiss them as "just words on a piece of paper". Well, in this case those words made five people with guns walk away from someone they were not legally allowed to harass:
Do this in most countries in the world and you'll find yourself in front of a judge with broken arms, a busted face and possibly almost dead...if you even get to the judge.
> In other words, can California (or any State) really prohibit magazines with more than 10 rounds? Can they really prohibit any kind of carry (concealed or not)? Where exactly is it that they --the government-- acquired the right to do such things.
The 2nd Amendment specifically refers to "the people", therefore the power to infringe on the right to keep and bear arms is "prohibited by it [the Constitution] to the States", and therefore the right to keep and bear arms is reserved to the people.
Even Antonin Scalia's opinion in Heller allowed that gun regulation was not entirely forbidden by the 2nd amendment. Exactly how much is allowed was left pretty unclear.
But insofar as some is allowed, the ability of the States to do it is specified in the 10th.
...and to the extent that a law does violate the 2nd Amendment, it is forbidden for the states to enforce such a law (and the 10th Amendment doesn't change that).
I don't see the relevance of the 10th Amendment to this particular discussion.
EDIT: I see. The person to whom you replied seemed to be looking for the power somewhere, and you are just saying that the states powers are not enumerated (as the federal powers are).
IANSL, but I don’t think so. That would mean states could regulate anything in the Bill of Rights, including freedom of speech. That makes no sense to me at all because it would effectively make the BofR optional.
The 10th Amendment says that the powers not forbidden to the states, or granted to the Feds, are left to the States, or the people.
Insofar as the 2nd amendment permits gun regulation (the exact contours have not yet been established by the courts), that power is still in the hands of the states.
Yeah, I don't know. This starts getting into the deep technical details of law, history, precedent, etc. I have a feeling that, once you reach these depths, only people with the requisite legal training and knowledge can voice opinion with any degree of authority.
I suspect these are matters still waiting for the "Mother of all Supreme Court Cases". I wish we would take a solid year of time and have the SCOTUS, once and for all, look at this intricate puzzle and lend clarity to a very messy set of situations. Any outcome would be better than the legal limbo in which exist on this matter.
I would much prefer a society without guns BTW. That said, I am not diluted enough to think this is even remotely in the real of the plausible. That's why I prefer to push back against wasting energy trying to go for bans, confiscations and buy-backs that will never happen.
We need to go after the criminal or disturbed minds that seek to cause harm, regardless of the means through which they might accomplish this --from box cutters, through pressure cookers and, yes, guns.
I firmly believe this is an attainable goal. Far more attainable than clashing with the second amendment. This goal isn't without issues. For example, there are privacy laws that, quite literally, prevent a doctor from reporting someone who they believe might cause harm to others.
Nothing is simple. Some things are simpler than others. That does not mean they are easy.
What is the takeaway here? The government has done a lot of terrible things against its own people, especially when it thinks it’s making decisions “for the greater good”
If anything that’s more of an argument for constitutional gun ownership than against it.
George Washington's example of the Whiskey Rebellion is a good example too: the government was founded on these wonderfully articulated principles, but it was first and foremost a government and the survival of that came before the principles.
> The typical cry is "We should do the same". Well, we can't. Government did not grant, nor does it own that right.
No, we can do that. The government can merely assume the power, as governments so often do.
Paper is not a defense. A "Bill of Rights" containing only a single right would be of zero value.
What is a defense is the bundling of recognized rights, as in the Bill of Rights. It's like an alliance: an assault on any one right is an assault on them all. If a large majority of people would rally behind a single right (maybe freedom of speech?), then the right is not seriously in danger (for now). The rights which are in danger need to be bundled so that the whims of a particular time and place do not permanently sacrifice a right.
When a particular right is borderline unpopular -- perhaps the right to keep and bear arms -- that provides a lever to pry away all of our rights, and we must prevent that. When you look at the wave of gun laws being proposed and passed, you'll see how obvious it is that they are an assault on the entire Bill of Rights (for instance "red flag" laws are a clear violation of due process).
The Gun Safety movement is a rerun of the Drug War. A bunch of reasonable-sounding people concerned about their community used as pawns to push a very different agenda. In the case of the Drug War, it was violating the 4th, 5th, 9th and 10th Amendments to oppress political enemies (hippies and blacks). In the case of the Gun Safety movement, it's violating the 1st, 2nd, and 5th Amendments to oppress political enemies (rural/Christian/whatever).
The reason we end up with ridiculous laws -- like harsher punishments for crack than powder; or laws restricting foldable stocks on rifles[1] -- is because those laws are not ridiculous when you understand the real agenda.
[1] If the goal is to reduce murders, then rifles are an absurd place to start. Knives are a much more common murder weapon. So are "Hands, fists, feet, etc.". Even in Texas, where there are few rifle laws. https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-...
No argument there. I never understood the obsession with AR-15's when their contribution to crime, over, say, the last 20 years, is basically a rounding error. The only answer is: politics taking advantage of emotion for political gains.
The best example of just how stupid the whole "assault ban gun" idea is found in Chicago, where the weekly carnage has not relented in years and the weapon of choice is nearly 100% handguns.
The problem politician have with these issues is that they can't actually get behind the reality of the problems because reality goes against their political power and invalidates all of their vote-gathering tools. If the fear-mongering about "assault rifles" was honestly matched to crime data in the public square they would, at a minimum, look like fools and if portrayed honestly, as liars and manipulators.
We humans are really funny species. Imagine what we could do if we could bring more reason, common sense and honesty into our affairs.
> No argument there. I never understood the obsession with AR-15's when their contribution to crime, over, say, the last 20 years, is basically a rounding error. The only answer is: politics taking advantage of emotion for political gains.
And that it has been the weapon of choice for school shooters.
> And that it has been the weapon of choice for school shooters.
You know, if it is that difficult to take the time to run a few google searches before saying something it might be best to not say it at all. You are demonstrably wrong.
I don't understand why people don't take the time to ensure they are working with facts rather than parroting things they heard, or worse, believing things they imagine.
Rather than just repeat a political line, can you please go deeper? Areas where you cpuld potentially add to the discussion:
* What are the numbers behind the statement?
* What policy proposals do you favor and how do you expect them to influence these numbers over what timeframe? What do you expect the side effects to be?
* Help put policies and numbers in context. Which policies are useful and which are not?
Given that rifles are involved in such a small number of murders, why go to all the effort of including rifles in the ban? Seems like a big logistical challenge and you'd make a lot of your fellow citizens unhappy.
If your proposal is to ban all semi-auto pistols (including from police) but allow all semi-auto rifles (without allowing state/local restrictions), you might get some traction. Such a plan would be better supported by numbers, better supported by the Constitution (which is talking about militia weapons), and more politically palatable (nobody will say "over my dead body" because they have to change their little gun for a big gun).
I'm not naive enough to think any ban would be easy, but the logistics aren't insurmountable. There has been a ban on assault weapons before. Eventually, there must be legislation to reduce access to military-style assault rifles such as those used in mass shootings.
Why must there be? We are talking about small numbers of deaths and a large number of people who want (and/or currently own) rifles.
Sometimes you just need to be practical and look at the numbers. Just because you don't want a rifle doesn't mean a ban has zero cost or that the cost is somehow not a valid one. Many of our fellow citizens want the freedom to own rifles and you should have some respect for that.
The better case for gun control in every possible way is pistols. But nobody will ever budge on pistols if they sense that it's just a "first step" to confiscating rifles as well. The only way to get any kind of gun control is to earn trust by showing respect for ordinary citizens owning rifles, and from that point of respect you can make reasonable suggestions on pistols.
I am not advocating a blanket ban on all guns. Rifles, sure. For hunting, sport, farming etc. But semi-automatic AR-15s have no place in a civil society. Preventing access to them seems like a sensible compromise, and it has been demonstrated to be effective in other countries. My friend's son had active-shooter training at school. He is six. That is an unacceptable situation.
My guess is this would not pass the constitutional test.
Without being an attorney, I would think the question would be one of an interpretation of the second amendment in the context of the argument. That's where I am having trouble. What is the argument being made in the context of restricting a right?
I know the intent or idea: If you can't fire at a rapid rate you can't hurt as many people per unit time. I get it. And this might be a solid argument. Yet I can see it having lots of holes when applied.
An obvious one has to do with whether or not we can restrict criminals. The answer is obviously "no". This is where a lot of these things fall apart.
If you can guarantee a society without weapons then everyone is comfortable not having any. Introduce asymmetry and the arms race begins.
The other argument is one about unfairly punishing law-abiding citizens.
I have presented this hypothetical in many conversations and nobody ever answers the question. It goes something like this:
Suppose I have you a couple of handguns and assault rifles, all the ammunition you want and trained you in their use at a high level of proficiency.
How long would it be until you take those weapons and shoot a bunch of innocent people?
How long would it be if I threaten to harm your loved ones unless you do it?
How long if I abduct a member of your family and threaten to harm them unless you do it?
If the answers to these questions are "never", how is restricting access to any hardware make us safer?
It does not.
This is a software problem. Brains. Not hardware. If it were a matter of hardware you'd eventually become a mass murderer simply because I gave you firearms and trained you. Not the case. Which means focusing on the hardware is the wrong path.
This is also the wrong path for a very different reason. Again, suppose I gave you all those guns, ammo and training. And 30 years later you haven't harmed anyone and never intend to. And then someone knocks on your door and says: You are a potential criminal because you own guns and therefore I am going to take some of your rights away. Anyone faced with such an accusation would think it is crazy, unfair, unjustified and plain wrong.
Focusing on the hardware is seen by gun owners as that very scenario. They are being told they are criminals. They know they are not and never will be. This strikes a deep nerve that has nothing to do with firearms. It's like telling someone they are criminals just because they own a ski mask. Honest people don't like to be characterized that way. And, as a result, they will defend their right to not be deemed guilty for doing nothing.
That's how the conversation stops and we never fix a thing.
If everyone got on the same boat and we talked about dealing with the real root causes of violence and crime everyone would join in. Call half the country "criminals" and you get nowhere.
> If you can guarantee a society without weapons then everyone is comfortable not having any. Introduce asymmetry and the arms race begins.
I haven't seen any evidence of an arms race in Australia or NZ, for example.
> This is a software problem. Brains. Not hardware.
So it's the "guns don't kill people, people kill people" argument performed in staccato with additional tedious rhetoric. Could it be that no one has satisfactorily answered your hypothetical questions because despite you obviously thinking that you've cornered someone with your brilliant socratic method, that you've actually just thrown up a few straw men that are not worth delving into?
> I haven't seen any evidence of an arms race in Australia or NZ, for example.
Their laws prevent it. That's the problem with these comparisons. You have to compare apples to apples. I'm sure they have pretty good gun control in North Korea. There's an app for that.
> Could it be that no one has satisfactorily answered your hypothetical questions because despite you obviously thinking that you've cornered someone with your brilliant socratic method, that you've actually just thrown up a few straw men that are not worth delving into?
No. People don't answer the question because the only honest answer exposes the fallacy in their thinking.
It's very simple, if guns cause violence then giving anyone a gun should turn them into criminals. However, the only way that can happen if for the person to make that decision. The weapon is not the root cause at all.
What is also interesting is that every anti-gun proponent I have presented with this scenario immediately resorts to personal attacks, insults, mischaracterization and more, anything except any approximation of an honest answer.
If you can't turn someone into a killer by handing them a gun, then, what makes a killer? Well, to begin with, not the gun. Maybe magical pixie dust?
I have over thirty years of work in all kinds of technology fields, from the motion picture industry to aerospace, small projects to billion dollar programs. I have yet to see anyone --ANYONE-- solve any problem by IGNORING root causes and focusing on the demonstrably irrelevant. That's the problem with this issue. It has become so polarized and political that nobody, on either side of the argument, wants to address root causes. Because, to borrow the term, these are inconvenient truths.
This is equivalent to: "I have a flat tire. OK, let's change the engine!"
Here's a tip: Insulting me or my argument does not fix the problem, does not save lives and does nothing towards fixing the real problem. If you are a US citizen and are truly interested in saving lives, stop pushing fantasies and get behind going after true root cause analysis. That's the ONLY way we make things better.
I guess I have to ask: What do your root cause analysis of the problem?
They don't look like your grand father's deer rifle or duck hunting shot gun and instead look like a military weapon, e.g., the Russian AK-47.
With the usual technical and US legal description, the AR-15 is just a "semi-automatic rifle". But due to looks, they get called "assault weapons" like the fully automatic AK-47.
Sooo, some people get headlines talking about "assault rifles".
> The rights which are in danger need to be bundled so that the whims of a particular time and place do not permanently sacrifice a right.
If the people who wrote the constitution had such a good grasp of what the correct fundamental rights were, why did they allow slavery to happen? Why did they only allow land-owning white males to vote? If they were not morally infallible, and we accept that their opinions on those issues were justifiably superceded by future generations, then why are we not allowed to critically examine the rights enumerated in the constitution and question which of them are no longer tenable today, instead of a priori dismissing any possible challenge to the constitution as a stupid "whim of a particular time and place".
My argument was that, if you want to keep a right protected from government, bundling it into a list (like the Bill of Rights) is a good approach.
I never said that the Bill of Rights covers all possible rights or that the founders were infallible.
Your question about slavery is misguided. The founders were forming a union out of pre-existing states. It was not the founders' intent to interfere with states much at all. Only certain parts of the Constitution prohibit powers to the states, and before the 14th Amendment, the states were not as tightly bound even by the Bill of Rights (e.g. the 1st Amendment starts "Congress shall pass no law...").
The idea that you can form a union of 13 colonies and also make demands of them at the same time goes against the whole idea of the Constitution. The Constitution is a framework, and it only protects rights that were already widely regarded as rights before the union (for instance, the right to bear arms wasn't just made up for the Constitution, similar things existed in many state constitutions already).
The Constituion is amazing not because it was perfect from day one. It is amazing because it expressly limited the power of the government that it was creating (the federal government), and because it turned out to be a surprisingly resilient framework. The Bill of Rights is amazing because it got a surprising number of things right.
Going back to the original article, the 1st and 4th Amendments are still radical after 200+ years.
We can re-examine the 1st, 2nd, 4th, or whatever Amendment you want. But they seem like a good list to me, and once one is lost it is unlikely to be regained peacefully (because losing a right grants power to the government, amd governments don't like to give up power). Majority opinions do fluctuate a lot and if a simple majority could give up the rights of everyone, the entire Bill of Rights would be long gone.
Murder rates have declined dramatically since the founding and still seem to be declining or steady. So I don't want to give up the 2nd Amendment just because we have more media noise about guns, nor the 1st/4th Amendment because police have a harder time decrypting messages now. I find it weird to call rights "untenable" when everything is getting better, not worse. Like, what exactly is the big problem with freedom that it was somehow "tenable" before but now it's not?
And yet all it takes is a terrorist attack to change all that.
I think OP didn’t mean to discuss the philosophical difference between grant and recognize though. Just that for each individual right, recognized or granted, we take a step away from totalitarianism on the spectrum of political freedom.
I think he did mean that they are of-and-from as in taken away/given away freely while they previously were an integral part of previous mostly tyrannical power hierarchies.
The psychoanalytical “father” is both good, and tyrannical, and i think part if its wisdom in that it manifests today as government and written ideal (where the ideal has power to reign in the government) is testament to our wisdom as a society.
> Rights, in the US, are not GRANTED by government, they are RECOGNIZED by the US Constitution to exist OUTSIDE OF GOVERNMENT (upper case is for emphasis only). In other words, these rights don't require government in order to exist.
This is semantically vacuous verbiage. Rights have no meaning unless you have a system of human organization (e.g. a government) that allows those rights to be enforced and respected. In the absence of such an arrangement the phrase "I have the right to do X" has as much meaning and validity as Chomsky's "colorless green ideas sleep furiously". It's not a wrong statement, it's just a completely semantically empty one.
>> Rights, in the US, are not GRANTED by government, they are RECOGNIZED by the US Constitution to exist OUTSIDE OF GOVERNMENT
> This is semantically vacuous verbiage. Rights have no meaning unless you have a system of human organization (e.g. a government) that allows those rights to be enforced and respected.
The OP is clearly being sloppy with their word usage (and their all-caps usage), but I think what they may be trying to say is that the constitution generally prohibits the government from doing something, rather than granting an individual the right to do it.
For example, the first amendment doesn't say you have an affirmative right to free speech, just that "Congress shall make no law .. abridging the freedom of speech". Most constitutional "rights" are actually rules prohibiting the government from doing something (e.g., prohibiting unreasonable searches and seizures).
On a practical level, the distinction may seem semantic, but there are important moral implications: all people inherently born free, and government/society restricts that freedom. Some of those restrictions are more acceptable than others, and that's what the constitution tries to delineate. If it was the reverse (i.e., the government granted you rights), then it would imply you were not free to do them in the first place.
Although the two approaches are similar on a practical level, the former approach emphasizes freedom to a greater degree.
> All people are born vulnerable to being beaten up and coerced by the guy with the biggest club. There is no "inherent" freedom in nature.
Sure there is! You are not prevented from grabbing a stick and defending yourself by some artifice. You might lose. Or win. And you are free to make that choice.
In CA if someone comes at me with a baseball bat and I have two sticks tied together with a short piece of rope to defend myself I can end-up in jail. I once asked a police officer friend (LAPD Commander, actually) what I could legally carry in Los Angeles to defend myself and not get into trouble. He said "your best pair of running shoes".
The whole thing is preposterous. What ends-up happening is that lots of people secretly conceal-carry because they don't want to be victims. They do the math and conclude they rather go to jail than be dead. Truly sad.
> > All people are born vulnerable to being beaten up and coerced by the guy with the biggest club. There is no "inherent" freedom in nature.
> Sure there is! You are not prevented from grabbing a stick and defending yourself by some artifice. You might lose. Or win. And you are free to make that choice.
> In CA if someone comes at me with a baseball bat and I have two sticks tied together with a short piece of rope to defend myself I can end-up in jail. I once asked a police officer friend (LAPD Commander, actually) what I could legally carry in Los Angeles to defend myself and not get into trouble. He said "your best pair of running shoes".
This is actually very sound advice and what you get told in every reasonable self-defense class. Carrying a weapon around is really more about satisfying some sense of self importance/illusion ("I could heroically defend myself, if I get attacked") than actual self defense. I remember doing that when I was 16 and feeling very tough, I've grown out of it.
> The whole thing is preposterous. What ends-up happening is that lots of people secretly conceal-carry because they don't want to be victims. They do the math and conclude they rather go to jail than be dead. Truly sad.
Your perspective on this is truly twisted. Talk to crime victims and see how many speak about a sense of self importance or some illusion of heroism.
I was attacked by a thief with a knife when I was in my 20’s. This shit is real. Don’t generalize it to ascribe some kind of a Hollywood fantasy/caricature and intent.
If you are robbed by someone with a weapon, escalating the confrontation by pulling a gun out dramatically increases your chance of getting hurt. It doesn’t make you safer.
Stop using movie scenes as the basis for your ideas of how the universe works. Do you really see two people, face-to-face, pulling out guns to see who gets shot first? C'mon! This is laughable.
By your logic, you are also “free” in an oppressive state like North Korea since you have the option of defying and rebelling against the government. You might win or lose, but you are “free to make that choice”.
> All people are born vulnerable to being beaten up and coerced by the guy with the biggest club. There is no "inherent" freedom in nature.
Well humans don't live in traditional Darwinian nature, our brains have evolved beyond that. A key distinction between humans and animals is our ability to think and imagine. Freedom, at it's root, is based on the idea that people have an inherent right to "think" and believe.
If "thought" is an intrinsic right, then it follows that freedom to think should be protected. It further follows that to protect thought, we need to protect speech, religion, certain aspects of privacy (i.e., you can't freely think if you're constantly being watched). A whole moral code can be built from the basic concept of the right to think.
> Not sure this is how you meant it. If you mean to say that rights come from governments that is not quite correct, at least not in the US.
I think the point he was making is that the default government is an ethical state of absolute tyranny: all of your natural rights are subservient to the state. In this sense, the rights are carved out of the government, even if they are natural rights.
> Take the right to bear arms as an example. In most other nations, if it exists, this is a right granted by government to the people. In the US this is a right recognized by the constitution to exist despite and outside of government.
In the US, the “right to bear arms” is a right to own a weapon as part of a “well-regulated militia”, with the idea that the nation was not originally intended to have a standing army, because it was believed that standing armies were a threat to the security of a “free State”.
It goes directly along with the third amendment against the quartering of soldiers in private houses.
A maximalist personal right to carry weapons everywhere all the time was invented post facto by gun manufacturers and pro-gun activists in the recent past. Notice that the same pro-gun activists are uninterested in the “well regulated” part, and are generally military enthusiasts uncritical of the most expensive and lethal standing army in the history of the world.
Well, you are wrong. That is, unless you are a constitutional scholar with powers the supersede those of the US Supreme Court.
In "Heller" (2008), as the case is generally known, the US Supreme Court explored the history of the Second Amendment and established that it creates an INDIVIDUAL right not linked to a militia or army. This was confirmed once again by the US Supreme Court in another case in 2010.
There's a popular meme that involves cutting-up pieces of the Second Amendment to pull out, as you did, "right to bear arms" and "well-regulated militia" and then, Bob's your uncle, you can't have a gun. Everyone is a constitutional scholar. Well, that's not how it works.
While IANAL, I understand that these things are the result of a process of legal challenges and a lot of historical context. This question of the individual right is now very well established with, as far as I can tell, just a few corner cases. Thankfully laws are not interpreted by random people behind keyboards at random locations on the internet. They are the result of years of legal process, challenges and interpretation. The law, as it stands today, says you are wrong.
In other words, it is pretty much nonsensical to keep trying to contort the language and claim something exactly opposite what the US Supreme Court concluded in more than one recent review of the matter.
Here's a good article on the matter from Cornell Law School:
I have a lot of friends who are very passionate and well informed about this stuff. I've learned quite a bit over the years through conversations with them. For the most part what I have learned is that most people don't know what they are talking about when it comes to the US Constitution, the legal system, how government works and even what their rights actually mean.
It's a failure of, at a minimum, our educational system and, at the modern extremes, our inability to prevent the dissemination of false information. That's how you get ideas such as the "assault weapons ban" when any objective observer can easily --within 15 minutes or less-- of looking at the data, conclude that's as dumb as clipping your toe nails to cure cancer.
Solutions are only found if we explore reality, not fantasy.
In other words, nation-wide gun bans and confiscations are not the realm of reality. Therefore, it is pointless to go on and on about this nonsense. If we want to truly have an effect on gun violence we need to stop focusing on fantasy and face reality, which includes bad guys with guns and mentally disturbed guys with guns. The vast majority, the overwhelming majority of firearm owners would never hurt anyone. They are not the problem.
Heller was a 5:4 decision made against text, history, and precedent by radical judicial activists. The decision doesn’t stand up to historical or logical scrutiny, and it was accompanied by a very forceful dissent. Justice Scalia’s claim to being guided by “originalism” and “textualism” was shown to be a hypocritical farce by this and similar rulings.
Ah, OK, so any 5-4 SCOTUS decision is not valid then? How do we decide laws then? Can I ignore the ones I don’t like? And how about McDonald in 2010.
See, that’s the problem with gun haters, their solution is to mess with the rights of everyone. Let’s go! Let’s take that approach to everything. No more cars, knives, hammers, medicine, planes, trains, rocks, pressure cookers, chains, pieces of wood, ropes, etc. Let’s ban everything that could ever be used to harm anyone. For that matter, let’s castrate all men to prevent rape too.
At some point reason needs to prevail. The problem has nothing to do with the hardware and everything to do with the brain. This is so irrefutable it’s silly.
You're conflating SCOTUS role as an arbiter of law vs. whether or not their decision is factually correct. A 5-4 decision is binding, but no decision is automatically factually correct just because SCOTUS made it, whether it is unanimous or 5-4.
> You're conflating SCOTUS role as an arbiter of law
Well, that's what they do!
How else do we decide then? Do I get to drive 150 miles per hour because I don't think the speed limit laws are factually correct? After all, I am quite capable, I have spent thousands of dollars learning and practicing race car driving and if I am on an absolutely empty road...
You can't pick and choose what laws you should obey. We are talking about rights here. The Bill of Rights for that matter. This isn't about where you should cross the street.
This is silly.
Look, the laws are what they are.
If you don't like them, go put your case in front of the SCOTUS and argue your point.
The comment above was not talking about what the laws are, but about fact. That the laws are what they are does not change facts. If SCOTUS rules tomorrow that the sun orbits the earth, that does not make it fact.
You're doing the exact same thing again of conflating an argument about fact with an argument about law.
Yeah, but if you read closely their speeches, they're trying to paint this as if we shouldn't benefit from "warrantproof encryption" or be able to "resist a warrant".
Leaving the technical details aside such as the fact that it's not possible to have a "secure backdoor" that won't ultimately be used by the (other) "bad guys", this is important because they make it seem as if this is the only way they'd ever use this power -- with a warrant.
And THAT is beyond FALSE and a BIG FAT LIE, and they know it. Watch Bush's speech about the Patriot Act when he signed it. He said the bill will be used to "read the terrorists' emails" and other digital communications. Now we know that in 97-99% of the cases, the Patriot Act is used for crimes other than terrorism, usually drug related. But the FBI also absolutely loves to abuse the National Security Letters for at least half of their data requests to big data companies. And the best part is those come with gag orders so the public will almost never find out about those requests.
Worse yet, since these were past, these powers were further expanded, usually days before Christmas, so now the FBI gets access to RAW internet data just like only the NSA did previously. So does DEA, and about 15 other agencies. No warrant needed, for just about any crime they'd like to investigate.
And you can bet this is their plan with the encryption backdoors, too. I guarantee it. They'll continue to talk in public about warrants and how they will only use it with a warrant, and then somehow the bill will be written to include all sorts of ways for them to access the encrypted data WITHOUT a warrant.
Even when the criticism against a surveillance bill is very strong, they still somehow end-up "compromising" by only getting warrantless access in "emergency situations" (where emergency isn't defined too specifically) or for "serious crimes" (often not well defined in the bill either). Or they manage to sneak a serious crimes "and other type of crimes" in there, too, as they've done in some bills in the past.
So let's not be naive with the whole "warrantproof" talking point. They're trying to distract and mislead us. Ultimately, even if the bill is very specific about a warrant, they just know they can expand it later after one or two renewals, as they've done with FISA 702 to now give other federal agencies much of the same data access NSA gets, even though that wasn't supposed to be the original plan at all.
In fairness, I think we want a panopticon. We just want to intentionally blind it when it comes to us; however, if there is evidence of a crime, I'm okay with accessing normally forbidden parts of the panopticon to find the wrong-doer. But yeah, they reach for too much power almost reflexively. IMHO every time law enforcement asks for more power, the people should be reflexively skeptical, even derisive. Tell me, are local police so bad at their job that they need these superpowers? This level of surveillance is akin to a WMD. They just don't need it and shouldn't get it, and should get punished (e.g. fired) for asking for it.
You've misunderstood those sentences. The OP is saying that out of all the governments in the world, North Korea is the one that grants its citizens the least rights.
There's a balance that must be struck between the efficiency of law enforcement and the freedom of citizens. Personally, I lean heavily towards the latter, and I think this is the reason:
My life and the lives of those I know are affected by criminals or terrorists with absurdly low frequency. I'm sure this is true of many Americans; perhaps more true now than ever in history.
So why is it that there is so much support for tough-on-crime policies that decrease popular freedom in obvious ways? Why does it seem like the less people are affected by crime, the more they abhor it and feel the need to root it out to the last, no matter the cost? There are diminishing returns here. The price we pay to track down the last criminal on Earth will be _everything_.
Because it has nothing to do with reducing crime or improving the quality of life for the population. They want access to encrypted communications because it gives them power. Child exploitation, terrorists and drug cartels are merely the political tools they're using to justify their overreach. Their real targets are whistle blowers, dissidents, journalists, people who can do real damage to the foundations of their power.
Perhaps a facet of infrequent exposure is that it makes the same event more impactful and therefore more effectively sensationalized?
I don't particularly fear a car accident, even though it's far and away the most likely thing to cause me physical injury. Several of my family and friends have been in car accidents, most are just fine. My chance of being awakened and assaulted by a burglar are unfathomably more remote, I've only ever come across it in movies.
As a result, I have a strong emotional reaction to the 0.001% chance of a breaking and entering and a weaker reaction to the 10% chance of a car accident. But I don't naturally want to spend a proportional amount on a safer car, I'm more inclined buy motion-activated floodlights.
If we lived in a lawless Wild West, I think we'd be more inured to the possibility of crime. Now that it's mostly a foreign experience it's easier to respond with fear instead of reason.
I think a large segment of mass media fuels the problem. Tabloid-style news is written to shock and anger readers, because that, unfortunately, is what sells.
Politicians realised the "benefits" of this long ago, stoking the fires of rage, whipping people up into a frenzy, all to "keep them safe".
And so a large slice of the population really believes there are terrorists and criminals lurking around every corner - that things have never been more dangerous; and so they allow politicians to strip their freedoms and gain sweeping powers, because its all to "keep them safe".
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." -Ben Franklin
No one likes to say this but your average citizen is either not smart enough or doesn't care enough to understand statistics... so sensationalism wins.
>Ben Franklin would have done well on Twitter, but this is in essence a snappy Revolution War slogan, nothing more.
It actually isn't, it's a snippet of a greater dialogue with often taken out of context in order to to infer precisely the opposite meaning of what was intended[0,1].
Ben Franklin understood the nuance and complexity of the real world better than many of the libertarians and ancaps who quote him..
Those articles do a poor job of discrediting the ideas of the actual quote.
They say that the origin is not what people think?
Many of the founding fathers had slaves. Doesn't make the constitution any less valid. Mel Gibson is a terrible person but Braveheart is an amazing movie.
The origin of something does not discredit its ideas.
Thanks for the correction! But he also wasn't above just making stuff up to increase business. Maybe the funniest one was predicting and then faking a competing printer's death, and then claiming that someone was pretending to be him. Apparently this increased circulation for both publishers.
What does "deserve" mean in this slogan? Are people who made a strategic mistake undeserving of fair treatment? This sounds a lot like the con artist's rationale that his victims had it coming because they were stupid.
Also, which liberties are considered essential? What kind of safety are we talking about? If a mugger threatens you maybe you should cooperate? Should people on the losing side of a war always fight to the end? If you think the police are corrupt and you won't get a fair trial, should you allow yourself to be arrested?
I don't believe there is a simple slogan that tells you what to do in all situations.
The nuance is that Ben Franklin was warning against the temporary safety of personal liberty versus the freedom provided by a more robust Federal security apparatus (specifically against native Americans.) He wasn't warning that trust in government is an act of cowardice or fool's errand, rather that government is often necessary as a force multiplier to safeguard individual liberties against an opposing force multiplier.
The fact that you used Native Americans in your example is not the best support for your argument that it's not a fools errand to trust the government.
The difference between who you're being made 'safe' from and who is being repressed is merely a labeling issue, and its the same forces that do the repression that keep the safety.
You could be the one being protected one one day, then the next day, you're the 'Native American' and the one others need safety from, because a label changed.
Freedom fighter or a terrorist?
Speaking up for what you believe or spouting anti-government propaganda?
That concept is what the quote is conveying.
It's a very powerful and important quote that applies to numerous situations.
That's why it's a fricking timeless quote. Insane this isn't agreed upon by everyone.
> So why is it that there is so much support for tough-on-crime policies that decrease popular freedom in obvious ways?
A standard answer:
“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins, most of them imaginary.”
There will never be a time where it won't make sense. Governments can and do become tyrannical and the population should always have the right and the means to wage war against it instead of suffering helplessly under its boot.
What causes you to say that guns make less sense today than they did when the second amendment was written? Their effectiveness in guerrilla warfare continues to be proven, and their negative impact as an instrument of homicide has trended steeply downward over the years.
>>>My life and the lives of those I know are affected by criminals or terrorists with absurdly low frequency. I'm sure this is true of many Americans; perhaps more true now than ever in history.
Personally I agree with you. Crime is a risk we need to take, just like driving a car or crossing the road. My guess is that even in North Korea despite their Stasi on steroids system. So...
But Barr would say that is about to change, meaning you'll be affected more by crime, unless cops can access encrypted communications.
"Why does it seem like the less people are affected by crime, the more they abhor it and feel the need to root it out to the last, no matter the cost?"
Frequent problems are invisible. Rare problems are news.
>My life and the lives of those I know are affected by criminals or terrorists with absurdly low frequency.
This statement is shocking to me. I guess that you intend to say people are rarely the direct individual victim of petty street crime e.g. robbing, assault, etc?
At this moment there is a thread on the front page pertaining to the widespread problem of fraudulent listings on Amazon. This kind of fraud is affecting people near-universally. It affects my decision making process every time I shop.
Corporate criminals who cheat pollutant emissions regulations affect my life with literally every breath I take.
Why? Because evolution has made us fear for our children. Rational self-interest is not evolutionary useful after reproducing. Expendind all your resourses ensuring your offspring grow and spread is.
Irrational overprotection such as feel good tough on crime is popular. Were as, more abstract measures which would actual ell but aren't directly relatable to threatening your child are not.
"I understand they need to spy on people but not too much"
They don't NEED to spy on people and we have yet to see numbers and actual proof they use the data they collect to actually find terrorists / pedophile / whatever the new trend will be to remove freedom and privacy from the population.
I'd argue that there are levels of security and encryption, mostly around what data is secret.
If I make an encrypted phone call to you, there are a few "levels" of information. There's the exact information exchanged on the call, the amount of information exchanged but not it's value, the identities of those in the call, the date and time and duration of the call, perhaps the hardware used to make the call, etc...
Encryption isn't an all or nothing thing, it often involves tradeoffs and giving up some security for convenience or the other way around. And in some areas there are laws about what must be kept secret and what must be visible to the government (like in anti-money laundering laws).
Isn't encryption really 'most likely safe' and 'unsafe'. It has been a while since I've spent much time reading into the details, but the encryption we depend upon generally isn't proven safe, just failed to have been proven unsafe by many experts after many years.
I hope I'm not misinterpreted as claiming that a balance must be struck between strong encryption and backdoored encryption. I was talking about a higher level balance, of which encryption is only one issue. We agree that the strength of encryption itself leans heavily towards the extremes; a "balance" on that particular issue is usually just misleading rhetoric.
Oftentimes systemic crime manifests more as an erosion of trust in institutions and the healthy functioning of a society than as something which impacts individuals in a direct way on a regular basis.
For instance, consider Mexican organized crime (cartels). Cartels wield a huge amount of illicit influence and generally make everyone's lives much worse, but most people aren't being kidnapped or confronted by cartels on a daily basis. Their lives are certainly affected by them, but in mostly indirect ways.
Cancerous organized crime and its enablement by coerced and voluntary corruption within Government and business represents an existential threat to developed societies. Many of us take for granted our nation's peace and prosperity, in spite of the creeping threat of organized crime and corruption being ever present.
Law enforcement not being able to access encrypted data severely limits our ability to prosecute and convict criminals who use these secure communications to conduct their business, and brings the creeping threat of social decay ever closer.
> Law enforcement not being able to access encrypted data severely limits our ability to prosecute and convict criminals who use these secure communications to conduct their business, and brings the creeping threat of social decay ever closer.
The impact of organized crime pales in comparison to that of authoritarian regimes. The "creeping threat of social decay" argument gives me chills; it's exactly the slogan I imagine at the head of the movement that finally ends democracy.
And yet, just last year over 100 Mexican politicians were murdered by cartels. The Mexican army itself has lost battles to the cartels as their influence steadily grows. Many municipalities in Mexico defer to the cartels in which true power and influence resides.
So while you speculate on some made up authoritarian movement subverting democracy in America, I look on in horror as democracy in Mexico is being subverted in real time by organized crime and the creeping social decay and corruption that comes with it. 100 politicians assassinated in a single year!
This is happening right across our border and if not for our robust law enforcement both at the border and throughout the country, it would be much worse here too. That is what I fear, and it is why I don't want criminals to be able to hide behind encryption.
Everything good in our society comes from law and order. Without it, there is only chaos and destruction.
Mexico has had, for many years, stricter laws regarding gun ownership than America. They also rank extremely poorly in press freedom. I think part of what you're arguing is that freedom to do dangerous stuff (publish newspapers, own weapons, encrypt communications, etc...) causes "chaos and destruction." What convinced you of that causal relationship? I don't see it in your Mexico example.
Basically, I'm not sure you've correctly mapped your desired outcomes onto the policies you advocate. The things you're arguing for don't appear to help with the problem that scares you.
I'm not sure where you gathered that I am against Freedom of the Press and the Right to Keep and Bear Arms? I am a staunch supporter of them.
What I oppose is encryption that renders potentially criminal communication inaccessible to law enforcement. Law enforcement should have the means and the perogative to gain access to these communications.
If law enforcement should have a monopoly on encrypted communication, why not a monopoly on guns? Cartels with guns are far scarier than cartels with encryption. If we actually had the power to take either away, we would choose guns, right?
So what makes you a staunch supporter of the second amendment? Why does it not apply to encryption? And don’t give a legal answer like “one is protected by the bill of rights and the other isn’t.” I want to hear an ethical reason. The second amendment is about keeping the power to dissent in the hands of the people. Encryption is perfect for that, and as an added bonus it is extremely useful in day to day life. So why are you so content to throw it away, staunch defender of freedom that you claim to be?
I do not law enforcement should have a monopoly, I believe it should have access to communications in the same way it has access to someone's home or personal property: with a search warrant.
Thus one has privacy, except in specific circumstances.
In the same way, I believe people cannot own specific classes of weaponry, as is the legal case today. Is this a violation of the 2nd amendment? No rights are absolute. So yes it violates some absolutist conception of the Right, but this is necessary and unavoidable.
Everything must be balanced. Privacy, the right to bear Arms, free speech, all these are shaped by other interests.
Access to communications with a warrant is fine; they already have that right. That doesn't solve the encryption problem. How do you propose solving it? This problem has only one real solution.
All communications must be unencrypted or encrypted using an approved encryption scheme and using keys that the government has access to. The first problem is that it's impossible to tell unencrypted data in a format that you don't recognize from illegal encrypted data. So perhaps you have to add laws restricting the types of unencrypted data that can be sent: JPEGs, MPEGs, UTF-8 text, and million more. Of course, the bad guys are still just encoding their messages in images at this point, but this is more about security theater than security, so we'll continue. As for the encrypted communications, you have to do more than just check that you can decrypt them. In order to confirm that people aren't just wrapping strong encryption inside the backdoored encryption, you have to actually decrypt everything that is sent and confirm that it meets the plain-text standards. This would require an absurd amount of resources. At some point, you have to just give up and accept that there is only one solution: General purpose computers must be outlawed. Every device capable of computing must be manufactured under government supervision, and run government approved software. Writing software must become as heavily regulated as manufacturing weapons. You _still_ don't catch any bad guys this way; they're content to encode their communications in creative ways. But you could maybe prevent law abiding citizens from using non-approved encryption techniques like this.
What you say about rights is true, but keep in mind that there are many situations where no balance can be struck. Guns are relatively difficult to manufacture. You can't do it with the stuff you have lying around your house, even today. Encryption is a radically different problem. Practically everybody in the country has devices capable of it. Those devices need to do math in order to function, and they need to be programmable in order for many people to do their jobs, and for many others to build open source projects, or do research. From an ethical standpoint I think the guns <-> encryption relationship makes some sense, but from a practical standpoint they couldn't be more different.
What policy did you have in mind? I want to hear specifics.
>brings the creeping threat of social decay ever closer
Doesn't most available data indicate it is moving in the opposite direction and that people's perception are biased by the 24 hour news cycle which leads people to think crime has gotten worse?
This is a terrible article. There are ZERO mentions of the risks and tradeoffs inherent to mandating or requiring backdoor access. Here is a good summary of such risks: https://dspace.mit.edu/handle/1721.1/97690
The differences in opinion on this topic are almost entirely defined by whether or not the person has the most basic understanding of what cryptography actually is.
Comment #1:
> This argument is pointless. No government has jurisdiction over the laws of mathematics. No government can prevent encryption. No government can keep people from layering their own encryption over whatever flawed system the government mandates.
Comment #2:
> Encryption is an issue that Congress needs to resolve. However, there has not been any leadership on this issue for several decades. Apparently, there is no lobby and fundraising money to be made by either party and it does not win any votes, so Congress is not interested. Until the leadership vacuum in Congress is resolved this problem and many others will not go away.
It's obvious where Barr falls:
> Mr. Barr was surprised and puzzled, according to people familiar with the meeting. The government was struggling with similar problems when he first served as attorney general nearly 30 years ago, he told advisers. Why had they not been solved?
Maybe we should be teaching this stuff in high school. The pseudocode for RSA is like twelve lines. Outlawing it is not practical.
I sympathize with your position but I think we need to imagine the counter argument the state would make. That argument would be "you don't understand the determination of the state. If you are correct and the threat exists in basic arithmatic and if we determine the threat is too great, we outlaw basic arithmatic. That is the level the state will go to." See O'Brien's speech in concerning "if we determine that 1+1 equals 3, we will make 1+1 equal 3", etc.
IE, yes, it's impossible but that still doesn't mean they keep trying harder and harder and more and more destructively.
You're right of course, but theory and practice look very different.
The "I don't care how cryptography works, why can't we just have a backdoor?" crowd is imagining that a magical piece of "common sense" legislation is capable of solving this problem. Yes, they can pass something, but it isn't going to work.
Because two days after it passes, they'll have courts full of obstinate people who refuse to provide keys for their homebrew encrypted messaging systems. Sure, you can jail them indefinitely, but that just highlights how obviously unsolved the problem remains.
Why does jailing someone for breaking the law show how unsolved a problem is?
Marijuana use is something thousands (millions?) of people have had jail time or other significant repercussions that have negatively impacted their life.
If encryption is outlawed, I see no reason why jails wouldn’t fill up if people started wrapping their own backdoor-less crypto around whatever else is used.
Jailing someone for refusing to reveal a secret doesn't cause that secret to be revealed.
What is the problem they're trying to solve? They claim to want a "reveal secrets" button, but for any determined person or for any secret of consequence, the button won't work.
Yes, jails will fill up, war-on-drugs style, but my argument is that filling up jails isn't a good goal given what they claim they wait. So my only conclusion is that they're either lying about what they want, or they're idiots. Both seem plausible.
> This argument is pointless. No government has jurisdiction over the laws of mathematics. No government can prevent encryption. No government can keep people from layering their own encryption over whatever flawed system the government mandates.
While I think there are significant arguments against encryption, this one doesn't make sense to me because laws can stop widespread usage even if they cannot eliminate it. I would draw a comparison to other forms of illegal data that even today cannot be stopped, but which have resulted in far less usage and industrial support.
There is nothing in the making. Some government moron came up with this nonsense 30 years ago and now they just can't move past this stupid, self-defeating idea.
Quote: "He views the current conflict as similar to one that was emerging when he led the Justice Department in the early 1990s, they said, when law enforcement’s wiretapping efforts were disrupted by newly emerging digital technology."
Translation (also this can be viewed as a resume for entire article): The powers in charge are pissed off because they lost a tiny percent of their control and want it back.
The entire "going dark" narrative presupposes that the era of the wiretap is the one true background from which to judge the present. But long before there was a wiretap a warrant was mostly useless for listening in on private conversations because there was nothing to wiretap and nothing to wiretap with.
Was the pre-telephone and pre-microphone era some kind of lawless hell on earth where law enforcement was completely helpless to do anything?
Then he can get the pols to push the ever popular "for the children" narrative and have legislation slipped through the child protection act bill to mandate backdoors to encryption.
> WASHINGTON—When Attorney General William
Barr returned to the Justice Department
last year, law-enforcement officials
briefed him on how encryption and other
digital-security measures were hindering
investigations into everything from child
sex abuse to terrorism.
> Mr. Barr was surprised and puzzled,
according to people familiar with the
meeting. The government was struggling
with similar problems when he first served
as attorney general nearly 30 years ago,
he told advisers. Why had they not been
solved?
So, Barr wanted to know why "not been
solved"?
It's simple, really just dirt simple: All
the king's horses and all the king's men
mostly can't hope to factor an integer of
a few thousand digits into a product of
prime numbers. For some more, there are
some good means of generating prime
numbers of at least hundreds of digits
that can be multiplied to give numbers of
thousands of digits with prime factors of
hundreds of digits.
Based on this difficulty of factoring, it's
possible to construct public key
infrastructures. The math and
corresponding source code became readily
available.
So, now anyone can construct relatively
solid means of communicating digital
information that only intended persons can
decrypt and read.
This has been the situation since Rivest,
Shamir, Adelman of RSA, Zimmerman of
Pretty Good Privacy (PGP),
Bruce Schneier, Applied Cryptography,
Second Edition: Protocols, Algorithms,
and Source Code in C, ISBN 0-471-11709-9,
John Wiley and Sons, New York, 1996.
etc.
In particular, some gang can have their
own software that they wrote themselves
and, thus, not rely on Apple, etc.
So, as in Schneier's book, that has been
the situation back to before 1996.
LOTS of people here on HN know this stuff
and much more since 1996 quite well!
So, somehow Barr has been uninformed at
least since 1996?
I HAVE to believe that by now Barr has
been given a clear, solid, fully
authoritative briefing by some world class
experts from CIA, NSA, etc. So, maybe
this WSJ article was exaggerating?
Here is a point about the past: Just for
relaxation, say, when some code that
should work doesn't, via DVD I watch some
old movies. Some of these are cinema
noir of crime dramas. In general it's
interesting to use those old movies to get
insight into what US pop culture was
like, and how different it was from the
present, those several decades ago.
In particular it gets really surprising
how in those movies the police struggled
terribly when current technology -- DNA
matching, cameras, facial recognition, and
much more -- would have made their work
much easier!
So, if Apple wants to use unbreakable
encryption to sell smartphones, around the
world, the police might have to return to
some of the techniques in those old
movies!
I don't think it has as much to do with the government being populated by luddites as it does with having the government being populated by people who want more power.
They're clearly not arguing from the perspective that their solution is the most technologically feasible. They're arguing very clearly that they don't have the power they "need" to do their jobs. It's that simple.
I’m a republican and I totally disagree with Barr’s push. I honestly believe that once enough people explain to Trump the implications of unlocking one phone he’s pragmatic enough not to unbottle that genie. He’s been much more reserved than many would have expected given the loudness of his bark.
I guess that may be part of the issue. For better or worse, I check president's twitter feed from time to time and one of his recent shares includes a talking point about Apple not helping with the phone.
One would think he would want to not let goverment have this power, but, well, perception of things depend on where you sit. Right now he sits in the WH.
If you recall, this situation happen before with Barack Obama as president. Eventually he dropped it because something new and more important will come up a sure as sunrise. It seems to be bipartisan if you ask me. It boils down to do the ends justify the means and that doesn’t split among party lines.
All individual rights are carved out from the default government, which is the one that takes absolute authority over all within its domain. North Korea is closest to this ideal today, but most vanilla monarchies were like this in the west.
Law enforcement officers (and politicians) must confront the simple fact that they must accept the restraints that the law places on them, even if it means letting the bad guy get away with it. Getting the bad guy at any cost ("Tango and Cash" style) makes a fun movie but it undermines the freedoms that our ancestors (by both blood and principal) fought and died for.