How do we get SS without actually asking for it.

Another loopy discussion...

This one is based on kcbrowns paradox.. that is one he discovered but did not create...

He observes, correctly in my view, that with out SS , guns as presumptively dangerous will always be subject to over regulation with under IS

I observe that it is because guns are presumptively dangerous that the court will not use SS because they do not wish to risk error on the side of liberty over "public Saftey ".


I call this the kcbrown paradox, for lack of a better term, and propose here to chew on the question-- is it a real paradox or like zeno arrow does it have a solution.

Now non of this is intended to be ' legal stategy' or to critique the legal strategy of any case. I am not qualified to do so , and even if were I would never do so in public.

I belive the court reflex public opinion, actually public bais on a lag of one or two generations, and it is on that assumption that I think we should press our case publically.

Kcbrown has said that 'guns are dangerous' but not 'unusually dangerous' and that this is a method of getting the court to use SS.

I hold that as long as we concede dangerous the court will defer to the legislative on the policy question 'how dangerous is two dangerous'.

He also pointed out that we might get laughed out of court with that approach.. with the understanding that he may well be right on that, that this is not a proposal for court,although at one time much of what is now settled law would have been laughed out of court., I propose to play out a much stronger argument.


If nothing else it is an exercise..


I will pause now an let kc see if he agrees that my summary is fair...

Must be too early in the morning for my brain to function properly but I don't know what SS means in this context.

Part of the problem with our growing tendency to abbreviate everything is that some abbreviations start to repeat for very different words. The first thing that came to mind was Social Security, but I didn't readily see the correlation between that and guns.

But then again, I'm old and WTFDIK?

Yeah I need some translation on this thread. Brooklyn I can usually decipher your hieroglyphics but I've failed on this one.

Why not argue for text, history, and tradition?

I agree with one thing. This IS a loopy discussion.

GS?

Social Security? Super Sized? SS Camaro?

Strict Scrutiny vs Intermediate Scrutiny

Brooklyn said:

Another loopy discussion...

He observes, correctly in my view, that with out SS (slide safeties), guns as presumptively dangerous will always be subject to over regulation with under IS (integrated safeties).

I observe that it is because guns are presumptively dangerous that the court will not use SS because they do not wish to risk error on the side of liberty over (PS)" public Saftey ".

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Wraith said:

Strict Scrutiny vs Intermediate Scrutiny

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& vs Rational Basis

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

Strict scrutiny..

MJD438 said:

& vs Rational Basis

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

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I think I said the same thing.

Yeah assuming those not following the other treads to understand the acronyms for the different levels of scrutiny is a leap.

Even the different levels of scrutiny are a leap by themselves. Since this isn't a law forum, the first post should have spelled out each detail. Further down in the thread acronyms would become appropriate.

press1280 said:

Why not argue for text, history, and tradition?

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Because that will not bind the court. We must realize that many on the court really do not care what the founder s thought. More dangerously the public cares even less.

Wish it were not so. If we needed to defend the 2a from a constitutional amendment or a con con run by leftists how would we do it? I an not willing to rely on originalism its to dicey...

We need to win the public mind.

OK guys I am on a cell phone... its not easy..)

Rather than continue the discussion in the other thread, I thought I'd continue it here since Brooklyn has so thoughtfully provided a venue.

Brooklyn said:

You have conceded the argument.

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No, I have not, unless the argument is that firearms are beyond all government regulation. Good luck making that argument.

Moreover incitement is a action. Simple posession is not.

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No, incitement is not an action. It is an intention, specifically of speech, in this case.

Incitement to riot is, quite simply, encouragement to riot. It is speech. It is speech with intent, but it is speech nonetheless. And it is not protected by the Constitution according to the courts, despite the fact that it is the riot, and not the speech which encouraged it, which is the actual harmful action. In my opinion, this is something the courts have gotten wrong, as the only time responsibility for an action belongs to an adult other than he who took it is when that person is acting under duress. Incitement does not place those being incited under duress.

Nevertheless, it's what we've got.

The public, that is other that the idiot in ca Md etc. Know that the problem is dangerous people. Those that live day to day with crime see such people everday and they watch the plolitical class and interestingly those who have the least to fear from guns call for gun control while turning the justice system in a joke.

And its time to call them on it.

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And I am not arguing otherwise. The plain fact of the matter is that we deal with dangerous objects routinely in our society. The problem here is not that we are dealing with dangerous objects, but how we are dealing with them.

Stop backing up.. or accept the ban on guns. They have the burden of proof and you just conceded half their burden.

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They have the burden of proof that arms are unacceptably dangerous. That is a much more difficult thing to prove than merely that arms are dangerous. The latter is trivial. The former is very difficult indeed.

The reason the former is difficult (impossible, in my opinion) is that acceptability depends in large part upon purpose, and the purpose here is self defense. It is, frankly, essentially impossible to effectively defend oneself unless one is armed with an object that is sufficiently dangerous so as to, firstly, give pause to the attacker(s) and, secondly, be effective in stopping the attacker(s) if they insist on going through with the assault.

And since effective self-defense is a right that derives directly from the right to life, the opposition would have to argue that one does not have the right to life before it can argue that one does not have the right to the means of effective self-defense. So if they try to argue that we don't have the right to arms, then we say that it means we don't have the right to effective self-defense. If they try to argue that we don't have the right to effective self-defense (and trust me, they will try to assert that. We know this because that is precisely what the same sorts of people in England assert), then we say it means we don't have the right to life, since effective self-defense is the means by which we assert our right to life. And just like that, we win, because nobody is going to argue that we don't have the right to life. Anyone who does will be bitchslapped by the public.


That is the argument we must be making, because it is couched in terms the courts and public will understand. More importantly, it does not require a fundamental change of commonly-understood definitions.

Note that I do not assert that the above argument will win in the courts. That's because the courts are political entities with an agenda and are manned by people who are there because they crave power. If the above argument wins there, it'll only be because we got lucky and got a panel that is sympathetic to our viewpoint. Otherwise, the courts will ignore our argument because they predecide issues such as this and craft decisions around their predecided conclusions. No, the above is primarily aimed at the general public, who at least aren't interested in exercising power arbitrarily the way all branches of government (including the judicial branch) are.

Stop trying to seem reasonable.... they don't care..you get no bonus points.

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It is not the opposition I care about, it is the courts (and the public at large). It is those on the courts that we have to convince whenever making a legal argument. We cannot prevail there by making arguments that they will laugh at. I'm sorry, but that's just how it is.

And the same is true of the public.

The very first time we claim that guns aren't dangerous, the opposition is going to ask (in whatever venue we are making the claim) why we gun owners don't let small children play with guns. If they ask that, it is they, and not us, that will win in the court of public opinion. No, it is suicide to go down that road.

Brooklyn said:

No its the back story. We can not win in court if we do not win the public. The public is just starting to get a clue..

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That's exactly right. And we cannot win the public if we insist on using terminology in a way the public disagrees with. It is they we have to convince, and that means convincing them on their terms, not ours.

If you fail to understand that, then you will fail in your mission. Period.

Brooklyn said:

Kcbrown has said that 'guns are dangerous' but not 'unusually dangerous' and that this is a method of getting the court to use SS.

I hold that as long as we concede dangerous the court will defer to the legislative on the policy question 'how dangerous is two dangerous'.

Click to expand...

That may be the case, but mere failure to concede an argument will not prevent the court from adopting that argument anyway. They will adopt whatever argument is most compelling to them (and that's assuming they haven't predecided the outcome, something they seem to routinely do on issues of import such as this).

That is why any argument that is made must be made on the terms of the listener. The purpose of the argument is to persuade. If we are to pursue the approach of arms somehow not being dangerous, then that is an argument that we are going to have to make in a convincing fashion.

And given the way the term "dangerous" is applied to objects in the world by most people, I do not see how such an argument can be made persuasive. Like it or not, even we would not let little children play with guns. Clearly there is some set of attributes associated with a gun that prevent us from being willing to let little kids play with them. That set of attributes is what most people associate with guns being "dangerous". You cannot overcome that perception, and it is suicide to try, because if you try then you will make yourself look ridiculous to the very people you are attempting to persuade to your side. Once you look ridiculous to them, they will no longer have reason to take your arguments seriously.

He also pointed out that we might get laughed out of court with that approach.. with the understanding that he may well be right on that, that this is not a proposal for court,although at one time much of what is now settled law would have been laughed out of court., I propose to play out a much stronger argument.

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The problem is that the court isn't the only entity that will laugh you out of the room. The public will do the same, and for the very same reasons.

Whatever argument you make, it's going to have to be one that is consistent with the general sensibilities of the target audience or, at a minimum, challenges those sensibilities very gently and in such a way as to provide an even more persuasive alternative. The "guns are not dangerous" argument is neither gentle nor provides a more persuasive alternative.

But it is my belief that the "not unacceptably dangerous" argument is one that can win. See my prior message.

I will pause now an let kc see if he agrees that my summary is fair...

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The summary of the "paradox" is essentially correct. We will lose if we get anything less than strict scrutiny. That's a fact with several cases worth of supporting evidence.

I believe part of the solution lies in the argument I outlined in the message above, and another part may lie in the argument, echoed in Heller, that the enumeration of the right means that the people have already accepted the tradeoffs that go with that which the right protects. The very enumeration of the right means that the people have already accepted the danger that goes with its exercise. Therefore, the right must prevail even if public safety is somewhat compromised as a result, because that policy choice has already been made by enumeration of the right.

Since I am still in transit I will be brief..and focus only on the issue of " not unacceptably dangerous " and why you can't win tgexpubkic mind with that appoch even if in the end that's where we compromise.


I take the view we are in a fight not a negotiation. So op force will play win and if we play to draw we will lose.

1. To the uninitiated the claim that guns are not unacceptably dangerous is not less astonishing or more moderate that the claim that the dangers of guns are in fact deliberately misattributed to morally neutral objecs to cover for the abject failure of government particularly in the cities to provide for the physical secuity of its citizens. In fact the folks we need most to convince already know it , but are unwilling to speak fear they will be seen as extreme and will need to surrender their liberal card.

2. Since the phycologicical 'violence ' to their world view is nearly the same it us easier to get them to engage if you can trick them into taking the moderate side of the debate. Most are smart enough to recognise the techique but will still engage a ' madman ' postion for several reasons-- an easy win, and also to reinforce thier world view.

3. To undstand why I say you have conceded you must recognise that in the public mind the burden of proof and who bears it is more critical than anything else.. the opposition has always borne that burden since a right I'd involved but instead they have shifed that burden and we have let them. An argue me BT no matter how valid and well researched which starts with guns are dangerous and attempts to move the public to "not unacceptablly dangerous " will run right into the " tell that to the mother's , fathers... etc etc that have lost.... ya taxa yards... the fact that this trick does not work as well as it used to is evidence that folks are not buying ' gun violence' but they know crime is the cause not guns.. but the public will demand a reckoning... someone must pay...our job is to put ghe blame back where it belongs.

4. Often when attempting to defend a strong postiton, you fail bit in so doing you manage to defend a slightly weaker one which is sufficient. Often the weak position is impossible to defend by itself because you opposition is unwilling to consider anybifvyiur arguements.

5. Now what we have from op force is a demand with out proof to regulate guns as dangerous. And what they have achieved is to force us on the defensive, conceding the burden of proof and forcing us to convince the public of something everybody knows -- that guns are dangerous enough be regulated.. trust me when I say your claim is no less radical to ' most folks'. So first we must start with s demand for proof.. show me that guns are dangerous.. .that it is not crime that is the danger...

6. If you have not heard the ' tell that to the mothers.. ' postion above you most certainly have heard the' OK its not the entire problem.. but its part of the problem so we must start somewhere'.. that of course is the classic slippery slope. I am no expert but I am not aware of any solution to the slippery slope ( oh no! Another SS) other than not to get on it. That's several thousand years of attempts by the best minds in history.


To sum up..

Do not get on the slippery slope.
Do not concede the burden of proof
Recognise that the public wants to be moderate and will disagree with us just to prove it.. give them room to do so.
Let your opostion win against a strong form of the argument and they will prove your case against the opposition.

Recognise that we live in a world where acceptable risk is no longer accepted.. you must make op force bear the burden of proof or we lose..

Thats it for now..

First thing came to mind was "How do we get Sate Security without actually asking for it."

Then's there's talk about IS, which came to me as Internal Security.

Which can also go Solid State to avoid Internal Static.

which makes thinks a little wonky for this forum...