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Re: Personal Black Box



On Monday, October 1, 2018, 8:09:12 AM PDT, John Young <jya AT pipeline.com> wrote:

>Why have gadgets become black boxes when pistols are superior? 


I'm certainly not excluding guns.  If anything, I'm a Second Amendment absolutist:   I think that the only limitation on what a person should be able to own (and carry) is what he can afford.  And today, that is not much of a limitation.  The 2008 Heller and 2010 McDonald decision should be read for the principle that the 2nd Amended didn't "grant" rights, it guaranteed rights.  And what the Founding Fathers wanted was that no weapons laws were to become stricter than they were in 1789/1791, when the 2nd Amendment was written and later ratified.    (no "infringement" on such ability, where the root word is "fringe":   Cannot be reduced, even at the edges.)

 When that Amendment was written, the only people who were not allowed guns were criminals while in prison, or criminals already sentenced to death-penalty offenses. (And they weren't getting out...)   At that time, the latter were called "felons":  All crimes less than death-penalty offenses were called "misdemeanors.  As far as I know, all people who were released from prison automatically got back their RTKBA rights immediately.    So, we can assume that the Founders were okay with taking away the RTKBA only from people sentenced to death.   One problem is, in the subsequent 200+ years, the definition of "felony" changed to any crime punishable by over one year in prison.  But the Founders never bought into the idea of denying RTKBA to anybody who had merely ever been convicted of a 1-year-penalty crime.  

Indeed, around 1900, before and later,  many western American states had laws which actually required the prison to give the prisoner, upon release:  A saddle, a $20 gold piece (to buy a horse), and a rifle.  Only in 1933 did Federal law prohibit "violent felons" from possessing guns, and only in 1968 did the Feds prohibit all "felons" from owning guns.  Problem was, one of the majority justices in Heller and McDonald (i'm assuming it was that fool Anthony Kennedy) insisted that they write into the decision the same piece of wording:

"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings..."

However, that is dicta, short and plural for "Obiter Dictum", a statement made in a legal opinion that is not necessary for that decision itself. https://en.wikipedia.org/wiki/Obiter_dictum     

"Obiter dictum (usually used in the plural, obiter dicta) is Latin phrase meaning "by the way",[1] that is, a remark in a judgment that is "said in passing". It is a concept derived from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedentratio decidendi is binding, whereas obiter dicta are persuasive only.

Significance of obiter dicta[edit]

A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta(often simply dicta, or obiter) are remarks or observations made by a judge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion, obiter dictainclude, but are not limited to, words "introduced by way of illustration, or analogy or argument".[2] Unlike ratio decidendiobiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. The so-called Wambaugh's Inversion Test provides that to determine whether a judicial statement is ratio or obiter, you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter."


Unfortunately, and sadly predictably, courts (including appeal courts) have opportunistically taken this wording as an excuse to not apply the Heller/McDonald reasoning to those categories:  "longstanding prohibitions on the possession of firearms by felons and the mentally ill".    Had they done so, they would have discovered that such prohibitions regarding "felons" were not actually "longstanding" at all, and certainly not as compared to the last 228 years, the life of the Bill of Rights.  There was simply no basis to believe that adding those restrictions in 1933 or 1968 was constitutional.  

And one problem with relying on guns alone is that it's too easy to overcome a person, let's say merely by shooting him.  Consider the case of Seth Rich, that DNC staffer who was killed before the 2016 election.  He might have been saved if he'd had a gun with him, but that is by no means certain.  If a record had been made of that incident, whether or not Rich had been armed, the murder would probably have been solved by now.  And so, it might have been deterred.  

                           Jim Bell