“There are competing rights here. The right to keep and bear arms, but also the freedom and liberty interests of people within a well-ordered society.” – Ronnie Mitchell, lawyer for the Cumberland County North Carolina Sheriff’s Office, quoted in Fort Bragg solider armed at Cross Creek Mall sparks gun debate [via fayobserver.com]
I never listen to anything anybody says after they say the word but because it’s just pure crap anyway
I have the right to live in a “well-ordered society”? Must have been absent the day they taught that in law school.
Then you must have missed the lesson on Griswold vs. Connecticut and its progeny, notably Roe vs. Wade. As I recall, the SCOTUS used the phrase “concept of ordered liberty” as the springboard to “find” all kinds of Federally-enforceable “rights” that are nowhere to be seen in the written text of the Constitution.
I did not know that. In my defense, I did get a C- in Constitutional Law.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Learn your Constitutional history. One of – if not THE – most contentious issues in ratifying the Constitution was the question of what to do about “rights”. The Federalists insisted that the “powers” of the Federal government were limited by enumeration. To attempt to enumerate the People’s rights would be an exhaustive task. Any attempt to do so would seem to disparage rights not enumerated. The Anti-Federalists took the position that if no rights were enumerated ALL rights would prove to be “open season” by a government greedy for power.
The solution was to enumerate numerous rights on which there appeared to be a consensus; and, we got the BoR; including the 9th and 10th Amendments.
And so, it is ABSOLUTELY true that we SHOULD ‘ “find” all kinds of Federally-enforceable “rights” that are nowhere to be seen in the written text of the Constitution.’
I fully agree that one way of finding rights is to search among the “penumbras and emanations” of the text of the Constitution and Amendments. Any such search is bound to find some “rights”:
– that the founders would not have agreed to;
– that the founders would have taken for granted. And,
– exactly backwards.
Would we have been in a better/worse position if either:
– the Federalists prevailed in mentioning NO rights in the Constitution whatsoever?
– the Antifederalists prevailed in enumerating a nearly exhaustive list in the Constitution?
Alas, we have a modest number of enumerated rights plus the 9th and 10th Amendments. We are living with a compromise designed by a “committee”.
I can agree with Griswold and disagree with Roe. That’s life under our Constitutional system – as we have come to operate it.
Ultimately, we the People are sovereign. It is our ultimate duty to supervise the 3 branches of government and over-rule them when we disagree. Roe (with which I disagree) has not lost the attention of the electorate; it has not been forgotten as has Griswold. We the People can not deny our responsibility due to oversight. Neither have the People secured the rights “found” in Roe; nor have we rolled-them-back. To do either would not be easy; it would take a determined effort by voters in 38 States.
It seems to me that the voters in any given State could resolve the issue for that State (within their own sovereignty) either by legislation or State constitutional amendment. Such an initiative would recognize/repudiate rights vested in an un-born child (or, if you prefer, fetus.) Thereupon, both parties in contention would have equal rights to assert before a court and the legislature; or, alternatively, the rights of one party would be disparaged explicitly. Neither of these courses has been taken. Voters in any State can not deny their responsibility for neglecting such a resolution.
I respectfully put forth that the fault, dear Citizen, lies not in our SCOTUS, but in ourselves.
In any contest between the powers delegated to governments vs. the rights reserved to the People it seems clear to me that – under our Constitution – deference must be given to the rights of the People. E.g., in a case such as Miranda, SCOTUS faced a clear dilemma:
– the powers of the police to operate in the interest of ordered liberty (i.e., public safety)
vs.
– the rights of an arrested person from being compelled to testify against himself.
There is certainly no way to be certain which concern ought trump the other; we do not know – nor will we ever know – whether we are better off with aggressive interrogation tactics or with the “Miranda warning”. What we can say is that we – as a People – have agreed to a “right against self-incrimination”. Having so decided, that right trumps our general interest in “public safety” at the (gentle) hands of the government.
As noted above, we the People can change our mind. We can repeal Miranda. We have not done so; and, we can’t deny that we are unaware of this aspect of criminal law. It is our decision as a People to live with SCOTUS’ interpretation.
My beef with the courts’ recognition of unenumerated rights is NOT that they do so; but, rather, that they do so very selectively; to recognize ONLY those rights which appeal to their personal sentiments. The courts should be recognizing unenumerated rights that are identifiable among the penumbras and emanations regardless of their sentiments.
For example, it would take little visual perception to discover a Right-to-Carry without “need” or “reason” somewhere in the vicinity of the 2A. But they demure.
Our system of government has deteriorated in 225 years. It’s broken; but not beyond repair. Our elected and appointed officials have broken it with skill and grace. We let them; the results are on our conscious. We are not without power to correct these faults. We could compel our legislatures to apply for a convention of the States. In such a convention we could attempt to correct the faults we have allowed to be introduced into our system of government. It is not only our explicit RIGHT, it is our duty to do so.
So far, we the People have demurred. Can we lay this failure at the doorstep of SCOTUS? The President; or any President? The Congress? None of the foregoing have stood in the way of our appeal to our legislators. We have but to pick up a pen and a phone.
Are we lacking in imagination? Can we not consider the merits and demerits of, e.g., term limits for Senators and Representatives? Can we not find other means of breaking the seniority system that vests control of the legislative agenda in the hands of one Senator and one Representative?
Our Constitution – when initially designed – was a miracle; but, it was not perfect. One glaring oversight was neglecting to resolve the “Hotel California” question; which left us vulnerable to the war of succession. We have amended the Constitution 27 times; one amendment was deliberated upon for 192 years before being adopted. One amendment was repealed. Why are we afraid to make more amendments?
Are we the People afraid to take up the pen and the keyboard to work on the Constitution ourselves? Are we so kowtowed that we think it is only our Congressional “betters” who have the wisdom to draft proposed amendments? If so, we sell ourselves short. Instead, we should recognize what our founding fathers understood and so clearly expanded. Our elected and appointed officials can be trusted only to usurp power to their own aggrandizement. We must remain in a continuous battle with them to retrieve powers not delegated; or, though they may have been delegated properly, were delegated unwisely.
Yep, the old “but”heads.
The public is in terror! Terror! A infantryman who is obviously a soldier and who is trusted to bear arms in some other country – but not this one. Because Terror!
How does the typical mallgoer discern all that while cramming a cinnabon in his face as an armed and kitted up jackwagon walks by?
Geez, you people ridicule bystanders for just standing by thinking “this can’t be happening” when it’s a real spree shooter. Then you ridicule people for notifying security or calling police when they see something very unusual and menacing looking.
Oh, and don’t deny that the extreme tactical look is menacing. That’s exactly its purpose, especially for some soldier posing down at Glamour Shots.
“Real” spree shooters tend to be, you know, shooting….
Falcon- “How do we tell the good guys from the bad guys?”
Capt. America- “If they are shooting at you, they are bad guys.”
I don’t recall ridiculing bystanders for thinking “this can’t be happening” when it really is happening. Even an armed open/concealed carrier could be thinking that.
Hey – What you mean “you people?”
Click here:
Do you people take checks
To the rest of your comment – I don’t know what to say other than freedom is scary (to some). We know what the solution to that is. More government oversight. 😉 – or growing a pair.
Well J-H, so called pro-second Amendment people were calling me names like Jackwagon, wanna be Rambo, Cowboy and causing fear and terror in the general populace for OC’ing a pistol. Which, of course, didn’t happen. Now, seven years later, more people are OC’ing pistols than ever before and most of the freedom/gun community don’t panic at the idea of OC’ing a pistol. And I’ve been seeing more people OC’ing as well. OC’ing of pistols is becoming more the cultural norm.
Maybe this feeedom loving individual, ie “Jackwagon” felt it was time to start acclimating people to the next level of acceptance of what the Second Amendment really is about.
You know, being the first line of defense as a member of the miitia. You know, being ready to be on the battle field with all of that “scary tactical” stuff.
I don’t know if that is what he was thinking, but for you to just start throwing around adhominems like “jackwagon” just comes across as the same judgemental and hateful intolerance shown to the original “jackwagons” ie, OC’ers of a pistol.
Your response to this man is causing me to think it’s time to start carrying a long arm on a regular basis for the reasons stated.
Nothing like going outside the new cultural norm to get people to accept an old cultural norm.
And so, we dress our little boys in cammo; and they take to this fashion statement as teens. Eventually, it passes without notice.
What we ought to be alert for is muzzle flash.
NC native and 26 year resident here before relocating to AZ last year…
GATTTOP as it’s known amongst NC gunnies is an almost surefire loss in court. They can charge him, but previous SCONC rulings (State vs Huntley most notably) have established that the State must prove *intent* to terrify in court for the charge to stick.
See here:
http://www.ncgunowners.com/forum/showthread.php?tid=498
NC gun folks are a well organized lot. There’s still some silly ass laws on the books (Pistol Permits, etc.), but by and large the pro-2A people in the state have it together. Here’s a great little flyer that’s commonly handed out to give pro-2A NC’ers “ammo”, so to speak:
https://drive.google.com/file/d/0B9SbdmEOcqRTbHJ1VXJPS0FhVjA/view
Thanks! Good to know and have a concise summary.
a) That makes absolutely no sense at all.
b) If a cop doesn’t like something you’re doing they’ll find a charge.
It’s up to a jury of one’s peers to make the charge stick.
That is the beautiful aspect of the jury system (we inherited from our British forefathers). The question of guilt or innocence is NOT vested in the government at all. In fact, it is JUST ABOUT IMPOSSIBLE for the government to railroad an innocent defendant.
In any jury trial, we the People call the shot. The failure of our system lies in our neglect to teach our young people the civics lesson of Jury Nullification.
A curriculum educator (doctorate educated) friend remarked to me “we don’t teach civics anymore”; I detected a hint of pride when she made this remark. Any wonder why not? Why, it’s best if the little kiddies grow up to be jurors who do what the prosecutor and judge tell them to do.
I don’t see how the two are mutually exclusive. Though I do think it was a poor decision on the soldier’s part, also, if it’s against regulations to be in uniform WITH weapons while not authorized by command then I think that needs to be dealt with.
Unless they are cops. Those people just psychologically block that out?
The freedom to have a well ordered society. Freedom of more government regulations. Freedom to have more gun control. lol. These guys always crack me up. They actually don’t know what freedom really means.
It’s against the law to unjustifiably shoot people with guns. Looks well ordered with no competing rights. Nobody – nobody at all, has the right to be unafraid.
I think that’s the most balanced article I’ve read in a while, though the author’s own opinions are stated as facts with nothing to back them up far far too often.
Oy. Hope the soldier gets off with no charges. What a waste of time and money.
Is it just me or does that sentence look weird? Liberty interests?
It’s because it’s epic lawyer bullplop to say nothing with as many words as possible. :p
As a former practicing lawyer who is currently retired, I am appalled, bemused, upset, angry, devastated, hurt, sore, sick and infirm due to your callous, unthinking, unfeeling, libelous, mean-spirited and incorrect comment or post, as the case may be. Lawyers are not wordy, long-winded, verbose, prolix, lengthy, protracted, long-drawn-out, overlong, rambling, circumlocutory, periphrastic or pleonastic in any way, shape or form whatsoever. 🙂
Come for the articles, stay for Ralph’s replies.
Being photographed with your personal weapon is great. Why not use a gun case to transport it? Was he carrying his rifle with his hands or was it slung behind his back? The story doesn’t say.
If he did not have a gun case, I would like to know if his AR 15 is mounted in his vehicle securely when it’s transported.
People open carry all over Fayetteville. I’ve never seen so many people do it in any town I’ve lived in until I got here. I haven’t seen the alarm he is talking about.
From the article… “Openly carrying firearms is legal, but it catches people by surprise when they see someone shopping, pumping gas or conducting other activities in public with a pistol strapped to his side.”
So what he was doing was legal but we are going to arrest him for surprising people?
What am I missing here? Openly carrying firearms is legal so what’s the issue and why is he being arrested?
When I was 8/9/10 years old I openly played with shotguns in the center of town in my father’s hardware store. (Muzzle-discipline wasn’t my strong suite at this age). I have no memory of any hint that anyone was surprised. Not: my grandfather; my father; justice of the peace; or any of hundreds of customers who walked by me ignoring my play.
Everyone was fully aware that the shells for the shotguns were a few yards away in an unlocked cabinet – right at child-access level.
When I was 13, I openly carried my loaded 22 in town on my way to the countryside. Anyone who saw me so carrying would have no basis to imagine it wasn’t loaded. Again, no hint of anyone being surprised.
I suppose we are surprised by whatever we have not grown accustomed to. This can be remedied.
The old… OMG a customer with a gun! … routine. If he was going to rob your store or use the gun in a criminal manner – he would not care about a no-guns allowed sign, and you likely wouldn’t know they were carrying until they pulled it from concealment when none of you or your staff were prepared.
It’s a matter of people not wanting to see the gun. They would prefer to be blissfully ignorant. Conceal it – don’t open carry. As if somehow they feel safer knowing a guy is carrying a gun concealed rather than carrying it openly. These are definitive hoplophobes.
I wonder if the bookstore owner would be “disturbed” by a customer carrying a baseball bat, golfclub, or sword with a rainbow flag attached.
Yeah, and if he casually walked through the mall for ten minutes hopped up on drugs and eventually opened fire, then all of you would say “Where were police? Where was security? They’re late again and people died!”
You can’t have it both ways. This jackwagon went for the badass look in pictures, then got carried away with it. Now, I’m not saying he deserves an arrest for this behavior, such as has been reported, but a call to the police to stop and ask questions of the rambo wannabe is entirely warranted.
“…Yeah, and if he casually walked through the mall for ten minutes hopped up on drugs and eventually opened fire, then all of you would say ”
Some people would say.
Not me.
When I saw the hopped up on drugs man walking I would make quick like for the exits because I don’t want to be near stupid people doing stupid things in places where doing things like are stupid. If I happen upon a guard or police on the way out I would say something, but I’m not going to be the one to wail ‘why weren’t the police here in time’ ever.
I don’t want it both ways… haha.
Also – if a shooter was concealed carrying, it wouldn’t have mattered anyways – right? That argument really only works for the open carrier.
For what illegal activity should he be detained by police? “Scaring people ignorant of the law”?
People need to carry guns more than we need the Constitution, more than that lawyer needs a job.
H O W E V E R:
If we can just chuck the constitution, we can get on with chucking everything else.
F U R T H E R:
I can think of several countries and POS religious fanatics out there that can’t wait for this guy to get his wish. It’s almost like he’s working for them, no?
Having order within a societal structure has nothing to do with freedom.
Prisons have order and structure within their own “society”, but no one in there is free.
I’ll grant you that liberty precedes and supercedes order, but they are certainly not unrelated. Liberty without objective order is anarchy. It simply replaces tyranny by a government over individuals, with tyranny by individuals over other individuals.
It’s not just me talking. It’s the Founders. In the Declaration, they argue the existence of fundamental freedoms. They then acknowledge the practicality of instituting governments among men to secure these rights and guard their future security.
Yes, such government must derive its just powers from the consent of the governed. Yes, when such government becomes destructive of these ends, it is the right of the people to alter or abolish it. All of which presupposes a spectrum of behaviors by both government and the governed, and if a balance of liberty and security between them.
I’m going to side with Alan Moore on this one:
The founding fathers and their “gang” criminally destroyed the tea delivered by the British East India Company and continued to “resist” against authority with other criminal actions. When their resistance was complete, they assumed authority. They were a good gang to me, with good intentions, and good actions – but a gang nonetheless. As is with any gang ruling any country anywhere. They are all gangs that have taken over and subdued the populace either by force – or by persuasion.
Exactly J-H, with one very big but. The enforcement arm of said government would be enforced by a very weak “professional” military with the greater population as the true armed and ready for battle enforcement arm of the people.
The people that are the true masters that the public servants are supposed to represent.
So tell me J-H, how long has it been that the so called “public servants”, (with the protection of the very powerful and well trained “professional” soldiers that are directly beholden to government for their paychecks,) have seen themselves as servants to the people rather than the masters?
Or a better way of saying it, how long has it been that the people have seen themselves as the “well regulated” ie. battle ready citizen soldier, well equipped and trained to show up on the battle field when called up for duty, as the constitution still requires?
Of course, we all know the answer. Until that duty of being a citizen soldier is reawakened in the people, we will never be truly free, no matter how many constitutional carry states become a reality.
I agree wholeheartedly.
Moreover, in my opinion, the institution that the founders feared – the “standing army” – seems established in our career police force today whereas the militia institution the founders admired (at least aspiration-ally) seems to look a lot like our active-duty armed forces plus Reserves and National Guard.
The 18th century standing army was recruited or pressed into service from among the dregs of society and pursued this career for a lifetime (however short) as an alternative to some other forceful way of like (such as the trade of the highwayman). In some ways our police force seems to resemble this pattern. They serve a career leading to a handsome pension; i.e., they are beholden to the government for life. The police forces probably attract a disproportionate number of recruits who are power-hungry. (I do not wish to disparage all members of the police force. I have confidence in 80%; qualified respect for 18% and am really concerned about 2%).
Our armed forces, however, typically serve a hitch or two, then return to civilian life. Generally speaking, a member of the armed forces does NOT presume to lord-it-over on civilians. He is respectful of civilians because he knows very well that his parents, siblings, spouse are all civilians and he-too will return to civilian life in the foreseeable future.
Orderly, as in an orderly line for the gas chambers?
Yes, by not running around like an 80s action movie extra and scaring the hell out of mallgoers getting their Chick-Fil-A on at the food court, he really means marching people to gas chambers.
Between your remark and Robert’s title alluding to Nazis, it’s no wonder the fencesitters tend to regard us as alarmists, if not outright kooks.
The man was doing nothing illegal. The man was doing nothing wrong. Just because YOU get scared at the site of guns while eating your tasty chicken sandwiches, well that is your problem. The man was doing nothing illegal. The fact that they had to pull up a dusty old ordinance from the time before motorized vehicles should be all the indication you need as to how wrong this whole incident is.
Exaggeration. The article in no way suggested he was pointing his rifle at people, or threatening them in any way. If his presence, with a gun or not, alarmed people – that is their problem, they can get over it. If he was actually harming someone – fine, call the authorities.
Tolerance allows freedom. If we all passed legislation to regulate or outlaw all the things which we do not like, then no one could legally do anything that they actually do like.
Nice!
Back in the day we in the military had what was known “double jeopardy”. If you got in trouble with civilian law you dealt with whatever punishment that warrented. And then the .gov punished you for the same offense.
Scaring the rabbits could easily be the end of whatever career this soldier had.
I’ve even seen careers end for less.
A pissed off wife says, ” He hits me.” and the dude might as well blow his brains out, or blow her brains out.
Either would likely end better for the poor bastard. One way, he doesn’t have live with the f*cked record the rest of his days. The other way, there’s, at least, some form of trail which will take place where he can defend himself.
“There are competing rights here. The right to keep and bear arms, but also the freedom and liberty interests of people within a well-ordered society.” Our freedom and liberties are guaranteed but the actual rights that are spelled out in the Bill of Rights. Not some twisting of words to make it sound logical to subvert those rights.
“… also the freedom and liberty interests of people within a well-ordered society.”
It seems to me that true freedom and liberty could very well mean a not-so-well-ordered society. I guess it depends on one’s specific notion of a “well-ordered society.”
If your notion of a “well-ordered society” means everyone pretty much does everything the same, then that is NOT freedom and liberty. I prefer the idea that a “well-ordered society” means that everyone is free to do whatever they want as long as they don’t harm others.
DC v. Heller
“we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all”
I don’t know whether it’s against NC law or not, but someone strolling the mall with an M4 and a tac vest is a grade-A jack@ss. And hurting our cause.
That was an, ahhh, interesting article, to say the least. “Federal law guarantees the right to carry firearms openly”? While I believe such should be the case, I expect that there are lots of folks in different parts of the country who haven’t found that to be the case as a practical matter. “It’s up to a judge to decide” if you are “acting appropriately” while carrying your firearm? How about legislators who write the various laws on the subject? And how about juries? It’s a grossly oversimplified statement, at best. I kind of gave up on the article after that point.
I hope the soldier gets out of this idiocy…sieg heil jerk.
There are no “competing Rights.” One is a Right. The other isn’t. Therefore… no competing Rights.
I know it’s been a couple of years since I’ve read the Constitution, but I’m pretty sure there isn’t a section saying that politicians have the right to rule with an iron fist.
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