jman111 wrote:Next up, where do we draw that line? Obviously, prohibition of possession of nukes could be justified based on some type of increased risk to society or greater danger to other individuals resulting from the possession of nukes (similar to the justification for free speech limits on things like yelling "fire" in a crowded theater when no fire exists). There must be some sort of weighing exercise that measures the right to bear the arm against the increased "harm" (or the potential thereof) caused by the bearing of the arm.
Following this logic, limitations on other types of arms could be deemed perfectly constitutional if weighed against the same or similar criteria, right?
Yes, but that's not the logic I followed when I said nukes aren't protected by the 2nd Amendment. If we followed your
logic, i.e. "justified based on some type of increased risk to society or greater danger to other individuals" one might go down the slippery slope and say that there are no
arms that are protected by the 2nd Amendment, because any form of arms represents a greater danger to somebody. And logically that can't be the case because the 2nd Amendment clearly is intended to protect at least some
arms. Logic dictates you cannot have both a constitutional amendment protecting the keeping and bearing of arms AND yet have no actual arms that are protected. That's clearly a self-defeating line of reasoning.
And I reject your line of reasoning because I believe the concept behind the 2nd Amendment fully accepts
that there may be an "increased risk" (of some sort) to society and a "greater danger to other individuals." Better still, it is founded
on the belief that a greater risk to other individuals is both desirable and necessary. Indeed, the 2nd Amendment wants to ensure
that there is at all times a greater danger to (certain) other individuals! And the reason it wants to ensure that there is a danger to others is to prevent some other, presumably worse, danger from occurring. A tyrannical despotism for example. And I'm sure that the Framers had fresh in their minds a tyrannical despotism of the sort they had recently fought off by use of arms and of the sort they saw in other countries as well-- and the desire to prevent such a despotism from ever being established in their newly formed country.
By the way, I don't believe the justification you espouse is in any manner "similar to the justification for free speech limits on things like yelling "fire" in a crowded theater when no fire exists)." If you want say, a gun law, that is truly
similar you only need to look at the laws prohibiting shooting into a crowd when there is no actual danger from the crowd. That
is a reasonable restriction and one that is similar to the free speech example you give.
Similarity works in both directions. If you took a typical gun control law proposal and wanted to come up with a free speech restriction that is actually similar then you'd have a speech restriction of the following type: "Because of the great risk created when someone yells "fire" in a theater when no actual fire exists, people entering theaters will have their vocal cords cut" or "cannot speak above 60 decibels inside a theater" or "must be tested for their ability to recognize an actual fire before being allowed inside a theater" or "must pass a psychological test showing not propensity for creating a panic before being allowed inside a theater. Take your pick. But those are clearly unreasonable restrictions on speech, yet analogous to proposed gun laws.