Originally Posted by nachtnebel
(Post 19128833)
By your reasoning, once automated presses came into being, none of the old conceptions of freedom of the press would apply because the technology is different.
That definition of course could extend to both machine guns and nuclear warheads which are both arms, but which due to the undesirability of folks having those, needed some other rationale, as expressed in US v Miller, as arms in the 2nd amendment sense being what someone would reasonably have if incorporated into a militia. |
Originally Posted by RichardKenner
Precisely, but made worse by the fact that what was considered a "militia" then isn't the same as what we mean now. In other words, if you want to ask "is private ownership of nuclear weapons a right protected by the 2nd Amendment?", you can't answer that by looking at the literal language, but by trying to deduce what the Founders would have decided if confronted by that question. That's all I'm trying to say, that it's not possible to look at the Constitution literally: we have to interpret how its provision should or should not apply to situations never envisions by its authors.
Bicycles were a 19th century invention, but I doubt the founders would regard their use as giving the government more power to regulate them. Skateboards and rollerblades would have seemed strange to people of the 18th century, but that doesn't mean that people who used them would have their freedom restricted. No one has invented a hoverboard yet, but conceptually it is really not much different from a skateboard. So no new regulation is required. OTOH what about teleportation? Still just a form of getting from point A to point B. Time travel? These are fundamentally different and impart great powers to the users of such advanced tech, but even so, it doesn't mean that the government has the right to forbid them. But some reinterpretation may be necessary. Breaking into someone's home is already illegal. Teleporting into their home would naturally be just as illegal. Would it mean that the police can teleport into your home at any time because they weren't specifically forbidden from doing so in the constitution? I have no doubt the government would choose to see it that way and the supreme court would probably find a reason to agree, probably something to do with the fact that the constitution doesn't specifically forbid teleportation. Based on the modern assumption of course that anything not specifically forbidden to them is allowed. One way to reinterpret is to posit magic. Sufficiently advanced tech being indistinguishable and all. A motorcycle becomes a very fast iron horse. A bus or train becomes a very long carriage which can magically propel itself without any horse power. An airplane becomes a large carriage pulled by flying horses and lifted by magic. A computer or the internet is a tough one. Perhaps the equivalent of an oracle, an omniscient creature with answers to every question. As far as I'm concerned the most important thing to consider about the founders is their political beliefs: the fact that being left alone by their government was their highest value. To forget this inconvenient fact is to disrespect those men in the greatest way imaginable. To spit in their faces. |
Originally Posted by RichardKenner
(Post 19146238)
No, not at all. What I'm saying is that how to apply it isn't obvious and certainly can't be viewed in a literal sense.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. When the only form of press is the printing press, "censoring" the press has a very clear and obvious meaning. But what's "press"? Is advertising a form of "press"? Remember that the basis of the controvercial Citizen's United case on campaign financing is precisely along these lines. I just don't see how you can look at the First Amendment and say that its literal meaning could have been used to decide that case. Precisely, but made worse by the fact that what was considered a "militia" then isn't the same as what we mean now. The militia clause, as pointed out by Laurence Tribe, is not the main clause of the 2nd Amendment establishing the right, btw. [edit add: this concession was made by tribe in 1999 when he said there was an individual right to bear arms apart from militia considerations] it's not possible to look at the Constitution literally: we have to interpret how its provision should or should not apply to situations never envisions by its authors. |
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The middle one, by its separation, we can see the intended connection of speech and press. As I understand it as a non-lawyer, these refer to the primary modes of communication at the time, the spoken word and the printed word, and the clause purposefully connects the two and their use. There is another interesting aspect. Both refer to the mechanics of the communication, not to the subject of the communication. It does not exactly say "abridging the freedom to talk, or to print" it uses speech (not oratory but the machinery used to communicate vocally) and press. This "interpretation" can be brought directly into the 21st Century painlessly. No law may be made that abridges speech (which has not changed) and the means of communicating by written words. At the time, when authoritarian governments wished to stop the spread of information, they would imprison speakers and destroy the presses mechanically. The clause specifically addresses the sanctity of the machinery of communication, voice and press, as not being something that can be abridged. Brought forward, that would include the use of computers, radio, television and other additions to the modes of communication. We have allowed "The Press" to take those words as an exclusion to themselves, when it is merely a title developed from their mode of communication as determined by the machinery they used. You may take exception to my understanding. Fine, it will not bother me, but you should look at the next amendment which does the same thing. It is the "right to keep and bear arms," the machinery of defense may not be abridged, not the right of defense itself. Speech without the ability to talk has no value. There is no value in the potential of printing and distributing information if the press is not available. Mr. Kenner above asks, "But what's 'press'"? The answer is that it is the mechanics used to print. Its use is not to be abridged. I would propose that the Founders would include any other means of production had they known. |
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I'll tell you if you tell me in which specific Constitutional text the word God or Creator appears.
[note: for historical completeness, this was a response to SWCPHX's question on how to literally interpret references to "Creator" in the Constitution] |
Originally Posted by nachtnebel
(Post 19153219)
I'll tell you if you tell me in which specific Constitutional text the word God or Creator appears.
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Originally Posted by SWCPHX
(Post 19153275)
My apologies, Declaration of Independence. Disregard the question.
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Originally Posted by nachtnebel
(Post 19153219)
I'll tell you if you tell me in which specific Constitutional text the word God or Creator appears.
[note: for historical completeness, this was a response to SWCPHX's question on how to literally interpret references to "Creator" in the Constitution]
Originally Posted by GUWonder
(Post 19154839)
.... even as the second sentence above is asserted, the above is all in regard to the embarrassing question?
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I wonder why any attempt to post the link to this incident
on the TSA's blog and request some response from the TSA's serious reviewers is not successful...do you think they have no interest in responding on this matter?
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