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In the context of municipal bans on smoking in public...

Is smoking a 'right'or a 'privilege?'

It seems to me it's a right inasmuch as a city or state ban on smoking on public property does not deprive me of the right to buy and possess smoking products or smoke on my own private property that is not open to the public.

Analogy: I can own and possess a firearm, I retain the right to shoot or smoke at approved locations, but I cannot shoot for my edification anywhere in the city.

Restrictions that protect health and/or safety do not equal loss of my right to smoke or shoot?
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Restrictions that protect health and/or safety do not equal loss of my right to smoke or shoot?

That's the issue that's coming up in NYS Rifle & Pistol v. Corlett:

https://www.scotusblog.com/case-files/cases/new-york-state-r...

New York has de facto forbidden most people in most circumstances from being able to carry guns outside their homes. Challengers claim this violates the Second Amendment.

Advocates of New York's law would characterize its effect the way you have. That the "right" to shoot, like the "right" to smoke, can be effectively exercised entirely in one's own home - so therefore, there is no infringement if it is limited to that location.

Critics of the law argue that the "right" to shoot is more like the "rights" associated with free speech - that they require being able to exercise them in contexts outside the home in order for them to be effective. Your local government cannot prohibit you from wearing most messages on your T-shirt, because you have a right to free expression - but that right is vitiated even if they let you wear those T-shirts in your home, because a core element of free expression requires you to have some ability to do it in public, not just in private. Similarly, they argue, because there are threats to your person that exist not just in your home but in public as well, the right to "bear" arms cannot be understood to be protected if those arms can only be borne in your home.

Albaby
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But the 2nd Amendment doesn't mention "threats to your person", or any language similar. It says "A well regulated Militia, being necessary to the security of a free State,...". Plus, the "free State" would -in this case- be New York, who clearly doesn't want that militia. Or doesn't consider a militia to be a priority. And/or has the national guard already (a well-regulated militia!).

In any event, I don't see how there is a case. The feds didn't do it, the State did. Implicit in that amendment is the power of a (or the) State.
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But the 2nd Amendment doesn't mention "threats to your person", or any language similar. It says "A well regulated Militia, being necessary to the security of a free State,...". Plus, the "free State" would -in this case- be New York, who clearly doesn't want that militia. Or doesn't consider a militia to be a priority. And/or has the national guard already (a well-regulated militia!).

In any event, I don't see how there is a case. The feds didn't do it, the State did. Implicit in that amendment is the power of a (or the) State.


That's not correct. Because technically, we're not actually talking about the 2nd Amendment in this case, but the 14th Amendment.

The Bill of Rights originally only applied to the federal government. Arguably it still does. For example, under the First Amendment, a state still had 100% authority to ban any speech it wanted to, prohibit any religion it wanted to, to promote any religion it wanted to, etc. The Bill of Rights only limited the power of the federal government - a citizen's rights vis-a-vis its state government would be determined by the state constitution. Unlike almost every other country on earth, our national government was created by the state governments - and so the real concern was the federal government reaching past the state governments, rather than dealing with the citizens' relationship with their state governments.

That was changed by the Reconstruction Amendments. For the first time, the national Constitution had something to say about the rights of citizens as against the state governments, rather than just limiting what the federal government could do. Now, States were no longer permitted to deprive their citizens of life, liberty, or property without due process of law. Over time, SCOTUS began to define what "liberty" meant by reference to the liberties protected in the initial Bill of Rights. So they held, for example, that the 14th Amendment barred States from infringing on your free speech rights to the same degree that the 1st Amendment barred Congress from doing it. That legal doctrine is called incorporation.

What that means is that a lot of things that the Bill of Rights initially allowed States to do (like establish their own state religions) are now no longer permitted. So while New York State originally could have prohibited its citizens from owning firearms (because the Second Amendment was meant to protect only against federal intrusions into that right), now under the 14th Amendment whatever rights the citizens had against the federal government they also have against the state government. So if the federal government couldn't disarm the citizenry of pre-Reconstruction New York State, then the state government can't do it now.

Albaby
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That is interesting, but only the 2nd calls out a protection regarding the State. If the State wishes to forgo that protection, is there anything that says they can't do it?

I have the right to keep and bear arms in Arizona, but I'm not required to do it. I can (and do) opt-out. So can New York, or they could favor their national guard as their militia (which they likely do).

The 2nd was never about personal defense. It was always about State militias.
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If the State wishes to forgo that protection, is there anything that says they can't do it?

Yes. DC v. Heller, which holds that although the Second Amendment refers to militias, the term "militia" refers to the population of able-bodied men (not merely the actual collection of such men after they have been summoned to participate in an organized military unit) and thus that the right to "keep and bear arms" under the Second Amendment is a right that they possess, and not the State. The State can choose to, or choose not to, call forth that militia - and the State may adopt (or decline to adopt) whatever regulations should govern that militia, either before or after it has been called forth. But the militia always exists, and it always possesses the right to keep and bear arms vis-a-vis the federal government regardless of whether the State has elected or not elected to do anything with that militia.

Albaby
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The 2nd was never about personal defense. It was always about State militias.

Disagree. Many states, both before and after the drafting of the Constitution, have in their Constitutions very similar language and/or explicitly state a right of self defense. Both PA and VT, written before the Constitution, have explicit defense protections ("the people have a right to bear arms for the defence of themselves and the state").
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...although the Second Amendment refers to militias, the term "militia" refers to the population of able-bodied men...

Yes, this is one of the major reasons why the Heller case is important. Scalia's explanation of why the Founders used the term militia instead of all "able-bodied men" may not be satisfactory to many if that is what was meant, but there it is. Since we have three somewhat Scalia-like replacements since his exit (and remember, Heller was a 5-4 decision), one could comfortably wager that the Rifle & Pistol Association will prevail.

Pete
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Well, the "well-regulated" part kills that argument. The "population of able-bodied men" is not "well-regulated".

However, even given that blatantly incorrect interpretation by Scalia, NY has not forbade ownership of firearms. You can exercise that right all you like in your home. So I think NY should prevail.
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albaby: Yes. DC v. Heller, which holds that although the Second Amendment refers to militias, the term "militia" refers to the population of able-bodied men (not merely the actual collection of such men after they have been summoned to participate in an organized military unit) and thus that the right to "keep and bear arms" under the Second Amendment is a right that they possess, and not the State.

This sounds like the Wild West all over again. Any idiot can pack heat - and many idiots do so.

Sadly, there is zero chance of ever returning to the original intent of the second.

CNC
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Sadly, there is zero chance of ever returning to the original intent of the second.

Not within our lifetimes, no. Assuming we don't become a QOP Orwellian society (which is what I'm expecting), it may be possible in some far future. While there are more guns in circulation than ever, I read that fewer households have firearms (as a percentage of the population) than in the past 50(??) years. Don't remember where I read that stat.

Fewer households implies less support. If that trend continues, and we don't go full-Orwell, Heller may be overturned and progress will be made.

If we go full-Orwell, the jack-boots will come take them from you anyway and cart you off to the Ministry of Love.

1poorguy
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Well, the "well-regulated" part kills that argument. The "population of able-bodied men" is not "well-regulated".

Why not? You can have regulations of the population of able-bodied men that come into play when they are summoned to active duty.

However, even given that blatantly incorrect interpretation by Scalia, NY has not forbade ownership of firearms. You can exercise that right all you like in your home. So I think NY should prevail.

Again, the argument is that the right is to "keep and bear" arms. It's not just ownership - it's also use. Does being able to use a gun only in your home fully allow the exercise of the right, or does the right encompass something broader? We certainly would not accept that for some other rights - if the state prohibited exercising the right to free speech except in your private home, or to religious exercise, that would certainly violate the First Amendment.

Albaby
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You can have regulations of the population of able-bodied men that come into play when they are summoned to active duty.

Setting aside that NY has no need or desire -apparently- for a militia of that sort, they DO have regulations. Which is what the complaint is about.

As for free speech and religion, we have regulations about that too. The classic yelling "fire" in a crowded theater, for example. Withholding medical treatment of children because of the religious preferences of the parents. Etc. Basically, matters of public health/safety that goes beyond the individuals involved (e.g. theater patrons, children, bystanders not wanting to get shot in public, etc).

I suspect the composition of this Court will not acknowledge this, but it seems to be common sense (and what the Founders actually wrote).

1poorguy
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As for free speech and religion, we have regulations about that too. The classic yelling "fire" in a crowded theater, for example. Withholding medical treatment of children because of the religious preferences of the parents. Etc. Basically, matters of public health/safety that goes beyond the individuals involved (e.g. theater patrons, children, bystanders not wanting to get shot in public, etc).

Of course. No courts have disagreed that states have vast regulatory authority over guns under the Second Amendment. That's why nearly all gun regulations have been upheld, even after Heller. Virtually everything that is a regulation of the right to have firearms has been upheld.

The only gun regulations that have been struck (the single district court judge in California notwithstanding) have been categorical bans on gun ownership or use. DC and Chicago basically banned all handguns - essentially everyone, in every situation, was prohibited from having a handgun. Those regulations were struck down.

That's why the New York law is vulnerable - it pretty much is a total ban on carrying a firearm outside the home. Nothing of similar breadth exists in regulating speech or religion.

Albaby
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Nothing of similar breadth exists in regulating speech or religion.

I'm not sure about that. I can rant all I like in my home. I can say things that would incite a riot, or encourage a jumper to jump, or yell "fire" all I like. But once I take it outside, suddenly I'm restricted.

So it appears to be with guns. You can do as you like in your home (short of shooting someone without cause), but once you take it outside you have to follow the rules.

A quick google search revealed that one can apply for a license, and even a concealed-carry permit. So there is an avenue. It may not be as easy as some people would like, but it's there. So I'm not sure your characterization is really accurate (or rather, the characterization of the plaintiff). You gotta jump through some hoops, but supposedly "responsible gun owners" have no problem with that.
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So it appears to be with guns. You can do as you like in your home (short of shooting someone without cause), but once you take it outside you have to follow the rules.

A quick google search revealed that one can apply for a license, and even a concealed-carry permit. So there is an avenue. It may not be as easy as some people would like, but it's there. So I'm not sure your characterization is really accurate (or rather, the characterization of the plaintiff). You gotta jump through some hoops, but supposedly "responsible gun owners" have no problem with that.


Yes, they do have a problem with it.

The petitions contained at the SCOTUSblog link upthread have a description of the New York State gun laws. In short, most people are simply not permitted to carry a gun outdoors. New York requires that in order to have a gun for self-defense, you have to demonstrate a special need for protection that is greater and distinct from the general population. In short, the average responsible gun owner is completely prohibited from obtaining a license. They can apply for a license, but it will be denied.

Albaby
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We are just about down to this

https://www.youtube.com/watch?v=-NuX79Ud8zI

(Marty Robins - with the big iron on his hip.)

Is this really what we want?

CNC
... excuse me while I go puke.
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Could you elaborate on that? What is a "special need"? Cops would qualify, but they don't need a permit (or it's implicit with their being cops?). Armored car people when they are on-duty?

It very much depends on how they define "special need" as to how restrictive that would be.

1poorguy

https://www.ny.gov/services/apply-firearms-license

(What is a "legally recognized reason"? This site doesn't enumerate them.)
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HEY!

What about smoking bans? Are they infringing on a right?

Right vs privilege?
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Probably not. It's not a right guaranteed in the Constitution. Therefore, it is not a right.
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They were able to ban Tommy Guns in the 1920's, second amendment be damned. What has changed?

We used to see most people carrying cigarettes - concealed carry even. How did we persuade most of them to stop with the evil weed? Europeans kept smoking longer than USAians. How did that happen?

CNC
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What about smoking bans? Are they infringing on a right?

America is supposed to be about Freedom. So smoking should be permitted everywhere. Freedom!

As long as the smoker is sealed airtight in a globe or plastic bag or something so that not a molecule of his smoke can reach me. That’s my Freedom from him.
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Could you elaborate on that? What is a "special need"? Cops would qualify, but they don't need a permit (or it's implicit with their being cops?). Armored car people when they are on-duty?

From the cases cited in the briefs, it's not a bright-line, codified rule. It appears to be a set of circumstances that create a requirement for self-defense that is materially different from that of the general public. I imagine those jobs would qualify - but your average citizen would not.

Albaby
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They were able to ban Tommy Guns in the 1920's, second amendment be damned. What has changed?

Nothing. Tommy Guns are still banned, since they are fully automatic weapons.

Albaby
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As albaby pointed out, automatic weapons are still illegal without a permit. Which would include the Thompson.

I think PSAs discouraging firearms would be great, but probably would become very political very fast. NRA wouldn't like them. Congress might even take action to stop them. Moscow Mitch wouldn't even need to be majority leader, I suspect. Though he likely will be in two years, and then any such action would assuredly be dead. (As well as any SCOTUS nomination from Biden...Mitch apparently has already said he'll stop it again.)
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