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In a free society, the burden is on those seeking to restrict.

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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:03 PM
Original message
In a free society, the burden is on those seeking to restrict.
People do not have to show a need to own or do anything.


Those wishing to restrict a thing or action, shoulder the burden of proof, whether its guns, abortion, speech, or anything else.


This is not a gun thread, so please don't turn it into one.


The topic of it is a principle.

Discuss.

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kentuck Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:05 PM
Response to Original message
1. They sought to restrict machine guns in the 1920's...
Because they felt the need to.
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elleng Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:08 PM
Response to Original message
2. From time to time, public policy determines certain things or behaviors should be restricted.
It is SOCIETY's decision, made through public officials with the use of laws and regulations.
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Odin2005 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:24 PM
Response to Reply #2
9. There are certain things the majority has no right to take away.
Do you think the majority would have voted for desegregating schools in the 1950s?
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kentuck Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:59 PM
Response to Reply #9
10. The majority took away the liquor...
and had to give it back when Prohibition ended.
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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 12:06 AM
Response to Reply #10
12. That wasn't a majority, it was a supermajority.
Edited on Mon Jan-17-11 12:09 AM by beevul
AKA constitutional amendment - at least in the enactment and repeal of amendment 18.


Of course alcohol - liquor - wasn't a protected right to begin with iether.
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Timbuk3 Donating Member (727 posts) Send PM | Profile | Ignore Sun Jan-16-11 11:10 PM
Response to Original message
3. K&R
We are endowed by our creator with certain inalienable rights.

And for at least the last 30 years we've ceded them away far too easily.

Does the 4th amendment even exist, any more?
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rucky Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:11 PM
Response to Original message
4. I've never thought about it like that, but you're right.
Every issue you mention, the fair approach puts the burden of proof on the more restrictive.
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Codeine Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:12 PM
Response to Original message
5. The onus should always be on those who seek to restrict freedom,
not those who choose to exercise it. The word "need" should never even be part of the discussion in any way.
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texastoast Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:15 PM
Response to Original message
6. Correct.
Environmentalists have to prove it is a bad idea to shit in one's own mess kit.

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wtmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:19 PM
Response to Original message
7. In a utopia, the burden is on those seeking to be a downer.
There are no free societies, so I'm not sure where you get your information. :D

In any society often one person's freedom can impinge on another's, so by exercising your freedom you may be restricting someone else's.

This leads to an irresolvable paradox.
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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 12:12 AM
Response to Reply #7
13. There are no utopias either.
"There are no free societies, so I'm not sure where you get your information."


Ours is - in principle - a free society. At the very least its closer to that than a utopia.
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wtmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 12:34 AM
Response to Reply #13
15. Like utopia, very much a myth.
Every freedom you exercise in not empty of consequences that impinge on others' freedom (some more than others).

Each individual's inflated view of their own place in society results in conflicts of freedoms, which can only be resolved through laws - every one of which is a restriction of freedom.
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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 12:54 AM
Response to Reply #15
16. I would say thats not entirely true.
"Every freedom you exercise in not empty of consequences that impinge on others' freedom (some more than others)."

Perhaps in the big cities this is more true than in rural areas, where peoples fists are in closer proximity to the noses of others by virtue of less "elbow room" as schoolhouse rock used to call it.

This is less true in rural areas. I for example have no neighbors within 3 miles of me. Most of the freedoms I enjoy at my residence do not effect anyone else what so ever.

"Each individual's inflated view of their own place in society results in conflicts of freedoms, which can only be resolved through laws - every one of which is a restriction of freedom."

Perhaps and perhaps not.



None of the above negate, or even address what I said though.

That it is encumbent on those wishing to restrict to justifyy the restrictions they propose.

It is NOT encumbent on people to justify the freedoms they choose to exercise.




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wtmusic Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 11:19 AM
Response to Reply #16
19. A prime example of the individual's inflated view of their own place in society
You are saying, "I have the right to do what I want, regardless of how it may affect others, until I am officially restricted by a law." By "right", in this context of course, we're referring to the moral right. So your opinion is equivalent to saying moral right = legal right, which makes for a very easy target.

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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 09:55 PM
Response to Reply #19
21.  No not really.
"A prime example of the individual's inflated view of their own place in society"

No not really. The argument could just as easily be made, and no more or less valid, that "yours is a prime example of an individual's inflated view of society". Note that I'm not making that argument, I'm simply stating that it could be made. This is moral ground, and morals being what they are, varying how they do individual to individual...I did not and do not intend to go there. It simply turns into a "my morals are more moral than your morals" argument. See right wing abortion argument framing for an example. Morals vary from person to person. Legality, on the other hand, is global. The end.


"You are saying, "I have the right to do what I want, regardless of how it may affect others, until I am officially restricted by a law." By "right", in this context of course, we're referring to the moral right. So your opinion is equivalent to saying moral right = legal right, which makes for a very easy target."


No. Thats not what I'm saying. And while I note your effort to steer the discussion and define for me my argument, I don't welcome it. I can and will do that myself, for myself, thanks. By right, I'm strictly speaking legal - as in legislative restriction and the push for it. In this day,this age, and this nation. I made a point to live where my actions effect others little to not at all, because I am acutely aware of society. Thats a far cry from "A prime example of the individual's inflated view of their own place in society."

Do you disagree?


I'm saying ""I have the right to do what I want, until I am officially restricted by a law."

I'm saying that "if people wish to restrict what I or anyone else is doing or owning, contrary to the status quo in this day age and nation, the burden lies on them to provide damn good reasons why I should be restricted".

I'm saying that "I don't 'like' what so and so is doing", simply should not cut it, and that those that push to prohibit that which is not forbidden, show good compelling reasons and perhaps emperical evidence, why that which is not forbidden should be prohibited.

Or forget it.


Is this wrong in your view?



Like another poster said, there are two views at work here:

"That which is not forbidden is permitted" versus "that which is not permitted is forbidden".

I fall into the "that which is not forbidden is permitted" camp, and I find the other view to be utterly and entirely repugnant, repulsive, and capricious.

Our society is one in which that which is not forbidden is permitted, not the other way around. That by itself, IMO, puts the burden to prove necessity to restrict, on those wishing such a thing.



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Odin2005 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jan-16-11 11:21 PM
Response to Original message
8. Exactly. K&R
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X_Digger Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 12:03 AM
Response to Original message
11. It is a bit of a 'first principle'..
Authority does not flow down from the government, it flow up from the people, the governed.
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pipoman Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 12:22 AM
Response to Original message
14. True...k&r
Edited on Mon Jan-17-11 12:23 AM by pipoman
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ZombieHorde Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 01:12 AM
Response to Original message
17. Recommended. nt
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petronius Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 01:29 AM
Response to Original message
18. That's certainly how it ought to operate
I was reminded a few days ago of the somewhat facetious two views of governance: 'that which is not forbidden is permitted' versus 'that which is not permitted is forbidden.' I prefer the first, and it seems that if we value freedom at all then we should care very deeply about not limiting it without good cause (no matter how trivial the thing being limited is).
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DirkGently Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 03:46 PM
Response to Original message
20. Restricting things in a free society does impose an initial burden. That burden may shift.
based on the basic nature and likely impact of the activity or item to be restricted. To restrict speech, we insist the speech be shown to be harmful. An exhortation to violence. A direct threat to a person.

To restrict ownership of Stinger missiles, we note that while Stinger missiles are attractive and make nice conversation pieces, they are best used for shooting down airplanes, and that while private citizens might at some point have a legitimate need to shoot down an airplane, the capacity and cost for misuse of Stinger missiles outweighs that concern. This seems obvious without significant debate or even reference to the Constitution.

Presumably then, we regard the burden to support restriction to be fairly light given these facts, and would therefore require a private person desiring ownership of a Stinger missile to demonstrate

- a compelling need for legimitate use of this specific item, and

- to address the public's concerns over the likelihood and impact of misuse. For example, few Americans, especially after a careful training and certification process, would choose to unlawfully shoot down an airplane with a Stinger Missile system they are lawfully using as a coffee table. However, the results of just one or two cases of misuse might swiftly outweigh those law-abiding citizens' need for a truly fascinating coffee table.

In other words, specifics matter.

What level of analysis might a reasonable free society require to meet the burden of showing a need to restrict personal use or ownership of:

- Geraniums

- African bull elephants

- Wrapping paper

- A 12,000 pound wrecking ball and attendant crane

- paperclips

- A supersonic jet fighter

- puffed rice

- cell phones

- A cell phone that sprays acid from a small hole in the earpiece, if the correct security code is not entered on the keypad within 4 seconds of picking it up.

- toilet cleaner

- A very small barrel of nerve gas, capable of killing up to 1,200 people in under a minute if handled improperly, useful for disinfecting toilets

- garden gnomes

- exploding garden gnomes

- roach spray

- roach spray that relies upon a 75-ft, high-velocity stream of flaming plasma, which maintains a guaranteed temperature of 1,700 degrees Fahrenheit all the way to the end of its range, to ensure effectiveness. With a "keep out of reach of children" warning tag.


How heavy is the burden, and who carries it? How important is the possibility of "legitimate use," where the downside of improper, accidental, or malicious misuse is obvious and severe?

Who needs to justify their position, the EPA, or the Citizens for Responsible Home Use of Toxic Waste?

At point does the burden shift to the guy who wants to walk his bull elephant on a leash or build a nuclear power plant in his backyard?

Because, you know, he'll be 'real careful' with it.
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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 10:28 PM
Response to Reply #20
23. I can not agree.
As I said to another poster (borrowing from another poster ), our society is one in which that which is not forbidden is permitted, not the other way around.

That by itself, IMO, puts the burden to prove necessity to restrict, on those wishing such a thing. Without exception.

I view the examples you posted, as a list of things, some of which are easy to justifiably prohibit/restrict, and some of which no restriction or prohibition can be justified on. And, some of those are not legislatively based, which is really the area I'm aiming to discuss. The EPA for example, is not responsible for legislation. I also mean't against the status quo, in this day age and nation (a reflection of current realities), which is my fault for not making clear. It is and was such a given to me, that I didn't bother. Of the examples you posted which meet that criteria, none in my view justify a principle of "that which is not permitted is forbidden".

That being said, the ease or difficulty of justifying a restriction/prohibition on a thing or action does not, in my view, change which side of the equation shoulders the burden of that justification.

It does however reign in that which is difficult to justify, to a much larger degree than "that which is not permitted, is prohibited".

And it makes much less likely, the arbitrary.



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DirkGently Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jan-18-11 12:34 AM
Response to Reply #23
24. I don't think you took my point.
Edited on Tue Jan-18-11 12:40 AM by DirkGently
There is of course a burden upon those in a free society who wish to restrict the ownership of bull elephants, nuclear power plants, and Stinger Missile systems. It's just not always a very heavy burden. We don't need a lot of discussion on the possible consequences of accident or misuse. We don't need an in-depth study. We're not especially concerned about the "freedom" being lost where hazards are clear and benefits are murky.

But we do impose a burden of inquiry before we restrict conduct.

Sometimes the inquiry is complex, and balances critical needs against ambiguous risk. Political speech for example, is hard to replace, and fundamental to free society. The alleged harms flowing from it are at best, many steps removed, and well balanced by known benefits of equal or greater value.

In other cases, the inquiry is less complex. We shorten the debate on using nerve gas as toilet cleaner. There are safer alternatives. The potential for misuse is large. Its supporters seem more titillated by the violent potential than by real, practical application, or even pleasure, although they throw up a few supposed "needs."

We conclude the question at hand balances a small limitation against a significant risk. We find the "burden" met. We move to the next step.

We next ask those opposing the restriction to describe the harm posed by the proposed restriction, in terms of the hardship such a restriction would inflict. Someone will say they need a bull elephant to enrich their flower beds. Someone will say they enjoy coffee tables made from from fully functional Stinger Missile systems. Someone will desire a live nuclear power plant to guard against the future collapse of society.

We consider these claims. We consider the benefits or necessity of the desired uses of the activity or item upon which the restriction is proposed. We inquire as to what alternative means are available to provide similar benefits or to satisfy similar needs, that may be free of the perceived risks associated with the activity or item to be restricted.

This may be a complex inquiry, implicating a balance between serious, important needs and perhaps unlikely hazards. Is this an item or activity with an obvious or proven potential for misuse? Have we seen catastrophic examples of the risk associated with the item or activity? Is it a ripe target for misuse? Do many people utilize this item or activity for vital or immensely pleasurable purposes?

Or is it that our citizens who would insist on keeping a bull elephant tied to a tree in the front yard to provide fertilizer have access to equally valuable fertilizer that is significantly less prone to stomping the neighbors' KIA into a pancake?

Is it perhaps too obvious to even discuss that while making living room furniture out of anti-aircraft missiles is fun, with risks easily managed by expert enthusiasts of high moral character, the likelihood of someone using anti-aircraft missiles for ill purposes is high enough, even if just one or two people might try it, that we should set this type of furniture aside and direct Stinger coffee table enthusiasts to the nearest IKEA?

Do we perhaps see a fairly simple decision to be made as to whether liberty is threatened by limiting the inherent human right to access to nuclear fission reactors, given the relative rarity of practical personal applications, the many adequate alternatives, and the fairly obvious potential for accident or misuse?

The inquiry is the same as suggested in the OP. It just doesn't stop at the end of our collective noses.

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beevul Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jan-18-11 01:52 AM
Response to Reply #24
25. I think I take your point.
Edited on Tue Jan-18-11 01:56 AM by beevul
But I don't think, in making it, that you and I are in disagreement over the fundamentals.

You are putting a finer point on it than I would have.


My entire point, is one of fundamentals:

Fundamentally, the burden of justification is on proponents of restriction/prohibition, rather than on those exercising a right.
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DirkGently Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jan-18-11 10:16 AM
Response to Reply #25
26. I wouldn't disagree; however, it may not be the case that anyone has ignored that principle.
If someone were to pose to the Suburban African bull Elephant Fertilizer Enthusiasts Society (SAEFE) immediately, without prior debate, the questions of

- what benefits, exactly, the personal, suburban maintenance of African Bull Elephants confers,

- what alternatives might be available as a source of fertilizer, and

- what assurances against the risk of accident, misuse, or malicious use SAEFE can provide -- in other words, why someone "needs an African Bull Elephant," it may not be that the questioner is somehow ignoring the critical first step of providing a basis for restriction.

It may be instead, that the inherent risk of suburban African Elephant ownership is either 1) obvious on its face, 2) has been amply demonstrated by, for example, the multiple stompings of neighborhood cars by elephants sold and kept as "fertilizer producers," and / or that 3) incidents of misuse or accident, whether or not rare, have been severe, or perhaps even devastating.

That is not, of course, the same as presuming to eliminate the burden upon those in favor of restriction, but rather illustrates a case in which it would seem that the "reason" for suburban elephant restriction -- avoiding car stompings, etc. -- is so well-known and apparent, that the question in greater need of discussion rapidly shifts to the next inquiry, i.e., "For what do you really need an African bull elephant, what other alternatives might serve you just as well, and how can you assure the public that the well-known risks of elephant keeping can be reasonably managed without the proposed restriction?"

In such a case, were the Suburban African Elephant enthusiasts who oppose restriction to attempt to stand on the principle that the burden of showing the need for restriction rests with their opponents, saying nothing more, and offering no input as to their affirmative need to keep their elephants, or alternative methods of attenuating risk, it might be fair to suggest that they are studiously ignoring the obvious, and according greater weight to the initial burden of showing a need for restriction than common sense would indicate.
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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jan-17-11 10:00 PM
Response to Original message
22. Exactly and a want or desire to restrict isn't sufficient.
To restrict rights requires due processes. The majority saying so isn't due process.

For fundamental rights the Supreme Court has laid out the level of burden on the GOVERNMENT and it is called Strict Scrutiny.

http://en.wikipedia.org/wiki/Strict_scrutiny
----------------
To pass strict scrutiny, the law or policy must satisfy three prongs:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

----------------

Someone challenging a law needs to merely show the govt has failed to meet the burden of proof required. Those challenging need to prove nothing.
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