Right and Privilege the same thing?

Discussion in 'Off-topic' started by jrm, Nov 17, 2005.

  1. jrm

    jrm Sledgehammer

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    Continued From Previous Topic
    gunstar1:

    The federal law is a little flaky, in that it requires the state to make sure the person qualifies (under state law) to receive the license. GA law grants the "license" to people who have a reciprocal license. One could argue that GA has made sure the person is eligible to receive GA's "license" by its grant of the "license" only to people qualified under the reciprocal state's law.

    I agree with you that some rights are present at birth, but others clearly are not. For example, if you buy a house when you are 25 years old, you purchase rights (in real estate) that you did not have when you were born.

    I also agree that a license may grant a privilege, but I also would suggest that a privilege is a kind of right (that is, privileges are subsets of rights). From that perspective, I think it is correct to say that a license can grant a right or a privilege.

    Here is an example. If a city builds a park, it generally is available for use by all. The retains title to the park, but it grants a license to all to use it. Is using the park a privilege? I would say no, because a legal privilege usually is a right that is enjoyed by a person or class of people not enjoyed by everyone. So, using the park is a right (implicitly licensed by the city), but it probably is not a privilege.

    Example of privilege: If you and I engage in a boxing match, I have a privilege to punch you in the face. I enjoy a right that is not enjoyed by others (a front row fan could be convicted of battery if he jumped into the ring and punched you, but I have the defense of privilege).
     
  2. Gunstar1

    Gunstar1 Administrator

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    jrm: No, you are mixing terms.
    Your God given rights are in the Constitution and the Bill of Rights. Another way to look at a right is that it is a limit on Government from doing as it pleases. The people grant the Government power over other parts of thier lives, but that power cannot exceed a right (unless justified in court). As the 10th Amendment says:
    A privilege is something the feds or state grant you to do, but without their approval you would be breaking the law.


    Not quite, the 4th and 5th Amendments state you have property rights. Whether that property is intellectual, land, house, car, or bicycle.
    I have a right to bear arms but can't legally own a firearm until 18, so I cannot exercise my 2A right until I am 18.
    I also have a right to be able to own a car and land (affording them is another story). If at the age of 10 I had enough money to buy land and a car, I have the right to use my property as I like (drive that car on my land night and day). I don't have a right to drive a car on public roads, to do that I need a license or privilege card.

    Actually it is a privilege. Checkout this thread where MP has been talking about it. If use of the park were a right, then I could use it 24hrs a day for whatever I wanted, as I could with my own land. Parks have many conditional use requirements (rules).
    Also, a park can be reserved for use by a group and during that time the city/county has basically taken my park privileges. They can also ban people from entering onto park property(for breaking the rules), so they revoked park privileges forever.

    For the boxing example, you have a conditional permission to punch the other person. As you said it is against the law to punch someone outside the ring, so the state allows you the privilege to punch another person without being charged ONLY if you are in a boxing ring. If it were a right, then the entire audience could punch him.


    You are allowed a privilege that others do not have.
    You have a right that everyone else has too. (whether you exercise that right or not)
     

  3. jrm

    jrm Sledgehammer

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    It looks like we are destined to disagree on this one. I provided alternate definitions of right and privilege and used examples to illustrate my definitions. You said my examples were incorrect because they do not illustrate your definitions. Well, no they don't.

    I will point out what appear to me to be some inconsistencies in your statements. You said that a privilege is something (but not a right) granted to you by the government, without which your conduct would be illegal. But you also seem to agree that a boxer has a privilege to punch another boxer. That privilege wasn't granted by the government, though. It was granted by the other boxer.

    It looks like you would agree that freedom of speech is a right. We know that the government can place reasonable restrictions on the time, place, and manner of speech. But, you say that using a park is not a right, because then it could be used 24 hours a day without condition. If the government can place restrictions on the right of free speech, why can't the government place restrictions on the right of park use? Using my definitions, the only difference between these two rights is that one is granted by the constitution, and one is granted by the city.

    For what it's worth, here's what Black's Law Dictionary says (in part):

    Right: a power, privilege, or immunity guaranteed under a constitution, statutes, or decisional laws, or claimed as a result of long usage....an interest or title in an object of property....

    Privilege: A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generaly possessed by others.

    As you can see, each uses the other in its definition. Of course, it doesn't really matter what the definitions are until you use the words. I don't think there is a significant body of law regarding carrying weapons that draws a distinction between rights and privileges, but I may be wrong (I know I was once a few years ago).
     
  4. Gunstar1

    Gunstar1 Administrator

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    "...few years ago. " :)

    I see the problem now, I did the same thing when I first started reading the law. You are correct that regular English dictionaries swap terms. However, when talking about legal stuff normal words take on slightly different meanings.

    I learned this when I first wanted to know why counties took longer than 60 days to issue a license since the law says "shall issue". I was told by a person at the AG's office that "shall does not mean must".
    Well first thing I did was look at a dictionary for the definition of "shall". (I just noticed m-w.com using anti-gun stuff) not my emphasis.
    Confused I went to a legal dictionary and found a different meaning. Check out a legal dictionary like law.com's dictionary.
    So check out "right" and "privilege" in a law dictionary:
     
  5. jrm

    jrm Sledgehammer

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    I'm not sure the two sets of definitions are so very different, but note also that the ones I supplied were not from a standard English dictionary. They were from Black's Law Dictionary.

    Oh, and "shall" in GA usually is considered to be mandatory. GA courts have found exceptions when "shall" is accompanied by things such as "as necessary," but "shall" in a statute generally requires the action to be done. Despite what the AG's office might have said, I believe the GFL statute is mandatory and that an action for mandamus against the probate court would be successful.
     
  6. Taler

    Taler New Member

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    If someone can supply me with a "sample", I'll file a mandamus petition, and we'll all discover who is right (errrr, correct).
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    On "shall" and "must" please review this link: http://www.gfodl.org/forum/viewtopic.php?t=237

    :(
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Right about what? Are you still waiting on your license?
     
  9. jrm

    jrm Sledgehammer

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    MP,

    Thanks for the link to the thread on "shall." I have found many, many cases where the appellate court said "shall" in a statute is mandatory, including Hancock v. State and Hepburn v. State. There are a couple with the counter result, but they generally found something in the statute besides the word "shall" that gave the impression that it was not intended to be mandatory. I think a good rule of thumb is that "shall" in a statue is mandatory unless the context indicates a different intent.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I need a little more, as "Anything v. State" will pull up a lot of mostly irrelevant cases . . .
     
  11. jrm

    jrm Sledgehammer

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    Yes, your honor. Try these:

    Leake vs. Murphy 274 Ga. app. 219
    Hepburn vs. State 269 Ga. App. 817
    Hancock vs. State 277 Ga. 835
    Stewart vs. Milliken 277 Ga. 659
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Leake v. Murphy - The court noted that "generally" shall is a word of command. The word generally implies the existence of exceptions. This is also a case where the issue was not whether shall means must but rather an immunity case. The only purpose of looking at the word "shall" was to determine whether the act in question was ministerial or discretionary and thus whether the actor had governmental immunity from a tort suit.

    Hepburn - interesting. "Shall" was not complied with in either Hepburn or Griffith, the case cited, and the court of appeals did not reverse, in spite of the Court of Appeals in Griffith reversing a long line of decisions holding that "shall" was permissive rather than mandatory in the statute under review. It is "mandatory," but they did not hold the trial court to it in either case.

    Hancock - wow, that woman was a nut! Anyway, the court commented that shall meant the legislature had made this mandatory, then found that the judge had basically come close enough even though he did not use the "mandatory" charge.

    Stewart - This is in dissent. The dissenting Justice is pointing out that he thinks shall means mandatory, but the majority (and the holding) is that the court of appeals refused to do exactly what the dissenting judge was urging was "mandatory."

    Hrmph.
     
  13. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Hey, I am on your side, I just don't think these four cases are clear precedent for this argument.

    Your point is correct, and that is even recognized in the cases I cited on the link.

    It is normally mandatory, unless strong circumstances dictate otherwise -

    The Hardison court recognized that in its " 'ordinary signification "shall" is a word of command, and the context ought to be very strongly persuasive before that word is softened into mere permission.



    It is just disturbing how often and how easily the court of appeals is willing to find the context strongly persuasive. The very next sentence is:

    Nonetheless, the court noted that in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, " 'shall' denotes simple futurity rather than a command." The Hardison court then cited O.C.G.A. § 1-3-1(c) which provides that "substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient . . .


    Seems a rather easy bar to meet.

    We have no penalty in the statute. Strike one for us. We do, however, have a lack of substantial compliance on the part of many of the counties, however. It is hard to argue that 6-8 months (or more) is substantial compliance with a 60 requirement. Strike one for the counties.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    By the way, in Collins v. Birchfield (see link above), what is the difference between "directive" and "mandatory?" That is way beyond playing with semantics.
     
  15. jrm

    jrm Sledgehammer

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    I didn't mean to give the impression that those were the best cases for our cause. There seem to be a lot of cases that support the notion that "shall" is mandatory, and this was a relatively random sample.
     
  16. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    argument and citations to authority

    So we're making legal arguments with citations to authority including analysis of the cited caselaw? Wow. If only the trial judge hearing the criminal case would spend half as time and effort researching or trying to understand the law....

    I propose that anybody charged with a gun crime gets tried before a tribunal of nine GeorgiaPacking members instead of a regular State or Superior Court judge. Wouldn't that be cool? And I know that we'd end up convicting a whole bunch of people, too!
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Actually, I think it is granted by the government. You and I cannot agree to punch each other's lights out. That is a crime (affray).

    We cannot agree to duel with flintlock pistols or swords, either.

    Thus, the other parties consent does not necessarily render the act legal. I think the governments of some states have made an exception for boxing.

    Disclaimer - I haven't researched this or anything . . . :D
     
  18. jrm

    jrm Sledgehammer

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    I think my distinction withstands those arguments. I did not mean (and don't really think I said) that consent of the other party does not render an (otherwise illegal act legal). Take the boxing example. The state prohibits battery. But, an element of battery is lack of consent. Thus, a boxer is deemed to have consented to be battered, and the "batterer" is privileged to do so. The privilege to batter is not granted by the state. It is granted by the other boxer. The state hasn't granted it boxers a right to box. It has refrained from prohibiting it.

    Another example: Normally, it would be a burglary for you to enter my house and take my television set. But, if you have my permission to do so, you are privileged. The state did not grant you that privilege. I did.

    But, compare these to an intentional homicide example. Normally, an intentional homicide is malice murder. But, there are exceptions. If the "victim" consents to the homicide, then at a minimum it is an assisted suicide. Depending on the circumstances, it may still be a malice murder. The point here is that consent is not an element of malice murder, and the victim's consent does not give rise to a privilege.
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Like the guy in Germany that consented to being eaten?

    Really!

    I don't have a link, but I remember reading about it - a rather bizarre case. Apparently, the email correspondence between the two showed that the victim who responded to the cannibal's ad was consenting to being killed and eaten.
     
  20. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Not only granted, but required licenses . . . OCGA 43-4B-11 (actually, chapter 4B is huge, plus the Commission established regulates it and has subpoena power)

    http://www.legis.state.ga.us/cgi-bin/gl ... e=43-4B-11