2nd Amendment and Licensing

1) Until challenged, that is a possibility.
2) Yep. I got the impression from the justices wording that the Court awarded that result only because "it would satisfy the defendant".

The reason licensing wasn't an issue is because Heller stipulated that licensing was OK with him.

It doesn't mean licensing is an acceptable regulation of an enumerated right. It just means Heller wisely chose not to have that fight right now - so D.C. has to issue the license to him.

My guess on future cases is that licensing will probably stand, as long as it doesn't result in a de-facto ban.

I think we will be facing some serious licensing in the near future, and lots of hoops through which to jump for our more interesting items. Just a guess...

My guess is that licenses are going to end up being OK. The reason is that it isn't much of a restriction... you fill out the paperwork, pay the fee, and you get the license. The impact on your ability to keep and use a weapon for lawful purposes is minimal. However, if, as part of the licensing process, you are also required to pay a fee that is prohibitive (more than the costs of administering the program), or you're required to attend classes or pass a test, then the burden could be substantial. It all depends on the level of scrutiny the Court will apply to the regulation. Also, the government won't be allowed to have any discretion as to whether to issue the license. If you are a person who is eligible to own a weapon (not a felon or insane) then the government has to give you the license.

I think the best analogy is going to be to 1st Amendment law. You might need to apply to get a permit for a demonstration, but once you meet the requirements, they have to give you the permit.

In some cases, a shall-issue, one-time-fee license might be preferable to a system currently in place, e.g. in California.

Every time I buy a gun I have to pay a $25 fee, fill out paperwork, buy the gun and wait 10 days to receive it.

It doesn't matter if I have a safe full of firearms. If I have one .357 revolver, I have to wait 10 days for an identical .357 revolver, ostensibly as a "cooling off period." Of course, if I wanted to commit suicide or murder my cheating spouse or whatever, I could use the gun I already have...

In essence, one has to go through the license process every time he/she buys a firearm. Provided that it is administered in the right way, which is hardly a given, but if it were, I'd rather just do something like the 10-day wait thing once, and be able to just buy another gun whenever I wanted with no wait.

The problem with a licensing scheme isn't the license itself -- whether I like it or not there's a compelling argument for ensuring that a gun buyer knows enough not to shoot himself accidentally -- but rather, the problem is with the abuse of the system by the government.

"May issue" is the worst example. In California, one can get a CCW permit -- at the discretion of the County Sheriff. If he doesn't believe in CCW, you don't get it. If he doesn't feel like it, you don't get it. There are no appeals, and no guidelines. There's no "rule of law" here; it's up to a single individual's feelings, whether you get a permit or not. That kind of licensing is, of course, totally unacceptable.

There are First Amendment cases that invalidate licensing and taxes on speech.

If you are going to make analogies, let's make them helpful to us.

However, you may be right in that as to "carry" the Court may analogize to parade permits.

) How are we all not going to have to be licensed?

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Hmmm, how about joining the NRA and if already a member writing a fat check to the NRA-ILA?

2.) Do you think if Heller had just asked if could have kept a gun in his home, SCOTUS would have ruled the Individual right, but no need for license?

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Maybe, maybe not. Since we have a fundamental individual rights, let's get incorporation and then strict scrutiny review and then knock down licensing in Illinois, New York, Massachusetts, New Jersey, etc.

I could imagine the stink if you had to have a license to speak freely... people would be "up in arms"... funny how that works out eh!

Maybe, maybe not. Since we have a fundamental individual rights, let's get incorporation and then strict scrutiny review and then knock down licensing in Illinois, New York, Massachusetts, New Jersey, etc.

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El Tejon has the right idea. In those states, merely owning firearms requires going through a very capricious licensing process. Attack that first, then go after carry restrictions/ etc.

The Supreme Court has been down the licensing road before:

Murdoch v. Pennsylvania, 319 U.S. 105 (1943) (cannot be compelled to pay a tax in order to exercise a right)

Shapiro v. Thompson, 394 U.S. 618 (1969) (waiting period for welfare check is void as it touches upon fundamental right of interstate travel)

Thomas v. Collins, 323 U.S. 516, 538-40 (1945) (registration to exercise a right is unconstitutional)

United States v. Jackson, 390 U.S. 570, 581 (1968) (government cannot chill exercise of fundamental right)

Minnepolis Star v. Minnesota Commn'r of Rev., 460 U.S. 575 (1983) (taxes on fundamental are unconstitutional)

Licensing, taxes and waiting periods are not reasonable restrictions on fundamental, individual rights as licensing, taxes and waiting periods are unconstitutional when it involves one's rights.

I think J. Scalia's language was pretty clear that he didn't accept licensing, but that since all the plaintiff asked for was to be granted a license, then they were going to order that he be issued a license.

My sense is that Scalia would be amenable to the argument that "you don't need a license to exercise a Constitutional Right."


I think "The right to... bear arms" is soon going to get very interesting...

I think J. Scalia's language was pretty clear that he didn't accept licensing, but that since all the plaintiff has asked for was to be granted a license, then they were going to grant that he was to be issued a license.

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You are exactly correct, Sir! The licensing aspect wasn't at issue before the Court.

My sense is that Scalia would be amenable to the argument that "you don't need a license to exercise a Constitutional Right.

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I agree again. A license is the anti-thesis of a right. A license (look it up in any law dictionary) is special permission to do something which is otherwise illegal. How can you make a basic Constitutional right illegal in the first place, and then grant licenses issued by the state?

Simply put, a License is a permission slip. I do not need a permission slip to breath, to think, to speak freely, or to be secure in my person, home, papers and effects.

As I have said before, the door is now open to begin affirming the nature of our "Rights". There never was a Bill of Permissions.

In many states you have to get a permit or a license just to own a firearm. If ccw's are available, there are a whole other group of hoops you have to jump thru. I some jurisdictions the costs and time to be able to obtain a gun is ery high.

If RKBA is now a recognized right, why do we have to pay for that right? What other constitutional right to we have to pay for? (and I'm not talking the cost of an abortion)

I think licensing is problematic and will likely not pass muster with the court since prior restraint for the most part is a no go for fundamental rights. I think this is the reason that the ruling said

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

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The key phrase being "..and does not address the licensing requirement" so they are clearly saying that it is an open issue and although they don't say so directly they are clearly inviting a test case.

The need for a permit for a demonstration is clearly a much different thing than a license to own a gun. In the case of a demonstration the permit is to demonstrate ON PUBLIC PROPERTY. You do NOT need a permit to have a demonstration on your own land. After all demonstrating is a fundamental right but using public facilities is not. The analogy of needing a license to speak is much closer to needing a license to own a gun and has been stated requiring a licenses to speak would never fly.

I think that licenses for CCW will stand. First, they have already ruled the restrictions on CCW are OK. Second, traditionally (I am going back > 50 years) concealed carry was considered to be something that only those up to no good did. That is the good guys didn't try to hide their guns since OC was broadly accepted. So concealed carry was subject to regulation going way back (in fact in some places this was the case in the early 1800s). But this ruling does say that we have a right to bear arms and when coupled with CCW may be restricted this means that OC must be part of the right since if CCW is restricted that only leaves OC as way to bear arms. So (assuming incorporation) if states restrict OC, like California currently does, then I think the courts will rule that either OC must be legal or CCW must be shall issue. In other words states will no longer be able to restrict both OC and not have shall issue CCW at the same time but must allow either OC or have shall issue CCW or both.

Ohio at one point had no CCW but also had no laws which prevented OC so OC was legal. But it was common for the police to arrest those who OCed on other charges like causing a panic. Because this precluded OC and because Ohio has a right to bear arms provision in it's constitution the Ohio SC ruled that the state had to allow CCW since OC had been made impossible because of the behavior of the police. So at this point OC and CCW with a license are legal in Ohio since Ohio has not made OC illegal. This Ohio ruling since it is from a state SC can be used in other courts to argue that this is the correct approach to this type of question. I think we can expect that eventually this type of thing will happen on a broader basis in the federal courts. But it will likely take years to get there.

So:

1) How are we all not going to have to be licensed?

2.) Do you think if Heller had just asked if could have kept a gun in his home, SCOTUS would have ruled the Individual right, but no need for license?

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usmarine,we just won our case of a lifetime,but you still just can't stop worrying,can you?
Relax,get some good vibes over the weekend and come back on Monday realizing your gun rights are secure for your young lifetime.
Stealing from Titan 6 again:
"And I mean it."

hvengel, I thought this part of the ruling was interesting:

... and must issue him a license to carry it in the home.

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Again, the plaintiff only asked for a gun in his home, so that is all the Court addressed. But, their ruling is very clear that carry is a part of the 2nd Amendment right.

As I said above, "I think 'The right to... bear arms' is soon going to get very interesting..."

So, the Heller opinion precludes the possibility of excessive and prohibitive fees or requirements for obtaining the license to become a virtual ban?

So, the Heller opinion precludes the possibility of excessive and prohibitive fees or requirements for obtaining the license to become a virtual ban?

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Yes it clearly does.

...not enforced arbitrarily and capriciously...

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In fact I don't think this part of the ruling was necessary to prevent those types of abuses since there are many other SCOTUS rulings dealing with fees and other forms of prior restraint of a fundamental right. I think it is part of the ruling to reinforce the point (so the DC government gets it) rather that to make the point since I think these other rulings dealing with this type of thing with respect to other fundamental rights would be considered president for other fundamental rights including this one. IE. if you can't have a tax or have fees or require a literacy test for voting why should you be able to do any of these for speech or religion or gun rights or or anything else considered to be a fundamental right. The answer is that of course you can not. Once a right is considered fundamental then there is an already established set of rules that goes with that and these come along as part of the package. That is one of the reasons that this is such a big victory. The right to keep and bear arms was declared to be a fundamental right yesterday and that has huge legal significance that goes well beyond the basic coutures of the ruling itself.

I raise you a "Permit to Acquire". How many rights have a permit to get them and require that you sign a waiver to allow a state access to your private medical records?

http://www.honolulupd.org/info/gun134-2.htm

Cool.Thank you.End of story.I'm happy for you and me and every 2A patriot.

My guess is that licenses are going to end up being OK. The reason is that it isn't much of a restriction... you fill out the paperwork, pay the fee, and you get the license. The impact on your ability to keep and use a weapon for lawful purposes is minimal.

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Do I understand you correctly? Are you saying that "licensing" is perfectly acceptable to exercise an existential right?

How does that make it a right, and not something the government regulates and holds the keys to?

We have licenses to drive. Driving is not a constitutional right. Speaking freely, and owning guns for own protection, are. Conferring that a license is reasonable for one right but not another is not a reasonable conclusion. Shall we require all public speakers to be licensed? (And what is the point of a license if it "must" be given, anyway, other than to keep track of who's utilizing said right?)

Likewise, what good is a right to own arms, but a token gesture of allowance, if the government knows who owns a gun? It is a trivial step for them to take to associate weapons with their owners, and restrict their trade once they've got their step in the door, as history has shown.

Isn't this the kind of nonsense we've been fighting the ATF on, year after year, and why 4473s are not kept centrally?

Let history be an example: licensure (or registration, whatever you want to call it) has been the biggest single determinant of arms confiscation throughout history.

Both sides stipulated (agreed) that licensing was not an issue before this case even went to the Court. So it wasn't even a question in this case.

However, I think Scalia's opinion makes it clear it might be a good question for other cases.

Here is how I see it. We are not going to license you but will have to charge a 25$ fee to verify that you are not a felon or mentally ill. This will be on a state level, more in-depth than federal. So to do this we will need all you info so we can process this, then from time to time we will have to review your record to make sure your slate is still clean. If it is not, we have to have your gun info so we know what we are going up against when we come to take it away for violating state law.

But it is not a license or a restriction Honest.

Sorry I am ranting but they will find some way to make it legal to restrict your rights.

I posted this in the big Heller thread, but I guess this is the more appropriate place:
Has anyone suggested bringing back the DC Personal Protection Act as some kind of "Motor Voter" law to enforce the "not arbitrary or capricious" part of Heller?