2nd Amendment and Licensing

[DSAPT9]

I agree with other comments. I think Scalia's opinion makes it clear it might be a good question for other cases. It may even shut down any wait time or cool off period as well. This restricts your right as well.

 

[DMK]

It seems to me that Heller compromised his own rights before the court by agreeing to the licensing restriction. Perhaps the defense felt that not agreeing to this point would be pushing their luck.

Although one has rights, one can also give them up freely if they wish (such as, "yes you can search my car", or "no thanks, I won't need a lawyer".)

 

[M1911Owner]

It seems to me that Heller compromised his own rights before the court by agreeing to the licensing restriction. Perhaps the defense felt that not agreeing to this point would be pushing their luck.

No, what they did was carefully isolate the issue of whether the Second Amendment actually confers an individual right, so that the Court couldn't sidestep answering that question. Had they also argued the licensing question, the Court could have chosen to decide the case on the based solely on the question of licensing, and decided that question in such as way that they didn't have to answer the question of what the 2nd actually means.

They have lost nothing by not asking about licensing. The decision actually addresses that, by saying that they are not making a ruling about licensing.

 

[Vibe]

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.

That would be a "Tax" and has also been coverd by previous SCOTUS decision as a no-no.
The licensing and taxation question when applied to fundimental rights is well established already.

 

[usmarine0352_2005]

They have lost nothing by not asking about licensing. The decision actually addresses that, by saying that they are not making a ruling about licensing.

Why couldn't they just ask if he could keep a gun in his house? Not if he could get a license to keep a gun in his house?


How would that question change the outcome of a narrow individual right?

 

[Hardware]

If the 2nd amendment enumerates a right, and you cannot license a right, how does this play out for states like Massachusetts and Illinois that require you to have an FID card to even purchase a rifle or shotgun? While it is not called a license, it is a de facto license in that nobody will sell to you without one.

(I'm not even going to get into registration of firearms, what if you had to register books?)

 

[El Tejon]

Hard, becuase the Second has not yet been incorporated to the states

 

[Vibe]

If the 2nd amendment enumerates a right, and you cannot license a right, how does this play out for states like Massachusetts and Illinois that require you to have an FID card to even purchase a rifle or shotgun? While it is not called a license, it is a de facto license in that nobody will sell to you without one.

So long as the FOID card does not cost anything then it would be the same as a Voter ID - which also cannot have a cost to acquire. And just as you do not have to reveal how you voted, one would think that you would then not have to reveal which firearms you owned...if any.

 

[insidious_calm]

Re: Nfa '34

Originally Posted by El T:

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.

Given these cases, and this "new" establishment that fiearms ownership is in fact a fundamental right, wasn't the NA '34 essentially DOA the minute the decision was released? NFA '34 is a TAX law. Now it is clearly a TAX to exercise a fundamental right. It would seem that ALL of those provision are now illegal. Thoughts?


I.C.

 

[Zoogster]

When the Nazis invaded other nations they assumed control of the already in place governments.
For example when France was captured they were able to use all the information gather by the French government against the people. Records of all sorts could be used to track certain people down, and classify different citizens as risks that were unacceptable.

Ironicly licensing does the same for both foriegn and domestic governments.

A local government could require licensing, only to have that very licensing used against the people by another state or even the federal government.

Governments change, the people in power change. The future people requesting, siezing control of, or using the information in a database are unforseen.

I think it is fair to say licensing is a major threat to the purpose of the 2nd.

 

[wristtwister]

Personally, I think they should have a 3-day waiting period before counting left wingers votes... It would give them time to put the bodies back in the graveyards.

The whole issue of licensing is just another method of interfering with your civil rights and keeping a hook in you. Think of the logic...
You need a permit to buy...
You need a permit to own...
You need a permit to carry...
You need a permit to sell... along with a license, or pay a licensed dealer fee...

How many of those licenses and permits do you have to have to vote? How much is your poll tax fee? What kind of license to speak freely? What kind of permit to go to church? What permit gives you Habeas Corpus?

It seems the only "regulated right" in America is the 2nd Amendment to the Constitution, not the others... just an observation... if I'm wrong, where do I find a permit to operate a free press?

WT

 

[Bartholomew Roberts]

NFA '34 is a TAX law. Now it is clearly a TAX to exercise a fundamental right. It would seem that ALL of those provision are now illegal. Thoughts?

NFA is only a tax to exercise a fundamental right if the arms covered by the NFA are the type of arms protected by the Second Amendment.

In the Heller decision, Scalia suggests that this is not the case; but I think a closer read will show that Scalia is saying it is not the case right now.

From a pragmatic standpoint, we need some new members on the Court as well as victories on incorporation and strict scrutiny before we will have much chance expanding the definition of arms.

 

[Vibe]

NFA is only a tax to exercise a fundamental right if the arms covered by the NFA are the type of arms protected by the Second Amendment.

In the Heller decision, Scalia suggests that this is not the case; but I think a closer read will show that Scalia is saying it is not the case right now.

From a pragmatic standpoint, we need some new members on the Court as well as victories on incorporation and strict scrutiny before we will have much chance expanding the definition of arms.

But by the Miller decision they would have been. All that was lacking was for the ample evidence of their "use to the militia" to have been brought before the court. Also there will need to be some clarification that the "in common use" terms used in the original Militia acts referred to caliber much more than to type - as it was a logistics issue. Back then, once the Militia was called up, the government became responsible for resupplying ammunition - so they "required" the militiamen to maintain arms that could be resupplied by the "standard" military supply chains.

 

[Bartholomew Roberts]

But by the Miller decision they would have been.

Well, that is your interpretation and although it seems like a plausible one, it isn't the one that the Court just gave to Miller in this decision. That interpretation is the one that will be used going forward, not Miller.

 

[Robert Hairless]

Well, that is your interpretation and although it seems like a plausible one, it isn't the one that the Court just gave to Miller in this decision. That interpretation is the one that will be used going forward, not Miller.

Ahh, light bulb finally clicked on. Thank you.

 

[USAFNoDAk]

Since the internet is used by criminals and terrorists to commit crimes, sometimes heinous crimes, we must first conduct a background check on all prospective PC buyers. Once you pass the check, we'll have to issue you a license to own a PC. That license will cost you $25.00 for administrative fees and such. Once you have your license, which could take up to 6 months to complete and send to you, you will be able to purchase a PC to get on the internet. It's for the children.

That would never fly, but it's not much different than firearms. As other folks have mentioned, there is a lot of precedent and case law dealing with the taxing and licensing of a fundamental right. It might take some time to get there (after incorporation), but you know the anti's are sweating bullets about licenses, fees, taxes, etc, when it comes to the Second Amendment, thanks to this ruling in Heller. That, in and of itself, is a nice trophy for the wall. When the Chicago Tribune starts to advocate for the abolition of the Second Amendment, you know they have their panties in a bunch. Same with the statements by Paul Helmke of the Brady Bunch. He said this was a good thing because they could now implement gun control in the legislative arena vs. the courts. Does anyone believe that he believes the carp innerds he's serving up? I don't, but that's just me. I'm optimistic that we have just started down the Yellow Brick Road. We are going to see the Wizard to see if he'll give us the full protection of the 2nd A. and help us to get "HOME"! Cause where we are now, at this point, isn't Kansas, Toto. Of course, we'll have to watch out for the Wicked Witch of the West, (could be Diane Feinstein) and her flying monkees in congress (Chuck Schumer comes to mind).

 

[Harve Curry]

A key word is infringement.

How can issuing, licensing, or permits, or fees, or expiration dates conform to any defintion of the 2nd Amendment?

I don't see how a reasonable mind could come away knowing that these CCW permits/licensing are anything but infringements after looking it up in any dictionary.

 

[USAFNoDAk]

I don't see how a reasonable mind could come away knowing that these CCW permits/licensing are anything but infringements after looking it up in any dictionary.

But anti gun and pro gun control liberals, tend to be unreasonable when it comes to exercing the right to keep and bear arms. They see it as an infringement upon the government that we don't let the government control our rights almost completely. I am under no illusions that the 4 dissenters on the USSC (Stevens, Breyer, Ginsburg, Souter) would think "reasonably" about this. They've already demonstrated otherwise. One price of freedom to be paid is eternal vigilance.

 

[k_dawg]

Pragmatically.. no-cost "shall issue" license to own, probably will be fairly easy to obtain.

 

[Zoogster]

Well, that is your interpretation and although it seems like a plausible one, it isn't the one that the Court just gave to Miller in this decision. That interpretation is the one that will be used going forward, not Miller.

Ahh, light bulb finally clicked on. Thank you.

You will see I argued something similar in the main heller discussion thread, and few saw it because everyone was too excited about the pro gun aspects of Heller to notice:
http://www.thehighroad.org/showthread.php?t=373244

Miller was redefined from one of the most pro military weapons cases into one that does not help us at all.
The original beliefs and ruling at the time of miller were in our favor (as a side note, lower courts ruled NFA was in fact unconstitutional). The SCOTUS implied if the shotgun had been a machinegun (also covered by the NFA) it would have likely prevailed. It would have been a protected arm of the militia in that case, but a short barreled shotgun was not viewed as a militia suitable arm, and nobody showed up to argue the case otherwise, so they were deciding the way they did.

However in Heller the Miller decision was essentialy rewritten. By stating what the Miller decision meant to the SCOTUS in Heller they removed the pro military weapon aspect of the case, and Miller is no longer a pro military arms case.

Now it must be argued on the basis of the majority opinion in the Heller case as a result.

 

[Bartholomew Roberts]

Miller was redefined from one of the most pro military weapons cases into one that does not help us at all.

The test of the type of arms protected by the Second Amendment in Miller wasn't all that great - after all, Miller has been the basis for the collective rights ruling being upheld in 11 Circuits over the past 70 years. So I wouldn't be too heartbroken to see it go.

I read your arguments in the big thread and didn't find them compelling. Frankly, I think that Heller is a big help to us. For one, your interpretation of Miller would never have received five votes. Second, Heller doesn't close the door on your interpretation of Miller - it just lays down some obstacles that have to be overcome first to be successful. In the long run, the majority opinion in Heller will be a much better test to argue than the Miller test.

 

[Zoogster]

The test of the type of arms protected by the Second Amendment in Miller wasn't all that great - after all, Miller has been the basis for the collective rights ruling being upheld in 11 Circuits over the past 70 years. So I wouldn't be too heartbroken to see it go.

Only in recent times by the antis though as far as I know, and that is because it was allowed to get that way.

At the time the Miller ruling was not viewed as validating a collective right only. It validated the average person having arms suitable for militia use, while at the same time validating the infringement of others (in contrast with 'shall not be infringed').

It was definately not a great ruling, but it was far less anti than it was allowed to become over the years. The antis argument was said so many times in society that it started to become the new recollection of what the ruling meant at the time.

I read your arguments in the big thread and didn't find them compelling. Frankly, I think that Heller is a big help to us.

So do I, in fact Heller replaces some of what was lost in Miller with new merits to argue the possession of military style arms, while at the same time contributing a lot more. The only major negative is it legitimizes government oversight (and hence thier ability to infringe on something that "shall not be infringed".)
However Scalia does in fact argue the basis behind the concept of a collective defense in our history, provided by the average citizen. He further mentions it was done with the very same type of arms a standing army foriegn and domestic would possess.
So new merits to argue are added even though the precedent of Miller on that specific issue was removed.

 

[Moondoggie]

Check out this link (if I can get it to work).

http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section242

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

I found this link/statute over at Frugal Squirrel's. Sorry, my cut/paste of the link didn't work. Cyber-challenged, and my wife isn't home to guide me.

Bill of Rights/Constitutional Rights/Civil Rights....all sound synonymous to me!

Edited to add: The statute is Title 18 USC, section 242.