ConstitutionCowboy
member
ttolhurst,
You'd better look up the definition of 'infringe' before you go on.
Woody
You'd better look up the definition of 'infringe' before you go on.
Woody
House Panel clears National Carry
- Thread starter usmarine0352_2005
- Start date
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RX-178
Member
‘(d) Nothing in this section shall be construed to preempt any provision of State law with respect to the issuance of licenses or permits to carry concealed firearms.’.
That sounds pretty simple, for legalese.
That sounds pretty simple, for legalese.
Birch Knoll
Member
OK, done. Now you go read Heller.
beatledog7
Member
RX-178:
We need an unconstitutional Federal law to override the unconstitutional state laws? A new law that forces the States to honor each other's laws?
No. The Constitutionally valid way to ensure States respect RKBA is to declare all State restrictions unconstitutional and therefore null and void. This, and only this, would get us back to "shall not be infringed."
A new Federal law governing CCW is a thinly veiled intrusion into a regulatory realm where that's been placed off limits by the Constitution. Even if we like what it could conceivably do, we should oppose it on those grounds.
We need an unconstitutional Federal law to override the unconstitutional state laws? A new law that forces the States to honor each other's laws?
No. The Constitutionally valid way to ensure States respect RKBA is to declare all State restrictions unconstitutional and therefore null and void. This, and only this, would get us back to "shall not be infringed."
A new Federal law governing CCW is a thinly veiled intrusion into a regulatory realm where that's been placed off limits by the Constitution. Even if we like what it could conceivably do, we should oppose it on those grounds.
Birch Knoll
Member
Of course that's what it means. But it doesn't mean that your interpretation of the Constitution is the one that controls.
Those are very poor examples of "absolute" rights; each is rife with weasel words. How speedy? How impartial? What is excessive? What qualifies as cruel and unusual?
Unfortunately, your private interpretation of the Constitution is not the law of the land. Nor does it square with the Founder's interpretation. They did not believe that the right to keep and bear arms was absolute; nowhere will you find that they believed that prisoners had the right to be armed, for example. And I'm guessing that you probably wouldn't want the Second Amendment interpreted to permit psychopaths to possess firearms.
Every right has limitations, at the very least when they start to collide with the rights of others. Your right to life, which is surely the most basic and absolute of all, is not absolute. If you threaten my life, I may take your life in self-defense. The right to keep and bear arms is certainly no more absolute than the right to life.
Not every regulation is infringement. Requiring a permit to carry a concealed weapon may be infringement if the permit is difficult or impossible to obtain, but not infringement if it's available for the asking to qualified persons.
Birch Knoll
Member
How do you propose that this be done, if not with a law? Do you expect a court to do such a thing? The Supreme Court has already spoken to that in Heller:
Cosmoline
Member
I'm afraid a federal law ordering a state to accept the permits of another state is likely DOA in the courts. Now, they could say that a state must accept all other CCW permits *if it wants X federal dollars*. That's perfectly acceptable. But Congress cannot order a state's legislature to change its law.
Congress could also create a federal CCW permit which would trump local law under the supremacy clause, but that's apparently not what this law does.
I suspect FF&C does not apply to a permit of this nature. I could not claim that Minnesota had to recognize my Alaska hunting license.
We do have CCW permits here.
Congress could also create a federal CCW permit which would trump local law under the supremacy clause, but that's apparently not what this law does.
I suspect FF&C does not apply to a permit of this nature. I could not claim that Minnesota had to recognize my Alaska hunting license.
We do have CCW permits here.
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beatledog7
Member
ttolhurst,
I already noted where proper exceptions to RKBA exist and ought to exist; as with any right, it extends only to the edge of another person's right. A gun in the hands of a convicted felon or an insane person infringes on the general population's right to be safe and secure in their person. You or me carrying arms does not.
While I will relent that RKBA does not specifically include CCW, I would also note that it does include open carry ("bear"). So even if a state can restrict CCW, it cannot restrict open carry. A state can also regulate firearms purchases in that it can levy sales taxes and require that a buyer demonstrate that he or she is not a felon and not insane. It can regulate where and when you shoot for recreation and practice, as in licensing and regulating ranges, and for sport or food-getting, as in disallowing hunting within city limits or in the vicinity of residential or commercial areas and declaring seasonal limitations. But any regulation that robs you (as long as you are a non-felon and a sane person) of your right to protect yourself, which is the primary point of RKBA, and as the D.C. law at issue in Heller it did, is unlawful.
The long-standing prohibitions regarding carrying firearms in certain places are indeed long-standing. So are countless other laws and regulations that are nonetheless unconstitutional. To argue that since any law or regulation or practice has been in place for a long time it is therefore legal is ludicrous. It would mean if I've been stealing my neighbor's apples for years and she's never pressed charges or I've never been caught or the cops have ignored it, it's therefore ok for me to keep doing it.
If I threaten someone's life, then I have a reasonable belief that I have forfeited my right to life because that person might be lawfully armed and willing to lawfully protect himself. I have, in effect, traded my right to life for the responsibility of bearing the consequences of my chosen action.
Finally, no, I don't expect a court to overturn state firearms laws. I expect the courts to continue overstepping their Constitutional bounds just as they have for decades.
I already noted where proper exceptions to RKBA exist and ought to exist; as with any right, it extends only to the edge of another person's right. A gun in the hands of a convicted felon or an insane person infringes on the general population's right to be safe and secure in their person. You or me carrying arms does not.
While I will relent that RKBA does not specifically include CCW, I would also note that it does include open carry ("bear"). So even if a state can restrict CCW, it cannot restrict open carry. A state can also regulate firearms purchases in that it can levy sales taxes and require that a buyer demonstrate that he or she is not a felon and not insane. It can regulate where and when you shoot for recreation and practice, as in licensing and regulating ranges, and for sport or food-getting, as in disallowing hunting within city limits or in the vicinity of residential or commercial areas and declaring seasonal limitations. But any regulation that robs you (as long as you are a non-felon and a sane person) of your right to protect yourself, which is the primary point of RKBA, and as the D.C. law at issue in Heller it did, is unlawful.
The long-standing prohibitions regarding carrying firearms in certain places are indeed long-standing. So are countless other laws and regulations that are nonetheless unconstitutional. To argue that since any law or regulation or practice has been in place for a long time it is therefore legal is ludicrous. It would mean if I've been stealing my neighbor's apples for years and she's never pressed charges or I've never been caught or the cops have ignored it, it's therefore ok for me to keep doing it.
If I threaten someone's life, then I have a reasonable belief that I have forfeited my right to life because that person might be lawfully armed and willing to lawfully protect himself. I have, in effect, traded my right to life for the responsibility of bearing the consequences of my chosen action.
Finally, no, I don't expect a court to overturn state firearms laws. I expect the courts to continue overstepping their Constitutional bounds just as they have for decades.
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Birch Knoll
Member
HR822 doesn't order the states to do anything at all, much less change their law. It states:
That is, it authorizes the carrying of concealed handguns under Federal authority. It does not change, nor require the change of, state law.
That's pretty much what this does, except it relies upon the permits already issued by the states. And since everybody's worried about whatever requirements the Feds would place on a Federally-issued permit, isn't this a far better solution?
This bill sounds like a good thing.
It could allow citizens to freely travel and engage in interstate commerce without that extra burden.
However to address the concerns of some others it is possible that it could in the future lead to more restrictions on lax states.
The driver's license was brought up earlier as a comparison.
Well driving is a great example, the feds without actually telling states what they could legally do have mandated many things across the country through bills saying that you will do X or we will withhold federal funding for highways for example.
The feds changed numerous things this way, creating essentially a standard for the road.
For example prior to this the drinking age in many states was 18, not 21, the feds changed that.
States could previously implement whatever speed they wanted, the feds changed that and 55MPH became the maximum, although that has now sunset.
Seatbelts became mandatory, open container laws had to be added to a states restrictions, etc etc
The power to tax essentially means the feds can require a given level of taxes from the state and its citizens, and then decide how much they want to give back. If the taxes are just a bit higher than the state can live without, and they make it even worse by balancing their budget around federal dollars, they cannot live without those federal dollars.
As a result the feds can meddle with any national licensing system and require all the states to adopt a certain minimum standard if they feel there is a problem.
That can all start with the implementation of a nationally recognized license to carry a firearm.
The risk is then that places such as California, New York, Massachusetts, New Jersey, and similar places with very dense populations and a lot of representation that are not so receptive to gun rights will complain and weigh in on what the minimum standard of a license should be.
That national standard may very well be gradually implemented, much as it was with federal road law requirements, but it is a real consideration.
A real danger is if such a standard was encouraged, it would likely have requirements that would be damaging to Constitutional Carry as well. A minimum standard of training, or more places you only met a an exemption to have a firearm if you had a carry license.
I would much rather see Constitutional Carry spread than shrink.
The flip side is that if you don't take that opportunity it can be lost, and travelers will be unable to cross certain borders while armed. A real pain in areas where crossing borders is a common thing. States can add and drop reciprocity as well, so just because it was okay last time you checked does not mean it is the following month. Ignorance of the law is no excuse when you find yourself in jail facing weapons charges. You may really wish such legislation existed if you find yourself in that situation.
Several states have dropped reciprocity with other states over various things. So what was legal on your last trip may be a serious offense the following month.
It could allow citizens to freely travel and engage in interstate commerce without that extra burden.
However to address the concerns of some others it is possible that it could in the future lead to more restrictions on lax states.
The driver's license was brought up earlier as a comparison.
Well driving is a great example, the feds without actually telling states what they could legally do have mandated many things across the country through bills saying that you will do X or we will withhold federal funding for highways for example.
The feds changed numerous things this way, creating essentially a standard for the road.
For example prior to this the drinking age in many states was 18, not 21, the feds changed that.
States could previously implement whatever speed they wanted, the feds changed that and 55MPH became the maximum, although that has now sunset.
Seatbelts became mandatory, open container laws had to be added to a states restrictions, etc etc
The power to tax essentially means the feds can require a given level of taxes from the state and its citizens, and then decide how much they want to give back. If the taxes are just a bit higher than the state can live without, and they make it even worse by balancing their budget around federal dollars, they cannot live without those federal dollars.
As a result the feds can meddle with any national licensing system and require all the states to adopt a certain minimum standard if they feel there is a problem.
That can all start with the implementation of a nationally recognized license to carry a firearm.
The risk is then that places such as California, New York, Massachusetts, New Jersey, and similar places with very dense populations and a lot of representation that are not so receptive to gun rights will complain and weigh in on what the minimum standard of a license should be.
That national standard may very well be gradually implemented, much as it was with federal road law requirements, but it is a real consideration.
A real danger is if such a standard was encouraged, it would likely have requirements that would be damaging to Constitutional Carry as well. A minimum standard of training, or more places you only met a an exemption to have a firearm if you had a carry license.
I would much rather see Constitutional Carry spread than shrink.
The flip side is that if you don't take that opportunity it can be lost, and travelers will be unable to cross certain borders while armed. A real pain in areas where crossing borders is a common thing. States can add and drop reciprocity as well, so just because it was okay last time you checked does not mean it is the following month. Ignorance of the law is no excuse when you find yourself in jail facing weapons charges. You may really wish such legislation existed if you find yourself in that situation.
Several states have dropped reciprocity with other states over various things. So what was legal on your last trip may be a serious offense the following month.
ConstitutionCowboy
member
ttolhurst
I've read Heller many times and if you'd care to read all the footnotes like I do, you'll find there is no blessing from the Court in it for what many like to call "reasonable restrictions".
Here it is for you to ponder:
In DC v. Heller. at 54, Scalia wrote:
This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?
Further along at 54 and 55, Scalia wrote:
(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(DC v. Heller).
Now I'll address Footnote 26 in which Scalia wrote:
What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only PRESUMING these regulatory measures("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.
There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.
It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.
Woody
I've read Heller many times and if you'd care to read all the footnotes like I do, you'll find there is no blessing from the Court in it for what many like to call "reasonable restrictions".
Here it is for you to ponder:
In DC v. Heller. at 54, Scalia wrote:
This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?
Further along at 54 and 55, Scalia wrote:
(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(DC v. Heller).
Now I'll address Footnote 26 in which Scalia wrote:
What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only PRESUMING these regulatory measures("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.
There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.
It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.
Woody
ConstitutionCowboy
member
ttolhurst said:
Certainly not armed in prison or an institution. That's why it takes due process to deprive people convicted of violent crimes, or of being loony, of their stuff. Now all you need to do is look up the definition of 'deprive' and you'll see that it means "to take a thing away from; to prevent from using or enjoying." The definition in bold being the pertinent here. No where in there is 'forfeit', 'lose', or any thing else permanent. Though you might be in jail, your arms are yours. Period. You have been deprived access to them due to your conviction and subsequent lockup. They can't even be confiscated to pay a fine or any such thing. Once you are done serving your time, your state of being deprived ends as well. Nothing in the Constitution allows government to do anything different, but those in government certainly think they can, don't they!
That definition of "deprive" is essentially the same today as it was back when the Constitution was written (As per Johnson's Dictionary of the English Language: 1755.)
Woody
Birch Knoll
Member
The discussion is not about taking property, but carrying arms, so I don't know why you've changed the topic. On the other hand, it's fascinating how you can post the definition of deprive as "to take a thing away from; to prevent from using or enjoying", and then proceed to completely ignore the first definition ("to take a thing away from"), and argue that the word can only refer to a temporary loss of use. Not that even the second definition implies a temporary state.
Sometimes, these arguments remind me of Humpty-Dumpty from Lewis Carroll's Through the Looking Glass:
Sometimes, these arguments remind me of Humpty-Dumpty from Lewis Carroll's Through the Looking Glass:
ConstitutionCowboy
member
ttolhurst said:
I didn't change the topic. I simply responded to your comments in Post #57.
Now, what do you have to say about the "reasonable restrictions" supposedly being affirmed in DC v.Heller? Has my dissertation in Post #63 changed your mind?
Woody
Birch Knoll
Member
I think the plain language in Heller instructs judges not to take the opinion as in any way questioning the legitimacy of existing regulations. It doesn't explicitly validate them either, but it does lend them some weak support. I hope you're right that this reflects a compromise to obtain a 5th vote, and that a future court might be more inclined to limit the scope of permissible regulation, but I strongly doubt that any court will ever declare any and all regulation of firearms to be off-limits. At least not until the 28th Amendment is ratified, reading "Any and all regulation of firearms shall never be permitted. And we mean it. Yes, this means you."
ConstitutionCowboy
member
ttolhurst said:
You are still saying there is a scope of "regulation" that is permissible. I do not. The Second Amendment leaves no room or "loop hole"(to coin a phrase the Left loves to use) for any law infringing upon the keeping and bearing of arms.
As for your proposed 28th amendment, the Second Amendment already covers that.
Woody
Birch Knoll
Member
Perhaps some day, a court will agree with you. And no one will be happier than I will if that happens. So far, however, this has not happened.
It is nothing short of amazing to me to see on a board supposedly filled with pro RKBA people severe opposition to a measure that would broaden the ability to keep and bear arms. It is astounding.
The bill is exactly what it should be. For those complaining about "states' rights" how about 55MPH and 21 drinking age? We've already broken the states rights barriers so many times we might as well do it for something worthwhile.
The bill is not unconstitutional in any way.
The bill is exactly what it should be. For those complaining about "states' rights" how about 55MPH and 21 drinking age? We've already broken the states rights barriers so many times we might as well do it for something worthwhile.
The bill is not unconstitutional in any way.
If this law passes, I can carry in 49 states in the country. That is an AMAZING expansion of gun rights!
There seems to be two main arguments against this bill:
1) It doesn't give complete freedom for everyone to carry without a permit, so it is bad.
Well, that would be great, but that's not happening now. If you hate the thought a huge expansion of gun rights because it isn't perfect, well, we will never make any progress in expanding gun rights. The gun haters absolutely despise this bill, and it's clear why. It will make it massively easier for people to carry firearms for protection!
2) It is a State's Right to ban people from carrying a gun.
That's flat out WRONG. Under the 14th Ammendment, state's CAN'T deprive people- including visitors to the state- of their rights, including the the RKBA. The 14th ammendment specifically says the Federal Gov can intervene and force states to recognize our rights:
Check out these parts of the amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There seems to be two main arguments against this bill:
1) It doesn't give complete freedom for everyone to carry without a permit, so it is bad.
Well, that would be great, but that's not happening now. If you hate the thought a huge expansion of gun rights because it isn't perfect, well, we will never make any progress in expanding gun rights. The gun haters absolutely despise this bill, and it's clear why. It will make it massively easier for people to carry firearms for protection!
2) It is a State's Right to ban people from carrying a gun.
That's flat out WRONG. Under the 14th Ammendment, state's CAN'T deprive people- including visitors to the state- of their rights, including the the RKBA. The 14th ammendment specifically says the Federal Gov can intervene and force states to recognize our rights:
Check out these parts of the amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
beatledog7
Member
BTR,
The real issue is that any law (aside from a new Constitutional amendment) restricting or allowing anything to do with firearms is a violation of the 2A, even one that allows national carry or directs states' reciprocation of carry permit recognition. 2A is very clear that no infringement is allowed, and once a Federal law regarding carry exists, it can and will be made tougher before you know it.
This bill is an open door for more Federal firearms regulation. I honestly cannot see why that's not crystal clear to everyone.
The real issue is that any law (aside from a new Constitutional amendment) restricting or allowing anything to do with firearms is a violation of the 2A, even one that allows national carry or directs states' reciprocation of carry permit recognition. 2A is very clear that no infringement is allowed, and once a Federal law regarding carry exists, it can and will be made tougher before you know it.
This bill is an open door for more Federal firearms regulation. I honestly cannot see why that's not crystal clear to everyone.
bushmaster1313
Member
As I last read it, it has some quirky results.
A resident of NJ could get a FL CCW and carry almost anywhere in the U.S. except NJ.
A non-NJ resident could get a CCW in his own state or FL and carry in NJ.
Very wierd
A resident of NJ could get a FL CCW and carry almost anywhere in the U.S. except NJ.
A non-NJ resident could get a CCW in his own state or FL and carry in NJ.
Very wierd
Agent Orange
Member
- Joined
- Jan 29, 2011
- Messages
- 14
^ Exactly. Which is why this bill in addition to it's other benefits will be good for places like NJ and CA. It will likely force shall issue in states that are now may issue. After all how can a state deprive its own citizens of an activity being done by non-residents?
Birch Knoll
Member
It would probably also encourage states to adopt more consistent laws related to concealed carry (where you can carry, where you can't), rather than the crazy-quilt that we currently have.
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