Should Open Carry Be the Law of the Land in All 50 States?

Should Be Law of Land

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And here we are.

About where I expected us to be at this point.

Arguing about who better understands the language used by the Founding Fathers and who really understands the language used by James Madison when he wrote the Bill of Rights. As always, bogged down in semantics.


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Elkins45 said:
I would love for one of our resident lawyers to weigh in on the “all gun laws are infringements” position being taken by some here. @Frank Ettin @Spats McGee
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How about the Framers of our Constitutional Republic?

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​
 
Elkins45 said:
I would love for one of our resident lawyers to weigh in on the “all gun laws are infringements” position being taken by some here. @Frank Ettin @Spats McGee
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The thing is that what the Constitution means and how it applies in not up to you (or me, or Spats, etc.).

  1. As the Founding Fathers provided in the Constitution, what the Constitution means and how it applies is up to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):
    Section 1.

    The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....

    Section 2.

    The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;...
    Click to expand...

    Judicial power is the power of a court to determine actual controversies arising litigants in courts. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

  2. So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
    ...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each....
    Click to expand...

  3. What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States (3 U.S. (3 Dall.) 171 (1796)) appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803.

  4. And indeed, it is a general principle in the United States that courts give deference to legislative acts and presume statutes valid and enforceable, unless unconstitutionality is determined (Brown v. State of Maryland, 25 U.S. 419 (1827); U.S. v Morrison, 529 U.S. 598 (2000)).

  5. So one understands what the Constitution means and how it applies in real life in the real world by understanding federal court decisions addressing those questions.
 
Elkins45 said:
But it’s not, and you don’t have to be a lawyer to know this. Think about the wording of the First Amendment and imagine if the courts applied it in the same way everyone wants the Second to be interpreted. Here’s the first clause of Amendment One:

”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

Now imagine an argument saying a church should be allowed to practice human sacrifice and/or child sexual torture as part of their sacrament. Or that they should be allowed to inject heroin in order to have visions. Or that their holy text forbids the payment of taxes or the wearing of garments that cover the genitals. Or…

Imagine the protests with crazy perverts running around wearing T shirts with “SHALL MAKE NO LAW” printed on them. Absurd, isn’t it? No Amendment confers an absolute right.

I think we all have a right to carry guns in self-defense, but I understand why they won’t let me on an airplane with one.
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Bad example in my opinion.

Violating another person's rights is wildly problematic and not even the most extreme interpretation of the 2nd violates anyone else's rights.

So yeah. It is spelled out pretty clearly
 
The Constitution and bill of rights say exactly what they say.

That said, there exist procedures to deal with those persons that are inclined to abuse those rights. Just because a small percentage of people "might" abuse their 2A rights doesn't mean the .gov has the legal authority to "infringe" on the rights of the general public at large.
 
Frank Ettin said:
The thing is that what the Constitution means and how it applies in not up to you (or me, or Spats, etc.).

  1. As the Founding Fathers provided in the Constitution, what the Constitution means and how it applies is up to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

    Judicial power is the power of a court to determine actual controversies arising litigants in courts. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

  2. So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

  3. What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States (3 U.S. (3 Dall.) 171 (1796)) appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803.

  4. And indeed, it is a general principle in the United States that courts give deference to legislative acts and presume statutes valid and enforceable, unless unconstitutionality is determined (Brown v. State of Maryland, 25 U.S. 419 (1827); U.S. v Morrison, 529 U.S. 598 (2000)).

  5. So one understands what the Constitution means and how it applies in real life in the real world by understanding federal court decisions addressing those questions.
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Thank you for your explanation
 
Frank Ettin said:
The thing is that what the Constitution means and how it applies in not up to you (or me, or Spats, etc.).

  1. As the Founding Fathers provided in the Constitution, what the Constitution means and how it applies is up to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

    Judicial power is the power of a court to determine actual controversies arising litigants in courts. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

  2. So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

  3. What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States (3 U.S. (3 Dall.) 171 (1796)) appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803.

  4. And indeed, it is a general principle in the United States that courts give deference to legislative acts and presume statutes valid and enforceable, unless unconstitutionality is determined (Brown v. State of Maryland, 25 U.S. 419 (1827); U.S. v Morrison, 529 U.S. 598 (2000)).

  5. So one understands what the Constitution means and how it applies in real life in the real world by understanding federal court decisions addressing those questions.
Click to expand...

There is no language in the Constitution for Judicial Review OF the Constitution.

It is Superior to all other Federal and state authority, as it is We, the Peoples' authority.

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Amendment II (1791)​

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
 
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Gun-Reck said:
There is no language in the Constitution for Judicial Review OF the Constitution.

It is Superior to all other Federal and state authority, as it is We, the Peoples' authority.

CYR4vhe.jpg

Amendment II (1791)​

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
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You can argue until you're blue in the face. The fact is Frank does this for a living and you don't. I know how I'm going to listen to
 
wayneinFL said:
The problem with leaving it up to the states is that some of the states are going to decide it will be illegal. Carrying for years in a state where concealed carry is common, but open carry is illegal, I don't ever think I would open carry. But if my shirt rides over my gun as I'm getting something out of my trunk at the store, I don't think I should have to spend thousands on a lawyer to keep it off my record.
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Which is why I think (only in 2A matters) all states should be like mine. It has always been an OC state, and since the early 2000s, it has been also "shall issue." A shirt riding up is a common thing in my area, but the lack of law against OC prevents that from being an issue. What's surprising in my state, so far, is that we're not saddled with moron legislators screaming for "one or the other, not both," and penalties for those that may slip up.
 
Gun-Reck said:
There is no language in the Constitution for Judicial Review OF the Constitution. ...
Click to expand...

How nice you believe that, but that's not how things really work in real life in the real world.

I am describing reality -- how courts actually decide cases.

In real life in the real world, the the legal system decides, through judicial process, disputes, disagreements, controversies, or legal questions. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the the issues brought to court for resolution. While the parties may argue what the law is that is applicable to the case, it's up to the court, in the exercise of its judicial function to decide what law actually does apply and how it applies to the facts to decide the outcome. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177),
...It is emphatically the province and duty of the judicial department to say what the law is....
Click to expand...

In real life in the real world if courts aren't deciding matters using what you think the law is, your understanding of what the law is is wrong. The opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinions and $2.00 will get you a cup of coffee.
 
Frank Ettin said:
In real life in the real world, the the legal system decides, through judicial process, disputes, disagreements, controversies, or legal questions. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the the issues brought to court for resolution.
Click to expand...
I am not a lawyer, just a layperson posting on THR; and over the years, I have appreciated the insight provided by various lawyers on THR.

But had Hillary won in 2016, I am compelled to believe that Supreme Court justice replacements could have gone differently and Bruen ruling could have retained the two-step approach and interest balancing instead of "text and history ... tradition" approach with burden shifting to state/government now mandated.

And had Hillary won in 2016, hundreds of pro-2A federal judges recommended by the Federalist Society for appointments would have been anti-2A judges instead and decisions at various district/circuit courts could have had different outcome.

So while judges and justices are expected to follow the law and rule accordingly, what this layperson sees in courts like the 9th Circuit is rulings with vehement dissent from other pro-2A judges on 2A cases, even post Bruen ruling mandate of "text and history ... tradition"; which indicates to me some judges are not following the law and ruling against Supreme Court rulings. So to this layperson, how a circuit court panel rules could depend on the make up of judges and not necessarily according to law.
 
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...and, the Courts can be wrong... viz and to wit as SCOTUS actually admitted in principle in a recent decision bearing on birth termination...

I, myself, wherever possible, prefer the "plain English" interpretation rather than the involved and obscure "debating club interpretations" of a passel of lawyers. (Which has led to the "living document" concept of the Constitution --a concept whose premise is that there is no Constitution.)

And plainer Englisher than "shall not be infringed" is hard to find.

Unfortunately, Mr. Ettin is right. The law is the law and misinterpretation or "misconstruction" of plain English can land you in the pokey for many years.

Terry, 230RN
 
230RN said:
And plainer Englisher than "shall not be infringed" is hard to find.
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True, but this wording clashes up against the very pragmatic understanding that no right is absolute. What constitutes an infringement?

Is it an infringement to refuse the sale of a handgun to an unaccompanied six year-old with a handful of cash?
Is it an infringement to refuse sale to a guy smoking a crack pipe at the gun counter?
Is it an infringement to not allow CCW in an MRI machine?
Is it an infringement when TSA makes you check your gun rather than carry it into the plane?
Is it an infringement when the game laws require a 2+1 magazine plug in a duck gun?
Is it an an infringement to prohibit gun possession for people who are in jail prior to being convicted of a crime?

The devil is in the details, as he is with most things.
 
Elkins45 said:
True, but this wording clashes up against the very pragmatic understanding that no right is absolute. What constitutes an infringement?

Is it an infringement to refuse the sale of a handgun to an unaccompanied six year-old with a handful of cash?
Is it an infringement to refuse sale to a guy smoking a crack pipe at the gun counter?
Is it an infringement to not allow CCW in an MRI machine?
Is it an infringement when TSA makes you check your gun rather than carry it into the plane?
Is it an infringement when the game laws require a 2+1 magazine plug in a duck gun?
Is it an an infringement to prohibit gun possession for people who are in jail prior to being convicted of a crime?

The devil is in the details, as he is with most things.
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I'm willing to be challenged on this, but my firm belief is that the danger of abusing 2A is far exceeded by the dangers of abrogating it.

Talk about "interest-balancing."

Terry, 230RN

REF (And here's why, like it or not, as posted above):
https://www.thehighroad.org/proxy.php?image=http%3A%2F%2Fmy.evilmilk.com%2F%2Fp%2F7cs-33a84w_s.jpg&hash=cf70968e223fe37345572148109e1fb5
 
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230RN said:
I'm willing to be challenged on this, but my firm belief is that the danger of abusing 2A is far exceeded by the dangers of abrogating it.

Talk about "interest-balancing."

Terry, 230RN

REF (And here's why, like it or not, as posted above):
https://www.thehighroad.org/proxy.php?image=http%3A%2F%2Fmy.evilmilk.com%2F%2Fp%2F7cs-33a84w_s.jpg&hash=cf70968e223fe37345572148109e1fb5
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I don’t disagree, but that doesn’t help answer the question. What constitutes an infringement?
 
I hate to do this, but I'm turning the issue back to you... (Meaning Elkins45)

In your mind, what would be an "infringement?"

Where do "infringments" stop?

At "Common Sense" provisions?

My "Common Sense" provisions differ from, say, Sarah Brady's "Common Sense," and bearing in mind that "adjustments" to 2A will result in the door being opened to unlimited "infrngements" in the long run. As they have, as we have seen. Wanna buy a shoulder stock for a hangun?

As the saying goes, "if they can ban one, they can ban them all."

True.

Thus my remark about the dangers of leaving it alone are miniscule compared with the dangers of abrogating it.

Terry, 230RN

EDIT: Posted before I saw Frank Ettins' remark, with which I reluctantly have to agree.
 
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230RN said:
I hate to do this, but I'm turning the issue back to you...

In your mind, what would be an "infringement?"

Where do "infringments" stop?

At "Common Sense" provisions?

My "Common Sense" provisions differ from, say, Sarah Brady's "Common Sense," and bearing in mind that "adjustments" to 2A will result in the door be opened to unlimited "enfrngements" in the long run.

As the saying goes, "if they can ban one, they can ban them all."

True.

Thus my remark about the dangers of leaving it alone are miniscue compared with the danges of abrogating it.

Terry, 230RN
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The real answer is the one Frank gave above. We simply don’t know, but Heller gives me hope the really Draconian laws won’t survive judicial review. But for the sake of the discussion I will play along. I don’t think any of those examples I gave above are true infringements, that’s why I used them. On the other hand, I think almost every aspect of the NY carry regulations are explicitly designed to prevent meaningful defensive carry and are clearly at odds with 2A. And I have yet to see a “red flag law” proposal that I agree with. I’m happy that more states are moving to permitless CCW. KY did it a few years ago and there wasn’t a wave of violence like all the antis predicted. I still renewed my permit because it gives me reciprocity with a whole bunch of states.

Here’s an interesting area of debate: carry in schools. I’m a retired teacher and I would absolutely have carried in school were it legal here. I suspect there are more than a few people here that would think that was going too far.
 
Here's the line I draw:

Second Amendment as it reads in ordinary English.
_________________________

Where's your line?

Would it stop at shoulder stocks for pistols?

If they can ban magazines over 10 tounds, why can't they ban magazines over 1 round? Or, to stretch a point, 0 rounds?
 
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Grenades? Artillery? Mines? Land mines? Come on now. It isn't about "plain English".
 
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