It's court day, and I'm gearing up for trials, but I'll read the thread and offer some commentary when I get a few minutes.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
There are a lot of closet authoritarians who just happen to have a concealed handgun permitIndependent of what you think is best or how you choose to carry, it surprises me that anyone here would vote for anything but freedom of choice.
Please, even if this thread gets locked before you're out of court I think it would be really beneficialIt's court day, and I'm gearing up for trials, but I'll read the thread and offer some commentary when I get a few minutes.
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
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
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;...
...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....
Bad example in my opinion.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.
Thank you for your explanationThe thing is that what the Constitution means and how it applies in not up to you (or me, or Spats, etc.).
- 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.
- 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):
- 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.
- 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)).
- 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.
The thing is that what the Constitution means and how it applies in not up to you (or me, or Spats, etc.).
- 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.
- 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):
- 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.
- 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)).
- 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.
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 toThere 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.
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.
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.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.
There is no language in the Constitution for Judicial Review OF the Constitution. ...
...It is emphatically the province and duty of the judicial department to say what the law is....
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.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.
True, but this wording clashes up against the very pragmatic understanding that no right is absolute. What constitutes an infringement?And plainer Englisher than "shall not be infringed" is hard to find.
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.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.
I don’t disagree, but that doesn’t help answer the question. What constitutes an infringement?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
….What constitutes an infringement?
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.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