Tennessee Gentleman
New member
I'll let the ACLU fight that one
Banning Concealed Carry
- Thread starter Tennessee Gentleman
- Start date
I'll let the ACLU fight that one
As of this writing, we have a new president who holds a veto-proof congressional majority. Much of what has been discussed above may come to pass. Hopefully the remedies are there when we need them.
The problem is that he may appoint up to four new justices during his term; and it can only be assumed that they will all think just like him.
The problem is that he may appoint up to four new justices during his term; and it can only be assumed that they will all think just like him.
The "Shall Issue" CCW is so popular across the country that I do not believe Obama will go after it. Florida's CCW is accepted in 33 other states IIRC. That means that about 70% of the states approve of their citizens carrying concealed weapons if they desire.
Unlike the AWB, where the media and democrats can and have so confused Joe Public into thinking they are more dangerous than Anthrax, they will be hard pressed to convince the public that CCW will result in immediate death unless banned. The 20 years since Florida adopted the "Shall Issue" CCW proves that there is no threat to the public from CCW holders.
Not to mention, it is an easy source of revenue for the state. Especially one for a state like Florida that issues thousands of non-resident CCWs.
CCW will remain a state issue.
Unlike the AWB, where the media and democrats can and have so confused Joe Public into thinking they are more dangerous than Anthrax, they will be hard pressed to convince the public that CCW will result in immediate death unless banned. The 20 years since Florida adopted the "Shall Issue" CCW proves that there is no threat to the public from CCW holders.
Not to mention, it is an easy source of revenue for the state. Especially one for a state like Florida that issues thousands of non-resident CCWs.
CCW will remain a state issue.
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melchloboo
New member
In order for Congress or the President to act there must be a constitutional basis for that action. I direct your attention to United States v. Lopez, 514 U.S. 549 (1995). Layman's summary here:
http://en.wikipedia.org/wiki/United_States_v._Lopez
The Supreme Court ruled that the Commerce Clause, which to that point had granted seemingly infinite power to Congress, did not extend a general police power. Lopez had violated an act of congress banning firearms in school zones. The law was ruled unconstitutional. Note that even the typical anti-gun "but its for the children!" argument fell on deaf ears. So in my mind, in light of Heller and Lopez, even if Obama could influence Congress to pass a law against concealed carry, it would be unconstitutional.
I think the thing to fear is the influence he would try to exert on state lawmakers. Like tying federal funds to the state's concealed carry laws.
http://en.wikipedia.org/wiki/United_States_v._Lopez
The Supreme Court ruled that the Commerce Clause, which to that point had granted seemingly infinite power to Congress, did not extend a general police power. Lopez had violated an act of congress banning firearms in school zones. The law was ruled unconstitutional. Note that even the typical anti-gun "but its for the children!" argument fell on deaf ears. So in my mind, in light of Heller and Lopez, even if Obama could influence Congress to pass a law against concealed carry, it would be unconstitutional.
I think the thing to fear is the influence he would try to exert on state lawmakers. Like tying federal funds to the state's concealed carry laws.
That would be like claiming that all traffic would stop in the presence of a firearm, sorta like "The Day the Earth Stood Still". Finding a viable, credible link between interstate commerce and a local school district would be ludicrous on its face.
Of course, the Congress has stated that their powers extend to intrastate commerce as well; but I don't believe the SCotUS has ever found that link. However, I'm sure that with a bit of digging, and the right justices in place, that link would fairly jump off the page. "Why, there it is right there! Why didn't we see that before?"
The Supremes have essentially found that there is no such thing as intrastate commerce when the subject is fungible. Wickard v. Filburn and Gonzales v. Reich both allow for the regulation of purely intrastate activity on the basis that the activities (producing wheat in the former case and marijuana in the latter, both for purely personal use) affets interstate commerce. If you weren't making it for yourself, you'd be buying it on the market. The aggregate effect of people not purchasing on the market would definitely affect interstate commerce, and thus bring the intrastate activity within Congress' authority.
King Ghidora
Moderator
The Supreme Court has very rarely cited the 10th ammendment in the modern era. It was a major issue before the Civil War and a major issue of the Civil War for that matter. There have been rare instances of the court citing the 10th in recent decades. The one that probably stands out is when the federal govt. tried to force states to pay their employees the federal minimum wage. The court cited the 10th in overturning that ammendment to the Fair Labor Act.
Still going back to the New Deal there has been scant reference made to the 10th in any decision. FDR was essentially given almost free reign to inact any law or policy he wanted. When the SC balked at some of his New Deal programs he simply attempted to add 6 extra members to that court. But Congress wouldn't go along with his Judiciary Reorganization Bill of 1937 and it went down to defeat. He was heavily criticized for attempting to undermine the independence of the courts too.
Oddly the court became more apt to go along with Roosevelt's programs after that battle. FDR had won a landslide victory in 1936 and the court apparently felt like he should be given more lattitude once their independence had been established. Even conservatives in his own party had fought him on his plan to pack the court but his New Deal programs, socialist as they were, continued on unabated. Only a few of his programs were declared unconstitutional and most of those came before his plan to pack the court. They were the reason he attempted to pack the court in fact.
Since that time the federal government has pretty much had it's own way circumventing the COTUS in ever more imaginative ways. From the Great Society to the Food And Drug Act (which was designed to fight drug abuse and signed by Nixon) the court never even ruffled their feathers. The 55 MPH speed limit and lots of other intrusive fed programs went untested. It wasn't until liberals decided they could use the court to get their way in spite of what the people wanted that we started to see interference from the courts. After W managed to change the makeup of the court decisions started going the other way.
That could change if the new POTUS manages to change the court again. But most of the justices that are thought to be close to retirement are in fact liberals. The younger justices are conservative. Maybe strict constructionists will continue to rule the courts if we're lucky. If they do I don't see much chance of a ban on CCW even if Congress and the POTUS pass such a law. It could quickly be stopped by an injunction while the case was fought out. In the end I don't think it would stand up but we just don't know that until it happens.
Still going back to the New Deal there has been scant reference made to the 10th in any decision. FDR was essentially given almost free reign to inact any law or policy he wanted. When the SC balked at some of his New Deal programs he simply attempted to add 6 extra members to that court. But Congress wouldn't go along with his Judiciary Reorganization Bill of 1937 and it went down to defeat. He was heavily criticized for attempting to undermine the independence of the courts too.
Oddly the court became more apt to go along with Roosevelt's programs after that battle. FDR had won a landslide victory in 1936 and the court apparently felt like he should be given more lattitude once their independence had been established. Even conservatives in his own party had fought him on his plan to pack the court but his New Deal programs, socialist as they were, continued on unabated. Only a few of his programs were declared unconstitutional and most of those came before his plan to pack the court. They were the reason he attempted to pack the court in fact.
Since that time the federal government has pretty much had it's own way circumventing the COTUS in ever more imaginative ways. From the Great Society to the Food And Drug Act (which was designed to fight drug abuse and signed by Nixon) the court never even ruffled their feathers. The 55 MPH speed limit and lots of other intrusive fed programs went untested. It wasn't until liberals decided they could use the court to get their way in spite of what the people wanted that we started to see interference from the courts. After W managed to change the makeup of the court decisions started going the other way.
That could change if the new POTUS manages to change the court again. But most of the justices that are thought to be close to retirement are in fact liberals. The younger justices are conservative. Maybe strict constructionists will continue to rule the courts if we're lucky. If they do I don't see much chance of a ban on CCW even if Congress and the POTUS pass such a law. It could quickly be stopped by an injunction while the case was fought out. In the end I don't think it would stand up but we just don't know that until it happens.
I can understand why your teacher said that, but I do not agree, and I think a careful reading of the case will show that your teacher was not correct.
In the Lopez case, the court stated:
So while there was no finding by Congress, the court agreed with the government that no such finding was needed.
In footnote 4 of the majority opinion, the court noted that subsequently the statute was amended "to include congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce." Those finding could not be used to sustain the statute as originally enacted, and the government did not rely on them (or as the government put it, it did not rely on the subsequent findings "in the strict sense of the word"). But the government did use those findings (for the very statute at issue) to "indicate that reasons can be identified for why Congress wanted to regulate this particular activity."
The court addressed the lack of findings and the fact that findings are not a prerequisite by saying the following:
The court agreed with the premise of the government's argument that the court could nonetheless find an effect on commerce from gun possession in schools even in the absence of a congressional finding. After it examined the possible effects, it said:
It went on to say:
So the notion that simply adding a finding to legislation will allow Congress to circumvent the constitution is not something that I accept, and I don't think any member of the court would accept it either.
melchloboo
New member
Yes, the point of Lopez is that while in theory all human activities can eventually form a link in the chain of interstate commerce, a line is drawn "somewhere" to limit the power of Congress. School safety, although theoretically tied to interstate commerce, is far too attenuated. Too remote. So my feeling if schools are too remote, then so are other public places. Aside from which, Lopez also recognized that such regulations are a traditional state police power. A sort of double-whammy with regards to weapons carry.
There are other cases confirming Lopez, but Lopez stands out in my mind because factually it involved federal attempts to regulate the time and manner of firearms possession. For example, Congress may ban your concealed carry in Post Offices and Federal Parks. But it is unlikely they can regulate carry anywhere else.
Ammunition and firearm manufacture and sales are another matter altogether. There is no doubt that in and of themselves such things are goods that traverse interstate commerce.
There are other cases confirming Lopez, but Lopez stands out in my mind because factually it involved federal attempts to regulate the time and manner of firearms possession. For example, Congress may ban your concealed carry in Post Offices and Federal Parks. But it is unlikely they can regulate carry anywhere else.
Ammunition and firearm manufacture and sales are another matter altogether. There is no doubt that in and of themselves such things are goods that traverse interstate commerce.
maestro pistolero
New member
If there is one thing that anti-gun folks seem too have less of an appetite for than concealed carry, it's open carry. It would seem that the "bear" part of 2A would necessitate allowing either one or the other. Given the choice, I think anti-gun folks would rather not see the blasted thing.
There is a group in Virginia which advocates open carry and they were featured on Nightline a while back. They operate on the state's constitution which allows open carry without any type of permit. You are quite correct that the antis do not like seeing a firearm openly carried. The Nightline segment was quite fair and unbiased.
Click HERE for the video segment.
Click HERE for the video segment.
If one is a bit of a Constitutional scholar, one does wonder how in the first place the right to bear arms was infringed, and, why when it's the second amendment, it's been so poorly protected.
If the second is extended against the states, then the state regulation of CCW IS unconstitutional.
Ironically, I'd use the Commerce Clause to attack the states CCW policies, and laws. Having to go around a state on a trip, because you are carrying CCW, and the state does not recognize your legal permit from another state CLEARLY, at least as clearly as Heart of Atlanta, affects interstate commerce.
Second: CCW fails on an equal protection basis. It's become VERY clear that only a select few get CCW's, and, those permits are often issued on the basis of financial campaign contributions, or wealth and influence. I think it's discriminatory, race and economic class wise, when the fee is 250 dollars for a CCW.
So yes, I agree that CCW permits should be banned, along with the cash cow fees.
If the second is extended against the states, then the state regulation of CCW IS unconstitutional.
Ironically, I'd use the Commerce Clause to attack the states CCW policies, and laws. Having to go around a state on a trip, because you are carrying CCW, and the state does not recognize your legal permit from another state CLEARLY, at least as clearly as Heart of Atlanta, affects interstate commerce.
Second: CCW fails on an equal protection basis. It's become VERY clear that only a select few get CCW's, and, those permits are often issued on the basis of financial campaign contributions, or wealth and influence. I think it's discriminatory, race and economic class wise, when the fee is 250 dollars for a CCW.
So yes, I agree that CCW permits should be banned, along with the cash cow fees.
maestro pistolero
New member
I've been wondering lately how it is that drivers licenses are automatically recognized in any state. What is the legal mechanism by which there is reciprocity for driver licenses? Could it be applied to CCW permits? We have reciprocity already, just not universally.
Definition: A license bypasses a legal barrier or makes an otherwise unlawful act lawful. The nature of a license allows the licensee to do something he could not otherwise legally do. Thus, a license gives the licensee the right to do something that would otherwise be illegal or unlawful for him to do.
The courts agree with the above. Below you will see some selected State courts rulings. If one wanted, one could find such decisions in every State:
“A license is a mere permit to do something that without it would be unlawful.” Littleton v Burgess, 82 P 864, 866, 14 Wyo 173. “A license is a right granted by some competent authority to do an act which, without such license, would be illegal.” Beard v City of Atlanta 86 SE 2nd 672, 676; 91 Ga. App. 584. “A licensee is one privileged to enter or remain on land by virtue of the possessor’s consent, whether given by invitation or permission.” Wool v Larner, 26 A 2nd 89, 92, 112 Vt. 431. “The licensor has the power to prohibit. Since the licensor is in the position to grant a right or permission it logically follows that he has the power to prohibit the act also. Likewise, having the power to prohibit something from being done, it follows as a corollary that power also exists to permit its use.” Taylor v Smith, 140 Va. 217, 235.
Drivers Licenses/Permits gained interstate recognition in the exact same manner that CCW Licenses/Permits are gaining interstate recognition. That is, by compacts signed by the individual States or by actual statute that a States legislature passes, recognizing other States Licenses and permits. So in the sense of your question, reciprocity is already being applied to CCW in the same manner.
The general public, today, has no sense of the history of State issued licenses to drive and the misconception, as posed by the questioner is quite common.
You should always question why the Real ID act of 2005, and other such broad schemes, operate in the manner they do. Congress has no authority to mandate a State by State licensing scheme.
Therefore, the Congress has no authority to pass legislation either granting such licensing or denying such licensing.
The courts agree with the above. Below you will see some selected State courts rulings. If one wanted, one could find such decisions in every State:
“A license is a mere permit to do something that without it would be unlawful.” Littleton v Burgess, 82 P 864, 866, 14 Wyo 173. “A license is a right granted by some competent authority to do an act which, without such license, would be illegal.” Beard v City of Atlanta 86 SE 2nd 672, 676; 91 Ga. App. 584. “A licensee is one privileged to enter or remain on land by virtue of the possessor’s consent, whether given by invitation or permission.” Wool v Larner, 26 A 2nd 89, 92, 112 Vt. 431. “The licensor has the power to prohibit. Since the licensor is in the position to grant a right or permission it logically follows that he has the power to prohibit the act also. Likewise, having the power to prohibit something from being done, it follows as a corollary that power also exists to permit its use.” Taylor v Smith, 140 Va. 217, 235.
maestro pistolero said:
Drivers Licenses/Permits gained interstate recognition in the exact same manner that CCW Licenses/Permits are gaining interstate recognition. That is, by compacts signed by the individual States or by actual statute that a States legislature passes, recognizing other States Licenses and permits. So in the sense of your question, reciprocity is already being applied to CCW in the same manner.
The general public, today, has no sense of the history of State issued licenses to drive and the misconception, as posed by the questioner is quite common.
You should always question why the Real ID act of 2005, and other such broad schemes, operate in the manner they do. Congress has no authority to mandate a State by State licensing scheme.
Therefore, the Congress has no authority to pass legislation either granting such licensing or denying such licensing.
maestro pistolero
New member
The misconception being that drivers licenses are automatically recognized as opposed to by individual compacts created in the state legislatures?
Maybe a stupid question, but...
Just out of curiousity, how about marriage liceneses and divorces? Even those issued outside the US are recognized by the States. Obviously each country hasn't negotiated a compact with each state to accept their marriage licenses.
If the states have the same compacts as driver's licenses to where other states recognize their marriage licenses, does that mean those licenses issued in some states to gay couples are valid in all other states, including those states which prohibit same sex marriages?
Basically, can a state say that it will recognize the licenses of one state but not another? If they are forced to accept all validly issued licenses, then a state should not be able to take the CCW licenses of one state yet ignore another.
Just out of curiousity, how about marriage liceneses and divorces? Even those issued outside the US are recognized by the States. Obviously each country hasn't negotiated a compact with each state to accept their marriage licenses.
If the states have the same compacts as driver's licenses to where other states recognize their marriage licenses, does that mean those licenses issued in some states to gay couples are valid in all other states, including those states which prohibit same sex marriages?
Basically, can a state say that it will recognize the licenses of one state but not another? If they are forced to accept all validly issued licenses, then a state should not be able to take the CCW licenses of one state yet ignore another.
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melchloboo
New member
I believe the latest questions relate to the Full Faith and Credit Clause:
http://en.wikipedia.org/wiki/Full_faith_and_credit_clause
http://en.wikipedia.org/wiki/Full_faith_and_credit_clause
Driver's licenses: I don't believe that the states recognize other state's driver's license because they have to. They do so out of administrative convenience and self-interest (in the opinion of the affected state).
In many states, however, if you are in the state for more than X days (X varying by state), you are required to get that state's driver's license, even if you don't live there.
Administrative convenience and self-interest does not apply to CCW's in the opinion of a number of states.
I am not going to address the other issues because I don't want to contribute further to thread veer.
In many states, however, if you are in the state for more than X days (X varying by state), you are required to get that state's driver's license, even if you don't live there.
Administrative convenience and self-interest does not apply to CCW's in the opinion of a number of states.
I am not going to address the other issues because I don't want to contribute further to thread veer.