Request

[Jammer Six]

I'd be interested in a peripheral issue: other sources of law.

One of the things I've seen time and again in discussions of the second amendment is statements that "the Constitution is my carry permit" or some such.

I've studied other sources of law. I even passed a test about them once upon a time. But life went roaring by, and now I'd have to go back and reconstruct everything they taught me. Furthermore, what they taught me was, at best, incomplete.

My point is this: there are sources of law other than the second amendment that directly affect what we legally can and cannot do with a gun in the United States. What we can and cannot do is affected by where we are. And, for the moment, (or for a moment, anyway) that's law, in spite of any apparent conflict with the wording of second amendment.

The convolutions that result are the legal reasons you can only buy certain handguns under certain circumstances in San Francisco, or that you're not getting a permit in New York City.

I'd be very interested in reading a primer, similar to Spat's McGee's primer about the constitution, about this subject. (I'm aware of the size of the favor I'm asking, so let me say that if this thread trails off into a silent, lonely death, I'll understand completely. I imagine at least a dozen different theses could be written on this.)

I imagine many of us, myself included, spend so much time either with the seeds or the treetops that we forget we're talking about a forest.

 

[kilimanjaro]

Try the "Second Amendment Primer", by Les Adams, Palladium Press

 

[JN01]

http://www.handgunlaw.us/

Info on all the state laws, and the left side of the home page has lots of useful links.

 

[Spats McGee]

When you say "this subject," you're going to have to be a little more specific. A primer on "other sources of law" could conceivably include:

1. federal statutes;
2. state statutes from any one of the States;
3. English common law;
4. city ordinances;
5. county ordinances;
6. the Code of Federal Regulations;
7. Rules or Regs of other bodies;
8. Home Rule doctrines . . .

Is there one particular source or state in which you're interested?

 

[Jammer Six]

There are two threads that I'm interested in, I'm afraid both are pretty general.

One is the general paths for creating law that the Constitution provides. That is, the Constitution provides for state constitutions, the state constitutions provide for state laws. In addition, appellate courts "make" law, and it's always interested me where the authority for that originates. (And that's one of the thousand things I've never had time to track down.)

In general, I'm interested in how you can start at the top with "...shall not be infringed." and end up with no one being able to get a permit or a handgun in San Francisco proper. Or have a prayer of getting a permit in New York City. (Is it still true that even retired cops can't carry there?)

I've caught glimpses of the thread, but never taken it out, tracked it down and studied it.

Loosing access to Westlaw was one of the crying shames of my life... I've never understood other systems, nor trusted them to show me the cases the way I trusted Westlaw. So now any real research I do has to be done by hand, at the Gates Library at the UW. (A lot of folks don't care for Bill Gates, but all I have to do is walk into that library and look around, and he can be my friend.)

The second thread I'm interested in is Seattle.

Just before the current mayor took over, our outgoing mayor was going to enact some kind of Executive Royal Decree as one of his last acts in office, effectively banning carrying handguns in "public" places in Seattle proper for anyone except law enforcement. It didn't happen, but there were people wrapped around the axle for a while. He was also going to outlaw carrying weapons in Seattle City Parks. It seems to me that turned out to be beyond his authority, but the fact that he considered it attracted my attention.

So I'm interested in the source of executive authority in Seattle.

Thank you for considering any of this; it's way beyond most content on the internet.

 

[Al Norris]

One is the general paths for creating law that the Constitution provides. That is, the Constitution provides for state constitutions, the state constitutions provide for state laws. In addition, appellate courts "make" law, and it's always interested me where the authority for that originates. (And that's one of the thousand things I've never had time to track down.)

The Constitution provides for two legislative bodies, the Congress, to make law. The Constitution provides that the President execute the laws made by the Congress.

The Constitution does not provide for the existence of State Constitutions. It merely provides that a republican form of government must exist within the States. That each State has adopted and ratified their own Constitutions is more a matter of tradition, than any law.

The Constitution provides that the Judicial Power of the court resides in the Supreme Court. That the Congress may make inferior courts, but that these courts are bound by the decisions of the Supreme Court... This all goes back to the English Common Law that our country was founded upon. The power of Judicial Review is just such a power that is inherent in the authority of the Courts.

The Courts do not make law. They interpret what the laws means. They can also void the law, in its entirety or a portion of a specific law, for various constitutional reasons. Some people will contend this is "making law" but it is not. This is merely the exercise of the power of judicial review.

 

[Frank Ettin]

...The Courts do not make law. They interpret what the laws means. They can also void the law, in its entirety or a portion of a specific law, for various constitutional reasons. Some people will contend this is "making law" but it is not...

Perhaps people sometimes think the courts make law because in our Common Law based system we follow the doctrine of stare decisis (to stand by the thing decided). Legal principles and interpretations used by a court to decide a dispute become precedent to be used by other courts within the same system to decide similar disputes.

...In general, I'm interested in how you can start at the top with "...shall not be infringed." and end up with no one being able to get a permit or a handgun in San Francisco...

Here's roughly how things work:

1. The Founding Fathers provided in the Constitution (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,...

   
   
2. And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.
   
   
3. And that is no doubt what the Founding Fathers would have expected. Many were lawyers. They were familiar with English Common Law (the basis of our legal system) and that for a long time it had been customary for the courts, under the Common Law and understood the exercise of judicial power in such terms.
   
   
4. Any gun control or gun ban law enacted by Congress or by any State is subject to judicial challenge on constitutional grounds. That thus becomes "a case arising under [the] Constitution" and thus as the Founding Fathers provided a proper subject for the exercise of the judicial powers of the federal courts.
   
   
5. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
6. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
7. There are three prongs to the strict scrutiny test, as follows:
   
   
   • The regulation must be justified by a compelling governmental interest; and
     
     
   • The law or policy must be narrowly tailored to achieve that goal or interest; and
     
     
   • The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).
   
   
8. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
9. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
10. For example, while the First Amendment protects freedom of speech, assembly and religion and in effect states that such right shall not be abridged, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
    
    
    • Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
      
      
    • If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regular enforced.
      
      
    • Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.
      
      
    • In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion.

 

[Spats McGee]

. . . .In addition, appellate courts "make" law, and it's always interested me where the authority for that originates. (And that's one of the thousand things I've never had time to track down.)

Technically, courts do not "make" law. It may seem that way, but what they're doing is just a function of our common law system and the principle of stare decisis. If the law says one "shall not brandish a firearm," but the legislature doesn't spell out exactly what "brandish" means, then it's up to the courts to decide. See e.g. Marbury v. Madison.

In general, I'm interested in how you can start at the top with "...shall not be infringed." and end up with no one being able to get a permit or a handgun in San Francisco proper. Or have a prayer of getting a permit in New York City. (Is it still true that even retired cops can't carry there?)

I dealt with this in my Federal Constitutional Primer:

With that in mind, and turning back to governmental affairs, for those of you that may wonder how it is that America came to have such a complex patchwork of firearms laws, well, it’s because incorporation doesn’t happen all at once. We have 1 Federal Constitution, 50 State Constitutions and the District of Columbia, which is an odd beast all its own. Each State is considered to be a sovereign all its own. Each State has its own judicial system, and its own highest appellate court. That highest appellate court in each state is considered to be the final authority on what state law means, as long as that state law doesn’t conflict with federal law or the U.S. Constitution. Before the Second Amendment was held to apply to the States, there was no real possibility of conflict with the federal 2A, because the federal 2A didn’t apply to a state law! Accordingly, each and every state was pretty much free to craft its own firearms law as it saw fit, as long as the law in question complied with the appropriate state constitution. In 2010, SCOTUS changed that by incorporating the 2A, and now we're in the process of figuring out exactly what that means for the 50 States. For 219 years, the States did not have to worry about what the 2A meant, because it didn't apply to them.

 

[KyJim]

Technically, courts do not "make" law. It may seem that way, but what they're doing is just a function of our common law system and the principle of stare decisis. If the law says one "shall not brandish a firearm," but the legislature doesn't spell out exactly what "brandish" means, then it's up to the courts to decide. See e.g. Marbury v. Madison.

I would say that is technically correct, but the end result is often the same as if a court made the law. One of the most controversial examples is Roe v. Wade where the U.S. Supreme Court created/recognized a constitutional right to abortion. A rather non-controversial example is when the Supreme Court applied the exclusionary rule to states in 1961. The rule excludes evidence obtained through unconstitutional means such as an unconstitutional search.

 

[Spats McGee]

Oh, I agree, KyJim. While the courts may not draft the statutes, I understand the impact that decisions have in "telling us what a law means." That's why I used the word "technically" and put "make" in quotes.

 

[Al Norris]

On the other paw, there is an excellent example of a court creating law and violating the Constitution at the same time, and its a recent act of the Court.

In the (very) recent decision, C.J. Roberts opined (his was the controlling opinion) that the penalty could not be a penalty, as the Congress did not have that authority, so therefore it must be a tax. That decision effectively rewrote the statute, something the courts have no power to do. Yet it goes even further. This "Tax," as C.J. Roberts calls it, is a direct tax and must be apportioned according to the Constitution... The 16th amendment is only applicable to income tax. This particular "tax" is not a tax on income. It is a direct tax on the individual for failing to buy health insurance. A direct, but non-apportioned tax, and therefore even that is unconstitutional.

So while the Courts are not supposed to legislate from the bench, here we have a recent and direct example of just such a situation, by the Supreme Court itself.

I find it very odd that no one has brought up this subject, in the aftermath of Sebelius.