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Tennessee Gentleman
October 28, 2008, 10:51 PM
I just read an article on factcheck.org that was examining the so-called "10 Point Plan to Change the Second Amendment" by Barack Obama. http://www.factcheck.org/elections-2008/nra_targets_obama.html The article shows a quote by Senator Obama in 2004 that he was "opposed" to concealed carry.

My question is: How would or could a President Obama ban concealed carry both legally and politically?

Specifically, would Heller be an obstacle and more importantly if the authority for concealed carry resides within 48 (I believe) state legislatures would a ban be workable politically?

What would be the legal and political mechanism and fallout from an attempt to ban concealed carry in every state.

Would it such a move violate the 10th Amendment?

Al Norris
October 29, 2008, 12:53 AM
Such a law would violate the 10th amendment.

The obstacle any federal legislation would have to overcome, is the same they would have to overcome in order to directly issue a drivers license.

Notice that in the Real ID act of 2007, the mandate was that if states did not do what congress wanted, those states would be prohibited in using their state ID & DL for federal purposes.

This was done, because the Federal Congress cannot trump or issue DL's.

I've been waiting to see when the first guy tries to register for social security benefits and the Feds deny him on the basis that his State ID is not valid. The Feds are treading really thin water here, and they know it.

Glenn E. Meyer
October 29, 2008, 09:48 AM
I doubt a president could ban carry by him or herself. For example, Bush II supported the AWB but by himself could not ban the guns. But what about those import restrictions?

However, a president could push for legislation to ban and get it through Congress and then it would have to be tested in the courts.

If found unconstitutional, a president could push for an amendment that would allow such.

But this could be done on most of the hot button issues.

If the people go along, then such things would be done.

Tennessee Gentleman
October 29, 2008, 03:02 PM
Such a law would violate the 10th amendment.

My thought too Al. So, his opposition to concealed carry is mostly ideological and not enforceable? Not that he couldn't do other stuff but that would be another thread....Hmm, I sense another question brewing:D

But this could be done on most of the hot button issues. If the people go along, then such things would be done.

I think you state the obvious. I guess if enough of us wanted to we could throw the entire COTUS out the window. However, I doubt that would happen with concealed carry since it is a state law and one reason I don't like the "National Right to Carry" type laws. Then Congress COULD repeal those.

nobody_special
October 29, 2008, 05:37 PM
Such a law would violate the 10th amendment.
Has the Court ever held that an act of Congress violates the 10th amendment?

Al Norris
October 29, 2008, 07:08 PM
That I'm not sure about. Off hand, I would say, no.

On the other hand, until recently, no law has ever been struck down on being a violation of the 2A. :D

NotJim
October 29, 2008, 11:29 PM
It's interesting that Factcheck.org offers no opposition to Kennedy's loose language in the proposed bill that could result in broad ammunition bans as written; and makes no comment that acknowledges the Constitutional issues raised by Obama's express desire to ban all concealed carry.

The NRA may be overstating its case, but there IS a case. Obama is obviously anti-gun. Purely for propaganda purposes, he's feigning moderate intent; but his true intent is difficult for any thoughtful observer to misinterpret.

His emphasis on "hunting" as the basis for valid gun ownership is one of the more telling clues. What would be his response, I wonder, if someone asked Mr. O where "hunting" appears in the Constitution.

Factcheck has done a good job on occasion... but it has just lost any trust I may have ever had in its impartiality.

Glenn E. Meyer
October 30, 2008, 09:49 AM
NPR today - no Democrat will go near gun control given 1994 and 2000.

It is great to think that we are the center of all the evil plans of the Democracts and we should be prepared to move into the mountains and live off the land - but maybe it is a bit of hysteria.

Is this too political, I apologize but when we start to discuss Obama and parties specifically, it is a problem.

If the issue is whether a president can ban guns by him or herself - the answer has been given - no.

raimius
October 30, 2008, 11:22 AM
If I remember Heller correctly, Scalia wrote to the effect that laws restricting the carrying of weapons in certain places were not to be questioned because of Heller.

I think that leaves the antis a bit of room, but in my opinion, a total ban on carrying concealed firearms would go too far beyond that. I think it would make it to SCOTUS, if tried. I am not sure how they would rule, as there is not much case history at the federal level.

Webleymkv
October 30, 2008, 05:36 PM
Such a law would violate the 10th amendment.


Remember though, every law is constitutional until the court says otherwise. The biggest danger, as I see it, to an Obama Presidency would be who he'd have a chance to put on the Supreme Court. The good news is that even in a Democrat controlled congress, I think he'd have a hard time getting something like that through. There are likely too many moderate and conservative Democrats that remember what the '94 AWB did for their control in congress to pass such a measure.

Ricky B
November 1, 2008, 08:27 PM
The president has no power under the constitution to ban concealed carry as a general matter. What he can do is encourage the congress to pass legislation and to sign the legislation.

There are narrow areas where the executive branch could act without specific legislation (and the president might be able to order them to adopt rules). For example, federal agencies could ban (and in some cases, have) the carrying of any guns in certain areas (federal buildings, national parks) under their jurisdiction. Such banning would be based on legislation passed by congress giving the agencies the authority to regulate conduct on the premises of property owned or controlled by the federal government.

But a general prohibition of concealed carry by fiat of the president? Nope.

Ricky B
November 1, 2008, 08:50 PM
The short answer is no.

Here's the longer answer. Keep in mind that a Supreme Court decision serves as precedent and is binding only as to its holding. The holding of the court in Heller was that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. As a result, the court held that the District of Columbia's handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. Therefore nothing in the Heller holding addresses the issue of concealed carry outside the home.

There is discussion in the court's opinion of the implications of the holding. The court signaled that an argument that the Second Amendment automatically invalidated any gun control legislation was not going to be entertained. In this regard, the court stated:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on 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. [pages 54-55 of the slip opinion]

It is interesting that the court did not mention concealed carry here, though it had shortly before the foregoing text, which it said:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [p. 54 of the slip opinion]

Given that one of the bases for the court's interpretation of the Second Amendment as conferring an individual right is that a number of state courts in the 1800's construed the Second Amendment or state analogues as conferring an individual right, the fact that courts from the 1800's routinely considered concealed carry to be a legitimate subject for legislative regulation is a powerful argument for not striking down modern-day legislation regulating concealed carry.

So, is Heller, in and of itself, an obstacle to banning concealed carry? No. Is the court likely to uphold or strike down legislation banning concealed carry? That's a subject for another post, another day, one that I think will require a discussion of the 14th Amendment and the incorporation doctrine.

blume357
November 2, 2008, 07:15 AM
back on states rights and then if the state allows it's smaller governments to make their own restrictive laws...

this is a two edge sword. Not only does it restrict the feds to interstate commerce but would in effect allow states to make their own laws. Such as Alaska and Vermont as an example.

Tennessee Gentleman
November 2, 2008, 02:59 PM
Originally posted by RickyB:

But a general prohibition of concealed carry by fiat of the president? Nope.

Yeah I know an Executive Order would not work but how would the President with Congress ban concealed carry? As Al Norris mentioned I think the 10th Amendment might come into play. Concealed Carry has been enacted by the States not Congress. I see real difficulty legally in just passing a law that says no one other then LEOs can carry concealed that would preempt all those 48 state laws.

Originally posted by RickyB:
Is the court likely to uphold or strike down legislation banning concealed carry? That's a subject for another post, another day, one that I think will require a discussion of the 14th Amendment and the incorporation doctrine.

Well, that is what I am asking now.:D The 14th isn't the issue but the 10th.

Al Norris
November 2, 2008, 03:31 PM
I'll expand a little more on what I said above.
How would or could a President Obama ban concealed carry both legally and politically?
By executive order, a president could conceivably ban concealed weapons on all federal property. Such an EO would run afoul of several rule-making provisions already in place, which would open the EO to a challenge in court.
What would be the legal and political mechanism and fallout from an attempt to ban concealed carry in every state.
As stated above, one legal mechanism would be an EO, although it would affect only federal property. Another mechanism would be to get the legislature to pass a nationwide ban.

The fallout would be almost immediate for such a law. The precedent of State issued drivers licenses would be in question, should such a law not be challenged. The States will not let that happen. The Congress, as recently as 2007, could not subsume lawful State police powers with the Real ID Act, nor can it in this case (the 10th amendment question).

Considering that State laws on concealed carry are predicated upon personal self defense, there would also be a challengeable action under Heller, assuming arguendo that incorporation has already occurred. If not, then the incorporation issue would be raised in every Circuit, and where such incorporation occurs, the law would then be challenged under Heller.

To sum it up, there are two immediate actionable causes that I see. 1) Such a law infringes the police power of the individual states (10th amendment) and 2) such a law infringes the 2A itself, given that the State allows such, even if via licensing.

Tennessee Gentleman
November 2, 2008, 03:39 PM
Al,

You know how to write it well my friend. :) This issue is one reason why I do NOT support a National Right to Carry Act by Congress. Let the states do it by reciprocity. It is slow and laborious but much more secure IMHO.

Ricky B
November 3, 2008, 01:43 AM
I don't see the congress passing a national concealed carry law (for or against).

If it did, it would be subject to challenge, but I don't think the Tenth Amendment would carry the day. If a challenge succeeded, I think it would be because the concealed carry law was not based on one of the enumerated powers of the federal government in the constitution.

If a concealed carry law were based on one of the enumerated power, then it would be difficult to strike down. Of course, the congress can ban concealed carry in interstate commerce, as evidenced by the prohibition on a passenger's carrying any firearm (openly or concealed) into the passenger compartment of an airliner. And the congress could tie federal funding of various programs that pass money along to a state to a state's agreeing to pass and enforce a concealed carry law (just as it did with the Drive 55 legislation).

gc70
November 3, 2008, 07:25 AM
I do not think Congress has the appetite to attack state concealed carry laws, but Ricky B pointed out the most obvious route to a national ban on concealed carry. Congress did not technically pass a national speed limit, but did cut off transportation funding to states that did not adopt a 55 limit. Similarly, Congress could cut off Homeland Security funding to states that did not help "reduce crime" by "voluntarily" banning concealed carry.

Tennessee Gentleman
November 3, 2008, 11:42 AM
If a challenge succeeded, I think it would be because the concealed carry law was not based on one of the enumerated powers of the federal government in the constitution.

I think Congress would have a hard time showing CCW law to be an enumerated power they could regulate.

Similarly, Congress could cut off Homeland Security funding to states that did not help "reduce crime" by "voluntarily" banning concealed carry.

Again, I can't see Congress doing that either. In the '70s there was more support for the 55 MPH than now and so they got away with it but it didn't last. If they tried a 55 MPH again today they would get toasted I think.

I guess my bottomline is that a national ban on concealed carry is quite unlikely.

gc70
November 3, 2008, 10:40 PM
If they tried a 55 MPH again today they would get toasted I think.


Quite possibly, but we have an outstanding measure of Congress' ability to pass indirect laws in the pending implementation of the Real ID Act - it will be interesting to see whether the feds or the states flinch first.

Tennessee Gentleman
November 3, 2008, 10:52 PM
Congress' ability to pass indirect laws in the pending implementation of the Real ID Act

I'll let the ACLU fight that one;)

jimpeel
November 5, 2008, 01:04 AM
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.

Al Norris
November 5, 2008, 02:02 AM
See my answer in your other thread, Jim.

Hkmp5sd
November 5, 2008, 06:54 PM
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.

melchloboo
November 19, 2008, 10:05 PM
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.

divemedic
November 20, 2008, 06:31 AM
We talked about that ruling in our constitutional law class. All Congress has to do is produce a Congressional finding that the possession of firearms in a school zone has an effect on interstate commerce, and such a law would be upheld.

jimpeel
November 20, 2008, 07:42 AM
All Congress has to do is produce a Congressional finding that the possession of firearms in a school zone has an effect on interstate commerce, and such a law would be upheld.

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?"

buzz_knox
November 20, 2008, 11:03 AM
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.

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
November 20, 2008, 11:34 AM
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.

Ricky B
November 20, 2008, 12:01 PM
All Congress has to do is produce a Congressional finding that the possession of firearms in a school zone has an effect on interstate commerce, and such a law would be upheld.

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:

the Government concedes that "[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Brief for United States 5-6. We agree with the Government that Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.

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 Government's essential contention, in fine, is that we may determine here that 922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce.

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:

if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.

It went on to say:

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. ... This we are unwilling to do.


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
November 21, 2008, 06:35 PM
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.

maestro pistolero
November 21, 2008, 07:19 PM
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.

jimpeel
November 22, 2008, 01:15 AM
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 (http://www.youtube.com/watch?v=ZmZic2VFGyI) for the video segment.

Socrates
November 22, 2008, 03:10 AM
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.

maestro pistolero
November 22, 2008, 04:54 AM
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.

Al Norris
November 22, 2008, 10:14 AM
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.

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.

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
November 22, 2008, 05:43 PM
. . . the misconception, as posed by the questioner is quite common.

The misconception being that drivers licenses are automatically recognized as opposed to by individual compacts created in the state legislatures?

Hkmp5sd
November 22, 2008, 10:04 PM
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.

melchloboo
November 23, 2008, 01:15 AM
I believe the latest questions relate to the Full Faith and Credit Clause:
http://en.wikipedia.org/wiki/Full_faith_and_credit_clause

Ricky B
November 23, 2008, 01:46 PM
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.

Al Norris
November 23, 2008, 02:47 PM
Hkmp5sd poses questions that relate to the Full Faith and Credit clause of Art IV sect 1 of the US Constitution (for which melchlobo gave one link, as an explanation). Remember that the clause refers to the public acts, records and judicial proceedings of one State, being accorded recognition in every other state.

The questions posed by CCW and (in an apples to apples comparison) Drivers Licenses relate to the general police powers of the States (the Feds have no general police powers).

Marriage is a peculiar beast. To say that a marriage license is a public act, is at best a misnomer, as several states still abide by "common law" marriage. Yet one must still be divorced through a judicial act, which does come under the FF&C clause. In its simplest form, a marriage is an act of comity (contract law) and comes under civil law. So it is not the license that is voided by the court, but the contract entered into by the parties involved.

Note bene: Marriage is actually much more complicated (on several levels) than the above explanation, but let's not get bogged down in arcana, shall we?

State licensing (CCW, DL, Legal Practitioner, Electrician, etc.) however, is not a contract. It is not a judicial act. It is not a public declaration. It is merely the State exercising a system of permits allowing certain licensed individuals to do something that otherwise would be unlawful.

There is nothing that prohibits one State from recognizing or not recognizing a licensing scheme implemented by another State.

That is the misconception that most people have, as regards State licensing and some assumed relationship with the Federal FF&C clause.

Ricky, once we can agree that we understand the fundamental differences above, then we can move on to the OP. Any thread drift is, I think, attributed to such (mis)understanding.

The Federal Government has no general police power to impose or restrict, upon the other States, a singular States licensing scheme(s) nor its (the States) agreements with other States to agree to recognize the license.

Ricky B
November 23, 2008, 03:41 PM
Ah, so true, on many levels. And one that I personally think does not invite useful comparison with CCW laws and the federal government's ability to regulate CCW or state ability to regulate CCW. More like an apples to orangutans comparison, IMO.

Antipitas, I think you and I are in agreement with one cavil. When you say that state licensing is "a system of permits allowing certain licensed individuals to do something that otherwise would be unlawful" it is technically correct, but I prefer to view it as a system of not allowing individuals to do something that otherwise would be lawful unless they get a permit from the state. You probably don't disagree with that formulation either, even if you prefer your formulation.

Socrates
November 23, 2008, 04:26 PM
Wonder if I might challenge CCW in Kali on the basis of the Full Faith and Credit Clause, in federal court, by obtaining an out of state CCW, while being unable to get one here?

S

Ricky B
November 23, 2008, 05:23 PM
Nope. Each state has the right to regulate conduct taking place within its borders without regard to what other states permit. Second Amendment, maybe, but Full Faith and Credit, no. Nice try, though

divemedic
November 23, 2008, 07:39 PM
True, else fishing and hunting licenses would be valid nationwide.

Socrates
November 23, 2008, 08:38 PM
HMMM.

The 2nd amendment right to protection is now an individual right, and a Federal issue that WILL get me into Federal Court.

States do NOT have the right to regulate rights that are extended against the states by the 14th Amendment, such as Free Speech, etc.

As I stated prior, you have a perfect Heart of Atlanta Commerce Clause issue, and, you have a Supremacy Clause issue as well.

jimpeel
November 23, 2008, 11:11 PM
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.

How is that applied to marriage licenses; and what, in the aspect of marriage, would be unlawful without it? Marriage can be common law. Is there anything in common law that affects CCW? Could there be a common law right?

Al Norris
November 24, 2008, 01:35 AM
Don't focus on marriage, Jim. That's covered under the FF&C clause.

publius42
November 30, 2008, 01:04 PM
Has the Court ever held that an act of Congress violates the 10th amendment?

Yes, a few times. Wikipedia on the 10th:

As suggested above, the Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations. In 1997, the Court again ruled that a federal act, this time the Brady Handgun Violence Prevention Act, violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.


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.
Actually three did say that was what was going on in the Raich (http://straylight.law.cornell.edu/supct/html/03-1454.ZD.html) case:

If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation”–thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today’s decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme.