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Old March 7, 2010, 04:40 PM   #35
Webleymkv
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Join Date: July 20, 2005
Location: Indiana
Posts: 9,934
When comparing the right to carry to freedom of speech or freedom of travel, there are certain details that I think many forget, these other rights are allowed to be restricted, taxed, or outright denied only in certain venues and only when another venue is available.

For example, certain licenses and fees are typically required to operate a radio or television station, print a newspaper, or have a public demonstration. However, these requirements do not exist when we talk about writing a letter to the editor or posting comments on a website.

Likewise, licensing and taxes are permitted when obtaining the right to operate an automibile on public roads or when registering said automobile for such usage. However, no license nor tax is needed for many other methods of transportation. I need not obtain a license to hail a taxi, buy a train ticket, or ride a bicycle nor am I directly taxed for these activities (I may pay sales taxes, but these are imposed on the cab company, rail company, or bike retailer and passed on to me by those parties).

Another historical note that has bearing on the discussion is whether ccw licensing will be viewed as a tax law. Remember, the NFA was allowed to stand under Miller because SCOTUS labeled it as a tax law rather than a firearms law, no firearms were actually banned by the NFA they were just taxed very heavily. Also, the NFA only restricted and taxed very specific types of arms and left others alone. SCOTUS noted in Miller that 2A protection extended only to arms that were "particularly suitable and in common use by the militia" and that NFA weapons did not fall into this category. However, this would seem to imply that arms fitting that description would be constitutionally immune to such regulation and tax. Such restriction and tax of all types of arms would be extremely unlikely to pass constitutional muster.

The right to carry is somewhat different in that there are only two venues in which it may be exercised: concealed or openly. If the same standards are applied to it that are applied to freedom of speech and freedom of travel, then I can only see taxes and/or excessive regulation standing only if it is applied to one venue and not the other. Because of this, I can only really see "may issue", at least in the New York/Califoria style, standing if open carry is allowed. If we apply the Miller definition of arms to bear, we get the following: the protection of the Second Amendment extends only to methods of arms-bearing in common use and suitable for the militia. That definition would seem to best fit open carry thusly leaving concealed carry vunerable to regulation and tax. However, the Miller definition may not be applicable since Heller seems to have disconnected the militia from the right beyond an explanation for its enumeration (on a side note, I find the degree to which Miller and Heller seem to be able to contradict without invalidating each other to be quite interesting).

In any case, no changes in carry laws will come from McDonald unless SCOTUS specifically addresses that issue or goes the P&I route, which I have doubt that they will. The current court, or at least the conservative majority, seems to be interested in dealing as specifically as possible with the issue at hand (this is why McDonald is even necessary in a post-Heller world), and carry is not part of the issue at hand. I suspect that this attitude is in response to conservative complaints in recent years about "Judicial Activism" and "Legislating from the Bench". In that vein of thought, I think the percieve hostility to P&I incorporation stems from this: Due Process allows the majority to incorporate 2A without ruling on anything else. Simply put, the court seems to want to rule only on one issue at a time.
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