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September 9, 2010, 11:57 AM | #1 | |
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The Newest NRA Lawsuits - Texas
From the NRA-ILA, we have this announcement:
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This two pronged attack is very well considered and I suspect will move very fast. The State case will, because it is a state case and does not involve the federal government, will move faster than the federal case. I suspect both the State and the Feds to try to invalidate D'Cruz's standing, by holding the Navgear standard (D.C. Circuit) applies. I don't think that will fly, if the 5th Circuit follows the suggestions in Bach v. Pataki (2nd Circuit). Should the case proceed, it will most likely be a slam-dunk. I simply can't see the courts holding that a fundamental right can be regulated by some arbitrary age limit. Remember that the 1968 GCA was enacted 3 years before the 26th amendment (18yr old voting) was ratified. Since then, anyone 18 years or older are adults in the legal sense. |
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September 9, 2010, 12:32 PM | #2 |
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Good news, this is.
I've always thought it to be a bit odd that you can be old enough to go to war and kill and die for your country but you can't own/carry a handgun.
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September 9, 2010, 12:50 PM | #3 | ||
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In some states, active duty military personnel are allowed to carry without the need for the state's license, but the law is unclear whether it's legal at 18 or not. Quote:
This could be another chance to delineate a level of scrutiny for the RKBA as well.
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September 9, 2010, 01:01 PM | #4 | |
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What other fundamental right(s) is/are withheld from an adult, by governmental action, based solely upon age? |
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September 9, 2010, 01:45 PM | #5 | |
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In other words, I disagree with your assertion that I disagree that the age limit is not arbitrary. I think...
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September 9, 2010, 01:51 PM | #6 |
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One might take the road that 18 years are not responsible. Evidence shows not full developed front cortices that inhibit risky behavior. That we let them have guns in the military is ok because they are tightly supervised.
That is the tack taken by one of our 'members' in the school/ccw thread. Youth cannot be trusted. However, the reasonable counterpoint is why do we let the irrational vote? Look who we have elected recently from all the parties! Seriously, the argument will be reasonable restrictions and wild kids need to be restricted. See if that works as it would have to define voting rights as less risky than gun rights.
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September 9, 2010, 01:54 PM | #7 | |
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Have to.... it would take a lot more than an age limit to weed them out!
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September 9, 2010, 02:26 PM | #8 |
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I still haven't figured out why I can have a concealed pistol permit at 19, but I can't buy pistols
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September 9, 2010, 04:21 PM | #9 |
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Speaking strictly as an old guy: multiple ages of majority is an insult to young people. If you're old enough to get married, sign up for credit cards, join the military to defend the nation, and the like, you should be old enough to enjoy all our nation's civil rights. Treating young people as partial second class citizens is no way to encourage people to be good citizens.
You can tell them I said so.
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September 9, 2010, 04:47 PM | #10 |
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Standing Wolf, that is part of the argument. The other part is that all rights are equal. Just like there is not supposed to be second class citizens, there are no second class rights.
Which is why these two cases will be argued on standing, and not the merits. On the merits, both cases fail and fail fast. |
September 9, 2010, 04:52 PM | #11 | |
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"Yeah, Kid, yer old enough to die but yer not old enough to think. Get over it." |
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September 9, 2010, 06:27 PM | #12 |
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I want to take Glenn's point a little further into the policy spectrum... I'm not too well versed in the legal spectrum, but I'll try here.
It is oft said that criminals are criminals because they break the law, and thus laws preventing people from doing things only inhibit non-criminals to do them. Many of these age laws are very ineffective at preventing young people from owning firearms (look at the gang wars of inner cities) because many young people are, as Glenn alluded to, criminals. Here is where I will attempt to venture into this land of the legal mumbo jumbo. This idea that many gun control laws only prevent otherwise law abiding citizens from exercising a now fundamental right is an issue of scrutiny is it not? One of the basis of strict scrutiny is that a law is the least restrictive means possible of attaining a goal. It would seem to me that these age laws (and many other laws, like PFZs, but staying on topic) are far from the least restrictive means possible because remember, they only seem to restrict otherwise law abiding citizens and not criminals that are breaking the law anyways. I can hear one opposition to my thesis here in that "well howabout we just make arson legal, because otherwise law abiding people don't commit arson because it's against the law, so you just want to make arson legal?". The obvious counter point to that is that arson is not a fundamental right. Am I too far off base here? Does this make sense? I'm trying to get into the court side of this issue here so I'm not only familiar with the policy side.
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September 9, 2010, 06:47 PM | #13 |
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Ok, puddin' stirrin' time. Laws are not enacted to prevent anyting, they are enacted to demonstrate, and provide punishment for, those things which are fundamentally, wrong.
To think that legislation will prevent anyone from doing anything is folly, and fear of consequences will prevent only a small majority.
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September 9, 2010, 10:57 PM | #14 | ||
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Some rights and responsiblities need to be earned with age and the question is best not answered with rote soundbites (and that aint directed at you Al). Need we discuss age of consent laws? Watch those cortices kiddies WildlifeisthoughtnotslogansAlaska TM©2002-2010 |
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September 10, 2010, 08:38 AM | #15 |
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The way I see this is that one should be allowed to exercise their rights at the age they become 'independent' because if you believe that our natural rights are given at birth, you have to either conclude that we should be able to exercise all our rights from birth (not a good idea, imo) or those rights should be temporarily given to our caretakers (parents) for them to regulate as we mature. IE, if a child's dad thinks he should have a 22 at 12y/o then that's okay. He takes the responsibility for exercising the child's rights.
Now, since 18y/o is the age in which most people leave home, it seems to me that it is the age in which you should have your rights. Prohibition never works - and drinking before 21 is prohibition and buying an handgun from an FFL is (a smaller) prohibition as well. Now, here's the real question - the 26th amendment happened in the early 1970's. What have our legislators been doing for the last ~40 years to have not thought through the logic of the above two paragraphs? |
September 10, 2010, 08:54 AM | #16 | |||||||
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Let's get back to the voting bit. By the late 60's, most States were already leaning at legislative actions that placed the age of adulthood at 18. The right to marry. The right to enter into contracts. The right to be treated as an adult (at 18), in most all manners (civilly and criminally), was pretty well universal. The cement, as it were, to this movement was set in place on July 1 of 1971, when the 26th amendment was ratified and became a part of the Constitution: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. (emphasis, mine) Thereafter, any State that was lagging, quickly put into place the necessary legislation that affirmed the Congress' intent; That a citizen of 18 was a fully vested adult. A law passed in 1968 (the GCA), that applied an arbitrary age to handgun possession, cannot withstand any level of judicial scrutiny after the passage of the 26th amendment, the decision in Heller and the decision in McDonald. Quote:
If the Constitution can set arbitrary age limits on the Presidency, the Senate and the House, it can also set the age of majority (a term of art meaning adulthood). Laws must then abide by those Constitutional limitations. |
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September 10, 2010, 09:00 AM | #17 |
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Is there a legal definition for 'age of majority'?
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September 10, 2010, 09:02 AM | #18 |
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Good arguments. I'm just saying that the defense for the age limit would be the idea of 'reasonable' restrictions. As proposed for schools or churches.
Note, that I'm dead set against those except for highly technical reasons. However, the reasonable restriction mantra carries some weight with folks - as in the school debate where so-called gun rights supporters come out against school carry rights and babble whining scenarios of fear. As far as medical exams for cognitive competency - I suggest they be instituted for the Congress and Presidency.
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September 10, 2010, 10:03 AM | #19 |
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Well, since I posted a hour ago, I did a little research on age of majority. I found something I never saw before called 'age of license'. Maybe y'all know all about it.
Does age of majority and age of license have bearing on this?
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September 10, 2010, 03:01 PM | #20 |
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Purchase of handguns is an age of license issue not an age of majority. The state (in the generic sense) can permit activities to occur at certain ages which are different than a general age of majority. You can get a DL at 16, or a hunting license at 18, or get married at 18, or drink at 21 etc. The age of Majority means that you are responsible for your own decisions. So at the age of majority you can sign contracts that legally bind you without parental consent. A person underage can marry, drive, join the service etc. but it requires the consent of the parent or other guardian to do so. At least this is what I read on Wiki
Interesting DL procedure in VA, the local judge gives the DL to the guardian in the presence of the new driver, and the guardian has the legal right to revoke it at anytime prior to the child reaching 18. |
September 10, 2010, 07:45 PM | #21 | |
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This is not a licensing issue at all. It is a federal requirement for FFL's and those who sell ammunition. That is what is being challenged in the first case. The second case is specifically challenging the Texas Concealed Carry laws, in as much as they deny the Fundamental Right of Self-Defense to adult citizens. A drivers license is irrelevant, as the majority will quickly say that this is a privilege and not a right (I don't agree, but I'm in the minority). The same goes for drinking. That also is not an enumerated right. The other things you mentioned (marriage, service, contracts) are rights and you will notice that they are all available once you reach 18. Hunting is special, in that both the State and Federal Governments have a compelling interest in keeping the game (and habitat) available to all. The laws governing this are narrowly constructed and are the least restrictive means to achieve that goal. |
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September 10, 2010, 08:14 PM | #22 | |
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Yes, there are definitions. The age at which a person, formerly a minor or an infant, is recognized by law to be an adult, capable of managing his or her own affairs and responsible for any legal obligations created by his or her actions. The common law age of majority was 21. Before this (medieval times), the age was 25. However, each State has the ability to set the age at whatever arbitrary age it wants. "If a legislative body wishes, for whatever purpose, it can wave a magic wand and emancipate (a minor) to suit its convenience. Though 21 usually is the dividing line between minority and majority, the age of majority in Michigan (in 1972) is now 18. The state seemingly can be as arbitrary as it pleases in raising or lowering the barrier for all or just some purposes." Smith v Smith (1972) 433 Mich. 606 (as an example of what the courts have said). As a federal construct, the age is now 18. The same goes for the State of Texas (and many other States). |
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September 10, 2010, 10:24 PM | #23 | |
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So what? Al, you ignored my basic premise, viz: That a case could be factually presented that demonstrates that the restriction in question is not arbitrary but rather, well within the bounds of evolving 2nd Am Jurisprudence. Undeveloped cortices? Makes a great record for the Court below. How many "children" (nyuk nyuk) commit gun homicides. There have been several recent cases that illustrate how the facts, present or absent, can effect what a Court does. And if the restriction in question is arbitrary, why are you arguing with me about the facts WildandihavemoreAlaska ™©2002-2010 Wild |
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September 10, 2010, 10:41 PM | #24 |
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Ken, I would posit that we are merely debating probable legal points. Any arguments would actually have to wait until we see the responses from the feds and the State.
As for your premise, I would think it would be more a State argument than a Federal argument, for the reasons given in the definition to sundog. |
September 10, 2010, 10:44 PM | #25 | |||
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Congress has no right to restrict that activity. The federal government is supposed to only have the enumerated powers delegated to it in the constitution. (yea yea, I know they don't follow it.) Any powers not delegated to the federal government are left to the states. Every part of alcohol regulation is left to the states except for the drinking age which the government implicitly admits that it has no right to regulate because it has to do it via tying it to highway funding.
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