November 20, 2008, 06:31 AM | #26 |
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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.
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November 20, 2008, 07:42 AM | #27 | |
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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?"
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm. "Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare "Three thousand people died on Sept. 11 because eight pilots were killed" -- former Northwest Airlines pilot Stephen Luckey |
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November 20, 2008, 11:03 AM | #28 | |
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November 20, 2008, 11:34 AM | #29 |
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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. |
November 20, 2008, 12:01 PM | #30 | |||||
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In the Lopez case, the court stated: Quote:
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: Quote:
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November 21, 2008, 06:35 PM | #31 |
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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. |
November 21, 2008, 07:19 PM | #32 |
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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.
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November 22, 2008, 01:15 AM | #33 |
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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.
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm. "Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare "Three thousand people died on Sept. 11 because eight pilots were killed" -- former Northwest Airlines pilot Stephen Luckey |
November 22, 2008, 03:10 AM | #34 |
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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. |
November 22, 2008, 04:54 AM | #35 |
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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.
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November 22, 2008, 10:14 AM | #36 | |
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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. Quote:
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. |
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November 22, 2008, 05:43 PM | #37 | |
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November 22, 2008, 10:04 PM | #38 |
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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. Last edited by Hkmp5sd; November 22, 2008 at 10:11 PM. |
November 23, 2008, 01:15 AM | #39 |
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I believe the latest questions relate to the Full Faith and Credit Clause:
http://en.wikipedia.org/wiki/Full_fa..._credit_clause |
November 23, 2008, 01:46 PM | #40 |
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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. |
November 23, 2008, 02:47 PM | #41 |
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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. |
November 23, 2008, 03:41 PM | #42 |
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Marriage is a peculiar beast.
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. |
November 23, 2008, 04:26 PM | #43 |
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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?
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November 23, 2008, 05:23 PM | #44 |
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challenge CCW in Kali
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
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November 23, 2008, 07:39 PM | #45 |
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True, else fishing and hunting licenses would be valid nationwide.
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November 23, 2008, 08:38 PM | #46 |
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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. |
November 23, 2008, 11:11 PM | #47 | |
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm. "Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare "Three thousand people died on Sept. 11 because eight pilots were killed" -- former Northwest Airlines pilot Stephen Luckey |
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November 24, 2008, 01:35 AM | #48 |
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Don't focus on marriage, Jim. That's covered under the FF&C clause.
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November 30, 2008, 01:04 PM | #49 | ||||
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