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Old October 28, 2008, 10:51 PM   #1
Tennessee Gentleman
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Banning Concealed Carry

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-2...ets_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?
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Old October 29, 2008, 12:53 AM   #2
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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.
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Old October 29, 2008, 09:48 AM   #3
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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.
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Old October 29, 2008, 03:02 PM   #4
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Quote:
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

Quote:
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.
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Old October 29, 2008, 05:37 PM   #5
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Quote:
Such a law would violate the 10th amendment.
Has the Court ever held that an act of Congress violates the 10th amendment?
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Old October 29, 2008, 07:08 PM   #6
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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.
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Old October 29, 2008, 11:29 PM   #7
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Factcheck reveals bias

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.
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Old October 30, 2008, 09:49 AM   #8
Glenn E. Meyer
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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.
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Old October 30, 2008, 11:22 AM   #9
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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.
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Old October 30, 2008, 05:36 PM   #10
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Quote:
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.
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Old November 1, 2008, 08:27 PM   #11
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My question is: How would or could a President Obama ban concealed carry

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.
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Old November 1, 2008, 08:50 PM   #12
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Would Heller be an obstacle to banning concealed carry?

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.
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Old November 2, 2008, 07:15 AM   #13
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I'm by no means and expert...but it seems to always fall

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.
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Old November 2, 2008, 02:59 PM   #14
Tennessee Gentleman
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Quote:
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.

Quote:
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. The 14th isn't the issue but the 10th.
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Old November 2, 2008, 03:31 PM   #15
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I'll expand a little more on what I said above.
Quote:
Originally Posted by Tennessee Gentleman
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.
Quote:
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.
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Old November 2, 2008, 03:39 PM   #16
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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.
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Old November 3, 2008, 01:43 AM   #17
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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).
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Old November 3, 2008, 07:25 AM   #18
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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.
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Old November 3, 2008, 11:42 AM   #19
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Quote:
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.

Quote:
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.
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Old November 3, 2008, 10:40 PM   #20
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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.
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Old November 3, 2008, 10:52 PM   #21
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Congress' ability to pass indirect laws in the pending implementation of the Real ID Act
I'll let the ACLU fight that one
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Old November 5, 2008, 01:04 AM   #22
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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.
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Old November 5, 2008, 02:02 AM   #23
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See my answer in your other thread, Jim.
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Old November 5, 2008, 06:54 PM   #24
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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.

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Old November 19, 2008, 10:05 PM   #25
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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.
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