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Old June 29, 2010, 12:13 PM   #1
Dre_sa
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Question about second amendment

As we all know, the second part of the amendment states "...the right of the people to keep and bear Arms, shall not be infringed."

So the supreme court acknowledges the right to keep arms, by its ruling.

But is bearing arms, carrying?

Does the right to bear arms = the right to carry?

I think so.

So why do we need permits to be able to carry, when the constitution tells us we can anyway?

If the supreme court upheld that the second amendment applies to all states, allowing all Americans to keep arms, does it not automatically apply to carrying (bearing) as well?

I think by their ruling they may have just made permits a thing of the past...

or am I reading between the lines too much?
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Old June 29, 2010, 12:37 PM   #2
JonnyP
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I'm no attorney, nor am I an expert on constitutional law. But I can't find anything wrong with what you said other than the possibility that the 2A provides no guidance regarding from whom guns should be kept (like felons, for example). The permit system at least provides some measure of protection regarding that issue.
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Old June 29, 2010, 12:57 PM   #3
Frank Ettin
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I am a lawyer, although Constitutional Law is not my specialty.

The thing is that courts decide cases. Their decisions in any particular case are binding only on the parties. But the rulings on matters of law made by a court of appeal in the process of deciding a case become themselves precedent that will be used by other courts to decide other cases, when applicable.

Now in the course of deciding the Heller and McDonald, the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts.

Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

It has long been settled law that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights.

The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

Whichever level of scrutiny may apply, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not. I suspect that now the strategy will be to go after the ones most likely to fall, so as to continue to build a body of pro-RKBA precedent.
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Old June 29, 2010, 01:33 PM   #4
Retired15T
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Fiddle-

So does that mean any and/or all laws having been passed and approved by States or Cities are now rendered null and void? Since it's obviously been ruled by the Supreme Court that gun ownership is a right to the individual, does this make Chicago's laws null?

If not, when will Chicago have to come into compliance with the Supreme Court's ruling?
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Old June 29, 2010, 01:49 PM   #5
Frank Ettin
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Quote:
Originally Posted by Retired15T
So does that mean any and/or all laws having been passed and approved by States or Cities are now rendered null and void? Since it's obviously been ruled by the Supreme Court that gun ownership is a right to the individual, does this make Chicago's laws null? ...
How could you possibly get that from what I wrote?

In the McDonald case, the Supreme Court reversed the ruling of the 7th Circuit Court of Appeal (which tossed the case out), and remanded the case to the lower court to now consider the case further in a manner consistent with the rulings made by the Supreme Court.

All gun laws remain in force. They are subject to challenge in court. If and when challenged in court, the courts will have to decide those cases using the rulings of the Supreme Court in Heller and McDonald.
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Old June 29, 2010, 02:21 PM   #6
Retired15T
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Quote:
Originally Posted by fiddletown
How could you possibly get that from what I wrote?
I often have to ask for clarification of things people write, and sometimes about what I personally write, due to a Moderate Traumatic Brain Injury I received in Iraq in 2004. After my brain surgery stateside to fix the blood vessels that had been damage and were leaking blood, I had to relearn math (tested @ 3rd grade level), writing (tested @ 5th grade level), and how to use my left side. Prior to my injury, I was a Helicopter Quality Control guy with beyond college level writing/reading and pretty fair math.

I've learned since my injury to not just rattle off things or assume I'm correct on things I used to know very well. I still have to remind myself of that quite often and have had to do so once already since becoming a member here.

I'm not saying this to make you feel bad. Quite the opposite. I would rather you know up front that I deal with some cognitive issues at times. Please be patient with me if I ask for clarification on something.
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Old June 29, 2010, 02:40 PM   #7
knight0334
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Bear does mean carry, but if you look at the 2008 Heller ruling, they only protected carrying within one's home. Which then the McDonald ruling somewhat affirmed that, but carrying that over to the states.
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Old June 29, 2010, 02:44 PM   #8
DogoDon
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First, my hat's off to Retired15T for his service to our country and his overcoming the effects of the injury he sustained. Godspeed to you in your further recovery!

Getting back to the original question, I would surmise that to "bear" arms is to actually use them (what good would it do to be able to "keep" arms if you couldn't also use them?). I don't think it equates to carrying, but a law that unduly burdened one's ability to carry could in certain cases have the effect of infringing the right to "bear" arms and thus be unconstitutional.

IMHO the SCOTUS cases (McDonald, Heller) will not have much if any effect on carry laws, which will continue to be the province of state legislatures to do as they see fit.

DD
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Old June 29, 2010, 02:54 PM   #9
Frank Ettin
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Quote:
Originally Posted by Retired15T
I often have to ask for clarification of things people write, and sometimes about what I personally write, due to a Moderate Traumatic Brain Injury I received in Iraq in 2004....
Sir, please accept my apologies. I deeply regret my intemperate tone.

Thank you for your service to our country, and I regret that your devotion to our nation has caused you injury. I wish you well.

Last edited by Frank Ettin; June 29, 2010 at 11:58 PM.
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Old June 29, 2010, 03:55 PM   #10
mack59
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Retired15T - thank you for your service and sacrifice. My older brother was far more athletic and whittier than I - but he was diagnosed with brain cancer and after a major surgery, chemo, and radiation he survived for another 14 years until the cancer re-occured and took him within a year. He was and is one of my heroes - from him I learned what it is to face adversity and death with dignity and class and witt. He knew after his first surgery and chemo and radiation that he did not have the memory or quick intelligence that he once did - but he pushed his body with weights and he pushed his mind through going back to school and graduating from college with a four year degree - when I know he had to work twice as hard as others and when he knew that it would have been so easy for him before the cancer.

So, I offer my respect for your honesty here also - would that all of us could reflect those values.

While I have often disagreed with fiddletown on other issues he is a good resource for understanding this and many other issues.

It is a great day to have the Supreme Court recognize that the second amendment protects a fundamental individual right to keep and bear arms that protects that right against both federal and state and local laws that would infringe it.

Of course that is the question - what laws infringe it and what are the boundaries of that right? The answers will come as has been stated by additional court cases that challenge the consitutionality of various - federal or state or local laws.

In my humble opinion we will see at minimum regulated shall issue concealed carry and/or open carry in every state - some states will have less or no regulation if they choose

No more AW bans or approved gun lists or rosters.

No more paying for a permit to buy a gun.

No more onerous licensing requirements.

What probably won't change due to Heller/McDonald - laws governing machine guns, laws prohibiting felons, and non-restrictive registration or licensing.
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Old June 29, 2010, 09:48 PM   #11
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As Mack and fiddle have admirably stated it's a good day. Chicago's gun laws will not be instantly overturned. But as soon as a case comes up (trust me very quickly) the lower court will have to rule again, but with the new Supreme Court guidelines which is now precedent. And then we will win that battle.
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Old June 29, 2010, 10:43 PM   #12
Retired15T
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No problem Fiddle. There's no way for anyone to know unless I tell them. For about four years, I wouldn't have said anything to anyone. Now, I realize the only person I'm hurting when I don't say anything is myself. I'm no longer embarrassed by it. It's just the way it is and I've a long career of friends who knew me before the explosion. So they give me a lot of slack now a days.

I mentioned it only so I could learn more, not to "beat you up" with it. Sometimes, I think I would be better off prefacing some of my questions with my cognitive issues so people will know right out.

And Lord knows, I've a lot to learn yet!!

Thanks for the kind words too guys.

I will say this though. My only regret is that I wasn't able to overcome the injuries enough to return to service. I've overcome other injuries in the past. 3200 hours in a Blackhawk tends to leave you bent and broken....especially with the crap we've had to deal with since 1989 when I went in.

I loved the large majority of my time in the Army. Some rough spots, some awful spots. Mostly great things though. No regrets about my service. I joined up, and then re-enlisted, many times before I went indefinite. I knew what the risks were and happily accepted them. I loved what I did with a passion. Helicopters. What's broken? How to fix it? How to improve it? Troubleshooting was my specialty. Replacing parts and getting things in order, like a primary servo replacement I did on the deck of the U.S.S. America while off the Haitian coastline. The left side main landing gear shock strut that collapsed on my helicopter at 0330 in the rain, landing on an Aircraft Carrier. I had three Navy Seals in that doorway and one of them got a crushed foot because of it. But my aircraft was back on mission within 90 minutes with a properly installed and serviced strut. The time my M134 machine gun crapped out it's feeder/delinker over a certain body of water far from here. I was able to break down the gun, clear the brass that was shredded all over the bolts and in the bolt carriers as well as pry all the brass and lead out of the feeder/delinker. The gun was back in action within 10 minutes despite all the powder in it. As soon as it spooled up and started firing again, the lube caught fire for about 20 seconds. Scared the hell outta me to see my gun burning, but it worked out great in the end. Man did my back hurt like MAD after that one!! Leaning out of the right side gunners window at 135 KIAs working on a minigun when it's cold out is pure torture!

Sorry for rambling on. Guess I got diarrhea of the keyboard for a sec.

I miss it, being in the Army, tremendously so. I hope that part gets easier.
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Old June 30, 2010, 08:41 PM   #13
Aguila Blanca
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Quote:
Originally Posted by Knight0334
Bear does mean carry, but if you look at the 2008 Heller ruling, they only protected carrying within one's home. Which then the McDonald ruling somewhat affirmed that, but carrying that over to the states.
Not really.

What Heller actually said was that "the" right enumerated in the 2nd Amendment is an individual right, not a collective right. And what McDonald said was that "the" individual right affirmed in Heller is binding on the fifty states.

"The" right. ONE right. It is a dual-purpose right, to "keep" and to "bear" arms. But ... it is ONE right.

Heller spoke primarily about guns in the home because that was the basis on which Heller et al challenged the DC gun ban. But the language of the 2nd Amendment itself is crystal clear that there is only ONE right being discussed, and that it is a right to "keep and bear" (not "a right to keep or a right to bear") arms.

Quote:
Originally Posted by drjjpdc
As Mack and fiddle have admirably stated it's a good day. Chicago's gun laws will not be instantly overturned. But as soon as a case comes up (trust me very quickly) the lower court will have to rule again, but with the new Supreme Court guidelines which is now precedent. And then we will win that battle.
Chicago doesn't have to wait for a case. They have one: McDonald. The case is still very much alive. The SCOTUS decision ruled that the lower court decision was wrong, and they remanded the case. That means it goes back down to the lower court, which has to reconsider it on the basis of the new SCOTUS ruling that the 2A applies against the states.
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