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Old November 28, 2011, 01:58 PM   #226
Tom Servo
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This could mean that my constitutional right to carry could trump states rights in regards to where they say I could not carry in said state no?
Right. States like Illinois and New York have the option of weaseling out of compliance with something like HR 822, but not a Supreme Court ruling.

States can set their own policies and practices to a point, and they may be entitled to enact some regulations on firearms, but they cannot abrogate the 2nd Amendment completely. That was pretty much the point of the 14th Amendment, and of the McDonald decision.
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Old November 28, 2011, 02:27 PM   #227
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Then this would seem to be a quandry for the antis. If they don't help pass HR822, then the next thing they could face might possibly be a SCOTUS decision which they can't opt out of. Seems to me like they would jump at this one where they have choices rather than let the opportunity pass by. This just doesn't make a whole lot of sense to me why they aren't jumping at this. While I disagree with the Dems (most of the antis) on most things, I will not call them dumb because i do disagree fundamentally with them. That being said, it would be stupid for them not to help pass this then IMO.
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Old November 28, 2011, 02:57 PM   #228
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Originally Posted by icedog88
Another question as to the SCOTUS ruling on a constitutional right to carry. If such a ruling were to come down, does that not open a whole new can of worms? This could mean that my constitutional right to carry could trump states rights in regards to where they say I could not carry in said state no? Just a thought.
Yes! That is exactly one of the points I've been trying to make. Forgive me for not being clearer. If SCOTUS says that RKBA is an individual, fundamental right, then your individual, fundamental right to keep and bear arms will (or should) trump a neighboring State's right to say that you cannot carry in their territory.

Perhaps a quick lesson in judicial scrutiny would help. If you (or any other reader) already knows this, then accept my apologies and just skip over this part.

Whenever a constitutional challenge is mounted as against a law, there are three levels of scrutiny that the court can apply. We (RKBA folks) have not yet gotten a SCOTUS decision that spells out which level applies to the 2A cases.
1) Rational basis -- The law is presumed to be constitutional and if there is any rational basis for enacting the challenged law, it will be upheld. This is basically a "challenger loses" rule.

2) Intermediate scrutiny -- (I'll have to use a First Amendment case for this one.) Under intermediate scrutiny, a "need not be least speech-restrictive means of advancing government's interests, provided that means chosen do not burden substantially more speech than is necessary to further government's legitimate interests." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) -- In other words, a law need not be the least restrictive means available to accomplish the gov't's goals, but it cannot "substantially burden" other rights.

3) Strict scrutiny -- If SCOTUS decides that the 2A right is an individual, fundamental right, then strict scrutiny will apply. Under this analysis, the law is will be held constitutional "only if [it is] narrowly tailored measures that further compelling governmental interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995). This one shifts the burden to the government to show that: (a) that there is a compelling government interest which is supported by the law at issue, and (b) that the challenged law is narrowly tailored to meet the interest. -- This is the one we want.

And yes, it is quite the quandry for the anti-gunners, isn't it?
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Old November 28, 2011, 03:24 PM   #229
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But what if they rule it is not a constitutional right? What then? That is the can I speak of. I admit I am not as polished in the law as some, so my questions may be a bit tedious I'm afraid.
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Old November 28, 2011, 03:28 PM   #230
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If that happens, we're screwed. Fortunately, the 2A is pretty plain on its face, and such a decision would require an extremely quick reversal of fortune to happen. Heller and McDonald are both recent cases, and SCOTUS isn't going to 180 on us that quick, IMO.

Edited to add: Don't feel bad about being "unpolished" in the law, icedog. There's no reason to. If you don't ask, you don't learn. If you don't learn, you can't correct the next anti-gunner you come across.
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Old November 28, 2011, 03:34 PM   #231
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Another question as to the SCOTUS ruling on a constitutional right to carry. If such a ruling were to come down, does that not open a whole new can of worms? This could mean that my constitutional right to carry could trump states rights in regards to where they say I could not carry in said state no? Just a thought.
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I believe individual rights did trump state and Federal rights as I read the constitution. In fact, the Bill of Rights with the 2A was to assert individual rights above state and Feds.

As far as the SCOTUS rulings, all we need is one more liberal/anti-gun vote on SCOTUS to completely undo all of the findings of McDonald and Heller. Elections do matter. If Heller/McDonald were 5:4 against, we would not even have this discussion today.
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Old November 28, 2011, 03:47 PM   #232
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Fortunately, the 2A is pretty plain on its face, and such a decision would require an extremely quick reversal of fortune to happen. Heller and McDonald are both recent cases, and SCOTUS isn't going to 180 on us that quick, IMO.
That's why we need to strike while the iron is hot and we have the Justices we need on the bench.

A loss on HR 822 might give a court challenge some ammunition, showing that legislative remedy has failed, but other than that, it's a distraction.
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Old November 28, 2011, 04:21 PM   #233
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If the Second Amendment were so plain, then why are we having this little gab fest? lol. I believe it is, we may as a group believe it, but obviously to others it isn't. See, I look at it this way. If SCOTUS is the end all be all, then we use it as a last resort to HR822 being shot down, if we are confident that it would stand up to Supreme court rule that is. If the Supreme Court does rule against the constitutional right, then as Spats so eloquently put it, we are screwed. There is no guarantee they will rule in our favor, right?


** Disclaimer** *All opinions come from being at work for 13 hrs so please disregard if babbling
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Old November 28, 2011, 04:41 PM   #234
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If the Second Amendment were so plain, then why are we having this little gab fest? lol. I believe it is, we may as a group believe it, but obviously to others it isn't. See, I look at it this way. If SCOTUS is the end all be all, then we use it as a last resort to HR822 being shot down, if we are confident that it would stand up to Supreme court rule that is. If the Supreme Court does rule against the constitutional right, then as Spats so eloquently put it, we are screwed. There is no guarantee they will rule in our favor, right?


** Disclaimer** *All opinions come from being at work for 13 hrs so please disregard if babbling
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**Disclaimer*** All opinions are those of a redneck, right wing who lives in Idaho by choice of freedoms here that are absent in so many other states. LOL

Yes, we are truly only one SCOTUS justices vote away from overturning all of these recent gun rights gains. Four more years of the current administration and the opportunity to install anti-gun judges is the scariest part of the upcoming election. Our wins have been 5:4. One judge can make it 5:4 against. SCOTUS has been friendly to us in the last few years, but that was after 8 years of the Bush supreme court. We already have 2 new anti-gun justices in the last 3 years. If one of our conservative justices retires before we have a conservative president, all bets are off for SCOTUS favorable gun decisions. SCOTUS is subject to political trends unfortunately. I don't believe that was the intent of the founding fathers, but it is the reality of today. It doesn't leave us with much assurance in the long run.

All we need to do is look at what happened to gun rights in New Orleans after Katrena to know how tenuous our gun rights really are even with SCOTUS support over the last couple of years. That was during a conservative Republican administration. Tenuous is the operative word.

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Old November 28, 2011, 05:31 PM   #235
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Spats Mcgee,

Isn't the point of Heller that the Court decided that the 2A is an individual right? (Forgive me, I haven't read it recently and don't recall the details.) Under McDonald, the Court explicitly extended that right to the states under the 14A. Then, in my mind, it's more a question of the extent of the individual right present in the 2A, not whether it exists. Even under 1st Amendment doctrine, states have the right to regulate to a certain extent. Of course, the Court has been hearing 1A cases for decades and we have much more case law discussing how far 1A rights go, when states may restrict those, etc. Currently, under the 2A, all we know is that neither the federal nor the state governments can prevent you from owning a gun. Whether they can prevent you from carrying it, is the next question.

As an aside, it seems to me, based more on intuition than a well-reasoned argument, that if SCOTUS does address this issue within the next few years, they'll find a way of avoiding any determination of whether the 2A recognizes a fundamental right. If they did address it and come to the conclusion that it is a fundamental right, that would be a good day. I welcome more thoughts on this point because I certainly don't know.
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Old November 28, 2011, 05:57 PM   #236
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GI Sandv,
I haven't read Heller in a while, but I think you're correct. I think that SCOTUS has said that the RKBA is an individual right, and that what we need now is for SCOTUS to declare that it is a fundamental right.
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Old November 28, 2011, 06:46 PM   #237
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So, then it really is a toss up either by SCOTUS or HR 822 then? Not real sure I feel confident either way. Lesser of two evils and whatnot. The devil you know vs the devil you don't. A bird in the hand is worth two in a glass house! Oh wait.....nevermind. Too tired!
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Old November 28, 2011, 07:00 PM   #238
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So, then it really is a toss up either by SCOTUS or HR 822 then?
Pretty much, yes. I tried to find contact information for whoever drafts model codes and compacts today, but no luck so far. Will look again another day.

Am I the only one that thinks that model concealed carry codes and a recognition compact is a good idea?
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Old November 28, 2011, 07:06 PM   #239
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How far we have strayed from the 2A:

A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

So far all we have the right to keep arms by the recent SCOTUS decisions. Where is the right to bear arms allowed without some sort of permit noted. That is not a right to have a CCW, that has now become a privilege. We only have a handful of states that allow true constitutional carry.
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Old November 28, 2011, 07:07 PM   #240
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Spats, unsure of what you mean by the last part of that. Codes and models. Can you elaborate?
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Old November 28, 2011, 07:22 PM   #241
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Originally Posted by icedog88
Spats, unsure of what you mean by the last part of that. Codes and models. Can you elaborate?
The recognition of drivers' licenses is done through the Driver's License Compact. What happens is that the ABA (I think) drafts a model set of codes and sends them out to the states. each state that wants to make reciprocity easier as between states then passes the model code, at least in substantially similar form. For example, the Arkansas Code Annotated, at 27-17-101, states:
Quote:
The Driver License Compact is enacted into law and entered into with all other jurisdictions legally joining therein in the form substantially as follows:

DRIVER LICENSE COMPACT

ARTICLE I Findings and Declaration of Policy

(a) The party states find that:

(1) The safety of their streets and highways is materially affected by the degree of compliance with the state and local ordinances relating to the operation of motor vehicles.

(2) Violation of such a law or ordinance is evidence that the violator engages in conduct which is likely to endanger the safety of persons and property.

(3) The continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated.

(b) It is the policy of each of the party states to:

(1) Promote compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles by their operators in each of the jurisdictions where such operators drive motor vehicles.

(2) Make the reciprocal recognition of licenses to drive and eligibility therefor more just and equitable by considering the overall compliance with motor vehicle laws, ordinances, and administrative rules and regulations as a condition precedent to the continuance or issuance of any license by reason of which the licensee is authorized or permitted to operate a motor vehicle in any of the party states.
For our purposes, what I'm thinking is that states could pass substantially CC laws, and simply agree to mutually recognize each others' CCLs. It accomplishes the same thing as HR 822, but keeps the authority for reciprocity at the state level.
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Old November 28, 2011, 07:43 PM   #242
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Thats what I thought you meant. I agree with the premise, but if that were a reality with ALL states, the bill HR822 wouldn't have been thought up in the first place. I completely agree it would be better for all, BUT, without that compact, and without a Supreme Court decision, which admittedly could go either way right now, what other choice is left?
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Old November 28, 2011, 08:18 PM   #243
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Well, now that I stop to think about it, my statement that "It accomplishes the same thing as HR 822, but keeps the authority for reciprocity at the state level," isn't exactly accurate. I don't agree that it HR 822 wouldn't have been imagined, but a compact would certainly decrease the administrative cost of getting reciprocity, as compared to each state having to negotiate individual agreements with each other state.

Without a compact, and without a SCOTUS decision, HR 822 is mostly all that's left. I don't really want this issue legislated at the federal level, and I'd urge waiting until a better bill comes along.
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Old November 28, 2011, 08:52 PM   #244
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this are pretty much my beliefs even before thread began

Quote:
Right. States like Illinois and New York have the option of weaseling out of compliance with something like HR 822, but not a Supreme Court ruling.
just caught up on some good reading...this quote is maybe one of about ten I could've used.

I said a while back in this thread that the two will occur at about the same time in my opinion. Hoping for this bill to fail for ammunition as mentioned or other rebound stuff is a mistake i think. The pass of the bill will send stuff in the right direction and will be very powerful.

WHEN(and that is the question as it could be yrs and yrs and yrs or less) this bill passes as I feel it will eventually it will have some shockwaves. People will jump on board with it and the discussions will be about what they can now do, understanding it, and also - about how no matter what the naysayers or anti bill TFLs or regular people say - the people as a whole more and more being for the bill will pretty much drown you all out...and then in time you guys will jump ship anyways. This bill is pretty much as good as you can get...hoping for it to fail and wanting everything to be perfect and the stars perfectly aligned is a defect of character and a misunderstanding(IMO).

How many times have you done this with little things in the course of your life and regretted it after the fact(holding off beause you wanted more or something perfect 1st)? You do not have to have one before the other to make this bill work. I for one don't think there is going to be some kind of major revolution in the anti states or gathering up starting a snowball effect of completely getting away from this bill. It isn't gonna happen.

As I also mentioned, states tried this w/LEOSA and failed miserably. "Well, thats LEO?" So, what's your point? The law will be respected and the ones that don't respect it(talking about certain governors, congresswoman, etc) will still fall into line. They might quote rhetoric for an election or to keep the antis hoping but the bottom line a human can only do so much. They aren't going to magically stop OUR snowball, and other things will be on their mind anyways. Insights aren't worth a damn, but that's my $21.50 for the donation basket. Take it or leave it. time will tell. Again, I am the one person I know of in these discussions with really nothing to gain that is pro the bill. all the best
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Old November 28, 2011, 09:00 PM   #245
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please note, in the 2nd to last paragraph and also thru the post I sometimes refer to the initial quote when I say "we don't need one before the other" as an example.

I am sorry for not being more specific or if my entire post wasn't as readable as I meant.
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Old November 28, 2011, 09:12 PM   #246
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what we need now is for SCOTUS to declare that it is a fundamental right.
They did that in McDonald. However, the scope of the right has not been firmly defined. As it stands, states like Maryland can claim that their restrictive, discriminatory schemes comply with the Court's rulings. What we need is for the Court to say that they don't.

Quote:
This bill is pretty much as good as you can get...hoping for it to fail and wanting everything to be perfect and the stars perfectly aligned is a defect of character and a misunderstanding(IMO).
Really? How is this as good as we get? It's full of holes, it could result in a nationwide database of CCW holders, and if it does pass, it could undermine a very important court challenge. Jeez, I'd hate to see what could possibly be worse.
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Old November 28, 2011, 09:26 PM   #247
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Some one show me one single fed program thats more than 2 years old that didnt turn into some form of bloat or over regulation.... My point being not the politics but simply our nations leaders have ZERO capacity to manage anything properly.

What might seem like a good law in the end will be twisted to the point it becomes unrecognizeable, we dont need the fed in our gun rights anymore than the unconstitutional regulations already are...
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Old November 28, 2011, 10:23 PM   #248
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Spats McGee, I tried suggesting something like your model code suggestion in post 18--ages ago. Of course, I was thinking of the UCC at the time and your example is probably a little clearer and more closely related. Nonetheless, a non-federal body creating a uniform bill for states to adopt on their own would be a good thing. I think it would free up the energy that states' attorneys general are spending trying to develop reciprocity with one another (which often takes a bill in the house recognizing certain training requirements or other elements of the permitting process from a neighboring state). These 40 or so states that would likely agree to some version of this would then be able to present a unified front to those other handful of states that are reluctant to jump on board. I suspect that a 40-10 fight over this issue is much better than a 5-1-7-3-12...fight. As it stands, the reciprocity maps are confusing and states are having to move one by one. Once there's general reciprocity throughout most of the country, the few obstinate states are going to have to deal with pressure from the majority of states collectively, as opposed to the piecemeal pressure they get today. And, this type of agreement will not be open to judicial attacks.

Tom Servo, did Heller declare that the 2A protects simply an individual right or a fundamental, individual right? This is the issue about which I was confused earlier. I know they said that it's a right, but does it fall into that special category of fundamental rights which even the Constitution couldn't restrict if it wanted to? (My understanding of the extent of SCOTUS's fundamental rights jurisprudence is still fuzzy, so someone inclined to do so please clarify.) I think Spats McGee's point was that if SCOTUS hasn't declared it a fundamental right, the extent of our right to carry is perhaps very tenuous and primarily determined by state legislatures (not to mention the BATFE). On the other hand, a SCOTUS ruling that declared the 2A a primordial fundamental right would make short shrift of the vast majority of restrictions on that right, state, federal, or from the King. The only carve-outs would be the most pressing restrictions for the purposes of public safety, such as on airplanes and in prisons (?). Or so it seems to me. Someone smarter than me want to weigh in and clarify?
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Old November 28, 2011, 10:55 PM   #249
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did Heller declare that the 2A protects simply an individual right or a fundamental, individual right? (...) I know they said that it's a right, but does it fall into that special category of fundamental rights which even the Constitution couldn't restrict if it wanted to?
From the McDonald opinion:

Quote:
A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. [p.4]
Quote:
Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. [p. 26]
Quote:
[The 39th Congress'] efforts to safeguard the right to keep and bear arms demonstrate that the right was still recognized to be fundamental. [p. 32]
Quote:
legal commentators from the period emphasized the fundamental nature of the right. [p. 35]
Quote:
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [p. 39]
Quote:
Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. [p. 43]
Quote:
we have never held that a provision of the Bill of Rights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief
submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental. [p. 48]
I don't have privileged access to some super-secret trove of restricted information; it's right there in the text of the opinion.
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Old November 28, 2011, 11:02 PM   #250
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deleting the F&F story link - by Arizona Republic

Ooops wrong thread

Last edited by C0untZer0; November 30, 2011 at 01:12 AM. Reason: OI posted this in the wrong thread - it goes in F&F
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