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Old October 11, 2010, 09:18 PM   #15
Aguila Blanca
Senior Member
Join Date: September 25, 2008
Location: CONUS
Posts: 9,790
Originally Posted by Tom Servo
Under the reasoning of Murdock v. Pennsylvania, it could be argued that the imposition of any fee to obtain a firearm permit could be considered a tax on a constitutional right
Yes, but we still have to get the courts to see carrying a gun as a right. Strictly speaking, the Supreme Court defines the 2nd Amendment as protecting the right to own a handgun in the home for the purposes of self-defense.

Protection for the bearing of arms, even the meaning of "bear," is still pending.
I disagree. Both Heller and (perhaps especially) MacDonald affirmed the 2nd Amendment right to keep and bear arms. IIRC, Justice Alito (or maybe it was Justice Scalia in Heller) very carefully reviewed the meaning of the word "bear" in setting out the reasoning behind the decision. There is nothing in either Heller or MacDonald that limits the application of the 2nd Amendment to the "keep" portion.

The issue is not getting the courts to see carrying a gun as a right. That has now been clearly established. The problem is that both decisions (erroneously, IMNSHO) stated that the right is subject to "reasonable" regulation. What is being fought out in the courts now is not the right itself, but what degree of regulation of the right is deemed to be "reasonable."

If this Murdock view gains any traction, what it would mean is that states could (note "could") continue to require permits for either concealed or open carry (but probably not for both, since then we would be unable to exercise a fundamental right without a permission slip ... akin to needing a permit or license to attend church), but they would not be able to charge for them. States like Ohio and Pennsylvania would probably be okay -- open carry is legal without a permit (the Philadelphia exception may be blown out) but a permit is required if you wish to carry concealed. States like Texas and Florida, that require a permit for concealed carry and don't allow open carry at all, are clearly taxing the right to bear arms.

The question is: If the courts arrive at the determination that requiring training and a license is a reasonable regulation but the state can't charge for the resulting permit/license ... will the cash-strapped states still want to continue the licensing process, since it would be come a money pit rather a cash cow?
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