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Old January 31, 2013, 01:39 PM   #273
Spats McGee
Join Date: July 28, 2010
Location: Arkansas
Posts: 6,905
Originally Posted by Alabama Shooter
Originally Posted by Spats McGee
The 2A right, . . . . blah, blah . . . .Spats drones on . . . blah, blah. . . . That means that State are now limited in what laws they may enact in restricting the RKBA. It does not mean that private individuals may be forced to sell their private property to other private individuals.
Thanks for your long, detailed and well reasoned answer. While the courts have not yet caught up with this as a civil right I am guessing that:
- Sooner or later they will
- It is long overdue.
This may seem awfully nitpicky, and for that I apologize in advance. However, a more correct statement might be that Congress has not caught up with SCOTUS in this case. I'll explain more fully below.
Originally Posted by Alabama Shooter
Originally Posted by Spats McGee
. . . Spats drones on some more . . . blah, blah . . . The CRA was not enacted in such a way that it protects from purely private discrimination. . . . .
So if you accept that the private party purchase of a firearm is not legally a civil right then the discussion is essentially over. It is merely the disposal of private property which you can do with as you see fit and the federal government believes that they can regulate under the ICC (Wickard v. Filburn). Private arms sales travel in interstate commerce and (especially recently) make up a signifcant portion of the market. Even giving away guns as gifts affects commerce.
Hold the phone a second. I didn't say that the 2A right wasn't a civil right. I said that I, acting solely as an invididual, do not violate my potential buyer's right by declining to sell, based solely on membership in a protected class. When government begins regulating it, though, some other stuff crops up.

We've looked at the issue of individual sales. Government regulation is a horse of a different color, though. For looking at that issue, I'd suggest shifting away from the Civil Rights Act of 1968. Let's go back to the Civil Rights Act of 1871. In particular, take a look at 42 U.S.C. § 1983, where the CRA of 1871 is codified:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C.A. § 1983
Here's the Spats' Notes version:
Any person who, under color of law, deprives another of their federal constitutional or statutory rights, can be sued.
I've looked the Heller v. DC decision, and it (oddly) does not specifically mention 42 U.S.C.A. § 1983, but I'd bet dollars to doughnuts that it was brought under that statute. It's a civil rights statute, filed in federal court. That's the statute that you use to get to those. McDonald v. Chicago makes reference to 42 U.S.C.A. § 1983 in declaring that the 2A is applicable to the states.

I said earlier that Congress has not caught up with SCOTUS. SCOTUS has declared that the RKBA is a fundamental, individual civil right. SCOTUS has said that the protections of the 2A are applicable to the States. The CRA of 1968 has not been amended to include "purchase of firearms" as a protected activity, to be protected, regardless of whether or not the actor (alleged violator of the right) is acting in an individual or public or governmental role.

The CRA of 1968 does prohibit members of the protected classes from being discriminated against in public facilities (i.e. stores which hold themselves out for public business), but it does not protect against purely private discrimination. If I worked for a chain of gun stores, "Spats' Shootin' Irons," and I declined to sell to members of a protected class, or more clearly yet, to employ members of a protected class, that's no longer purely private. Then we'd be off to the races in a civil suit under the CRA of 1968.

The CRA of 1871, on the other hand, protects the federal constitutional and civil rights from governmental action. That's what the "color of law" language means. If one of my officers, on duty, in his patrol car, wearing uniform and badge, etc., arrests someone, he's acting "under color of law." If someone sues him for excessive force for making an arrest under those conditions, it'd be under 42 USC 1983. If he were not acting under color of law, 42 usc 1983 wouldn't apply. (Think bar fight on his own time.)

That's why Heller and McDonald are so important. They tell us something about the extent and boundaries of the 2A right. They tell us that the RKBA is a civil right. Not only that, it's a fundamental, individual right. They tell us that the 2A also applies to the states, so it's limits apply to your local city council, as well as Congress. They tell us that your local city council cannot impose an outright prohibition on handguns, for example.

The RKBA is a constitutional right. It's a civil right. It's a fundamental, individual right. It's just not subject to being violated in the way that you supposed.
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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