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Old December 22, 2008, 05:17 PM   #1
Jim March
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Join Date: February 14, 1999
Location: Pittsburg, CA, USA
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Heller, incorporation and the Privileges and Immunities clause...

Those who've been following events in Nordyke already mostly understand that the 14th Amendment P&I clause was basically written out of the constitution in Slaughter-house. I won't re-hash, I'll simply assume you've read this:

...and if possible, go read Yale law professor Akhil Reed Amar's book "The Bill Of Rights" or Stephen Halbrook's "That Every Man Be Armed" - both cover the same material, the difference is liberal Amar didn't like what he was saying (but to his credit, said it anyways!) while Halbrook was lovin' it.

OK. The thing I want to cover here is that the P&I clause isn't *totally* dead under existing US Supreme Court precedents. Part of it is alive and can be used right now in a gun-related manner, without waiting for "incorporation".

To understand what happened, you need to go back to the 1870 case of Ward v. Maryland. MD set up a law taxing merchants from out of state at a rate higher than MD residents. A guy selling horse-related gear from New Jersey challenged it and won at the Supremes.

What the 1870 court said was, the P&I clause, if it did nothing else, protected the "basic, recognized civil rights" of US citizens who traveled between states. In Ward the right in question was the right to engage in commerce.

In my view, that makes sense as ONE function of the P&I clause.

The Slaughter-house court (1872, basically the same judges) took that to the next level and said this "cross-border Federal protection" was the ONLY function of the P&I clause. That, I have a problem with and I suspect most of y'all do. That said, the Slaughter-house court cited the Ward case with approval and said that if the abuses being committed by Louisiana and the butchershop monopoly were affecting interstate travelling merchants, they would have ruled differently. Since this was pre-refrigeration, the preparation of fresh meat was decidedly a LOCAL business.

Fast forward to 1999. A traveler from one of the Southern states goes to California, gets welfare, but is limited by law to just the "take" they would have gotten in their home state - less than half of what a Cali native would get. Reviving the concept of the Ward court, in Saenz v. Roe the US Supremes said that California was violating the Federally recognized civil right to free travel between states, and ordered Cali to stop discriminating on that basis.

So how does this affect guns?

Simple: California cannot do harsher gun control measures against visitors from out of state than they do state residents - and that's exactly what they're doing with CCW. It's not possible to get a CCW permit unless you're a Cali residents. Cali residents can (at least theoretically) score CCW. And Cali doesn't recognize any other permit system.

What all this seems to mean is simple: as a resident of AZ and a holder of an AZ CCW, on visiting Cali the current ban on my carrying concealed cannot be enforced. If they try, I have the right to sue in Federal court the moment I get back to AZ.

Why? Because self defense is now a Federally recognized civil right. The fact that Cali doesn't (yet) recognize it doesn't matter - as an interstate traveller it's Federal rules that apply, not state.

A few months ago I thought I might be visiting Cali and wrote up the attached covering this stuff in a lot more detail. See attached.
Attached Files
File Type: pdf CCW_motion_to_dismiss.pdf (135.7 KB, 13 views)
Jim March
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Old December 22, 2008, 07:01 PM   #2
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Jim, I've thought the same, but, it's the AG's new 'loaded chamber indicator' that inhibits interstate commerce, clearly falling under the commerce Clause.
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