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Old October 30, 2021, 07:29 PM   #26
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"Shall not be infringed." means shall not be violated.(period) It doesn't say "shall not be infringed BY (whomever)".
I agree, it only says "shall not be infringed."

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It doesn't matter "who" or "what" the forbidden infringer is be it the federal government, any of the several States, any local jurisdiction, any foreign nation, any alien from another planet, any animal, any god or deity, any church, any institution, any person, any business or any other entity in this world or universe whatsoever.
This is a leap I just cannot make. At the time of its conception and writing, the 2nd Amendment applied only to the UNITED STATES Federal Government. And, it was that way for some time after.

Note that the individual states have their own constitutions and their own versions of the 2nd Amendment. Sometimes the language is very close to what is in the Federal Constitution, sometimes it differs a bit but expresses similar ideals.

I would also point out that, while I don't know much about aliens, gods or deities, I do know something about people, businesses and private property rights, and the 2nd Amendment's protection from infringement of our rights by the Federal Government does not apply to private property. A business open to the public is its own specific situation, and there are laws that cover that.

This is an example of the long established concepts of "my house, my rules" and "your right to swing your fist ends at my nose".
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Old October 30, 2021, 07:50 PM   #27
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Note that the individual states have their own constitutions and their own versions of the 2nd Amendment. Sometimes the language is very close to what is in the Federal Constitution, sometimes it differs a bit but expresses similar ideals.
And sometimes it differs quite a bit. I have always found it extremely ironic that the state constitution of Massachusetts, the birthplace of the American Revolution, does NOT address an individual right to keep and bear arms.

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The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
It was written that way in 1780 and it hasn't changed since then.

Six states have no provision whatsoever for the right to keep and bear arms: California, Iowa, Maryland, Minnesota, New Jersey, and New York.

https://gun-control.procon.org/state...o-bear-arms-2/
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Old October 30, 2021, 07:59 PM   #28
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Originally Posted by AlongCameJones
Gun Owners of America does regard the 2nd A as an absolute….
So what?

In real life in the real world law means what the courts say it means — and courts demonstrate what law means and how it applies by the ways in which they use it to decide cases and controversies brought to them for resolution. And those decisions affect the real lives of real people.
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Old October 30, 2021, 09:05 PM   #29
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If I were a judge in any court of law including SCOTUS on American soil, I would rule upon my interpretation of the 2nd A as I have done in this thread in regards to any firearms possession and carrying matters in my jurisdiction.

Many federal laws are imposed against the States already and some federal judges have incorporated the US Constitution against the several States in some regards. I have no complaints whenever federal authorities shove gun rights down the throats of lower jurisdictions across the land. I have no complaints whenever states and other jurisdictions shove gun rights down the throats of landowners, employers and private businesses. Texas has prohibited landlords from banning tenants' guns on their rented properties.

I would rather have the government force me to own a gun than tell me I can't have one.

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Old October 30, 2021, 10:52 PM   #30
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Originally Posted by AlongCameJones
If I were a judge in any court of law including SCOTUS on American soil, I would rule upon my interpretation of the 2nd A as I have done in this thread ...
Except you're not a judge, and there's no reason to care how you would rule.

Understanding law is about understanding how courts interpret and apply law to decide controversies. Blathering about one's personal beliefs about what a law means or how it applies won't help.
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Old October 30, 2021, 11:14 PM   #31
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Understanding law is about understanding how courts interpret and apply law to decide controversies. Blathering about one's personal beliefs about what a law means or how it applies won't help.
I agree -- and I disagree.

I certainly agree that what matters in the law is what the courts say the laws mean, not what you or I or other members of this forum think the laws mean. And "blathering" accomplishes nothing.

That doesn't mean, however, that we are not allowed to think the judges may be wrong in their rulings. I'm sure I have mentioned before (and I'm sure you have beaten me up for it before) that I think the "shall not be infringed" language in the 2A should be interpreted as an absolute prohibition on any and all regulation of the right to keep and bear arms. The 2A doesn't say that the RKBA shall not be "unreasonably" infringed -- it says the right SHALL NOT BE infringed.

And I don't have to agree with the precedent that because other rights in the Bill of Rights have historically been subject to reasonable regulation, we must therefore accept that the 2nd Amendment must likewise be subject to "reasonable" regulation. The 2A language does not leave it open to "reasonableness." It IS an absolute prohibition. The other enumerated rights in the Bill of Rights don't include such an absolute prohibition.

But -- that's not what Justice Scalia wrote in the majority decision in Heller, so we are stuck with reasonable regulation, and years of arguing in courts of various levels regarding what's reasonable and what's not.

That doesn't mean we shouldn't discuss it. But we should discuss it intelligently, and constructively. In the end, the role of judges is to interpret and apply laws. If we don't like the way judges are interpreting laws, we have the option of petitioning our legislators to change the laws. We can't do that by "blathering" but we might be able to do it with sufficient intelligent discourse. I've done it twice. Decades ago, I was directly involved in petitioning my state's legislature to repeal a stupid law that had been used only twice in 80 years -- and in the one case that went to court it became clear that neither the police nor the prosecutor had any idea what the law actually said.

The law was repealed.

More recently, I took on my home town's government over a poorly worded (and, according to the chief of police, unenforceable) town ordinance. That one directly affected my right to carry, so it was personal. I didn't succeed in having the ordinance repealed, but I did get it revised so that I am now not breaking the law if I wear a gun when I walk out to my mailbox.

It can be done. It's not easy, and it's not instant. It took me two years and it cost me money to get the ordinance changed. I had to hire a gun rights attorney because the town politicians ignored me when I approached them directly. We didn't get any action until we had a lawsuit drawn up and ready to file, and the town attorney finally admitted to the mayor that if they didn't do something they would lose in court.

But idle chatter on this or any forum isn't constructive. What matters is intelligent, informed, civil, focused pressure being applied to key legislators.
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Old October 31, 2021, 12:28 AM   #32
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I have no complaints whenever states and other jurisdictions shove gun rights down the throats of landowners, employers and private businesses.
I'm glad you don't have any complaints. Being the kind of person I am, I object to anything being shoved down my throat, and that includes things I actually like. It's the "shoved down my throat" part I don't care for.

It makes me choke....
Particularly when its govt shoving your rights down my throat and you're fine with that.

Do you think your right to keep and bear arms trumps my right to say you can't, on MY property? Are you ok with the govt shoving your point of view down my throat on that issue?

Always remember that the power of government to say "you may not" is also the power to say "you must!"

And if its ok to shove something you approve of down my throat then isn't it my right to shove what I approve of, down yours??

I don't agree with that philosophy, no matter what subject it is applied to, or where I stand on it.

The 2nd Amendment was the way our Founders told the Federal Government that is did not have the power in that area. The other Amendments say what the government doesn't have the authority to do in other areas.
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Old October 31, 2021, 04:57 AM   #33
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Can someone provide for me an example of a well-regulated militia participating in the security of a free State in modern times?
Sure. I'm a trucker, and I ran relief runs into east Texas right after hurricane Harvey. Local law enforcement were spread thin on the interstates, and there were local militias to guide us on the state routes. There was one that received some notoriety for closing ranks around a Cambodian immigrant community and protecting them from looting. I had three armed guys escort me to the Miller brewery.

We didn't have centralized police forces until the late 19th century. Prior to that, most towns organized and "regulated" their militias to provide law enforcement. In this case, "regulated" meant "well ordered." Able-bodied men were expected to maintain rifles and ammunition, and they'd often be called to muster for inspection.

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How about a "militia" that did not fantasize about destroying a unit of government? The language of the 2nd Amendment no longer applies. The State provides for us a well-funded security apparatus.
It sounds like you might not have spent much time in rural America. Militias are still relevant in places where the police response time can be measured in hours. You don't hear about them because they're benevolent and generally don't get involved in violence of any sort.

As for the State...well, the whole idea of an armed citizenry is that the State doesn't get a monopoly on force. Bad things follow. The most recent, glaring example is the situation in Venezuela.

Just because folks in the suburbs can count on a regular police presence doesn't mean the language or intent of the 2nd Amendment are in any way outdated.
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Old October 31, 2021, 07:23 AM   #34
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Originally Posted by AlongCameJones
Outside of the 2nd A, I personally regard being armed for self-preservation as an inalienable and natural human right bestowed onto man by his creator which many man-made governments worldwide fail to acknowledge.
Our creator may have given it to us, but he also endowed us with a flawed nature that inclines us to disregard of the rights of others.

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Originally Posted by Aguila Blanca
That doesn't mean we shouldn't discuss it. But we should discuss it intelligently, and constructively. In the end, the role of judges is to interpret and apply laws. If we don't like the way judges are interpreting laws, we have the option of petitioning our legislators to change the laws. We can't do that by "blathering" but we might be able to do it with sufficient intelligent discourse. I've done it twice.
Robust public discourse isn't a sufficient condition for that kind of change, but it is necessary. Your absolutist position on shall not be infringed isn't a list of case citations. I happy to provide a case to a layman who might find it interesting on a point, but present caselaw contrary to the position of most laymen, and you may get a "So? It should be different". They may underappreciate the task of making it different, but that doesn't make the desire for change immaterial.

An overton window that finds that your position doesn't matter because a judge didn't write it risks being a merely procedural point. That point isn't directly pertinent to laymen developing an understanding of how laws do work and how they should work. That element has a moral component people need to develop. Laymen can express compelling ideas about the text of the COTUS, and professionals specifically tasked with resolution of constitutional disputes can do a terrible job of it. Holmes upholding forced sterilization in Buck ("Three generations of imbeciles are enough") or the blather of the minority in Citizens United should disabuse us of the idea of law as a bloodless and merely technical task.

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Old October 31, 2021, 10:02 AM   #35
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Originally Posted by zukiphile
Robust public discourse isn't a sufficient condition for that kind of change, but it is necessary. Your absolutist position on shall not be infringed isn't a list of case citations. I happy to provide a case to a layman who might find it interesting on a point, but present caselaw contrary to the position of most laymen, and you may get a "So? It should be different". They may underappreciate the task of making it different, but that doesn't make the desire for change immaterial.
I am very aware that my opinion regarding the absolutist nature of the 2A is my opinion. I stated in that same post that the majority opinion in Heller says otherwise and that we are stuck with that unless/until something changes.

That said -- if we want to see some change in the recalcitrant states, us ranting about it on Internet forums isn't likely to bring about change. What politicians respond to is the smell of votes, so the answer (IMHO) lies in a concerted and coordinated effort to apply political (votes!) pressure on key politicians.

That's not a slam dunk, and some politicians are immune. I know that. I live in a blue state. My U.S. senators and my U.S. representative are all Democrats, and they get reelected by such overwhelming margins in every election that I know it's useless to even approach them with a pro-gun (or even a not so anti-gun) proposal. The same applies to my state legislators. But as more and more states turn to permitless carry, the hard-core anti-gun states are finding themselves in a shrinking minority. If the citizens of other states that are still potentially open to change keep the pressure on their legislators, eventually the few really hard-core states may find themselves so outnumbered that they give up.

The other approach is through the courts, but that requires us to recognize that many judges, at both the state and federal level, are extremely anti-gun. So cases have to be chosen carefully, and handled by competent attorneys. As the attorney who represented me in my fight against the town ordinance said, "Bad cases make bad law." For you non-lawyers who don't get that, it doesn't mean that a bad case changes the law. What it means is that a bad case that results in a loss may establish a binding precedent, which makes it more difficult to overcome a bad law than if a good case were to be brought with no bad precedents to overcome.

In other words -- pick your battles.

The New York State Rifle and Pistol Association case is one to watch and, if I remember correctly, it's going to be argued this week. We should all pay attention to it, even if we don't live in New York.
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Old October 31, 2021, 10:19 AM   #36
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MY interpretation of the second amendment is that the founding fathers thought it necessary to protect the states against the central government.
I think the use of personal firearms for sport, subsistence, and self defense was so ordinary as to not need any specific mention.

I recall a brief item in American Rifleman years ago.
On December 8, 1941, Governor Poindexter of the Territory of Hawaii called out the unorganized militia. All able bodied men were to report with whatever personal weapon they had. They would be assigned ROTC cadets as officers and dig in on the beaches.
The hope was that the Japanese landing forces would take long enough to slaughter them for the regulars to come up.
Personal weapons did not necessarily mean firearms; there was a cook with his cleaver and a traveler armed only with a tightly furled British umbrella.
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Old October 31, 2021, 10:34 AM   #37
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In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), at 629 (emphasis added):
Quote:
...our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement….
This is an interesting quote. The 2nd Amendment in our Bill of Rights delineates our right to keep and bear arms, yet exercising this right does indeed inhibit our freedom to "travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement..." Mere possession of a firearm (keeping and bearing) while crossing into several states and needing to stay a night can land one in jail unless one has a permit to do so, which the states will not issue. That's quite a burden.

Does this argument bear any validity?
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Old October 31, 2021, 12:17 PM   #38
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Fresh article on the NYSRPA case at the Supreme Court -- in case anyone needs a refresher.

https://apnews.com/article/us-suprem...2e5b5d73907eeb
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Old October 31, 2021, 12:41 PM   #39
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Does this argument bear any validity?
While it resonates well with a lot of us, its not really a valid argument on several levels.

The first is that court decisions are mostly very narrow in scope, and apply ONLY to the case at hand, directly. IT's other people who take them as broad blanket coverage for what they want to do.

You and I are free to travel throughout the length and breadth of this land without restriction.....provided we do it on foot, and unarmed. Any and everything else involves restrictions and limitations of varying degree and today its a real mess of requirements that would astound our Founders.

Took a couple hundred years to screw things up as badly as we are today, but we did get here....
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Old October 31, 2021, 02:16 PM   #40
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Originally Posted by Jim Watson View Post
MY interpretation of the second amendment is that the founding fathers thought it necessary to protect the states against the central government.
I think the use of personal firearms for sport, subsistence, and self defense was so ordinary as to not need any specific mention.

I recall a brief item in American Rifleman years ago.
On December 8, 1941, Governor Poindexter of the Territory of Hawaii called out the unorganized militia. All able bodied men were to report with whatever personal weapon they had. They would be assigned ROTC cadets as officers and dig in on the beaches.
The hope was that the Japanese landing forces would take long enough to slaughter them for the regulars to come up.
Personal weapons did not necessarily mean firearms; there was a cook with his cleaver and a traveler armed only with a tightly furled British umbrella.
How can the states use their militias to "protect the states against the central government" when its officers (who give the orders), are appointed by that central government (Article 1 Section 8 of the Constitution)?
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Old October 31, 2021, 02:52 PM   #41
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Originally Posted by dahermit
How can the states use their militias to "protect the states against the central government" when its officers (who give the orders), are appointed by that central government (Article 1 Section 8 of the Constitution)?
Are you referring to this:

Quote:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
At the time the Constitution was written, there was no National Guard. Even today, although the National Guard is considered an overall part of the military forces of the United States, the National Guard are state troops unless specifically called up ("federalized") by the President. There have been cases in history in which governors have refused to allow their National Guard assets to be federalized.

But that simply serves to reinforce the curious dichotomy that was created when the National Guard was created and then gradually absorbed (or subsumed) into the overall military of the United States. That took place gradually, over the course of several iteration of the National Defense Act.

But I think you mis-read Article 1, Section 8 with regard to appointing the officers of the Militia. It says:

Quote:
... reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
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Old October 31, 2021, 03:43 PM   #42
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Whoops! Yes, I missed "...reserving for the states...".
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Old October 31, 2021, 04:42 PM   #43
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What is a 'dangerous' or 'unusual' weapon?
That’s for the courts to decide consistent with the fact that the Second Amendment right is not unlimited.

Quote:
How does the 2nd A not protect the right to carry a concealed gun?
In Florida it’s illegal to carry a concealed weapon – Heller is reaffirming the constitutionality of such a measure.

To avoid violating the prohibition of carrying a concealed weapon, Florida residents obtain a license to carry a concealed weapon or firearm.
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Old October 31, 2021, 04:51 PM   #44
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My interpretation of the Second Amendment.
This is what is known as the political Second Amendment, as opposed to the judicial.

In the political Second Amendment the right is absolute, all firearm regulatory measures are unlawful, and government has no authority to regulate firearms.
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Old November 1, 2021, 09:58 AM   #45
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That’s for the courts to decide consistent with the fact that the Second Amendment right is not unlimited.
While I don't see you making the following specious argument, I'd like to make clear that simply because the 2d Am. isn't unlimited doesn't mean that any specific limit is constitutional. To correctly note that something isn't unlimited isn't a categorical approval of limits.

Quote:
Originally Posted by jdc1244
In Florida it’s illegal to carry a concealed weapon – Heller is reaffirming the constitutionality of such a measure.
At the risk of making my own procedural observation, Heller didn't affirm Florida's CCW regulation because they weren't a matter before the court in Heller. Heller was about the right of an individual to possess a functional arm in his own home.

Quote:
Originally Posted by jdc1244
To avoid violating the prohibition of carrying a concealed weapon, Florida residents obtain a license to carry a concealed weapon or firearm.
What I am gathering is that FL prohibits concealed carry in the absence of a permit, not that it prohibits CCW. I don't think there is any realistic hope of getting a licensing program with a low bar invalidated as a constitutional matter. We can foresee the argument that a low fee, background check and a bit of class time are narrowly tailored to meet the compelling objectives of felony control and firearms safety.

As licensing gets more expensive and selective, regulation would be less likely to clear that hurdle.

I don't care for the idea that a state can license a federally incorporated right, but I don't see that changing in my lifetime.
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Old November 1, 2021, 10:43 AM   #46
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Edited to add ...

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Originally Posted by zukiphile
At the risk of making my own procedural observation, Heller didn't affirm Florida's CCW regulation because they weren't a matter before the court in Heller. Heller was about the right of an individual to possess a functional arm in his own home in Washington, DC.

Quote:
Originally Posted by zukiphile
What I am gathering is that FL prohibits concealed carry in the absence of a permit, not that it prohibits CCW. I don't think there is any realistic hope of getting a licensing program with a low bar invalidated as a constitutional matter. We can foresee the argument that a low fee, background check and a bit of class time are narrowly tailored to meet the compelling objectives of felony control and firearms safety.
But Florida does not allow open carry, with or without a license/permit. This raises the question, which I think is valid: Is it proper to tax a constitutionally-guaranteed right? Didn't the SCOTUS strike down poll taxes a long time ago? What do you suppose would be the reaction if either the federal government or some state were to institute a system under which we would have to pay for a permit to attend the church of our choice?

The supreme courts of several states have taken the position -- based on the language of their respective state constitutions -- that if the state prohibits concealed carry, open carry must therefore be allowed. This is how concealed carry permits came to exist in Ohio, for example. I think another state with such a ruling is Idaho (but it might have been Utah).

Florida isn't like that. In Florida, you have to pay to play. No permit=no carry. I don't see how that's in any way consistent with a [purportedly] guaranteed right to bear arms.
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Old November 1, 2021, 12:01 PM   #47
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in Washington, DC.
Indeed.

Quote:
But Florida does not allow open carry, with or without a license/permit.
I didn't know that, but I find it bizarre given the climate.

Quote:
This raises the question, which I think is valid: Is it proper to tax a constitutionally-guaranteed right? Didn't the SCOTUS strike down poll taxes a long time ago?
The answer should be "no", and I'd like to sidestep the distinction between a tax and a fee.

The issue should look something like how much may a state burden a right and toward what ends?

Poll taxes and literacy tests have a toxic history because of the way they were used to burden voting, but showing an ID at the poll seems like a burden that is both modest and narrowly tailored.

If we have a federal FFL system, it seems plausible for a state to assert a felony check before issuing a permit if it's quick and cheap. If it's a fingerprint card sent to the FBI so you can age a year and pay $200, and you only get a permit if a local officeholder can arbitrarily greenlight you, that strikes me as a substantial burden on the right. If a state decides I can carry with a cheap license, but not any repeating firearms, that strikes me as an enormous burden on the right.

I don't believe that the BGC actually stops a stinker from doing what he shouldn't, but I don't see the series of marginal steps that get us to a federally enforced right to carry without licensing.


I'd also offer a thought experiment:

The USSC hands down a decision that open and concealed carry of any and all semi-automatic arms is an incorporated and federally enforceable right.

How long after the next school shooting will it take for the people who didn't like the 2d Am. to mobilize to incorporate "common sense" amendments to the newly recognized freedom?

If you aren't braced to prevail on that, prevailing in court will be of very modest value.

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Old November 1, 2021, 04:01 PM   #48
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A bit of historical background awareness both general and specific can be a big aid in understanding where different viewpoints come from.

Also understanding that various power blocks have been using what the Constitution says and does not say as justification for their own agendas since the Constitution was ratified. And to my thinking, they've been most active at that in the last 120 years or so than at any time previously, at least regarding firearm regulations.

Why doesn't the "right to keep and bear arms" include concealed carry?
Some folks think it does. It doesn't. Some folks think it ought to, I agree with that, but that's not what we've got.

My theory on why we have what we have is because of the prevailing belief of the majority of people at the time the Constitution was written. In those days, good honest people didn't need to conceal their firearms, why should they?? Concealing a weapon was considered a sign of evil intent. Like wearing a mask to conceal your identity. Why would any honest person do that?? People who hid their faces must be doing it for some reason, and most likely was that they intended to break the law and didn't want to be identified.

Over time those general attitudes changed, especially in regard to firearms. But, back then, I suspect that while everyone believed in the right to bear arms, they didn't believe that you had a right to conceal arms, and that's why the states could regulate, restrict or even prohibit concealed carry. The Constitution did not expressly forbid that.

In today's society, openly carrying a firearm can be a problem socially, even though it is lawful conduct. Social values among some groups have changed, but the laws have not and are still running on principles from a century or two in the past. It worked then, it should work now, but obviously its not working WELL, now....

Another thing to consider is the difference between a Supreme Court ruling and what people do as a result of thinking they know what the court said and meant. IT can be a big difference.

For a recent example, take the ruling in the Heller case. Read the decision carefully and understand the meaning of the "court speak" phrasing and what it actually means.

Court rulings are specific and directly apply only to the case at trial. And this was something stated in the explanation of the Heller ruling but since it was done in what i call "court speak" some folks just didn't get it.

Some take the language in that decision about "other laws being presumed legal" as a blank check to do whatever gun control they feel like where Heller doesn't specifically prevent them.

I think what the court meant was that other laws were presumed legal "because we are not ruling on them, today". SO they are presumed legal (Constitutional) until/unless the Court hears a case that requires ruling on them.

Also, be aware that the high court is under no obligation to correct people who misinterpret their rulings, UNTIL they become a case before the court. They have neither the time nor the inclination or the obligation to do that, until it becomes a case they are hearing.

In the Miller case, where the 1934 NFA was the issue, the court ruled for the prosecution on a specific point but the govt took that as validating the entire NFA act and has enforced that as such, ever since.

Point here is that some people think anything is ok unless the law/Court ruling specifically prohibits it. Others think some things are covered when they are not. What the law, and what the Courts actually say can be different from both.

IF you think you don't need a permit for concealed carry and the state thinks you do, then, you do. UNTIL the law is changed either by legislative or Court action.

If you want to be the test case (so you have legal standing and the court actually has to hear your arguments) you go right ahead. I'll watch from the peanut gallery here and off what moral support I can.

Good Luck
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