Does the No Fly list supercede the Constitution, i.e. the 2nd Amendment?

[mag1911]

"I've read all the posts above.

One thing that I think has been missed in this discussion: If the Administration wants a gun ban, and can't get it through Congress, what better to accomplish the goal than to use an already existing mechanism?

A secret list is just the mechanism! Especially a list that has been in use for awhile. Especially a list that is seen by most Americans as protecting them.

Get the people to demand that those on the list can't own guns. I mean, isn't it "insane" to do otherwise?

Then, once the people agree, just start putting everyone on the list! Simple, is isn't it? Or just make another secret list, even easier! Call it the "no buy list"!

You see, using a secret list to deny due process ruins everything this Country is about."

That's what I meant in post 8 when I said the list could go to 700k, 7mil, 70mil if they wanted it to.

[62coltnavy]

The Administration cannot DIRECTLY ban people on the list from purchasing (or owning) firearms, because there is no FEDERAL statute that establishes being on the list as a disqualifying criteria (like mental disease or a felony, for example). So what the Prez will do is simply order the agencies in possession of the lists (presumably the DOJ/DHS, but there are multiple lists, so who knows) to release the lists to states that pass laws banning such persons from owning guns. Malloy in Connecticut is high on that list, and Cuomo is pressing for it as well. There is no law that bars release (or "sharing") of the list with other police agencies, so the Administration has a free hand. (Though I suspect that there will be hideous howls of disapproval from the intelligence community, and maybe even the FBI.)

[AndyAdams]

The original question was, does the list supersede the Constitution. The answer is found in Article VI, paragraph II of the Constitution, and was upheld in one of the first Supreme Court decisions, in Marbury vs. Madison.

The court ruled that no law is valid if it is not made in pursuance of the Constitution, and is a nullity, and was just as moot as if it had never been enacted at all, and that all courts are governed thereby. Obviously, since the list involves absolutely ZERO due process, anyone enforcing such a doctrine as law is acting Ultra Vires.

Article VI, the supremacy clause, is the most wonderful and comprehensive law ever written by our Founders. In fact, whenever someone used to argue the "incorporation" doctrine before the Supreme Court ruled in Heller, I would point out that the attempted use of the doctrine is a totally vapid argument, in light of the fact that Article 6, the 2nd Amendment, and the 14th work in conjunction to tell us that any law restricting the right to keep and bear arms, including the requirement of a so-called "carry permit" as being a nullity. After all, if you have a Supreme law of the Land which states you can bear arms, why would we pay for a "permit" for a right which God Himself has granted?

The answer to the original problem (what to do about people too dangerous to fly) is found in Article 1, Section 8, paragraphs 15 and 16, but that is just my personal opinion. Nobody in the Congress seems to have been able to find Article 1, Section 8, even when it is pointed out to them.

[Unlicensed Dremel]

AndyAdams - nail meet head; we have a winner.

[Spats McGee]

Originally Posted by AndyAdams

. . . . in light of the fact that Article 6, the 2nd Amendment, and the 14th work in conjunction to tell us that any law restricting the right to keep and bear arms, including the requirement of a so-called "carry permit" as being a nullity. After all, if you have a Supreme law of the Land which states you can bear arms, why would we pay for a "permit" for a right which God Himself has granted?

Sounds good, but do you have any citation to authority that supports this? In particular, I'm interested in what you've got to back up your clam that "the requirement of a so-called 'carry permit' [is a legal] nullity," constitutionally speaking.

[Aguila Blanca]

Originally Posted by Spats McGee

Sounds good, but do you have any citation to authority that supports this? In particular, I'm interested in what you've got to back up your clam that "the requirement of a so-called 'carry permit' [is a legal] nullity," constitutionally speaking.

He gave you his authority: Marbury v. Madison.

I know, I know -- you're an attorney, like Frank, so you want a specific case that rules on each specific question. The rest of us look at things through the lens of what should be happening according to what the laws and the Constitution say. The 2nd Amendment says that bearing arms is a right. In Heller and McDonald the SCOTUS has now determined that it's a fundamental right. Innumerable other discussions have made the point that any requirement for a license or a permit before the People are allowed to exercise a fundamental constitutional right is contrary to the Constitution.

[JimDandy]

Except concealed carry is not, or at least may not be, a fundamental right. Self defense, possibly limited to the home is the core of the fundamental right.

Even if carry outside the home is fundamental to the right, it does not mean concealed. My state allows permit less open carry. To keep using the no fly list, we have a fundamental right to travel. We don't have a fundamental right to fly. That's why the no fly list for citizens is legal. Ish.

I just saw where a woman named Paloma Capanna is suing because the government compared NICS checks with the list, and I don't see how she wins. I haven't seen any reports where the no fly list (alone, specifically) resulted in a denial. So I don't know what the harm to the right she's going to have to prove will be.

[Spats McGee]

Originally Posted by Aguila Blanca

He gave you his authority: Marbury v. Madison.

Really? That's his authority?

Let's look again at the part of his post which I have challenged for authority:

Originally Posted by AndyAdams

. . . . in light of the fact that Article 6, the 2nd Amendment, and the 14th work in conjunction to tell us that any law restricting the right to keep and bear arms, including the requirement of a so-called "carry permit" as being a nullity. After all, if you have a Supreme law of the Land which states you can bear arms, why would we pay for a "permit" for a right which God Himself has granted?

Aguila Blanca, you are well-versed enough in legal history and theory to know that Marbury v. Madison said nothing about the 2nd Amendment, much less about how "Article 6, the 2nd Amendment and the 14th [Amendment] work in conjunction." (I didn't go back and reread the case for this post, but I've read it a few times and feel pretty comfortable in that assertion.)

Originally Posted by Aguila Blanca

I know, I know -- you're an attorney, like Frank, so you want a specific case that rules on each specific question. The rest of us look at things through the lens of what should be happening according to what the laws and the Constitution say.

AndyAdams didn't make an assertion as to what the law should say. He made an assertion as to what the law is. What should be is a different discussion from what is. Accordingly, yes, I want citation to authority. This is not the first, nor will it be the last, time I've asked someone to produce authority. It's how we keep legal discussions here at TFL from becoming a fountain of bad legal information.

Originally Posted by Aguila Blanca

The 2nd Amendment says that bearing arms is a right. In Heller and McDonald the SCOTUS has now determined that it's a fundamental right. Innumerable other discussions have made the point that any requirement for a license or a permit before the People are allowed to exercise a fundamental constitutional right is contrary to the Constitution.

I don't disagree with you. Perhaps a license to carry a firearm should be unconstitutional. Unless and until SCOTUS says it is, though, such laws are presumed constitutional.

[Aguila Blanca]

Originally Posted by Spats McGee

I don't disagree with you. Perhaps a license to carry a firearm should be unconstitutional. Unless and until SCOTUS says it is, though, such laws are presumed constitutional.

True. And (unfortunately), Mr. Justice Scalia enshrined that in the Heller decision, too, with his throw-away about "existing, presumptively lawful" restrictions on firearms. While that's technically accurate, too many lower courts are just using that as an excuse to decide that all existing firearms restrictions ARE legal, rather than actually doing the work of examining their legality.

[LogicMan]

A big problem from what I understand is that too many lower courts do not apply strict scrutiny to Second Amendment cases. I have read that Kennedy would not have upheld an individual right interpretation without wording by Scalia about certain laws being constitutional, so maybe Scalia had to word the opinion carefully to make sure to keep Kennedy's support.

[Aguila Blanca]

Originally Posted by LogicMan

A big problem from what I understand is that too many lower courts do not apply strict scrutiny to Second Amendment cases. I have read that Kennedy would not have upheld an individual right interpretation without wording by Scalia about certain laws being constitutional, so maybe Scalia had to word the opinion carefully to make sure to keep Kennedy's support.

I have never seen it in print, but I have always believed that the reason why Scalia included that miserable sentence was to keep Kennedy on the pro-2A side.