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April 12, 2021, 09:38 AM | #1 |
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Murdock v. Pennsylvania and The Second Amendment
I came across this article from the American Thinker .
The author makes some interesting correlations between this SC ruling in 1943 and today’s assault on the Second Amendment. https://www.americanthinker.com/arti...itutional.html Does this have merit, or is the author, like most of us, way off base when it comes to The Law? |
April 12, 2021, 03:08 PM | #2 |
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He is attacking fees applied to the purchase or registration of firearms. Even not knowing about the Murdock case, I would agree that imposing a tax or fee to engage in a constitutionally-protected right is not permissible. However, I would take it a step further: I think that -- on the same basis -- all permitting schemes for carrying firearms are unconstitutional.
On the basis of Murdock, though, a state might then argue that, "Okay, we'll eliminate the fee -- but you still need a permit to carry a gun." And I respectfully submit that even that is (or should be) unconstitutional. We don't need permits to worship. We don't need permits to write letters to the editor, or to our elected representatives. The RKBA was one of the rights that the Framers were most concerned about preserving, so the notion that today we need a permission slip from the nanny state before we are graciously allowed to engage in the right is unacceptable.
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April 12, 2021, 03:43 PM | #3 | ||
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The regulation of these rights by the states arguably enhances the exercise of the rights. They define the rights of the parties in marriage. They make travel safer, or increase property values with uniformly applied standards. How does that fit with state burdens on the right to arms by non-criminal adults? Voting is such a right, and we require a state ID and an expensive background check under penalty of perjury in order for people to vote... OK. Bad example. We wouldn't let people publish potentially dangerous books if they had a history of domestic abuse or mental illness...darn - that doesn't work either. We certainly wouldn't give a convicted felon access to a jury trial...., but of course we do. The burdens on the right of gun possession don't obviously have the effect of making effective use more effective. On the contrary, they seem calculated to dissuade exercise of the right itself, or if exercised to make the right less effective. The burdens offered aren't just peripheral issues attached to an obvious core of common sense state regulation; they are a manifestation of opposition to the right itself.
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April 12, 2021, 03:52 PM | #4 |
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It's always interesting to revert to basics... and muse on how far we have 'progressed'
https://nccs.net/blogs/articles/the-...wer-to-destroy |
April 12, 2021, 06:37 PM | #5 | |
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I'm not a lawyer, I'm just an aging wordsmith. My view (which, as far as I know, has not even been entertained for consideration by any court anywhere in the U.S.) is that the Second Amendment is the only one of the rights in the Bill of Rights that says -- right in the text of the amendment itself -- that it is NOT subject to regulation. What is regulation if it's not an infringement? And the 2A says the RKBA shall not be infringed. IMHO, that means it's not subject to regulation -- any regulation. "But what about criminals?" you ask. The RKBA is a civil right. (Yeah, yeah, I know -- "It's a fundamental human right.") In legal terms, it's a civil right, guaranteed by the Constitution. But criminals, upon conviction, lose certain civil rights, and I don't see it as a logical contradiction to say that, although the RKBA cannot be regulated for law-abiding citizens, it can be taken away from convicted criminals.
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April 12, 2021, 07:17 PM | #6 | ||
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Now a felon can be someone who overbilled medicare, lied on his tax return or bought a gun for someone to get a discount.
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April 12, 2021, 08:20 PM | #7 | ||||
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As usual, things are more complex in real life in the real world. And many non-lawyers who point to Murdock have not read the entire decision, nor have they necessarily looked at the body of decisional law dealing with burdens imposed on constitutionally protected rights. Even the article linked to in the OP links to the syllabus in Murdock, not the opinion.
However, the Supreme Court has consistently ruled that rights protected by the Constitution are not absolute and that under the correct circumstances may be regulated.
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April 13, 2021, 05:41 PM | #8 | |
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April 14, 2021, 07:13 PM | #9 | |
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But finding out if it's ever happened is a much larger research project than I'm inclined to undertake right now.
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April 14, 2021, 08:26 PM | #10 |
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It sounds like the courts generally don't take into account other existing laws when ruling on a law. In my opinion they should always take into account other laws as a law doesn't operate in a vacuum but with other laws. If a law, for example had 20,000 gun laws and was ruled unconstitutional, then why would it be constitutional if it were done in 20,000 parts?
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April 14, 2021, 10:24 PM | #11 | |
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So, for example, the 9th Circuit panel deciding the first Young v. Hawaii and concluding that Hawaii law prohibiting the open carry of firearms was impermissible, considered the fact that the 9th Circuit had previously ruled that concealed carry was not constitutionally protected. But real connection needs to exist, and it often doesn't.
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April 14, 2021, 11:11 PM | #12 | |
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April 15, 2021, 03:55 PM | #13 | |
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April 15, 2021, 07:50 PM | #14 | |
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April 15, 2021, 08:33 PM | #15 | |
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Assuming that you challenge a law based on federal concerns, first you have to hire a lawyer to sue in federal district court. If you lose in district court, then you have to pay for an appeal in the appropriate federal circuit court of appeals. If you win there, it becomes binding precedent only in the states within that circuit. If you lose at the circuit court level, then you get to appeal to the Supreme Court -- which may or may not even decide to accept your case. Most people don't have deep enough pockets to even begin the process. A number of years ago, I wanted to challenge a local (town) ordinance that prohibited possession of a loaded firearm on any town-owned property. There were no exceptions. The problem, of course, is that town roads are owned by the town so, strictly applied, it meant that anyone driving on a town road -- even with a state carry permit -- was potentially subject to arrest. I hired a well-known firearms attorney from my state. The attorney advised me NOT to sue in federal court because the RTKBA is actually stronger in my state's constitution, so we settled on a strategy in state court. But first the attorney contacted the town and asked them -- nicely -- to please repeal or revise the ordinance. The town stonewalled for a lengthy period of time, and then basically told us to pound sand. At that point my attorney called the town's attorney and told him we had the lawsuit drawn up and that we would file it if they didn't do something pronto. In the end, the town revised the ordinance. They put in an exception for carry on public streets with a permit, and they added an exception for the police in the performance of their duties. But they also removed "loaded" from in front of "firearm," which means that whereas in the past you could leave a gun in your car while doing business in a town building, the change meant that we now have to park on the street to stay legal. Just that little negotiation -- which did not involve filing the lawsuit or going to trial -- cost about $30,000 in legal fees. In the end, I got some of that back in a grant from the NRA, but that wasn't assured. I could not afford to do that today, but I was able to do it back then. That's why you don't see bunches of those 20,000 laws challenged -- it's expensive.
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April 17, 2021, 06:28 AM | #16 | |
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April 20, 2021, 12:57 PM | #17 | |
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April 20, 2021, 06:38 PM | #18 |
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Agreed. My point was the right to keep and bare arms was followed by "shall not be infringed". The poster was using the rights of marriage, travel, etc, to make a point that "rights" had restrictions. It could also be pointed out that the bill of rights does not give us any rights, it prohibits the government from infringing on our God given rights.
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April 20, 2021, 08:03 PM | #19 | |
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That isn't an observation that you're wrong. There is a distance between one's own view of the most coherent position, and the position that will best persuade the people who will judge the breadth of the right.
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April 21, 2021, 06:38 AM | #20 | |
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May 14, 2021, 08:37 AM | #21 | |
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