Banning Concealed Carry

[divemedic]

We talked about that ruling in our constitutional law class. All Congress has to do is produce a Congressional finding that the possession of firearms in a school zone has an effect on interstate commerce, and such a law would be upheld.

[jimpeel]

Originally Posted by divemedic

All Congress has to do is produce a Congressional finding that the possession of firearms in a school zone has an effect on interstate commerce, and such a law would be upheld.

That would be like claiming that all traffic would stop in the presence of a firearm, sorta like "The Day the Earth Stood Still". Finding a viable, credible link between interstate commerce and a local school district would be ludicrous on its face.

Of course, the Congress has stated that their powers extend to intrastate commerce as well; but I don't believe the SCotUS has ever found that link. However, I'm sure that with a bit of digging, and the right justices in place, that link would fairly jump off the page. "Why, there it is right there! Why didn't we see that before?"

[buzz_knox]

Of course, the Congress has stated that their powers extend to intrastate commerce as well; but I don't believe the SCotUS has ever found that link.

The Supremes have essentially found that there is no such thing as intrastate commerce when the subject is fungible. Wickard v. Filburn and Gonzales v. Reich both allow for the regulation of purely intrastate activity on the basis that the activities (producing wheat in the former case and marijuana in the latter, both for purely personal use) affets interstate commerce. If you weren't making it for yourself, you'd be buying it on the market. The aggregate effect of people not purchasing on the market would definitely affect interstate commerce, and thus bring the intrastate activity within Congress' authority.

[King Ghidora]

The Supreme Court has very rarely cited the 10th ammendment in the modern era. It was a major issue before the Civil War and a major issue of the Civil War for that matter. There have been rare instances of the court citing the 10th in recent decades. The one that probably stands out is when the federal govt. tried to force states to pay their employees the federal minimum wage. The court cited the 10th in overturning that ammendment to the Fair Labor Act.

Still going back to the New Deal there has been scant reference made to the 10th in any decision. FDR was essentially given almost free reign to inact any law or policy he wanted. When the SC balked at some of his New Deal programs he simply attempted to add 6 extra members to that court. But Congress wouldn't go along with his Judiciary Reorganization Bill of 1937 and it went down to defeat. He was heavily criticized for attempting to undermine the independence of the courts too.

Oddly the court became more apt to go along with Roosevelt's programs after that battle. FDR had won a landslide victory in 1936 and the court apparently felt like he should be given more lattitude once their independence had been established. Even conservatives in his own party had fought him on his plan to pack the court but his New Deal programs, socialist as they were, continued on unabated. Only a few of his programs were declared unconstitutional and most of those came before his plan to pack the court. They were the reason he attempted to pack the court in fact.

Since that time the federal government has pretty much had it's own way circumventing the COTUS in ever more imaginative ways. From the Great Society to the Food And Drug Act (which was designed to fight drug abuse and signed by Nixon) the court never even ruffled their feathers. The 55 MPH speed limit and lots of other intrusive fed programs went untested. It wasn't until liberals decided they could use the court to get their way in spite of what the people wanted that we started to see interference from the courts. After W managed to change the makeup of the court decisions started going the other way.

That could change if the new POTUS manages to change the court again. But most of the justices that are thought to be close to retirement are in fact liberals. The younger justices are conservative. Maybe strict constructionists will continue to rule the courts if we're lucky. If they do I don't see much chance of a ban on CCW even if Congress and the POTUS pass such a law. It could quickly be stopped by an injunction while the case was fought out. In the end I don't think it would stand up but we just don't know that until it happens.

[Ricky B]

All Congress has to do is produce a Congressional finding that the possession of firearms in a school zone has an effect on interstate commerce, and such a law would be upheld.

I can understand why your teacher said that, but I do not agree, and I think a careful reading of the case will show that your teacher was not correct.

In the Lopez case, the court stated:

the Government concedes that "[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Brief for United States 5-6. We agree with the Government that Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.

So while there was no finding by Congress, the court agreed with the government that no such finding was needed.

In footnote 4 of the majority opinion, the court noted that subsequently the statute was amended "to include congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce." Those finding could not be used to sustain the statute as originally enacted, and the government did not rely on them (or as the government put it, it did not rely on the subsequent findings "in the strict sense of the word"). But the government did use those findings (for the very statute at issue) to "indicate that reasons can be identified for why Congress wanted to regulate this particular activity."

The court addressed the lack of findings and the fact that findings are not a prerequisite by saying the following:

The Government's essential contention, in fine, is that we may determine here that 922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce.

The court agreed with the premise of the government's argument that the court could nonetheless find an effect on commerce from gun possession in schools even in the absence of a congressional finding. After it examined the possible effects, it said:

if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.

It went on to say:

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. ... This we are unwilling to do.

So the notion that simply adding a finding to legislation will allow Congress to circumvent the constitution is not something that I accept, and I don't think any member of the court would accept it either.

[melchloboo]

Yes, the point of Lopez is that while in theory all human activities can eventually form a link in the chain of interstate commerce, a line is drawn "somewhere" to limit the power of Congress. School safety, although theoretically tied to interstate commerce, is far too attenuated. Too remote. So my feeling if schools are too remote, then so are other public places. Aside from which, Lopez also recognized that such regulations are a traditional state police power. A sort of double-whammy with regards to weapons carry.

There are other cases confirming Lopez, but Lopez stands out in my mind because factually it involved federal attempts to regulate the time and manner of firearms possession. For example, Congress may ban your concealed carry in Post Offices and Federal Parks. But it is unlikely they can regulate carry anywhere else.

Ammunition and firearm manufacture and sales are another matter altogether. There is no doubt that in and of themselves such things are goods that traverse interstate commerce.

[maestro pistolero]

If there is one thing that anti-gun folks seem too have less of an appetite for than concealed carry, it's open carry. It would seem that the "bear" part of 2A would necessitate allowing either one or the other. Given the choice, I think anti-gun folks would rather not see the blasted thing.

[jimpeel]

There is a group in Virginia which advocates open carry and they were featured on Nightline a while back. They operate on the state's constitution which allows open carry without any type of permit. You are quite correct that the antis do not like seeing a firearm openly carried. The Nightline segment was quite fair and unbiased.

Click HERE for the video segment.

[Socrates]

If one is a bit of a Constitutional scholar, one does wonder how in the first place the right to bear arms was infringed, and, why when it's the second amendment, it's been so poorly protected.

If the second is extended against the states, then the state regulation of CCW IS unconstitutional.

Ironically, I'd use the Commerce Clause to attack the states CCW policies, and laws. Having to go around a state on a trip, because you are carrying CCW, and the state does not recognize your legal permit from another state CLEARLY, at least as clearly as Heart of Atlanta, affects interstate commerce.

Second: CCW fails on an equal protection basis. It's become VERY clear that only a select few get CCW's, and, those permits are often issued on the basis of financial campaign contributions, or wealth and influence. I think it's discriminatory, race and economic class wise, when the fee is 250 dollars for a CCW.

So yes, I agree that CCW permits should be banned, along with the cash cow fees.

[maestro pistolero]

I've been wondering lately how it is that drivers licenses are automatically recognized in any state. What is the legal mechanism by which there is reciprocity for driver licenses? Could it be applied to CCW permits? We have reciprocity already, just not universally.

[Al Norris]

Definition: A license bypasses a legal barrier or makes an otherwise unlawful act lawful. The nature of a license allows the licensee to do something he could not otherwise legally do. Thus, a license gives the licensee the right to do something that would otherwise be illegal or unlawful for him to do.

The courts agree with the above. Below you will see some selected State courts rulings. If one wanted, one could find such decisions in every State:

“A license is a mere permit to do something that without it would be unlawful.” Littleton v Burgess, 82 P 864, 866, 14 Wyo 173. “A license is a right granted by some competent authority to do an act which, without such license, would be illegal.” Beard v City of Atlanta 86 SE 2nd 672, 676; 91 Ga. App. 584. “A licensee is one privileged to enter or remain on land by virtue of the possessor’s consent, whether given by invitation or permission.” Wool v Larner, 26 A 2nd 89, 92, 112 Vt. 431. “The licensor has the power to prohibit. Since the licensor is in the position to grant a right or permission it logically follows that he has the power to prohibit the act also. Likewise, having the power to prohibit something from being done, it follows as a corollary that power also exists to permit its use.” Taylor v Smith, 140 Va. 217, 235.

Originally Posted by maestro pistolero

I've been wondering lately how it is that drivers licenses are automatically recognized in any state. What is the legal mechanism by which there is reciprocity for driver licenses? Could it be applied to CCW permits? We have reciprocity already, just not universally.

Drivers Licenses/Permits gained interstate recognition in the exact same manner that CCW Licenses/Permits are gaining interstate recognition. That is, by compacts signed by the individual States or by actual statute that a States legislature passes, recognizing other States Licenses and permits. So in the sense of your question, reciprocity is already being applied to CCW in the same manner.

The general public, today, has no sense of the history of State issued licenses to drive and the misconception, as posed by the questioner is quite common.

You should always question why the Real ID act of 2005, and other such broad schemes, operate in the manner they do. Congress has no authority to mandate a State by State licensing scheme.

Therefore, the Congress has no authority to pass legislation either granting such licensing or denying such licensing.

[maestro pistolero]

. . . the misconception, as posed by the questioner is quite common.

The misconception being that drivers licenses are automatically recognized as opposed to by individual compacts created in the state legislatures?

[Hkmp5sd]

Just out of curiousity, how about marriage liceneses and divorces? Even those issued outside the US are recognized by the States. Obviously each country hasn't negotiated a compact with each state to accept their marriage licenses.

If the states have the same compacts as driver's licenses to where other states recognize their marriage licenses, does that mean those licenses issued in some states to gay couples are valid in all other states, including those states which prohibit same sex marriages?

Basically, can a state say that it will recognize the licenses of one state but not another? If they are forced to accept all validly issued licenses, then a state should not be able to take the CCW licenses of one state yet ignore another.

[melchloboo]

I believe the latest questions relate to the Full Faith and Credit Clause:
http://en.wikipedia.org/wiki/Full_fa..._credit_clause

[Ricky B]

Driver's licenses: I don't believe that the states recognize other state's driver's license because they have to. They do so out of administrative convenience and self-interest (in the opinion of the affected state).

In many states, however, if you are in the state for more than X days (X varying by state), you are required to get that state's driver's license, even if you don't live there.

Administrative convenience and self-interest does not apply to CCW's in the opinion of a number of states.

I am not going to address the other issues because I don't want to contribute further to thread veer.

[Al Norris]

Hkmp5sd poses questions that relate to the Full Faith and Credit clause of Art IV sect 1 of the US Constitution (for which melchlobo gave one link, as an explanation). Remember that the clause refers to the public acts, records and judicial proceedings of one State, being accorded recognition in every other state.

The questions posed by CCW and (in an apples to apples comparison) Drivers Licenses relate to the general police powers of the States (the Feds have no general police powers).

Marriage is a peculiar beast. To say that a marriage license is a public act, is at best a misnomer, as several states still abide by "common law" marriage. Yet one must still be divorced through a judicial act, which does come under the FF&C clause. In its simplest form, a marriage is an act of comity (contract law) and comes under civil law. So it is not the license that is voided by the court, but the contract entered into by the parties involved.

Note bene: Marriage is actually much more complicated (on several levels) than the above explanation, but let's not get bogged down in arcana, shall we?

State licensing (CCW, DL, Legal Practitioner, Electrician, etc.) however, is not a contract. It is not a judicial act. It is not a public declaration. It is merely the State exercising a system of permits allowing certain licensed individuals to do something that otherwise would be unlawful.

There is nothing that prohibits one State from recognizing or not recognizing a licensing scheme implemented by another State.

That is the misconception that most people have, as regards State licensing and some assumed relationship with the Federal FF&C clause.

Ricky, once we can agree that we understand the fundamental differences above, then we can move on to the OP. Any thread drift is, I think, attributed to such (mis)understanding.

The Federal Government has no general police power to impose or restrict, upon the other States, a singular States licensing scheme(s) nor its (the States) agreements with other States to agree to recognize the license.

[Ricky B]

Ah, so true, on many levels. And one that I personally think does not invite useful comparison with CCW laws and the federal government's ability to regulate CCW or state ability to regulate CCW. More like an apples to orangutans comparison, IMO.

Antipitas, I think you and I are in agreement with one cavil. When you say that state licensing is "a system of permits allowing certain licensed individuals to do something that otherwise would be unlawful" it is technically correct, but I prefer to view it as a system of not allowing individuals to do something that otherwise would be lawful unless they get a permit from the state. You probably don't disagree with that formulation either, even if you prefer your formulation.

[Socrates]

Wonder if I might challenge CCW in Kali on the basis of the Full Faith and Credit Clause, in federal court, by obtaining an out of state CCW, while being unable to get one here?

S

[Ricky B]

Nope. Each state has the right to regulate conduct taking place within its borders without regard to what other states permit. Second Amendment, maybe, but Full Faith and Credit, no. Nice try, though

[divemedic]

True, else fishing and hunting licenses would be valid nationwide.

[Socrates]

HMMM.

The 2nd amendment right to protection is now an individual right, and a Federal issue that WILL get me into Federal Court.

States do NOT have the right to regulate rights that are extended against the states by the 14th Amendment, such as Free Speech, etc.

As I stated prior, you have a perfect Heart of Atlanta Commerce Clause issue, and, you have a Supremacy Clause issue as well.

[jimpeel]

Originally Posted by Antipitas

Definition: A license bypasses a legal barrier or makes an otherwise unlawful act lawful. The nature of a license allows the licensee to do something he could not otherwise legally do. Thus, a license gives the licensee the right to do something that would otherwise be illegal or unlawful for him to do.

How is that applied to marriage licenses; and what, in the aspect of marriage, would be unlawful without it? Marriage can be common law. Is there anything in common law that affects CCW? Could there be a common law right?

[Al Norris]

Don't focus on marriage, Jim. That's covered under the FF&C clause.

[publius42]

Originally Posted by nobody special

Has the Court ever held that an act of Congress violates the 10th amendment?

Yes, a few times. Wikipedia on the 10th:

As suggested above, the Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations. In 1997, the Court again ruled that a federal act, this time the Brady Handgun Violence Prevention Act, violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.

Originally Posted by Ricky B

So the notion that simply adding a finding to legislation will allow Congress to circumvent the constitution is not something that I accept, and I don't think any member of the court would accept it either.

Actually three did say that was what was going on in the Raich case:

If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation”–thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today’s decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme.