"There is no constitutional right to carry a concealed weapon" = BullSh!t

[dzelenka]

soz I was reading the relevant wiki pages as a starter on all this, so bear with and correct any misinformation (or incorrect interpretation, as I do go to public school), but is the reason the 2nd ammend has to be incorporated bc of this:
http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29#Amendment_II

Is Louisiana the root of all this?!?!?

I would like to think of it as empowering the memory of the Founders and the Continental Army

Pretty much. Louisiana was also the source of Plessy v. Fergusson in which the Supreme Court declared that separate could be equal. That is why you had black schools and white schools and water fountains "for whites only".

It looks like Wiki is a little behind the times. On Sept. 28, 2009, the US Supreme Court granted writs in the McDonald v. Chicago case to specifically address the 2nd amendment incorporation issue. Instructions from the court were to only address that specific issue. Likely there will be a narrow decision in our favor, but the question of the standard that a law must meet to pass constitutional muster will likely be an ongoing struggle.

 

[LSU2010]

I wikihopped to that page from these under the II ammend. maybe more up to date. definitely a much needed intro for me. Dan can say whether its good or not.

Judicial interpretations

Federal circuit court cases after Heller

I think this would be an awesome topic for a lecture or seminar. It most definitely does suck and I don't agree with the whole ordeal, sharing DuckYou's beliefs. But, some judges said it was so and it was. so now new judges have to fix it.
I think the people involved in this effort, which many seem to think will end in our favor, will be energized from realizing that democracy, and our government, does work. Hopefully more people will watch this so it can become an inspiration. *fingers crossed*
edit: *trigger fingers crossed*

 

[dzelenka]

Actually, DuckYou is flat wrong. You really need to start from the beginning. The individual states were organized in a loose confederation. In order to get the Constitution passed and create the United States of America, the Bill of Rights was added to the Constitution. These rights were set forth as a limit on federal power. They never had anything to do with the states until the incorporation cases began to come out in the 20th century. That is why the state constitutions have a right to keep and bear arms enumerated therein (44 of 50 do). These are limits on state government. If the USSC incorporated the 2nd in McDonald, it will be going farther than the framers ever believed the federal government would or even could go.

 

[LSU2010]

to rephrase, since i was wrong , I agree on a philosophical level.
It does make since that the founders would want the states to have domain over their own laws. I guess, in light of their recent events, they would have never imagined the newly formed states trying to limit speech and arms bearing. dunno.
if this is the case, does this system only apply to the BoR. Just as an example, what's to stop any state from not recognizing new legislation. What's hard for me to understand is if the BoR don't apply to the states. Then what federal laws do and on what basis?

edit: after re-reading the previous post: I guess the issue is the way the BoR was adopted at the convention?

 

[dzelenka]

to rephrase, since i was wrong , I agree on a philosophical level.
It does make since that the founders would want the states to have domain over their own laws. I guess, in light of their recent events, they would have never imagined the newly formed states trying to limit speech and arms bearing. dunno.
if this is the case, does this system only apply to the BoR. Just as an example, what's to stop any state from not recognizing new legislation. What's hard for me to understand is if the BoR don't apply to the states. Then what federal laws do and on what basis?

edit: after re-reading the previous post: I guess the issue is the way the BoR was adopted at the convention?

Read the 10th Amendment. Federal power is granted specifically by states and was supposed to be limited. You will notice that a lot of federal laws begin with a statement that invokes the commerce clause. That is because the fed was granted the power to make laws concerning commerce between the states. This has been greatly expanded over the years although Montana and a couple other states have passed laws this year that will test the limits of that power. Look at federal courts. They are courts of limited jurisdiction.

Finally, from a historical perspective, remember all of the West Pointers, like Lee, who fought for the South because their states left the union. Lee was a Virginian first, American second. Big federal government power is mostly a post Roosvelt phenomenon.

 

[dzelenka]

OP has been kind of quiet. I wonder if he is formulating his well thought out legal or historical argument to support his position.

 

[Yrdawg]

OP has been kind of quiet. I wonder if he is formulating his well thought out legal or historical argument to support his position.

HaHaHa.....maybe a lot like me, I get so confused in what laws say and mean

So dedgum konfusing

The more I read the law and see what is applied and read the law diagnostics ( lack of better term ) here, the dummer I get

Supposing here that the US o A was formed in segments, like, colonies, states, United States, Constitution, BoR, all not one document but several, ya gotta know all the players to make informed decisions

Strange but still the best

I still would favor Louisiana becoming its own entity, keep all our resources, all our fed money, all our problems and none of "theirs"

I believe the resources are here to become one of if not the best, and stand alone, buying and selling completely at our discretion, at our price, in our time , in our way

Ooops, the nurse is here with my meds.......and new foil hat

 

[LSU2010]

I gotcha on the commerce clause, dan. it all makes sense now. a member here reading judge napalitano's(?) recent book told me ab the passage where he describes the first time congress used the commerce clause for firearm laws. the few powers congress has are most definitely pimped out for overuse. I am sure little progess has been made on resolutions to publicly cite the power congress is using on certain legislation. good to know the states are doing something. that would be all the reaffirmations of the 10th ammend that was going on earlier this year? I few ppl I like in la congress voted against that...

 

[Bayoupiper]

Pie!






.

 

[posse comatosis]

So you are saying in order to strengthen the 2nd we have to weaken the states and empower the feds...

The operative clause of the Second Amendment merely codifies an existing natural right. That natural right has nothing to do with the federal government, nor does it empower it. The right was there among mankind long before anybody set foot on these shores. The degree of restrictions the states can impose is unknown now in the wake of Heller V. DC. DuckYou is correct in his grassroots interpretation of the Second Amendment as it realtes to concealed carry. Furthermore, to date, there is no case history, state or federal, that validly supports the regulation of concealed carry. The issue is wide open for litigation. In the meantime, the states will continue to abuse the right of The People to carry as the Founding Fathers saw fit.

I'm no constitutional scholar, but I know when I'm being zoomed by some ******** artists.

 

[dzelenka]

Furthermore, to date, there is no case history, state or federal, that validly supports the regulation of concealed carry. The issue is wide open for litigation.

Of course we should ignore United States v. Hall in which the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit. That was on August 4, 2008, a couple of months after Heller.

I'm no constitutional scholar, but I know when I'm being zoomed by some ******** artists.

Understatement.

 

[dawg23]

And I wasted 10 minutes reading this thread.

Where is Evelyn Wood when I need her ??

 

[Kahuna_Kennen]

If the gun-grabbin' liberals in the government can find a loophole in the Second Amendment they're gonna grab it like a dog on a ragamuffin.

I would love to say it'll be a cold day in hell before they take our rights, but it's gettin' damn cold right now. It's gettin' cold enough to freeze the balls of a brass monkey, and it's gettin' cold quick.

 

[posse comatosis]

dezlenka,

That case is hidden from the net and does not appear in a search of the Fourth Circuit. I got this only:

http://74.125.113.132/search?q=cach...ll,+No.+2:08-00006&cd=1&hl=en&ct=clnk&gl=us68 See, e.g., United States v. Hall, No. 2:08-00006, 2008 U.S. Dist. LEXIS 59641 (S.D. W.
Va. Aug. 4, 2008) (upholding restrictions on concealed weapons); United States v.
Fincher, 583 F.3d 868 (8th Cir. 2008) (upholding restrictions on possession of machine
guns and sawed-off shotguns); Nat’l Rifle Ass’n v. City of Evanston, No. 08-C3693,
2008 U.S. Dist. LEXIS 95572 (N.D. Ill. Nov. 24, 2008) (upholding a law barring pos-
session of handguns)

Rather than cast any doubt upon the continued constitutional validity of concealed weapons bans, the Heller opinion specifically expressed constitutional approval of the accepted statutory proscriptions against carrying concealed weapons. (Heller, supra, 171 L.Ed.2d 637, 678.) Thus, in the aftermath of Heller the prohibition “on the carrying of a concealed weapon without a permit, continues to be a lawful exercise by the state of its regulatory authority notwithstanding the Second Amendment.” (United States v. Hall (S.D.W.Va. Aug. 4, 2008, No. 2:08-00006) 2008 U.S.Dist. Lexis 59641, 3.) We conclude that neither on its face nor as applied to defendant’s particular statutory violation does Penal Code section 12025 prohibit conduct protected by the Second Amendment as defined in Heller.

Could you provide a link, or a summation of the reasoning the court used, and the degree of scrutiny employed. The latter is of the utmost importance.

As Sonia Sotomayor indicated, a decision in one circuit is not binding in another, so until then, it all hangs on the scrutiny thing. Like McDonald v. Chicago, this is another issue the Supreme will probably have to rule on. Such a decision could go in several directions.

 

[Storm52]

Could one of the Mods or Spanky make a suggestion to the OP to resize the signature pic? Way too much screen space wasted.

 

[dzelenka]

dezlenka,

That case is hidden from the net and does not appear in a search of the Fourth Circuit. I got this only:



Could you provide a link, or a summation of the reasoning the court used, and the degree of scrutiny employed. The latter is of the utmost importance.

As Sonia Sotomayor indicated, a decision in one circuit is not binding in another, so until then, it all hangs on the scrutiny thing. Like McDonald v. Chicago, this is another issue the Supreme will probably have to rule on. Such a decision could go in several directions.

This is what I got from Lexis. It is a district court opinion that was affirmed on appeal to the US 4th Circuit:

MEMORANDUM OPINION AND ORDER

The defendant's motion to suppress, filed on February 21, 2008, was denied by the court's order entered on April 10, 2008.

Defendant's second motion to suppress, filed on April 22, 2008, was filed in anticipation of the decision by the United States Supreme Court in District of Columbia v. Heller, 554 U.S. , 128 S.Ct. 2783, 171 L. Ed. 2d 637 (2008). Following that decision the defendant filed his supplemental memorandum on July 11, 2008, which was followed by the government's response on July 18, 2008, and the defendant's reply on July 25, 2008.

The court notes that in Heller the Supreme Court held that the District of Columbia's ban on possession of a handgun in the home violates the Second Amendment of the United States Constitution, as does its prohibition against rendering any lawful firearm in the house operable for the purpose of immediate self-defense. In the course of reaching [*2] its conclusion that the Second Amendment protects an individual right to possession of a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes such as self-defense within the home, the Court, in its majority opinion by Justice Scalia, observed as follows:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. chandler, 5 La. Ann. at 489-490; Nunn v. State, 1 Ga. at 251; see generally 2 Kent *340, n. 2; the American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast [*3] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

128 S.Ct. at 2816-17.

The court concludes that the prohibition, as in West Virginia, on the carrying of a concealed weapon without a permit, continues to be a lawful exercise by the state of its regulatory authority notwithstanding the Second Amendment. So, too, is the longstanding prohibition on the possession of a firearm by a convicted felon whose civil right to possess a firearm has not been restored. Further, even a lawfully possessed firearm may be carried for an unlawful purpose. Consequently, Heller does not direct a result different from that reached by the court in its order of April 10, 2008, which is in part supported by the decision of the United States Supreme Court of Appeals for the Fourth Circuit in United States v. Black, 525 F.3d 359 (4th Cir. 2008).

Accordingly, the defendant's second motion to suppress is denied.

I didn't do my own research on that and picked it up from somewhere else. It is not perfect because he was both carrying concealed and a felon in possession. Unfortunately, I really don't have time to research the issue, but I am willing to bet that this horse has already has been beaten to death.

You may also look here: www.guncite.com (great resource) or http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/cases_short.html

You are right on the scrutiny issue. Everything will eventually boil down to that. "Strict scrutiny" would be great words to read when McDonald comes out, but I think that whatever deal is struck with Kennedy to get a majority will water things down a bit.

Dan

 

[posse comatosis]

Eugene Volokh, who IS a constitutional scholar, as a Professor of Constitutional Law at UCLA, has stated on his blog that the existing case history on concealed weapons, including that going back to Jolly Old England in the 1200's, is about keeping weapons out of the hands of people whom the people in power at the time feared to have them. Those case histories are invalid, according to Volokh.

Scalia possibly intentionally omitted concealed weapons in his listing of restrictions because he knew this is a very contentious issue compared to possession by a felon, etc., and that it was outside the immediate scope of the Heller case.

Although the SCOTUS found the Second Amendment right to a handgun is a fundamental right, most fundamental right apparently do not get strict scrutiny, according to these guys, see II (A):

http://www.scotusblog.com/wp/wp-content/uploads/2008/01/07-290_amicus_law_professors.pdf

There ain't no telling what the final outcome will be. And there isn't much in the past one can springboard from other than that's the way it always been, which is poor judicial precedent for the regulation of concealed weapons.

Appreciate the Lexis reproduction. I lost my access to Louis Law when the state cut funding to the local library.

 

[dzelenka]

Liberal scumbags. I bet they whined in the law review article about the Court violating fundamental rights by not requiring strict scrutiny. But now, when we are talking about guns, they want to have a lesser level of scrutiny applied. That is just like fighting states rights tooth and nail and then coming out and opposing the national concealed carry reciprocity on the grounds that it violates states rights. It gets my pressure up.

 

[posse comatosis]

they want to have a lesser level of scrutiny applied

If the issue was academic freedom, you'd never hear the end of their bitching and whining. But guns? Perish the thought of people walking around with hidden guns about them.

 

[oleheat]

Milk Duds?

That's gotta be what he meant....Surely, no one has the nads to come out with something called "mild duds".....