Senate right-to-carry bill introduced

[danp]

Remember: It's not a right if you need a license.

[rwilson452]

The other side of that is it's not a right until the supreme court says it is. I don't necessarily agree with that but that is the present state of the law. If you want to fix that I suggest you get together about 200,000 bucks and file a complaint and work your way up to the supreme court. Once there get them to agree with you. Altho I don't think this law has much of a chance I think it's a better chance than getting a full reinstatement of he 2nd out of SCOTUS.

Originally Posted by danp

Remember: It's not a right if you need a license.

[Rule10b5]

Originally Posted by phillyd2

Unconstitutional? Now that's funny. Well, actually its sad. The PA Permit to Carry laws are unconstitutional - see the very top of this page. We won't even get into the US Constitution 2nd. Amendment.

Anyway, check out the Section 1 of the Article 4 of the US Constitution which contains the "full faith and credit clause" that provides that each state must recognize the public acts (laws), records, and judicial proceeding of the other states.

I very rarely flame someone, and I'm trying to restrain myself. You took a shot at me, and you were snarky about it. That kind of annoys me, especially because you're so wrong. Your post demonstrates a lack of understanding of the Constitution and the principles of federalism and republicanism (small "r" intentional) on which this country was founded. One of the problems with this country is that the Constitution isn't taught in schools anymore. We don't learn it in elementary or high school. We don't learn it in college. The only reason I learned about it -- actually read it, obsessed over it, and loved it, was because I went to law school. Before I went to law school, I probably would have answered just like you did -- and I'd be just as wrong as you are. It's not your fault, and it wouldn't have been my fault in your position.

The entire basis of the formation of this country was that the powers of the Federal government were limited only to those areas in which it was authorized to act. The reason why your analysis fails is that it doesn't recognize that the one of the most important parts of the Constitution is that it recognizes the right of each state (and its citizens) to act within their own state free of interference from the Federal government and other states, absent a specific provision to the contrary in the Constitution.

The first step in assessing the Constitutionality of any act of the Federal government is to check whether the act is specifically authorized in the plain text of the Constitution. If it isn't there, a strict constructionist will contend that the inquiry ends, and the act is unconstitutional. Most legal scholars aren't strict constructionists, and they look to see (to guess, realistically) what the founders intended when they wrote whatever provision of the constitution is about or they look to case law doing the same. If they can't find anything there, THEN, they say it's unconstitutional. That said, your analysis makes several mistakes.

First, this is not an Article 4 issue. Article 4 DOES NOT mean that whatever law one state passes has to be honored by other states within the jurisdictional limits of the other state. It means (in very brief terms) that judicial decisions may be "exported" and enforced to other jurisdictions. For example: In DE there is a state law that says liquor may be sold from retail stores with a license. No such law exists in PA (you'll recall that we have state stores). You can't walk across the state line into PA and contend that because DE says it's legal, that it is legal in PA because DE says it is legal. What you're arguing violates state sovereignty. To pass a Federal law trying to enforce DE's laws in PA is fundamentally unconstitutional. As the Supreme Court holds, the Full Faith and Credit Clause does not compel "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501 (1939). This is basic ConLaw stuff.

A proper application of Article 4 is as follows: You live in PA. You get in a car accident. You sue the other driver and win. He runs to DE. You can take the judgment in PA, and the DE courts will enforce it. That's what "full faith and credit" clause means.

Second, the 2d Amendment doesn't authorize the Federal government to pass statutes relating to "right to keep and bear arms" -- it merely says that the Federal government (and by extension states) can't infringe on an intrinstic right that YOU, an individual, hold. The 2d Amendment is a "negative" amendment. It says what can't be done by the govt -- not what can be done by the govt. A proper application of the 2d Amendment would be to sue your STATE for infringing on your rights -- not to authorize the Fed govt. to pass a law that says your state must honor the laws of another state.

It is worth noting that most of the legislation Congress passes (that affects multiple states) is passed under the Commerce Clause (google it -- others have said it better than I can and I'm at work). It basically says that Congress can regulate trade or acts that affect the commerce of multiple states.

HR 218 (the police carry law which passed) is a perfect example of this. HR 218 specifically says that Congress is passing the law only with respect to firearms that have been "shipped or transported in interstate or foreign commerce." The flaw in this analysis is that merely because a good crosses state lines doesn't mean that Congress can regulate EVERYTHING that happens with that good after that point. It means only that Congress can regulate it to the extent that it affirmatively affects commerce by and between the states. Once the good is out of the stream of commerce, the basis for Congress to regulate it ends. There is not rational basis for saying that because a gun was made in Mass., and was bought by a cop in Pa., that it can be carried in California -- because at that point we're not talking about commerce, we're talking about a carry law. The two are completely unrelated. THAT's why such a law would be unconstitutional.

For more information, check out: http://www.keepandbeararms.com/CopsOnlyCCW/#copstrt

It's an article by Angel Shamaya about this very subject. Shamaya's a "tin foil hat" sort -- but he's absolutely right about the ConLaw issue.

Anyway, if I came off too preachy or pissy, I apologize. This is just a pet bug of mine. We're all pretty conservative folks on here -- but I, all too often -- see people who identify as die hard conservatives (and complain about activist judges and activist liberals) advocating horribly liberal positions. Saying that Congress can ignore the Constitution and force states to honor carry laws of other states is really, really liberal and unconstitutional.

National concealed carry is unconstitutional for the same reason the 1934 National Firearms Act -- or the 1968 Crime Control Act -- or the Brady Bill is unconstitutional. There is not Constitutional provision that allows it. If you're going to argue for National concealed carry, you're arguing that the above referenced acts are also Constitutional -- which I doubt you would say. The Constitution isn't a buffet. You don't adopt a provision you like when it suits you, and ignore it when it doesn't. The Constitution is the supreme law of this country, and it's inviolable for a reason -- because if you do what you're doing, it becomes meaningless, and our rights are ignored even worse than they already are.

[theshadow]

Originally Posted by Rule10b5

First, this is not an Article 4 issue. Article 4 DOES NOT mean that whatever law one state passes has to be honored by other states within the jurisdictional limits of the other state. It means (in very brief terms) that judicial decisions may be "exported" and enforced to other jurisdictions. For example: In DE there is a state law that says liquor may be sold from retail stores with a license. No such law exists in PA (you'll recall that we have state stores). You can't walk across the state line into PA and contend that because DE says it's legal, that it is legal in PA because DE says it is legal. What you're arguing violates state sovereignty. To pass a Federal law trying to enforce DE's laws in PA is fundamentally unconstitutional. As the Supreme Court holds, the Full Faith and Credit Clause does not compel "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501 (1939). This is basic ConLaw stuff.

A proper application of Article 4 is as follows: You live in PA. You get in a car accident. You sue the other driver and win. He runs to DE. You can take the judgment in PA, and the DE courts will enforce it. That's what "full faith and credit" clause means.

OK, and please don't take this the wrong way, I know you're a lawyer, and know you're much better versed, I am asking this so I can be better educated.

I always understood the full faith and credit to extend to licenses and the like (similar to what happend with drivers licenses). I agree strongly with you, if it isn't in the black and white English in the document, it don't exist camp, but don't understand how they can get away with saying that Drivers License, and Medical Licenses are one thing, but Licenses to carry concield <sp?> can't be covered.

As for Government involvement, the less the better, always, but if we can get them to enforce one on the books that benifits us, why not try? Please, what am I not correctly understanding here?

[ChamberedRound]

Originally Posted by doug

It would be nice to be able to travel freely around the country, from state to state, and legally be permitted to carry your firearm for personal protection. Our PA AG is making great progress with regards to CCW recoprocity, but I can't envision him ever securing agreements with every state in the union. There are some states, like New York and California, which will not issue NR permits, and will not enter recoprocity agreements with PA.

Here's the S.388 Text which Senator Thune has proposed. It's very short, and seems very clear cut to me. I don't see anything in there which will alter the PA CCW application process. Take the time and read the actual proposal, and if you still think it's bad, explain why.

I think it's a good bill, and I'd like to see it signed into law.

My initial concern with the bill is the same as many other bills that touch on a hot-button issue. Everyone that has a problem with the bill wants to "horse-trade"; I'll support this bill if you add this clause, and that clause, and so on. By the time it gets to the floor for a vote, it's been so amended to gather enough support that it looks nothing like what was initially proposed.

In addition, although I agree that I would like to carry with my PA LTC in every state of the union, I'm not sure if it's worth it at the expense of constitutionality (see Rule10b5's post above).

[ChamberedRound]

Originally Posted by Rule10b5

National concealed carry is unconstitutional for the same reason the 1934 National Firearms Act -- or the 1968 Crime Control Act -- or the Brady Bill is unconstitutional. There is not Constitutional provision that allows it. If you're going to argue for National concealed carry, you're arguing that the above referenced acts are also Constitutional -- which I doubt you would say. The Constitution isn't a buffet. You don't adopt a provision you like when it suits you, and ignore it when it doesn't. The Constitution is the supreme law of this country, and it's inviolable for a reason -- because if you do what you're doing, it becomes meaningless, and our rights are ignored even worse than they already are.

I agree that we shouldn't contribute to the problem by creating another law that's Unconstitutional simply because it's in our best interests. However, the fact of the matter is that although the above laws you mention are unconstitutional, they are still laws. They haven't been repealed, or ruled unconstitutional by the SCotUS. So they stand, and we have to abide by them until someone steps up and challenges them.

I still stand by my above statement; however, with so many other unconstitutional laws on the books that hinder our rights, it's tempting to pass another one that helps us out for once, if it actually does what it claims.

[Rule10b5]

Originally Posted by theshadow

I always understood the full faith and credit to extend to licenses and the like (similar to what happend with drivers licenses). I agree strongly with you, if it isn't in the black and white English in the document, it don't exist camp, but don't understand how they can get away with saying that Drivers License, and Medical Licenses are one thing, but Licenses to carry concield <sp?> can't be covered.

Driver's license recognition isn't federally required. Driver's licenses are recognized, voluntarily by the states, under a system of mutual recognition that's virtually identical to the way CC permits are recognized, today. It's sort of a like a treaty between states. There's no federal law that says one state has to recognize the license of another.

Medical (or law) licenses are different. Many states don't offer mutual recognition. I'm admitted to practice before the Pa. Supreme Court (and a bunch of federal district courts, appellate courts, and the US supreme court) but I can't simply go down to DE and walk in to court. I have to re-take the bar, and complete a bunch of other requirements if I want to be licensed there. I can practice "pro hace vice" or for the case at hand, provided that I hire local counsel and move the court for temporary admission, but I can't practice as a matter of right. In other states, though, I can get admitted permanently simply by asking because there is an agreement between PA and that state. Take NY, for example, if I want to practice there, I pay the fee, make a motion, and I'm in, simply because they have an agreement with PA. Medical licenses are kind of between driver licenses and atty licenses. You're recognized, but you still have to pay the fee, do the paperwork, and maybe appear before a board meeting to answer a few questions.

The bottom line in all of this is that the Federal government doesn't force the states to do it -- they do it voluntarily, and they respect the sovereignty of the other states in the union.

ChamberedRound

I still stand by my above statement; however, with so many other unconstitutional laws on the books that hinder our rights, it's tempting to pass another one that helps us out for once, if it actually does what it claims.

I agree with you 100%. I actually, physically, drool, at the idea of walking into NJ or Maryland while carrying -- and rubbing it in to all of those bastards who've denied our rights for so long. The temptation to legally "ram it down their throats" is incredibly attractive. I'd love it. More than winning a couple hundred K in the lottery. It's even more tempting when you look at all the bs unconstitutional stuff that goes on every day -- it's hard not to be eager to say "Eh, screw it, who cares, me too" -- but we can't do it. That (as you explicitly state) is just starting down a bad path. Sure, others cut the first path, but I don't want to add my weight to smoothing that path into a road.

Edit to add: I'm an idiot, and I can't ever remember which html tag to use

[phillyd2]

Originally Posted by Rule10b5

I very rarely flame someone, and I'm trying to restrain myself. You took a shot at me, and you were snarky about it....

LOL And they wonder why the world so loves lawyers. There was no shot implied or tossed but thanks for your restraint. As others can tell you, my shots are in no way obscure. In other words, you will know it.

You are completely correct in your statement of how our system was set up but may I suggest pulling the head out of the law books and look around at the real world we live in. Hope that wasn't too snarky, whatever the hell that means.

While our more esteemed and better educated brothers in the law may debate the meaning of "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned." and "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed" until the cows come home, I dare say that the rest of us unwashed masses have no trouble understanding concepts such as "shall not be questioned" and "shall not be infringed". (BTW, this is not a slam against you, just a general statement).

Regardless of what You (or I for that matter) say Article 4 means, what matters is what the pinheads who pass and enforce the laws do with our most revered document. The perversion of the Full Faith and Credit Clause is mind numbing. All one needs to do is look at the attemped perverion in the case of same sex marriages. The only Clause more perverted is the Commerce Clause.

Nevertheless, may I suggest a deep breath and not being so easily offended. If you do then I'll let you in on a secret, you are right in much of what you posted especially "National concealed carry is unconstitutional". How you managed to interpret a different meaning from my original words (original intent, if you will) is a tad bit unnerving. Although the "negative" amendment thingy is quite a lawyerly twist as I see it as a very affirming statement when looked at from the citizen's point of view - we are and have been in almost total agreement.

Oh, and you mispelled "intrinsic"

[Rule10b5]

Originally Posted by phillyd2

Oh, and you mispelled "intrinsic"

Typo.

And I thought I told you to stop being snarky

I thought you were calling my position "sad" -- as in "I was so wrong that it is pathetic." My apologies for the misunderstanding.

[phillyd2]

Originally Posted by Rule10b5

Typo.

And I thought I told you to stop being snarky

I thought you were calling my position "sad" -- as in "I was so wrong that it is pathetic." My apologies for the misunderstanding.

Absolutely no apology needed. I was only saying (trying to say) that the entire state of affairs is "sad". Its like they took away my steak and want me to be thankful for the few crumbs they toss my way. Sen. Thune is a good guy but I would rather his efforts go towards returning our steaks!

Oh yeah, I know that I'm wishing for a rainbow but I'm fine with that.

Cheers!