Banning Concealed Carry

[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]

Marriage is a peculiar beast.

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]

challenge CCW in Kali

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]

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]

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.

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.