CCW National Reciprocity
- Thread starter CAPTAIN MIKE
- Start date
Equal protection only involves so-called fundamental rights, of which the 2nd Amendment has never been declared. Much like the selective incorporation doctrine, the 2nd gets short shrift in this respect.
But again, this is all hypothetical as it applies to non-LEOs (since upon the same basis the law allowing nationwide/interstate carry for LEOs of any particular state has passed and is now law).
Hugh Damright
New member
Shaggy, do you have any respect at all for the Constitution?
fed authority would have to come from the commerce clause (90% of all federal legislation rests on ther commerce clause and the taxing power)....IF they intend to utilize authority constitutionally at all (they don't always you know)...the bill of rights was intended to apply only to the Fed Gov't as the new states were suspicious of it...the bill of rights has been applied to the states thru a dubious doctrine called "incorporation" dreamed up by the Sp Ct. in the FDR yearsand is how they end up running our jails and schools and such from the federal court house...in fact, not all of the bill of rights has yet been so incorporated...BUT, why is this nec if the states permit carry? it is only in states that do not have CCW laws the problem really arises and there..any of us who actually USES his sidearm better have a firm grip on his legal backside! Better, I think to let nature take its course..more states come up with CCW laws every year seems like and reciprocity is becoming more common and the state can enter into a "compact" as they have on driver's licenses for instance to achieve uniformity)...this is probably better than federal intervention...the feds run everything about as well as they run D.C. (not very damn well that is)....in trhe meantime if you enter a nonCCW state stay sober, don't speed and keep your gun out of sight!
just for anyone who may care..the incorporation doctrine arose after the questionable adoption of the 14th amendment by the radical repubs after the Civil War...the latter section of the 14th amend changed the nature of the USA forever...substantially increasing federal authority over states...the adoption of the 14th amend is interesting.. the recently re-admitted rebel states were permitted to vote on the 13th amend, (slavery) but NOT the 14th! (?)...so no majority of states ever approved it..and some states tried to withdraw their ratifications (new jersey, Oregon and another 1 or 2 maybe)...and it is by "incorporation thru the 14th amend" the feds reverse the consitution from a limit on their power..to a limit on the states! Not encouraging rebellion here, just a history lesson...check it out in the internet some..and read the NJ and Oregon motions in Congress to withdraw their votes...those non-rebel states noted the problem rather well....but the 14th stands and in still being used to expand the federal role over the states, for better of for worse...kind of got off track, but having mentioned it I thought maybe some explanation was in order...
Hugh Damright
New member
But the commerce clause does NOT delegate federal authority over CCW. This commerce clause talk is just a thinly veiled attempt to get around the Constitution's separation of State and Federal powers. CCW has always been considered to come under the police powers reserved to the States.
The Commerce Clause delegates federal authority over anything that can come under the purview of "interstate commerce" as defined by current caselaw. Where state laws encroach or interfere with an area of federal jurisdiction, the federal law trumps the state. If the feds wanted to regulate CCW either for or against, they could under the commerce clause, and as the regulation of interstate commerce is an area of federal jurisdition, the federal law would supersede the state law. The police powers reserved to the states are only enforceable to the extent they do not interfere with, or encroach on an area of exclusive federal jurisdiction. If a federal law passed mandating a nationalized CCW under the guise of interstate commerce, a state could not then create their own CCW laws in conflict with the federal law. Show me where in the Constitution it states the STATES have authority over CCW. CCW has been considered a state issue only because Lopez notwithstanding, the federal government has not seen fit to regulate it at the federal level. If there was a will (and the votes in Congress) to regulate it at the federal level, it would happen, and it would happen under the guise of interstate commerce.
Yes I do, and apparently I also have a far better understanding of how the system works. I don't like the overreaching use of the commerce clause thats been the rule since Wickard anymore than you, but its not going to change anytime soon. All I'm saying its high time we learned to use it to our advantage, rather than waste our time crying over spilled milk that not going to unspill. I asked others to show me some caselaw or evidence that the use of the commerce clause is being curtailed as a basis for federal legislation - so lets see what you got. The fact is this type of use of the commerce clause is not going to change - its a fact of life we're going to have to learn to live with. There are too many federal agencies, federal government employees, and too many citizens who rely on the institutions created under legislation passed under the guise of interstate commerce for it to change now. The SCOTUS is not going to cut the throat of big gevernment. If you think in Raich or Stewart the government is going to reverse 70+ years of commerce clause jurisprudence, and eviscerate 50-80% of the federal government and federal legislation in one fell swoop, you need to put down the crack pipe.
Hmmmm... yes, just as HR218 (18 USC 926B) did. Yeah, that really screwed over LEOs from gun friendly states.
Care to explain the difference? Especially in light of the new nationalized DL's that can (and in all liklihood will) contain criminal history records and other info which would be pertinant to lawfull CCW?
I eagerly await your answer.
Begging the question and dodging the issue. Those restrictions are kinda the point, huh? So the police of any state or municipality in the country are somehow 'better' than an average citizen and more deserving of a right to carry?
If you were from a state like VT where there was no restrictions on CCW and could walk into NYC legally carrying (with nothing more onerous than a notation on your DL), how long do you think it would be before the residents of NY forced the NY legislature to ease up on their restrictions so NY residents would have the same rights in their own state as an out of state resident temporarily visiting?
That's the point. Federal reciprocity would never pass without setting minimum standards for permit issue. Places like New York, California and Massachusettes have much more voting power than places like Vermont and Alaska, and they won't stand for having tourists from VT carrying legally in thier states without a permit. This means the gun friendly states will be forced to become less gun friendly to accomadate the wishes of the gun unfriendly states with more voting power if CCW was regulated at a Federal level.
Baloney. And I can point to 926B as evidence. Do you see any minimum standard there? Employment as a LEO, but other than that, there is no minimum threshhold of training, testing, or service, nor is there a federalized standard. If you are or WERE employed as a LEO by any po-dunk LE agency - even as the desk clerk at a two man PD in Mayberry you can carry almost anywhere in the country now. If a state like VT allows its citizens to carry with no restrictions or testing, they should be allowed to carry anywhere in the country just like a LEO from some small town PD in VT.
Hugh Damright
New member
Well let's try it this way Shaggy ... suppose you are a Supreme Court Justice and you have to rule on a federal law which has banned CCW in every State. The law is challenged on Tenth Amendment grounds, with the assertion that CCW powers are reserved to the States, and the defense says that the interstate commerce powers makes CCW a federal issue. How you gonna rule Judge Shaggy? Will you say the feds have exceeded their power, or will you say that the commerce clause includes CCW powers and let the ban stand?
Not at all, I feel that anybody who can legally own a firearm should be able to carry unrestricted. The fact that congress seems to feel that only people with LEO experience should be granted that right only illustrates the point that the Federal government does not agree with me. Sure, there might be a time when a fight for national CCW at the Federal level would be appropriate, but I think the fight right now is at the state level. We need more Vermonts and Alaskas on our side first.
Based upon stare decisis and current CC jurisprudence, despite my personal feelings to the contrary, I'd probably have to let the law stand. Not that I'd like to, but can you make a viable argument that CCW is reserved to the states in the face of legislation based upon a significant nexus to interstate commerce? Does the Supremacy Clause mean nothing to you? Were I a judge I'd have to look at the motions, brief, and caselaw presented by the parties - can you make me an argument for your position and support it with caselaw? Or would you rather have judges ignore precedent and rule based upon their own personal feelings?
(edited to add...)
OTOH, while I might very well accept the notion that the CC has been abused for 70+ years and anything loosely based upon a nexus to interstate commerce should be thrown out, that doesn't change the fact that I'd only be one vote in 9. Again, I ask you to show me something to support the assertion that commerce clause jurisprudence is getting anything but more expansive in its area of control. Fact of the matter remains, despite my own feelings, the CC is going to continue to be overused and abused to give the federal government more control over the states and as a proxy for a federal police power. Nothing is going to change that fact. Either learn to live with it - adapt and overcome - or continue to whine about it while achieving nothing.
And thats the crux of the matter. You think the fight is now at the state level. Thats all well and good, but for the purpose of this discussion of a hypothetical law, all I'm saying is that it could be moved to the federal level as 926B was. Obviously, similar legislation HAS been passed at the federal level based upon a nexus to interstate commerce, so such legislation could be introduced (at the very least) to provide similar privileges to non-LEOs. Of course there would have to be some differences and changes (since a non-LEO has no LE ID) but with the federalized DL's there is no reason state CCW info couldn't be maintained on a DL for easy recognition.