But isn't this essentially the reason so many of us wanted this bill to pass? Because we see this as later down the line, MAYBE? If this decision comes say 3 years from now, that's 3 years of not being able to protect ourselves, family, the way we want, in other states. As there hasn't been any movement or word from the SCOTUS on that fundamental right, with no timetable, this bill was our next best thing. As I said though, the NEW version causes concern, but the ORIGINAL would have been fine with us in and around more restrictive states. "Stay the course", has been something of a rallying cry from those whose states have reciprocity already. "Stay the course", for those in states without reciprocity means more of the same, which ain't all that palatable.
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But isn't this essentially the reason so many of us wanted this bill to pass? Because we see this as later down the line, MAYBE? If this decision comes say 3 years from now, that's 3 years of not being able to protect ourselves, family, the way we want, in other states. As there hasn't been any movement or word from the SCOTUS on that fundamental right, with no timetable, this bill was our next best thing. As I said though, the NEW version causes concern, but the ORIGINAL would have been fine with us in and around more restrictive states. "Stay the course", has been something of a rallying cry from those whose states have reciprocity already. "Stay the course", for those in states without reciprocity means more of the same, which ain't all that palatable.
Spats McGee
Administrator
You are correct. Either way, it's a maybe. Maybe Congress will pass HR 822, maybe SCOTUS will vindicate gun owners in the restrictive jurisdictions. But having SCOTUS declare that RKBA to be a fundamental individual right doesn't put the camel's nose under the tent the same way that this does. Having many states adopt a "Mutual Concealed Carry Compact" doesn't invite the federal government into state affairs, and accomplishes the same thing, without risking having a few states shut down CC altogether to get themselves out of 822. If you'd like, I'll be glad to see if I can figure out who at the ABA would draft such a beast and post their contact information.icedog88 said:
The old version also included language that would have allowed a State to simply prohibit any and all CC, which would have simply meant that nobody could CC there. Period. HR 822 would not have affected those states, in either form. States don't get to opt out of a SCOTUS decision.icedog88 said:
"Unpalatable" is a nice way of putting it. I would not have been so kind. Another alternative is to start working on reciprocity between your state and those in which you travel (which I'm sure you already know). For the most restrictive states, there is little or no hope, but the remedy to that is at the ballot box. I know that it sucks to hear that, and y'all who have to deal with the restrictive states absolutely have my sympathy.
But realistically, not theoretically, can you honestly say that a state would do that knowing that the lawmakers voting for such would face being voted out? I may have missed it during the hearings, but I don't remember any state threatening this.
I bet a poll of forum members would prefer a SCOTUS decision overwhelmingly, so I don't think that is even debatable. But as of right now, there isn't a case before them that we are waiting for in terms of right to carry being constitutional is there?
As of this moment, I am going to shoot an E-mail to my Congressman (Dem I might add) who voted in favor of HR822 to ask why we haven't worked on reciprocity BEFORE this bill came to a vote.
This was a response to a question asked of him by myself on HR822
Spats McGee
Administrator
I haven't watched the hearings, but I also can't remember anyone saying that states had threatened to entirely block CC. (That may not help my argument, but it's the truth.) With that said, my crystal ball is a little foggy these days, but yes, I do honestly believe that some states might simply prohibit CC. That's one of the simplest ways to get out of having all those pesky CCers from getting to carry in your state (at least in the short run). Here's the rub: The lawmakers who would vote to ban CC outright . . . probably do not face a significant risk of being voted out of office. Remember, they live in jurisdictions where control has been, and is, still accepted. Changing those laws is a slow, messy process, and in your case, it's a matter of trying to change the laws of a neighboring state. That's even messier.icedog88 said:
Edited to add: The possibility that other states might prohibit CC and, in so doing, might effectively opt out of 822 is of smaller concern to me than having the feds decide that uniformity is needed, though. I'm much more concerned about the implementation of federal CCL standards.
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Another question as to the SCOTUS ruling on a constitutional right to carry. If such a ruling were to come down, does that not open a whole new can of worms? This could mean that my constitutional right to carry could trump states rights in regards to where they say I could not carry in said state no?
Just a thought.
Just a thought.Right. States like Illinois and New York have the option of weaseling out of compliance with something like HR 822, but not a Supreme Court ruling.
States can set their own policies and practices to a point, and they may be entitled to enact some regulations on firearms, but they cannot abrogate the 2nd Amendment completely. That was pretty much the point of the 14th Amendment, and of the McDonald decision.
Then this would seem to be a quandry for the antis. If they don't help pass HR822, then the next thing they could face might possibly be a SCOTUS decision which they can't opt out of. Seems to me like they would jump at this one where they have choices rather than let the opportunity pass by. This just doesn't make a whole lot of sense to me why they aren't jumping at this. While I disagree with the Dems (most of the antis) on most things, I will not call them dumb because i do disagree fundamentally with them. That being said, it would be stupid for them not to help pass this then IMO.
Spats McGee
Administrator
Yes! That is exactly one of the points I've been trying to make. Forgive me for not being clearer. If SCOTUS says that RKBA is an individual, fundamental right, then your individual, fundamental right to keep and bear arms will (or should) trump a neighboring State's right to say that you cannot carry in their territory.icedog88 said:
Perhaps a quick lesson in judicial scrutiny would help. If you (or any other reader) already knows this, then accept my apologies and just skip over this part.
Whenever a constitutional challenge is mounted as against a law, there are three levels of scrutiny that the court can apply. We (RKBA folks) have not yet gotten a SCOTUS decision that spells out which level applies to the 2A cases.
1) Rational basis -- The law is presumed to be constitutional and if there is any rational basis for enacting the challenged law, it will be upheld. This is basically a "challenger loses" rule.
2) Intermediate scrutiny -- (I'll have to use a First Amendment case for this one.) Under intermediate scrutiny, a "need not be least speech-restrictive means of advancing government's interests, provided that means chosen do not burden substantially more speech than is necessary to further government's legitimate interests." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) -- In other words, a law need not be the least restrictive means available to accomplish the gov't's goals, but it cannot "substantially burden" other rights.
3) Strict scrutiny -- If SCOTUS decides that the 2A right is an individual, fundamental right, then strict scrutiny will apply. Under this analysis, the law is will be held constitutional "only if [it is] narrowly tailored measures that further compelling governmental interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995). This one shifts the burden to the government to show that: (a) that there is a compelling government interest which is supported by the law at issue, and (b) that the challenged law is narrowly tailored to meet the interest. -- This is the one we want.
And yes, it is quite the quandry for the anti-gunners, isn't it?
Spats McGee
Administrator
If that happens, we're screwed. Fortunately, the 2A is pretty plain on its face, and such a decision would require an extremely quick reversal of fortune to happen. Heller and McDonald are both recent cases, and SCOTUS isn't going to 180 on us that quick, IMO.
Edited to add: Don't feel bad about being "unpolished" in the law, icedog. There's no reason to. If you don't ask, you don't learn. If you don't learn, you can't correct the next anti-gunner you come across.
Edited to add: Don't feel bad about being "unpolished" in the law, icedog. There's no reason to. If you don't ask, you don't learn. If you don't learn, you can't correct the next anti-gunner you come across.
I believe individual rights did trump state and Federal rights as I read the constitution. In fact, the Bill of Rights with the 2A was to assert individual rights above state and Feds.
As far as the SCOTUS rulings, all we need is one more liberal/anti-gun vote on SCOTUS to completely undo all of the findings of McDonald and Heller. Elections do matter. If Heller/McDonald were 5:4 against, we would not even have this discussion today.
If the Second Amendment were so plain, then why are we having this little gab fest? lol. I believe it is, we may as a group believe it, but obviously to others it isn't. See, I look at it this way. If SCOTUS is the end all be all, then we use it as a last resort to HR822 being shot down, if we are confident that it would stand up to Supreme court rule that is. If the Supreme Court does rule against the constitutional right, then as Spats so eloquently put it, we are screwed. There is no guarantee they will rule in our favor, right?
** Disclaimer** *All opinions come from being at work for 13 hrs so please disregard if babbling
. There is no guarantee they will rule in our favor, right? ** Disclaimer** *All opinions come from being at work for 13 hrs so please disregard if babbling
**Disclaimer*** All opinions are those of a redneck, right wing who lives in Idaho by choice of freedoms here that are absent in so many other states. LOL
Yes, we are truly only one SCOTUS justices vote away from overturning all of these recent gun rights gains. Four more years of the current administration and the opportunity to install anti-gun judges is the scariest part of the upcoming election. Our wins have been 5:4. One judge can make it 5:4 against. SCOTUS has been friendly to us in the last few years, but that was after 8 years of the Bush supreme court. We already have 2 new anti-gun justices in the last 3 years. If one of our conservative justices retires before we have a conservative president, all bets are off for SCOTUS favorable gun decisions. SCOTUS is subject to political trends unfortunately. I don't believe that was the intent of the founding fathers, but it is the reality of today. It doesn't leave us with much assurance in the long run.
All we need to do is look at what happened to gun rights in New Orleans after Katrena to know how tenuous our gun rights really are even with SCOTUS support over the last couple of years. That was during a conservative Republican administration. Tenuous is the operative word.
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Spats Mcgee,
Isn't the point of Heller that the Court decided that the 2A is an individual right? (Forgive me, I haven't read it recently and don't recall the details.) Under McDonald, the Court explicitly extended that right to the states under the 14A. Then, in my mind, it's more a question of the extent of the individual right present in the 2A, not whether it exists. Even under 1st Amendment doctrine, states have the right to regulate to a certain extent. Of course, the Court has been hearing 1A cases for decades and we have much more case law discussing how far 1A rights go, when states may restrict those, etc. Currently, under the 2A, all we know is that neither the federal nor the state governments can prevent you from owning a gun. Whether they can prevent you from carrying it, is the next question.
As an aside, it seems to me, based more on intuition than a well-reasoned argument, that if SCOTUS does address this issue within the next few years, they'll find a way of avoiding any determination of whether the 2A recognizes a fundamental right. If they did address it and come to the conclusion that it is a fundamental right, that would be a good day. I welcome more thoughts on this point because I certainly don't know.
Isn't the point of Heller that the Court decided that the 2A is an individual right? (Forgive me, I haven't read it recently and don't recall the details.) Under McDonald, the Court explicitly extended that right to the states under the 14A. Then, in my mind, it's more a question of the extent of the individual right present in the 2A, not whether it exists. Even under 1st Amendment doctrine, states have the right to regulate to a certain extent. Of course, the Court has been hearing 1A cases for decades and we have much more case law discussing how far 1A rights go, when states may restrict those, etc. Currently, under the 2A, all we know is that neither the federal nor the state governments can prevent you from owning a gun. Whether they can prevent you from carrying it, is the next question.
As an aside, it seems to me, based more on intuition than a well-reasoned argument, that if SCOTUS does address this issue within the next few years, they'll find a way of avoiding any determination of whether the 2A recognizes a fundamental right. If they did address it and come to the conclusion that it is a fundamental right, that would be a good day. I welcome more thoughts on this point because I certainly don't know.
Spats McGee
Administrator
GI Sandv,
I haven't read Heller in a while, but I think you're correct. I think that SCOTUS has said that the RKBA is an individual right, and that what we need now is for SCOTUS to declare that it is a fundamental right.
I haven't read Heller in a while, but I think you're correct. I think that SCOTUS has said that the RKBA is an individual right, and that what we need now is for SCOTUS to declare that it is a fundamental right.
Spats McGee
Administrator
Pretty much, yes. I tried to find contact information for whoever drafts model codes and compacts today, but no luck so far. Will look again another day.icedog88 said:
Am I the only one that thinks that model concealed carry codes and a recognition compact is a good idea?
How far we have strayed from the 2A:
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.
So far all we have the right to keep arms by the recent SCOTUS decisions. Where is the right to bear arms allowed without some sort of permit noted. That is not a right to have a CCW, that has now become a privilege. We only have a handful of states that allow true constitutional carry.
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.
So far all we have the right to keep arms by the recent SCOTUS decisions. Where is the right to bear arms allowed without some sort of permit noted. That is not a right to have a CCW, that has now become a privilege. We only have a handful of states that allow true constitutional carry.