CWP

[Frank Ettin]

Would you agree, though, that states which make the ONLY lawful way to carry a firearm is with a permit that a person must pay for, and pay for training to obtain that permit as infringing upon those rights? .... How is that not an unconstitutional infringement upon their rights?

[1] Although Heller clarified that the 2nd Amendment right to keep and bear arms is an individual right, we don't yet have a Supreme Court decision to the effect that the 2nd Amendment applies to the States. In fact, so far it does not (see Cruikshank and Presser). We're hoping to change that this year.

[2] It is very well settled in Constitutional law that Constitutionally protected rights may be subject to limited regulation. There is a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible.

[3] There are several levels of scrutiny thus far applied to regulation of various types of Constitutionally protected rights. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

[a] The regulation must be justified by a compelling governmental interest; and

The law or policy must be narrowly tailored to achieve that goal or interest; and

[c] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

[4] While it's not yet been established that strict scrutiny will be applied to regulation of rights protected by the 2nd Amendment, let's assume it does. That would be the best result for us.

[5] In such case, I wouldn't be inclined to bet that a State might not be able to make a case that a licensing requirement, including required training, an age threshold and background check, to lawfully carry a loaded gun in public, as long as on a "shall issue" basis, passes even strict scrutiny. (I have no doubt that a "may issue" scheme would not.)

 

[NavyLT]

Fiddletown,

May I offer this counter argument.

A must issue licensing system required to carry a firearm in any manner does not pass the government interest test. There is no government interest in licensing the carry of lawfully possessed firearms - it is already illegal for felons to possess firearms anyway. The government has already exercised it's interest in the existing purchase and possession laws.

The same is true for the age rule. Age limits regarding the possession of firearms are already in place, a system of licensure for carrying does not do anything in government interest that is not already done.

The permit system is also unconstitutional in that it is not the least restrictive means of accomplishing that goal. Why? Because not everybody can afford the permit. What if we required a $50 to $200 license to vote? Would that pass the restrictiveness test? The permit system unnecessarily restricts those that can't afford the permit and/or training.

 

[Frank Ettin]

...There is no government interest in licensing the carry of lawfully possessed firearms - it is already illegal for felons to possess firearms anyway...

That's not really the point. I suspect that the State would argue that its interest in licensing persons to lawfully carry loaded guns in public relates to public safety. I could conceive of the State arguing that it's appropriate to require, as a condition of carrying a loaded gun in public, that a citizen first demonstrate that he can safely handle a gun, that he has some reasonable minimum level of proficiency and that he has a least a basic understanding of the laws involving the use of deadly force.

Of course neither you nor I know what a State is going to argue such a question gets into court. We're just guessing, and that strikes me as a waste of time at this stage. We haven't even gotten the 2nd Amendment incorporated yet.

In any case, it's pointless for us to debate whether or not that represents a compelling governmental interest or whether it's properly served by a licensing requirement. If and when the question gets to court, it doesn't matter what you or I might argue; it matters what the parties argue. And it doesn't matter what you or I conclude; it matters what the court concludes.

 

[NavyLT]

That's true, but I don't think it is a waste of time to discuss the issues But, I suppose we could also discuss whether or not it is a waste of time all day long, too!

 

[wally626]

In VA the permit system offers advantages to a holder over a non holder, but serves no real purpose to the Commonwealth as whole over just not requiring permits. There are very few persons who could legally posses a gun and thus open carry in the Commonwealth who could not qualify for a concealed pistol permit. Those between the age of 18 and 21 and some persons convicted of a few misdemeanor offenses. Most out-of state persons would also qualify for a non-resident permit or have their own state permits recognized anyway. From a practical standpoint, I do not see the supreme Court requiring non-permit concealed carry or open carry or the Commonwealth passing a Alaska type carry law. I think we can assume the 2nd amendment applying to the states, and hopefully requiring shall issue permits without to burdensome requirements.

 

[Doc Intrepid]

Constitutional Rights and Administrative Fees...

Actually, I don't think the discussion is a waste of time - remember, not long ago concerns were raised over state control (fees/permits) over ammunition and primers, etc.

I suppose that the conversation going on might hinge on how you define the word "bear"...

You have a constitutional right to "bear" arms...

what precisely does "bear" mean in a legal sense: bear where? bear when? (bear how?)



The matter of constitutionality might, as NavyLT notes, be more clearly debated if the fee for a permit were raised to ludicrous levels -

say something like $20,000 for the permit.

You may have a constitutional right to bear arms, but if you cannot afford the administrative fee levied by the state to do so, then the "right" is moot.

(When is a constitutional right not really a right? When you can't afford it?)

It would certainly seem that an argument could be made that permit fees being required for something that is defined as a "right" are dubious at best.

You have a constitutional right to freedom of religion. Would you pay a required (State) permit fee to join a church?

If, on the other hand, you agree that an administrative fee established by States is legal, so long as it is reasonable, why then you're only dickering over the price of it...

say somewhere between .01c and $20K.

(And, once you agree to that, the State is free to raise the price over time...)

 

[Frank Ettin]

...I suppose that the conversation going on might hinge on how you define the word "bear"...

Probably not. Based on established legal doctrine, it will be a question of whether the regulation passes whatever level of scrutiny the Supreme Court decides applies to the rights protected by the 2nd Amendment. If it's strict scrutiny, the three prong test is outlined in post #41 would apply.

In any case, the Constitutionality of regulation of rights protected by the 2nd Amendment will no doubt be assessed using one of the levels of scrutiny used by the courts for that purpose when other rights are involved:

[1] Strict scrutiny as outlined in post #41;

[2] Intermediate scrutiny, i. e., does the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest; or

[3] Rational basis, i. e., is a governmental action a reasonable means to an end that may be legitimately pursued by the government.

It would be extremely unlikely that we would see the rational basis test applied. That test has not been applied to rights explicitly enumerated in the Bill of Rights.

...The matter of constitutionality might, as NavyLT notes, be more clearly debated if the fee for a permit were raised to ludicrous levels -

say something like $20,000 for the permit....

Because a ludicrous fee would not pass strict scrutiny, if that was the level of scrutiny applies. It wouldn't even pass intermediate scrutiny, and probably not even the rational basis test.

...It would certainly seem that an argument could be made that permit fees being required for something that is defined as a "right" are dubious at best....

That question would still be one to be decided by application of the level of scrutiny that the Supreme Court decides will apply to the rights protected by the 2nd Amendment.

...You have a constitutional right to freedom of religion. Would you pay a required (State) permit fee to join a church?...

Perhaps not to join a church. But I do believe that if you want to build a church you must still secure the appropriate building permits.

...If, on the other hand, you agree that an administrative fee established by States is legal, so long as it is reasonable, why then you're only dickering over the price of it...

But even the question of price will be considered under the applicable level of scrutiny that the Supreme Court decides will apply to the rights protected by the 2nd Amendment.

 

[44 AMP]

Remember the old joke?

A man asks a woman if she would sleep with him for a million dollars. She thinks about it, and decides a million dollars is a lot of money, and tells him that for a million dollars, she would.

Man then asks if she would sleep with him for $10. The woman is outraged, replies, "What kind of woman do you think I am?!"

He answers. "we've already established that, now we are just discussing the price!"

 

[Frank Ettin]

..."What kind of woman do you think I am?!"

He answers. "we've already established that, now we are just discussing the price!"

Of course any kind of CWP requirements will infringe the rigth to bear arms. But the courts have a long history of sustaining various infringements of or abridgments of or interferences with Constitutionally protected rights if they pass the applicable level of scrutiny test. And cost could be a factor in that analysis.

 

[Doc Intrepid]

44 AMP,

Oddly enough, that exact aphorism was going through my mind when I wrote that post!




fiddletown,

Thank you for the edification.


Doc

 

[brickeyee]

Of course any kind of CWP requirements will infringe the rigth to bear arms. But the courts have a long history of sustaining various infringements of or abridgments of or interferences with Constitutionally protected rights if they pass the applicable level of scrutiny test. And cost could be a factor in that analysis.

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Terminiello v. Chicago, 337 U.S. 1 (1949), Robert H. Jackson dissenting.

 

[gearchecker]

In Idaho concealed weapons licence is only for carrying concealed.

It is legal to open carry any place not excluded by law.

You can have a loaded firearm in your vehicle even without a concealed weapons license as long as the firearm can be seen clearly from any "reasonable viewpoint from outside of the vehicle to view what is inside the vehicle".
Loaded rifle on gunrack - Okay.
Loaded pistol lying on the dashboard - Okay.
Loaded pistol in a glove box or armrest - Not Okay (Can't be clearly seen)
Loaded pistol sitting openly on the passenger seat - Okay

If you get stopped with a loaded firerarm in the vehicle, let the LEO's know immediatly on contact with them that there is a loaded gun in the vehicle and where it is, before you begin to move about.
You will probably have the vehicle searched, but no issues if there's not one concealed without the license.

Concealed carry is totally different altogether.

 

[NavyLT]

1. You will probably have the vehicle searched, but 2. no issues if there's not one concealed without the license.

1. On what grounds? That you told them about a lawfully possessed firearm in the vehicle?

2. Never, ever, CONSENT to a search, regardless of whether or not you think you have nothing to hide. EXCEPT for a frisk of the outside of the clothing during a lawful Terry Stop for the presence of weapons for officer safety only - and that is only during a lawful Terry Stop. If the officer is not officially detaining you, but only wants to talk to you about something, do NOT CONSENT to a frisk then.