Is Indiana's CCW permit system unconstitutional?

[Jim March]

Ah. So it's ignorance.

Sigh.

Go crack open a book...this one in particular:

http://www.amazon.com/The-Bill-Rights-Creation-Reconstruction/dp/0300082770

The extreme short form:

In 1833 the US Supreme Court agreed with you: states didn't have to honor the Bill of Rights. The case was Barron v. Baltimore and it was a case where the city (a subdivision of a state) messed up a guy's boat dock...in other words, a "wrongful taking" under the 5th Amendment. The Supremes said that states didn't have to honor any part of the BoR...same as what you want now.

Well it led to all kinds of civil rights violations and was a major cause of the Civil War (although the real damage took a while to set in). The 1856 Dred Scott case compounded the problem by stating that the US was always a racist nation, as were the colonies before (all sadly true) and that therefore racist laws were OK. They went so far as to cite horrible state-level racist laws of the early Federal period written by various members of the Founding Fathers. Not just from Southern states, either, they cited (correctly) a real stinker from Massachussets.

OK. So the Civil War happens, slavery ends (by Constitutional amendment, the 13th) and then Lincoln is killed. John Bingham steps up as the top civil rights guy (and he was actually better at it than Lincoln!).

Bingham and company immediately pass civil rights LAWS in the 1865-1866 period...decent overview here:

http://en.wikipedia.org/wiki/Freedmen's_Bureau_bills

Bingham tells them that this won't work, because as part of our system of limited government the federal government can only mess around in areas they are constitutionally permitted to act in.

Yeah. Let that settle in a bit, hmmm? Compare with your quote:

The issues could be addressed by federal LAW not by applying the COTUS to the states. The issue is not whether or not something could be done. It's what is the RIGHT "something".

When you talk about only using federal LAWS, you want to pee all over that concept and allow the federal government to do whatever they want, whenever they want, no limits. (Which much much later happened with the Commerce Clause abuses but we'll save that problem for another day.)

Never have I had a more urgent inclination to reach through the screen and slap somebody on TFL.

Instead, Bingham and company did exactly what they needed to do: a constitutional amendment, which in turn put the Feds into the civil rights protection biz AND NOTHING ELSE, plus they specifically overturned both the Barron v. Baltimore and Dred Scott decisions. Because the only way the legislature can overturn a US Supreme Court decision on Constitutional rights is to change the underlying Constitution that affected that decision. (Or in this case decisions.)

So. What we get out of the 14th (and Incorporation) is a situation where no one state is allowed to violate people's civil rights, BUT due to the de-centralized nature of the National Guard, if the Feds screw things up bad enough a decent majority of the states could bring the Feds back into line post-haste if they have to.

That's...actually, not a half bad situation.

Now all we need is stronger rights to prosecute criminals when the state and/or federal prosecutors refuse to do so because they're bought off en mass. Which is actually happening on a completely unprecedented scale but I don't think we need to discuss the criminal aspects of High Frequency Trading on Wall Street, the LIBOR scam or the worldwide market in derivatives just now, hmm? Oh, and fix that whole Commerce Clause thing but Gary Marbut and company are working on that: http://www.hcn.org/articles/montanas-top-gun-rights-advocate-has-a-national-impact/print_view - http://www.metnews.com/articles/2013/mont082613.htm

 

[Tom Servo]

What we get out of the 14th (and Incorporation) is a situation where no one state is allowed to violate people's civil rights

The problem is that the doctrine of incorporation is an improvised and inconsistent fix for a situation that shouldn't be in the first place.

 

[Jim March]

The problem is that the doctrine of incorporation is an improvised and inconsistent fix for a situation that shouldn't be in the first place.

If you're talking about the modern "selective incorporation via the due process clause" doctrine that the Supremes whipped up in the 20th Century (and Hugo Black railed against in Adamson, Thomas ripped up in Saenz) then yes, I agree, although I think it's better than nothing.

If you're talking about the original format John Bingham worked out in 1868, where we had full incorporation of the BoR via the Privileges or Immunities clause, then...no. I think that was downright elegant. But the court ripped that down in 1876 (final decision in Cruikshank) and then only started to build something else back up ("selective incorporation")...when was that, right after WW1, right?

 

[Brian Pfleuger]

Let's drop the thinly veiled insults, eh?

It's not ignorance, Jim. I know what it is and how we got it here.

I happen to disagree. I would suggest that the reason is the opposite of ignorance. Knowledge does not imply agreement.

The COTUS provides for a fully functional government. If the BoR applies to the states, why not the rest? What is the rationale for 50 different constitutions if they all must abide by the singular COTUS?

It doesn't make sense.

And the choices aren't "This or nothing."

There's a better way. Use federal LAW to enforce fundamental human rights against the states, if it's necessary. Otherwise, federal intervention should be extremely minimal.

If the states don't have a provision for the right to bear arms, which I believe they all do at this point, then enforce it with federal LAW not by forcing the COTUS against a state that already has a constitution. If the states DO have a Right to Bear Arms provision in their constitution or law, the violation is against THEIR OWN laws, not against the COTUS. The SCOTUS can decide the case based on the STATE law that applies, not on the COTUS.

And using federal laws doesn't allow them to do whatever they want... there's the COTUS! It DOES apply to them! They can't violate it, in theory. They do and they have but that's a different argument than what SHOULD be. There's a ton of abuses, of which the commerce clause is huge, but that's always been and always will be. Pointing out how a bunch of others things are screwed up or the implication that fixing one screwed up thing is going to further screw up or invalidate other screwed up things isn't really much of an argument for the current system. We could talk about fixing it all but that gets a little deep, I should think.

There are remedies that are simpler and don't result in the twisted and tortured "logic" that exists in the current system.

In any case, I'm afraid I've had a strong hand in pulling this thread of it's intended point... apologies to JimDandy...

back to the regularly scheduled program. Someone can start another thread on this Incorporation argument if they so desire.

 

[Jim March]

And using federal laws doesn't allow them to do whatever they want... there's the COTUS! It DOES apply to them! They can't violate it, in theory.

Oh boy. No, this is too important to let pass.

You are assuming the Feds can do anything they want unless they violate the Constitution - either the "core" constitution of 1788 or the Amendments.

You are still missing something: that isn't how it works. The Feds can only do those functions for which they have Constitutional (core or amendment) support.

They cannot do anything that they have NOT been granted powers over. Read the 9th and 10th Amendments again. (Yes, these have been severely violated recently - that's the "commerce clause" problem that Gary is working on.)

You keep saying "they should pass laws" against civil rights violations. They couldn't until 1868, because the core constitution and amendments 1-13 do not give them any authority over state civil rights violations.

Until 1868 the Feds were barred from enforcing state civil rights violations. Period, full stop. The 14th got them into the civil rights protection biz - and ONLY into that. Not anything else.

Your approach puts the Feds into everything.

Do you understand yet?

 

[Tom Servo]

Alright, kids. Uncle Servo's grabbing the steering wheel and yanking this thread back on track. Don't make me stop this car and come back there.

We've done incorporation elsewhere, and we've done it well. I'll refer members who are curious to do a search on some of the threads we had running during the McDonald deliberations.