Murdock v. Pennsylvania and The Second Amendment

[steve4102]

I came across this article from the American Thinker .

The author makes some interesting correlations between this SC ruling in 1943 and today’s assault on the Second Amendment.

https://www.americanthinker.com/art..._gun_licensing_fees_are_unconstitutional.html

Does this have merit, or is the author, like most of us, way off base when it comes to The Law?

 

[Aguila Blanca]

He is attacking fees applied to the purchase or registration of firearms. Even not knowing about the Murdock case, I would agree that imposing a tax or fee to engage in a constitutionally-protected right is not permissible. However, I would take it a step further: I think that -- on the same basis -- all permitting schemes for carrying firearms are unconstitutional.

On the basis of Murdock, though, a state might then argue that, "Okay, we'll eliminate the fee -- but you still need a permit to carry a gun." And I respectfully submit that even that is (or should be) unconstitutional. We don't need permits to worship. We don't need permits to write letters to the editor, or to our elected representatives. The RKBA was one of the rights that the Framers were most concerned about preserving, so the notion that today we need a permission slip from the nanny state before we are graciously allowed to engage in the right is unacceptable.

 

[zukiphile]

Does this have merit, or is the author, like most of us, way off base when it comes to The Law?

Sometimes an argument with merit doesn't reflect the law until someone makes it at the right time.

On the basis of Murdock, though, a state might then argue that, "Okay, we'll eliminate the fee -- but you still need a permit to carry a gun." And I respectfully submit that even that is (or should be) unconstitutional. We don't need permits to worship. We don't need permits to write letters to the editor, or to our elected representatives. The RKBA was one of the rights that the Framers were most concerned about preserving, so the notion that today we need a permission slip from the nanny state before we are graciously allowed to engage in the right is unacceptable.

I like that argument very much, but let me offer the inevitable contrary view. All of our rights, even the fundamental ones, are subject to state regulation. You have a right to marry, but the state can restrict who you marry. You have a right to travel, but the state can tell you how fast to travel. You have rights to use of your own real property, but the state can enforce standards for the electrical and plumbing work in new construction.

The regulation of these rights by the states arguably enhances the exercise of the rights. They define the rights of the parties in marriage. They make travel safer, or increase property values with uniformly applied standards.

How does that fit with state burdens on the right to arms by non-criminal adults? Voting is such a right, and we require a state ID and an expensive background check under penalty of perjury in order for people to vote...

OK. Bad example. We wouldn't let people publish potentially dangerous books if they had a history of domestic abuse or mental illness...darn - that doesn't work either.

We certainly wouldn't give a convicted felon access to a jury trial...., but of course we do.


The burdens on the right of gun possession don't obviously have the effect of making effective use more effective. On the contrary, they seem calculated to dissuade exercise of the right itself, or if exercised to make the right less effective. The burdens offered aren't just peripheral issues attached to an obvious core of common sense state regulation; they are a manifestation of opposition to the right itself.

 

[mehavey]

It's always interesting to revert to basics... and muse on how far we have 'progressed'
https://nccs.net/blogs/articles/the-power-to-tax-is-the-power-to-destroy

 

[Aguila Blanca]

I like that argument very much, but let me offer the inevitable contrary view. All of our rights, even the fundamental ones, are subject to state regulation. You have a right to marry, but the state can restrict who you marry. You have a right to travel, but the state can tell you how fast to travel. You have rights to use of your own real property, but the state can enforce standards for the electrical and plumbing work in new construction.

The regulation of these rights by the states arguably enhances the exercise of the rights. They define the rights of the parties in marriage. They make travel safer, or increase property values with uniformly applied standards.

How does that fit with state burdens on the right to arms by non-criminal adults? Voting is such a right, and we require a state ID and an expensive background check under penalty of perjury in order for people to vote...

I know that the usual argument is that "All rights are subject to [reasonable] regulation." And it has been on that basis that a few states' highest courts have taken the approach that that RKBA can't be prohibited but it can be regulated, so if concealed carry isn't allowed then open carry must be allowed. That's how Ohio got concealed carry permits.

I'm not a lawyer, I'm just an aging wordsmith. My view (which, as far as I know, has not even been entertained for consideration by any court anywhere in the U.S.) is that the Second Amendment is the only one of the rights in the Bill of Rights that says -- right in the text of the amendment itself -- that it is NOT subject to regulation. What is regulation if it's not an infringement? And the 2A says the RKBA shall not be infringed. IMHO, that means it's not subject to regulation -- any regulation.

"But what about criminals?" you ask. The RKBA is a civil right. (Yeah, yeah, I know -- "It's a fundamental human right.") In legal terms, it's a civil right, guaranteed by the Constitution. But criminals, upon conviction, lose certain civil rights, and I don't see it as a logical contradiction to say that, although the RKBA cannot be regulated for law-abiding citizens, it can be taken away from convicted criminals.

 

[zukiphile]

My view (which, as far as I know, has not even been entertained for consideration by any court anywhere in the U.S.) is that the Second Amendment is the only one of the rights in the Bill of Rights that says -- right in the text of the amendment itself -- that it is NOT subject to regulation. What is regulation if it's not an infringement? And the 2A says the RKBA shall not be infringed. IMHO, that means it's not subject to regulation -- any regulation.

It isn't that you're wrong, it's just that we've lost that argument so completely that a path to transforming that into a real legal doctrine isn't a possibility, and least not by any path I foresee.

"But what about criminals?" you ask. The RKBA is a civil right. (Yeah, yeah, I know -- "It's a fundamental human right." In legal terms, it's a civil right, guaranteed by the Constitution. But criminals, upon conviction, lose certain civil rights, and I don't see it as a logical contradiction to say that, although the RKBA cannot be regulated for law-abiding citizens, it can be taken away from convicted criminals.

Somewhere around here there is a link to Amy Barrett's reflection on the history of felonies as a civil death that closely mirrored actual death. "But what about criminals?" only arises if you criminalize behaviors that don't merit death. If you kill a dozen women and hide their remains under the floorboards of your home, of course you shouldn't vote or have a firearm, but for a long time that wasn't an issue after you were executed.

Now a felon can be someone who overbilled medicare, lied on his tax return or bought a gun for someone to get a discount.

 

[Frank Ettin]

As usual, things are more complex in real life in the real world. And many non-lawyers who point to Murdock have not read the entire decision, nor have they necessarily looked at the body of decisional law dealing with burdens imposed on constitutionally protected rights. Even the article linked to in the OP links to the syllabus in Murdock, not the opinion.

However, the Supreme Court has consistently ruled that rights protected by the Constitution are not absolute and that under the correct circumstances may be regulated.

• The Supreme Court says as much in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81 (1943), at 110:

  … See for example Cox v. New Hampshire 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396, and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But that merely illustrates that the rights with which we are dealing are not absolutes. …

  
  Murdock involved a burden on a right protected by the First Amendment applied to the States through the Due Process Clause of the Fourteenth Amendment.
  
  
• As further illustration of principle see —
  
  
  • Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031(1942), at 571-572:

    …Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem …

    
    
  • In Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396 (U. S. Supreme Court, 1941) the Supreme Court upheld as valid and enforceable a municipal ordinance which burdened the exercise of a right protected under the First Amendment (applied to the States through the Due Process Clause of the Fourteenth Amendment) by requiring a permit, for which a fee was charged, to hold a parade or procession on the streets.
    
    
  • In Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court upheld a Colorado law which restricted rights protected under the First Amendment (applied to the States through the Due Process Clause of the Fourteenth Amendment) by restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility.
    
    
    • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
      
      
    • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):

      ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).
      
      By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

    
    
  • Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), at 629 (emphasis added):

    ...our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement….

    
    Shapiro involved a burden on the constitutionally protected right to travel.
  
  
• In all such cases the Court analyzes the nature and significance of the right, the nature and extent of the the burden, and the importance of the governmental interests furthered by the imposition of the burden as part of the process of deciding whether a particular law regulating a right protected by the Constitution is, or is not, constitutionally permissible.

 

[ATN082268]

[*] In all such cases the Court analyzes the nature and significance of the right, the nature and extent of the the burden, and the importance of the governmental interests furthered by the imposition of the burden as part of the process of deciding whether a particular law regulating a right protected by the Constitution is, or is not, constitutionally permissible.[/List]

What I am curious about is if the courts take into account not only the burden of the law in front of the court but the burden of that law in conjunction with existing laws.

 

[Frank Ettin]

What I am curious about is if the courts take into account not only the burden of the law in front of the court but the burden of that law in conjunction with existing laws.

It's conceivable that in an appropriate case a court would do so. And, in an appropriate case, a party could argue that a court should do so.

But finding out if it's ever happened is a much larger research project than I'm inclined to undertake right now.

 

[ATN082268]

It's conceivable that in an appropriate case a court would do so. And, in an appropriate case, a party could argue that a court should do so.

But finding out if it's ever happened is a much larger research project than I'm inclined to undertake right now.

It sounds like the courts generally don't take into account other existing laws when ruling on a law. In my opinion they should always take into account other laws as a law doesn't operate in a vacuum but with other laws. If a law, for example had 20,000 gun laws and was ruled unconstitutional, then why would it be constitutional if it were done in 20,000 parts?

 

[Frank Ettin]

It sounds like the courts generally don't take into account other existing laws when ruling on a law....

Except I've only seen a few cases in which other laws were really material to the analysis. And when another law was material, it was considered.

So, for example, the 9th Circuit panel deciding the first Young v. Hawaii and concluding that Hawaii law prohibiting the open carry of firearms was impermissible, considered the fact that the 9th Circuit had previously ruled that concealed carry was not constitutionally protected.

But real connection needs to exist, and it often doesn't.

 

[Aguila Blanca]

If a law, for example had 20,000 gun laws and was ruled unconstitutional, then why would it be constitutional if it were done in 20,000 parts?

Keep in mind that that 20,000 gun laws estimate takes into account the entire country, and includes federal, state, and local laws. No single person is subject to all of them at the same time. For example, my home town has a local ordinance that prohibits possession of a firearm on any town-owned property. If that's law number 20,000 and you don't live in my town -- then you only have to worry about 19,999 other laws.

 

[ATN082268]

Except I've only seen a few cases in which other laws were really material to the analysis. And when another law was material, it was considered.

So, for example, the 9th Circuit panel deciding the first Young v. Hawaii and concluding that Hawaii law prohibiting the open carry of firearms was impermissible, considered the fact that the 9th Circuit had previously ruled that concealed carry was not constitutionally protected.

But real connection needs to exist, and it often doesn't.

There are thousands of gun laws infringing on the Constitutional 2nd Amendment right. What about the cumulative infringement of all those laws on the 2nd Amendment?

 

[zukiphile]

There are thousands of gun laws infringing on the Constitutional 2nd Amendment right. What about the cumulative infringement of all those laws on the 2nd Amendment?

I believe you'll find that after the initial decision in McDonald. Chicago had laws that required training at ranges within the city's boundaries, but then didn't permit operation of complying range facilities. The court looked at the effect of the interplay between the two regulatory actions and found a violation of the right in the effect of that interplay.

 

[Aguila Blanca]

There are thousands of gun laws infringing on the Constitutional 2nd Amendment right. What about the cumulative infringement of all those laws on the 2nd Amendment?

Unfortunately, judges don't go out looking for laws to declare as being unconstitutional. As in both Heller and McDonald, someone has to sue in order to challenge even the most local of those laws. And it isn't cheap.

Assuming that you challenge a law based on federal concerns, first you have to hire a lawyer to sue in federal district court. If you lose in district court, then you have to pay for an appeal in the appropriate federal circuit court of appeals. If you win there, it becomes binding precedent only in the states within that circuit. If you lose at the circuit court level, then you get to appeal to the Supreme Court -- which may or may not even decide to accept your case.

Most people don't have deep enough pockets to even begin the process. A number of years ago, I wanted to challenge a local (town) ordinance that prohibited possession of a loaded firearm on any town-owned property. There were no exceptions. The problem, of course, is that town roads are owned by the town so, strictly applied, it meant that anyone driving on a town road -- even with a state carry permit -- was potentially subject to arrest. I hired a well-known firearms attorney from my state. The attorney advised me NOT to sue in federal court because the RTKBA is actually stronger in my state's constitution, so we settled on a strategy in state court. But first the attorney contacted the town and asked them -- nicely -- to please repeal or revise the ordinance. The town stonewalled for a lengthy period of time, and then basically told us to pound sand. At that point my attorney called the town's attorney and told him we had the lawsuit drawn up and that we would file it if they didn't do something pronto.

In the end, the town revised the ordinance. They put in an exception for carry on public streets with a permit, and they added an exception for the police in the performance of their duties. But they also removed "loaded" from in front of "firearm," which means that whereas in the past you could leave a gun in your car while doing business in a town building, the change meant that we now have to park on the street to stay legal.

Just that little negotiation -- which did not involve filing the lawsuit or going to trial -- cost about $30,000 in legal fees. In the end, I got some of that back in a grant from the NRA, but that wasn't assured. I could not afford to do that today, but I was able to do it back then.

That's why you don't see bunches of those 20,000 laws challenged -- it's expensive.

 

[s3779m]

Sometimes an argument with merit doesn't reflect the law until someone makes it at the right time.



I like that argument very much, but let me offer the inevitable contrary view. All of our rights, even the fundamental ones, are subject to state regulation. You have a right to marry, but the state can restrict who you marry. You have a right to travel, but the state can tell you how fast to travel. You have rights to use of your own real property, but the state can enforce standards for the electrical and plumbing work in new construction.

The regulation of these rights by the states arguably enhances the exercise of the rights. They define the rights of the parties in marriage. They make travel safer, or increase property values with uniformly applied standards.

How does that fit with state burdens on the right to arms by non-criminal adults? Voting is such a right, and we require a state ID and an expensive background check under penalty of perjury in order for people to vote...

OK. Bad example. We wouldn't let people publish potentially dangerous books if they had a history of domestic abuse or mental illness...darn - that doesn't work either.

We certainly wouldn't give a convicted felon access to a jury trial...., but of course we do.


The burdens on the right of gun possession don't obviously have the effect of making effective use more effective. On the contrary, they seem calculated to dissuade exercise of the right itself, or if exercised to make the right less effective. The burdens offered aren't just peripheral issues attached to an obvious core of common sense state regulation; they are a manifestation of opposition to the right itself.

Just a small point to make, the right to marry, travel, personal property etc, is not followed by "shall not be infringed" in the constitution like the phrase "to keep and bear arms".

 

[Frank Ettin]

...the right to marry, travel,....

Actually there's nothing at all in the Constitution about a right to marry or to travel. But such rights have been found by the courts to be subsumed in the rights protected by the Due Process clauses of the Fifth and Fourteenth Amendments.

 

[s3779m]

Actually there's nothing at all in the Constitution about a right to marry or to travel. But such rights have been found by the courts to be subsumed in the rights protected by the Due Process clauses of the Fifth and Fourteenth Amendments.

Agreed. My point was the right to keep and bare arms was followed by "shall not be infringed". The poster was using the rights of marriage, travel, etc, to make a point that "rights" had restrictions. It could also be pointed out that the bill of rights does not give us any rights, it prohibits the government from infringing on our God given rights.

 

[zukiphile]

Agreed. My point was the right to keep and bare arms was followed by "shall not be infringed". The poster was using the rights of marriage, travel, etc, to make a point that "rights" had restrictions. It could also be pointed out that the bill of rights does not give us any rights, it prohibits the government from infringing on our God given rights.

You aren't wrong on either point. The state of our established jurisprudence allows state regulation even of our fundamental rights. I agree that "shall not be infringed" is important and should have made McDonald unnecessary, but that isn't currently the argument that disposes of issue. Changes in law can come from people pressing an argument, and I think that pressing the importance of that phrase is a great argument. Recognize that this argument doesn't invalidate any and all regulation, and building a path to that result has no currently plausible path.

That isn't an observation that you're wrong. There is a distance between one's own view of the most coherent position, and the position that will best persuade the people who will judge the breadth of the right.

 

[s3779m]

You aren't wrong on either point. The state of our established jurisprudence allows state regulation even of our fundamental rights. I agree that "shall not be infringed" is important and should have made McDonald unnecessary, but that isn't currently the argument that disposes of issue. Changes in law can come from people pressing an argument, and I think that pressing the importance of that phrase is a great argument. Recognize that this argument doesn't invalidate any and all regulation, and building a path to that result has no currently plausible path.

That isn't an observation that you're wrong. There is a distance between one's own view of the most coherent position, and the position that will best persuade the people who will judge the breadth of the right.

I think you nailed it. We have too many making laws who have convinced the masses that giving up a little of their rights will make them safer.