My interpretation of the Second Amendment.

[Aguila Blanca]

How can the states use their militias to "protect the states against the central government" when its officers (who give the orders), are appointed by that central government (Article 1 Section 8 of the Constitution)?

Are you referring to this:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

At the time the Constitution was written, there was no National Guard. Even today, although the National Guard is considered an overall part of the military forces of the United States, the National Guard are state troops unless specifically called up ("federalized") by the President. There have been cases in history in which governors have refused to allow their National Guard assets to be federalized.

But that simply serves to reinforce the curious dichotomy that was created when the National Guard was created and then gradually absorbed (or subsumed) into the overall military of the United States. That took place gradually, over the course of several iteration of the National Defense Act.

But I think you mis-read Article 1, Section 8 with regard to appointing the officers of the Militia. It says:

... reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

 

[dahermit]

Whoops! Yes, I missed "...reserving for the states...".

 

[jdc1244]

What is a 'dangerous' or 'unusual' weapon?

That’s for the courts to decide consistent with the fact that the Second Amendment right is not unlimited.

How does the 2nd A not protect the right to carry a concealed gun?

In Florida it’s illegal to carry a concealed weapon – Heller is reaffirming the constitutionality of such a measure.

To avoid violating the prohibition of carrying a concealed weapon, Florida residents obtain a license to carry a concealed weapon or firearm.

 

[jdc1244]

My interpretation of the Second Amendment.

This is what is known as the political Second Amendment, as opposed to the judicial.

In the political Second Amendment the right is absolute, all firearm regulatory measures are unlawful, and government has no authority to regulate firearms.

 

[zukiphile]

That’s for the courts to decide consistent with the fact that the Second Amendment right is not unlimited.

While I don't see you making the following specious argument, I'd like to make clear that simply because the 2d Am. isn't unlimited doesn't mean that any specific limit is constitutional. To correctly note that something isn't unlimited isn't a categorical approval of limits.

In Florida it’s illegal to carry a concealed weapon – Heller is reaffirming the constitutionality of such a measure.

At the risk of making my own procedural observation, Heller didn't affirm Florida's CCW regulation because they weren't a matter before the court in Heller. Heller was about the right of an individual to possess a functional arm in his own home.

To avoid violating the prohibition of carrying a concealed weapon, Florida residents obtain a license to carry a concealed weapon or firearm.

What I am gathering is that FL prohibits concealed carry in the absence of a permit, not that it prohibits CCW. I don't think there is any realistic hope of getting a licensing program with a low bar invalidated as a constitutional matter. We can foresee the argument that a low fee, background check and a bit of class time are narrowly tailored to meet the compelling objectives of felony control and firearms safety.

As licensing gets more expensive and selective, regulation would be less likely to clear that hurdle.

I don't care for the idea that a state can license a federally incorporated right, but I don't see that changing in my lifetime.

 

[Aguila Blanca]

Edited to add ...

At the risk of making my own procedural observation, Heller didn't affirm Florida's CCW regulation because they weren't a matter before the court in Heller. Heller was about the right of an individual to possess a functional arm in his own home in Washington, DC.

What I am gathering is that FL prohibits concealed carry in the absence of a permit, not that it prohibits CCW. I don't think there is any realistic hope of getting a licensing program with a low bar invalidated as a constitutional matter. We can foresee the argument that a low fee, background check and a bit of class time are narrowly tailored to meet the compelling objectives of felony control and firearms safety.

But Florida does not allow open carry, with or without a license/permit. This raises the question, which I think is valid: Is it proper to tax a constitutionally-guaranteed right? Didn't the SCOTUS strike down poll taxes a long time ago? What do you suppose would be the reaction if either the federal government or some state were to institute a system under which we would have to pay for a permit to attend the church of our choice?

The supreme courts of several states have taken the position -- based on the language of their respective state constitutions -- that if the state prohibits concealed carry, open carry must therefore be allowed. This is how concealed carry permits came to exist in Ohio, for example. I think another state with such a ruling is Idaho (but it might have been Utah).

Florida isn't like that. In Florida, you have to pay to play. No permit=no carry. I don't see how that's in any way consistent with a [purportedly] guaranteed right to bear arms.

 

[zukiphile]

in Washington, DC.

Indeed.

But Florida does not allow open carry, with or without a license/permit.

I didn't know that, but I find it bizarre given the climate.

This raises the question, which I think is valid: Is it proper to tax a constitutionally-guaranteed right? Didn't the SCOTUS strike down poll taxes a long time ago?

The answer should be "no", and I'd like to sidestep the distinction between a tax and a fee.

The issue should look something like how much may a state burden a right and toward what ends?

Poll taxes and literacy tests have a toxic history because of the way they were used to burden voting, but showing an ID at the poll seems like a burden that is both modest and narrowly tailored.

If we have a federal FFL system, it seems plausible for a state to assert a felony check before issuing a permit if it's quick and cheap. If it's a fingerprint card sent to the FBI so you can age a year and pay $200, and you only get a permit if a local officeholder can arbitrarily greenlight you, that strikes me as a substantial burden on the right. If a state decides I can carry with a cheap license, but not any repeating firearms, that strikes me as an enormous burden on the right.

I don't believe that the BGC actually stops a stinker from doing what he shouldn't, but I don't see the series of marginal steps that get us to a federally enforced right to carry without licensing.


I'd also offer a thought experiment:

The USSC hands down a decision that open and concealed carry of any and all semi-automatic arms is an incorporated and federally enforceable right.

How long after the next school shooting will it take for the people who didn't like the 2d Am. to mobilize to incorporate "common sense" amendments to the newly recognized freedom?

If you aren't braced to prevail on that, prevailing in court will be of very modest value.

 

[44 AMP]

A bit of historical background awareness both general and specific can be a big aid in understanding where different viewpoints come from.

Also understanding that various power blocks have been using what the Constitution says and does not say as justification for their own agendas since the Constitution was ratified. And to my thinking, they've been most active at that in the last 120 years or so than at any time previously, at least regarding firearm regulations.

Why doesn't the "right to keep and bear arms" include concealed carry?
Some folks think it does. It doesn't. Some folks think it ought to, I agree with that, but that's not what we've got.

My theory on why we have what we have is because of the prevailing belief of the majority of people at the time the Constitution was written. In those days, good honest people didn't need to conceal their firearms, why should they?? Concealing a weapon was considered a sign of evil intent. Like wearing a mask to conceal your identity. Why would any honest person do that?? People who hid their faces must be doing it for some reason, and most likely was that they intended to break the law and didn't want to be identified.

Over time those general attitudes changed, especially in regard to firearms. But, back then, I suspect that while everyone believed in the right to bear arms, they didn't believe that you had a right to conceal arms, and that's why the states could regulate, restrict or even prohibit concealed carry. The Constitution did not expressly forbid that.

In today's society, openly carrying a firearm can be a problem socially, even though it is lawful conduct. Social values among some groups have changed, but the laws have not and are still running on principles from a century or two in the past. It worked then, it should work now, but obviously its not working WELL, now....

Another thing to consider is the difference between a Supreme Court ruling and what people do as a result of thinking they know what the court said and meant. IT can be a big difference.

For a recent example, take the ruling in the Heller case. Read the decision carefully and understand the meaning of the "court speak" phrasing and what it actually means.

Court rulings are specific and directly apply only to the case at trial. And this was something stated in the explanation of the Heller ruling but since it was done in what i call "court speak" some folks just didn't get it.

Some take the language in that decision about "other laws being presumed legal" as a blank check to do whatever gun control they feel like where Heller doesn't specifically prevent them.

I think what the court meant was that other laws were presumed legal "because we are not ruling on them, today". SO they are presumed legal (Constitutional) until/unless the Court hears a case that requires ruling on them.

Also, be aware that the high court is under no obligation to correct people who misinterpret their rulings, UNTIL they become a case before the court. They have neither the time nor the inclination or the obligation to do that, until it becomes a case they are hearing.

In the Miller case, where the 1934 NFA was the issue, the court ruled for the prosecution on a specific point but the govt took that as validating the entire NFA act and has enforced that as such, ever since.

Point here is that some people think anything is ok unless the law/Court ruling specifically prohibits it. Others think some things are covered when they are not. What the law, and what the Courts actually say can be different from both.

IF you think you don't need a permit for concealed carry and the state thinks you do, then, you do. UNTIL the law is changed either by legislative or Court action.

If you want to be the test case (so you have legal standing and the court actually has to hear your arguments) you go right ahead. I'll watch from the peanut gallery here and off what moral support I can.

Good Luck