National Reciprocity is Dead

[zukiphile]

If you're going to make that claim then a reciprocity bill won't suddenly give them the power to pass concealed carry restrictions.

If you want Congress to regulate intrastate activity that has historically been a matter of state police power when you think it will benefit you, you've given away an argument against that encroachment in the future.

Can you ignore limits on federal power when it suits ends you like and observe those limits when it suits you? Of course. Lots of people have done exactly that for a very long time. However, opportunistic positions may be more easily dismissed than principled ones.

The peculiarity on this issue is that the 2d Am. is also a limit on government power. It's worth noting that defending the right of an individual against the government to keep and bear arms is harder to defend if you acknowledge that you aren't giving any weight to the limits on government power that might frustrate you.

If this issue is just about what most people want, we already know how that work out in other english speaking countries.

 

[raimius]

I live in Illinois, a restrictive state for gun rights by most definitions. The reason I can legally carry a gun was not the enlightened state or federal legislatures, but the Heller ruling of the US Supreme Court. Passing additional laws, that may or may not be Constitutional seems like a waste of time and money.

You do realize that Heller did not apply the 2nd against state or local governments, and that the concealed carry law in IL was passed by the state legislature, do you not?

 

[5whiskey]

You do realize that Heller did not apply the 2nd against state or local governments

Heller did not, but McDonald v. Chicago did incorporate the 2nd and apply it State/Local governments shortly after Heller. But you are correct that the IL legislature passed CC... as CC has not been adjudicated to be a constitutional right yet.

(5) It compels administrative agencies, not just courts, to adjudicate your second amendment rights.

AB, where did you quote this from? This is an obvious 5th amendment due process violation. Even layman obvious.

 

[K_Mac]

raimius I do understand that it was the Heller ruling that made McDonald possible, and that was the driving force that brought CC to the state legislature. It would never had made it to a vote if the Chicago political machine had its way. That would not have happened if Heller hadn't affirmed the individual's right to self-defense.

 

[Armed_Chicagoan]

Illinois passed CC because they had to after the 7th Circuit ruled (Shepard v. Madigan) that bearing arms outside the home was a right protected by the 2A. So in the 7th Circuit at least bearing arms outside the home is a right.

 

[K_Mac]

Armed_Chicagoan you can chase this rabbit all day if you wish. Yes, the 7th concluded that Mary Shepard had the right to carry to protect herself, and that the ridiculous Illinois law prohibiting CC was in violation of the 2A as interpreted by Heller. Again, it was Heller that ruled self-defense was an individual right. Illinois was dragged kicking and screaming to allowing concealed carry and it was Heller that made it possible.

 

[Onward Allusion]

Ain't dead yet. Just passed the House.

 

[Aguila Blanca]

(5) It compels administrative agencies, not just courts, to adjudicate your second amendment rights.

AB, where did you quote this from? This is an obvious 5th amendment due process violation. Even layman obvious.

5th Amendment violation? How do you figure?

The violation is when the SSA or the VA unilaterally determine, without benefit of any semblance of a hearing or trial, that a person is "mentally defective" and must be reported to NICS as prohibited simply because they designated someone else to receive their benefit checks. My point was -- and is -- that these (and similar agencies) must be held to the legal standard, which requires "adjudication." A unilateral, adminsitrative determination falls so far short of any minimum standard of due process that it would be laughable if the consequences weren't so serious.

If these agencies want to have someone declared mentally defective, they should have to go before a judge, just as anyone else has to do.

 

[Frank Ettin]

...Administrative agencies cannot adjudicate your rights, because "adjudicate" means a trial and a judge....

Administrative agencies have both quasi-legislative and quasi-judicial functions. In their quasi-legislative role, they adopt regulations which have the force of law and have broad applicability.

Administrative agencies also perform quasi-judicial functions. These functions include such things as issuing licenses, authorizing or declining to authorize acts of entities licensed by them or subject to their jurisdiction, and adjudicating charges of misconduct by persons or entities subject their jurisdiction. Examples of quasi-judicial administrative agency action include: a medical board revoking a physician's license for a breach of professional obligations; a department of insurance issuing a company a license to operate an HMO; a department of consumer affairs licensing real estate brokers fineing a real estate broker for an unlawful failure to properly maintain a trust account; or the ATF rejecting an application for an FFL.

These are quasi-judicial because they involve determining the facts of a particular matter, identifying and interpreting the applicable law and making a decision by applying the law to the facts. In most cases, an adverse quasi-judicial act of a regulatory agency is subject to multiple levels of appeal. For example, the physician unhappy about losing his license to practice medicine usually first has a right to an administrative hearing conducted by the agency. If he's still unhappy, he can seek judicial review.

 

[Aguila Blanca]

In the case of the VA and SSA reporting people to NICS, there is no process, let alone due process. There's no hearing -- someone sees that the person appointed a third-party payee, and BOOM! Off goes a report to NICS. And there isn't even any notification to the individual that they've been reported so there's no way they would know to appeal -- even if there were an avenue for appeal.

 

[ShootistPRS]

For a dead resolution H.R. 38 just passed in the house today.
Where it goes now is anybodies guess but I believe it will continue on.

 

[raimius]

K_Mac, yes Heller and McDonald we're vitally important in laying the groundwork, but it was still the legislature that passed the CCW law. Our legal fights are multi-layered.

 

[K_Mac]

raimius I agree that our fight is multilayered. There are many battles left to fight, but the war will be won or lost in the SCOTUS in my opinion. That battle will be decided by the politicians who appoint and confirm the Justices. We may have a disfunctional Congress and President (depending on who you ask) but like it or not they are ones we elected. Ultimately it is we the people who will decide. Lord help us.

 

[44 AMP]

Where it goes now is anybodies guess but I believe it will continue on.

it will go on to the Senate now, since it passed the House. Pro gun bills pass the House fairly regularly, and then die in the Senate. In fact, I can't remember, off the top of my head the last time the Senate passed anything that was good for us, and that we wanted.

I fully expect the "usual suspects" to use every trick in their bag to kill this, for two main reasons, one its pro gun, and two, Republicans want it passed.

Oh, also note that "strengthening the back ground check system" is also part of the Reciprocity bill now. That gives is a tiny chance.

I'm told that, once upon a time, we had a Congress that actually cared about what was the right thing to do. (I rather doubt it, but I have been told that)

All I've seen in the last few decades is chickspit partisan bickering.

 

[ShootistPRS]

I'm willing to say it will pass and it will be signed by the president into law. I do know that the two senators that are supposed to represent me are too socialist to vote yes on anything that resembles a pro gun bill. I will still write and call them to announce my desires but I doubt I will even get a polite "no" from either of them. I'm pretty firmly embedded in their "ignore" list.

 

[jdc1244]

In the case of the VA and SSA reporting people to NICS, there is no process, let alone due process. There's no hearing -- someone sees that the person appointed a third-party payee, and BOOM! Off goes a report to NICS. And there isn't even any notification to the individual that they've been reported so there's no way they would know to appeal -- even if there were an avenue for appeal.

Wrong.

There is an appeal process for anyone denied purchasing a firearm due to a NICS background check, regardless of the reporting agency.

 

[Aguila Blanca]

In the case of the VA and SSA reporting people to NICS, there is no process, let alone due process. There's no hearing -- someone sees that the person appointed a third-party payee, and BOOM! Off goes a report to NICS. And there isn't even any notification to the individual that they've been reported so there's no way they would know to appeal -- even if there were an avenue for appeal.

Wrong.

There is an appeal process for anyone denied purchasing a firearm due to a NICS background check, regardless of the reporting agency.

In order to appeal, you have to know there's something to appeal about. In the case of people who are reported because they appointed a third-party payee, unless they try to buy a firearm through an FFL and get a NICS denial, they have no way of knowing they've even been reported. You can't appeal what you don't know about.

Technically, the appeal you're talking about is an appeal of the NICS denial, it's not an appeal of the initial report that put the person on the NICS blacklist in the first place.

 

[5whiskey]

5th Amendment violation? How do you figure?

Quoted from the 5th amendment:

nor be deprived of life, liberty, or property, without due process of law

Since the RKBA is a constitutional right, I will assume it can be included in liberty. So an administrative agency adjudicating the restriction of a constitutional right very well should run afoul of the constitution.

Examples of quasi-judicial administrative agency action include: a medical board revoking a physician's license for a breach of professional obligations; a department of insurance issuing a company a license to operate an HMO; a department of consumer affairs licensing real estate brokers fineing a real estate broker for an unlawful failure to properly maintain a trust account; or the ATF rejecting an application for an FFL.

Frank basic question for our resident attorney. I'm well aware of the above examples as I have had to testify at several such hearings. BUT... I would think it would be radically different if an administrative agency was trying to restrict a constitutional right. No one has a constitutional right to hold a medical license or open a FFL business. Is this correct or is my thinking flawed?

 

[steve4102]

The violation is when the SSA or the VA unilaterally determine, without benefit of any semblance of a hearing or trial, that a person is "mentally defective" and must be reported to NICS as prohibited simply because they designated someone else to receive their benefit checks

If I recall it was more than just a Representative Payee that was used to place SS Recipients on the NICS list.

If I recall, the Obama directive was for those that were collecting SS benefits based on mental defect or claims of mental illness AND they required a representative payee due to their inability to manage their own affairs.

Basically, by their own admission they were mentally defective.

 

[zukiphile]

Administrative due process was at issue in the case just a couple of years ago in which the EPA issued a compliance order against the buyer of an empty lot that prevented them from building on it. That had constitutional implications, but just the fact of an administrative hearing resolving someone's rights isn't a violation. The people involved just need to afford due process. Goldberg v. Kelly is the case I recall from a class on that area.

Generally, one who disagrees with the result of the administrative hearing and appeal process is obligated to exhaust those administrative options before getting his problem before a member of the judiciary.

Since the RKBA is a constitutional right, I will assume it can be included in liberty. So an administrative agency adjudicating the restriction of a constitutional right very well should run afoul of the constitution.

Not that this point reflects pertinent law on the point, but I have affection for the point philosophically, and more broadly than as a matter of administrative law.

The problem [I have] with legislating that a rifle with a magazine that holds 11 rounds, for instance, should be prohibited from general possession because it won't be handled responsibly is that it deprives a right without any kind of individualized finding. I know lots of people who aren't responsible enough to possess a firearm, or drive or vote for that matter, but my opinion on that doesn't matter unless a person has had a hearing in which he gets to present his side of the matter.