National Reciprocity - It Begins

[w2kbr]

Well..this is a kinda interesting thread......but...
IMHO, references to literal wordings of the Constitution are straight forward, and in a sense 'A Priori", references to case law used to support an interpretation, fer or agin has merit depending which side you are on....and then there is the Courts.

But in the real world, politicos in Congress can and will write anything they wish, and in lots of cases hope that no one will question the Constitutionality of same. If a question arises, then the legal eagles will pour forth with their interpretive dribble until such time as the original, or modified scribbles wind up in the SCOTUS. For example, "Shall not be Infringed" is about as simple as one could imagine, but there is a State Senator who believes that is hogwash, and does not mean diddly squat in Maryland.
And if that is not enough, there is a Justice on the SCOTUS, who adamantly believes that the Constitutional wording is not really important, but what was in the minds and hearts of the Founding Fathers at the time is most important,...and he professes that he knows what was in their minds and hearts. How do you argue with someone who believes he is gifted with such knowledge?

Gentlemen, we should fight the fights we think we can win!!, and hope for the best on all others. Maybe we should be spending our time educating the Populace, so that when, and if, they vote, it will be in favor of all of us.

R

 

[Gray Peterson]

The several states have an obligation under P&I according to Article 4 Section 2 to not discriminate in favor of its own citizens over the citizens of another state.

Its not that the States cannot make laws, but rather those laws may not favor the Citizen of their state over that of another as in the example of property taxes I posed previously.

Corfield v. Coryell in ~1823 summed this up very well from what I've read.

http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html

Edit: IF according to your claim Colorado denied you a CCW based solely upon the grounds that you were not a resident of Colorado then this is a slam dunk example of what States may NOT do under Article 4 Section 2

Your case is not a matter of 2A Rights but rather an obligation of the State not to discriminate and apply laws differently to its Citizens than it does to Citizens of other states.

It's partly a matter of 2A right. As you well know, states sometimes do in fact discriminate against non-residents and effect their right to travel and become resident of a state for certain purposes (attendance at colleges at specific rates, for example). The level of which they can do so, or justify so, depends on the activity that the person wants to engage in. In Ward v. Maryland, they effected Mr. Ward's ability to sell his products in Baltimore. In New Hampshire Supreme Court v. Piper, a lawyer who lived 1200 feet from the New Hampshire border applied to become an attorney in New Hampshire as a resident of Vermont.

In Saenz v. Roe, this effected the ability of a state to restrict cash welfare benefits for people who newly moved into a state, despite Congressional authorization to do so.

For the purposes of my case, Ward and Piper is the controlling case law that's directly applicable, but here's the problem.

Just like Piper, I run into a problem with the other side saying "it's not a violation of a privilege or a right". Then it becomes a discussion of "what activity are you trying to engage in which deserves protection".

Not mentioning RKBA, or mentioning RKBA in a pre-McDonald era, would have resulted in cases like Bach v. Pataki (District Court and Court of Appeals rulings for your reading).

Specifically from CA2:

Bach can prevail only if New York's grant of an Article 400 license should be considered a "privilege" under Article IV. 90*90 Neither the Supreme Court, this Court, nor any other Court of Appeals has considered whether the Privileges and Immunities Clause protects what Bach calls "the right to self-defense through the use of a firearm." Indeed, "[m]any, if not most, [Supreme Court] cases expounding the Privileges and Immunities Clause have dealt with th[e] basic and essential activity" of pursuing "a common calling." United Bldg., 465 U.S. at 219, 104 S.Ct. 1020; see also Crotty, 346 F.3d at 95 (collecting cases).[28] Nonetheless, the Supreme Court "has never held that the Privileges and Immunities Clause protects only economic interests," Piper, 470 U.S. at 281 & n. 11, 105 S.Ct. 1272 (stating that the noncommercial role of a lawyer falls within the Clause); see also Doe v. Bolton, 410 U.S. 179, 200, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (striking residency requirement in abortion statute), and Bach contends that the right to carry a handgun is one of the non-economic interests protected by the Clause.

So, Bach lost here because A) there was no right to bear arms as recognized by the 2nd circuit at this point and B) They raised the specter of instability of carry license holders. Because the right to bear arms was considered by CA2 to not even be an individual right, the State of New York won on their scare tactics to the court about "inability to monitor". In fact, Colorado is doing the same thing in my case, raising the specter that I can suddenly be unable to possess a license under their policy.

Just as much as Kathryn Piper had to bring up the fact that her profession was important to the workings of the polity, and therefor fundamental to the ordered liberty of the country (as referenced by another Supreme Court decision on attorneys and their ability to practice law), I have to bring up the fact that the McDonald overturned the Bach contention of A) It was not an individual right and B) There is no right to carry, either. You cannot bifurcate one from other under current jurisprudence on the issue.

Your ideals of the way things should be (arguable whether or not it's correct) is not how it currently plays in the courts, and I have no interest in doing something akin to trying to swim upriver against a strong current only to be tired in the end and lose a lot of ground. The P&I cases under Article IV, as boosted by McDonald ruling, are the only arrows I have in my quiver. I refuse to follow along with your contention that Heller and McDonald are crap cases. Heller and McDonald at this time are the only cases we got at this time, the first of numerous cases that will get to SCOTUS on RKBA issues.

Moving on to the issue between you and me specifically:

Heller and McDonald is not our Brown v. Board of Education, they are our Gaines v. Missouri and Sweatt v. Painter cases (You can read about these cases here). If you believe that pre-Brown and Brown cases are wrong, then we have nothing further left to discuss here.

Also, your continual haranguing of people who sue for their "bear arms" right in federal court (a la Kachalsky and Woollard) is unwanted, and your continued hypocritical arguments against HR822 is also unwanted.

Either help us get this bill passed or discuss the strategy in getting it passed, or discontinue the discourse in this thread. You made your point abundantly clear about it "fedgov power grabs" and "It'll give rise to Obama-care v2". In case you haven't noticed, this forum is "National 2A Forum". Second Amendment. That means the one thing that unites all of us is the right to arms and the right to self defense, period.

The right to self defense, and the right to bear instruments that protect that right to self defense, is older than the constitution itself. It is older, and more important, than your artificial constructs of the commerce clause, the 10th amendment. The fact that a person considers the right to defend themselves and their families more important than your artificial constitutional constructs that you identify should come as no surprise, really, to anyone.

 

[Gray Peterson]

Thats the problem generally speaking that has left us is the position we're currently in.

A lack of morals, values and failure to adhere to the constitution have put us in a very very bad position....quite simply two wrongs dont make a right.

Find a constitutional basis for the bill and I'll support it, otherwise its just as much a perversion of the Constitution as Obamacare.

Self Defense and Defense of our families>Your peculiar view of Constitution.

There are numerous provisions of the constitution that had existed which showed a lack of morals. Slavery being one of those things. The constitution was a compromise of men who sat in a stuffy room in Philadelphia, who had to cobble together something that 9 states would agree with to ratify. Nothing more.

As for why a state would ratify the 14th amendment when it allowed for the disenfranchisement of their representatives (only going further with this because of recently discovered evidence) Had nothing to do with a military occupation of the former confederacy by Union troops, and being told in order to rejoin the Union, they had to ratify the reconstruction amendments, right?

On July 20, 1868, Secretary of State William H. Seward certified that the amendment had become part of the Constitution if the rescissions were ineffective, and presuming also that the later ratifications by states whose governments had been reconstituted superseded the initial rejection of the prior state legislatures.[52]

Also:

Beyond the Super-Majority: Post-Adoption Ratification of the Equality Amendments, specifically page 6 of the document.


A number of pre- and post-adoption ratifications of the Fourteenth and Fifteenth Amendments were accomplished through some compulsion by Congress. With the exception of Tennessee, after the surrender of the Confederate armies, the former Confederate states were required to ratify the Fourteenth Amendment as a condition to regaining representation in Congress. Those states not restored by the time the Fifteenth Amendment was proposed were required to ratify that as well. Accordingly, Alabama, Georgia, Mississippi, Texas and Virginia ratified the Fourteenth Amendment in the 18 months after it became effective; Texas ratified the Fifteenth Amendment a couple of weeks after that amendment came into force. These ratifications were not purely symbolic; Congress could have provided that ratification by unreconstructed rebel states would be required if necessary to make the Fourteenth or Fifteenth Amendment effective, but it did not so limit the requirement; every former Confederate state was required to ratify to regain its representation. Accordingly, the ratifications had important legal consequences for the states involved, which would have been excluded from Congress had they persisted in their opposition to the amendments. And, although the last handful of ratifications was not required to bring the amendments come into force, they were designed to protect the amendments from being undermined by the states.
This is an example of a situation where just saying something has significance. With respect to the Fourteenth and Fifteenth Amendments, Congress assumed, perhaps naively, that white supremacists would obey the law if they agreed to do so, and therefore required each rebel state to formally voice support for the amendments.

I've proven with actual evidence that the southern states consented to losing their representation in Congress for violating the 14th amendment's protections of the Bill of Rights. You can argue it was wrong for Congress to refuse to seat a state's representatives unless they ratified an amendment, but that's what they had to do after the rejections of 5 southern states of the 14th amendment in 1866 and 1867.

The southern states did so with a representational gun pointed at their heads, as southern states did everything possible to re-enslave the freedman under color of law after ratification of the 13th amendment. If the 14th amendment as you perceived it doesn't apply the Bill of Rights and doesn't allow Congress or the federal courts to enforce the Bill of Rights to the states, then why did the 5 southern states reject it first in 1866/1867? "Oh well, it doesn't really do anything or remove our power to oppress the freedman, but let's just reject it anyway just because!".

42USC1983 was passed to allow federal court enforcement under Amendment 14, Section 5, to allow federal judicial injunctive relief against state actors enforcing policies and state laws in violation of the US Constitution. We'll have the same access to 42USC1983 if the states refuse to comply with this bill.

Your done, JP. We know now that you're Mr. "I think the bill is unconstitutional but I'll use it anyway like a hypocrite while accusing other people of being hypocritical, amoral, or statist". You don't support the bill. We know that. Your reasoning has been considered, and rejected. You going to help us get it passed, or will you stay out of our way instead of haranguing us here?

 

[DD214]

Your reasoning has been considered, and rejected. You going to help us get it passed, or will you stay out of our way instead of haranguing us here?

I considered it, pretty much accepted it, and he does not have to get out of the way. This is constructive dialog, and exactly the kind of discussion that we should be having. Just because you disagree does not make his argument any less valid.

 

[Gray Peterson]

I considered it, pretty much accepted it, and he does not have to get out of the way. This is constructive dialog, and exactly the kind of discussion that we should be having. Just because you disagree does not make his argument any less valid.

I think you and I have a difference of opinion as to what is constructive dialogue, but you're an admin (I'm also an admin on the OpenCarry.org forum so I understand about running a place), and therefor it's your house/your rules.

I will be placing JP on my ignore list. He's not worth the blood pressure elevation, as I simply cannot have a decent conversation with someone who thinks that Otis McDonald should have just moved out of Chicago rather than be able to sue in federal court to injunct Chicago from enforcing their handgun ban.

 

[Oreo]

I'm with Gray on this one. JP & I have exchanged words about this already. For me it's not his opinions that are the problem but that he insists on insulting everyone who disagrees with him, and further that after his points have been thoroughly discussed he insists on pressing those issues ad nauseum in nearly every other thread. I've put him on my ignore list as well. Tired of his BS.

Having said that, I also respect this is DD214's house and this will be the last post I make regarding JP. DD, you're aware of the issue obviously and it's yours to handle as you please.

 

[DD214]

Norton, please save me from this horrible PWI that I'm about to commit...

 

[MDFF2008]

PWI?

 

[jmira]

posting while intoxicated?

 

[MDFF2008]

Ahh

I usually have to deal with PWHBP, (posting with high blood pressure) with some of the stuff I see.

 

[Ab_Normal]

No, the Vt Resident while in Md may not CCW same as the Resident of Md.

The flip side of that is that Vermont cannot pass a law that would allow Constitutional Carry within its borders for its citizens but not for citizens of other states.

The law must apply equally.

But Md. residents can CCW in Md. with "approval" from the state. Same with Vermont.

The flip side of your flip side is that Md. prohibits CCW by non-residents. How can that be?

It is obvious the law does not apply equally.

Thats the problem generally speaking that has left us is the position we're currently in.

A lack of morals, values and failure to adhere to the constitution have put us in a very very bad position....quite simply two wrongs dont make a right.

Find a constitutional basis for the bill and I'll support it, otherwise its just as much a perversion of the Constitution as Obamacare.

Are you saying the bill should be something to the effect of "no state shall require a permit to keep and/or bear arms and everyone has the right to do so" *** instead of "every state shall recognize another state's permits to keep and/or bear arms"?


*** I left out violent fellons and the like for the sake of clarity.

 

[press1280]

But Md. residents can CCW in Md. with "approval" from the state. Same with Vermont.

The flip side of your flip side is that Md. prohibits CCW by non-residents. How can that be?

It is obvious the law does not apply equally.





Are you saying the bill should be something to the effect of "no state shall require a permit to keep and/or bear arms and everyone has the right to do so" *** instead of "every state shall recognize another state's permits to keep and/or bear arms"?


*** I left out violent fellons and the like for the sake of clarity.

MD doesn't treat residents and non-residents differently, both can get CCW permits with great difficulty.

On a side note, I thought I heard that John Boehner was opening up the amendment process for the bill coming up within the next days that keeps the government funded for 2 weeks(or something like that). Does anyone know if this will be added on to this bill, or will it have to wait for the debt ceiling bill later on?

 

[Patrick]

It won't go on the short term extension. the house bill we are talking about is a stand-alone piece of legislation. So this HR will be a floor vote AR some point.

The Senate version will be attached to something. Not sure what, yet. I doubt it will be the two week CR, but that is only my guess.

 

[Ab_Normal]

MD doesn't treat residents and non-residents differently, both can get CCW permits with great difficulty.

Do federal agents need to get a CCW permit from each state or is there some sort of federal law that negates that need?

 

[Minuteman]

Do federal agents need to get a CCW permit from each state or is there some sort of federal law that negates that need?

Simple answer is no, for the most part all federal agents are granted authority to carry as prescribed by their department (DOJ, DOD, DOS, etc.). There is also (google) LEOSA law that further gives even more, law enforcement officers (State Police, County, City, etc.) NATIONAL carry authority if they qualify. Ironically recently (4-5 months ago) Obama signed a clarification to LEOSA, expanding who was covered and essentially lowered the bar, therefore qualifying even more Law Enforcement Officers (essentially anyone with statutory power of arrest). This was a very good thing.

I'm all for National Reciprocity.

 

[teratos]

Do federal agents need to get a CCW permit from each state or is there some sort of federal law that negates that need?

http://en.wikipedia.org/wiki/Law_Enforcement_Officers_Safety_Act

 

[jpk1md]

I think you and I have a difference of opinion as to what is constructive dialogue, but you're an admin (I'm also an admin on the OpenCarry.org forum so I understand about running a place), and therefor it's your house/your rules.

I will be placing JP on my ignore list. He's not worth the blood pressure elevation, as I simply cannot have a decent conversation with someone who thinks that Otis McDonald should have just moved out of Chicago rather than be able to sue in federal court to injunct Chicago from enforcing their handgun ban.

Gray, the simple fact remains that you fail to recognize the peril of granting the Federal Gov power over something it was never granted the power to regulate.

Quite simply Heller and McDonald are poison pills, akin to early Chemotherapy....you poison the host in the hope that you kill the cancer and not patient.

Your advocacy that the Fed Gov be the arbiter and decider of what is a right and what is not has left us in a position where the states and citizens have no recourse to a Federal Government run amok. I fear that as the Federal Government has demonstrated that it is unwilling to abide by the Constitution that ultimately the ONLY recourse the State and People may have is an Article 5 Convention to restore the Federal Gov to its Constitutional Role.

The outcome of Heller/McDonald is clearly an infringement of the Second Amendment.....Shall not be infringed no longer has any hope of NOT being infringed and we're 1 Political Appointee away from the entire house of cards falling down and RKBA being recinded and declared to NOT be a right.

Should Obama win in 2012 and Liberals hold the Senate they WILL have the opportunity to shift the balance of power in the Supreme Court and declare RKBA to be a Collective Right with NO Right to Bear Arms at all and all State Constitutions and Laws guaranteeing RKBA to be NULL AND VOID.

Instead of the power being in the hands of the People and States your argument places it in the hands of a couple political appointees in the Supreme Court.

This approach has further breached the firewalls of the Constitution and moved us further down the road towards Statism and National Government.

The solution is not through the Federal Courts where 5 political appointees decide what your rights are but rather in the State Legislatures of the United States where a loss in one State does not mean a loss for ALL States and their citizens.

What you fail to recognize is that the vast majority of States already protect the RKBA and your argument/approach actually undermines the well established rights of much of the country.

What you fail to concede or accept is that the approach you support is Anti Federalism, Anti State, Anti Liberty and Anti Freedom.....this issue is not limited to Second Amendment issues but is pervasive across ALL Natural Rights.

The bottom line remains that as of yet there is no Constitutional Basis for the support of National Reciprocity.

As to your own legal case, in the light of Heller/McDonald which have resulted in the declaration by Federal Political Appointees in our Courts that NO Right to Bear Arms outside of the home exists and may clearly be regulated means that your case is NOT one of RKBA but rather an Article 4 Section 2 Case as I previously described....in summary the State has an Obligation under Art 4 Section 2 to treat the Citizens of other states in a manner that is consistent with its own citizens....if in fact you were denied a permit solely on the grounds that you are not a citizen this is a clear violation of Art 4 Sec 2.

Gray, I understand why you don't want to hear anything other than what you believe, you have a significant case pending and a fiscal investment in that case but quite frankly you would be a fool NOT to pursue your case on additional grounds...that being Art 4 Sec 2 grounds.

You can choose to ignore the facts and challenges to your argument but quite simply that is nothing more than intellectual dishonesty and ignorance.

Oreo, do me a favor and stop sending me your insulting little PM's. If you can't take the heat and follow the argument then get out of the kitchen.

 

[jpk1md]

But Md. residents can CCW in Md. with "approval" from the state. Same with Vermont.

The flip side of your flip side is that Md. prohibits CCW by non-residents. How can that be?

It is obvious the law does not apply equally.

Actually I think it does and if I failed to explain why forgive me.

In Md, NO ONE can CCW without a Permit.

A quick read of the Md CCW License does not appear to make any distinction/descrimination based upon State Citizenship and as such its perfectly acceptable under Article 4 Section 2.

Please correct me if I missed something.

http://msp.maryland.gov/downloads/licensing_application.pdf

In effect Md treats everyone like shit regardless of citizenship.

Are you saying the bill should be something to the effect of "no state shall require a permit to keep and/or bear arms and everyone has the right to do so" *** instead of "every state shall recognize another state's permits to keep and/or bear arms"?


*** I left out violent fellons and the like for the sake of clarity.

I'm saying first and foremost that granting the Fed Gov the power to decide what "Shall Not Be Infringed" means is a fatal mistake.

Allowing Congress to pass a law requiring National Reciprocity without the power to do so under the US Constitution is a step closer to National Government and Statism.

If anyone can produce a clear justification/power in the US Constitution granting Congress to pass a National Reciprocity Law then I'll support the bill 100%....until that happens I have no option other than to oppose the bill on Constitutional Grounds.

 

[Splitter]

The right to keep and bear arms is acknowledged in the bill of rights. It's number two and I am convinced it is in that position for a very good reason.

The Federal government's powers and role in our lives should be minimal. However, it has its' place and protecting those rights specifically acknowledged in our most important governmental document is one of its' important functions.

Not only should the Federal government by guaranteeing that all states accept licenses from other states, it should be guaranteeing that the right to keep and bear not be infringed.

If anything, this law doesn't go far enough on the Federal level. It might even be putting the cart before the horse in that state laws infringing on the right should be struck down first.

But it's still a good thing.

Federal law should trump state law....as long as the Federal law follows the constitution. If anyone has a problem with this bill, their problem should be that too many Federal laws do not follow the constitution or are implemented for things not covered in the constitution.

The 14th is a method for bringing states into line. No doubt it has often been abused but when used to enforce another part of the constitution where a right is clearly delineated, it is being used properly.

Splitter

 

[jpk1md]

But it's still a good thing.

I agree with you 100% that being able to carry in all 50 would be a good thing....the problem is that it does not appear to be a power granted to Congress.

Congress passing laws that are not constitutional is a bad thing regardless of the subject.

Federal law should trump state law....as long as the Federal law follows the constitution.

Splitter

Therein lies the problem.....Federal Law DOES trump State Law on issues where Congress was granted the power or authority to PASS laws.

This unfortunately does not appear to be one of those circumstances.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

It doesn't say that Congress can pass any law it wants and most folks seem to fail to recognize a key point of Section I ....specifically the "Without Due Process of Law"....

Privs and Immunities is clear and has been addressed many times in this thread.

Provided the State provides Due Process any number of things are permissible.,,,,its the denial of Due Process that is problematic and reason/justification for Congress.

Again, the 14th doesn't grant Congress the power or authority to decide/define what Natural Rights are at all....so what exactly would Congress be enforcing? The Courts have decided effectively that no right to carry exists outside the home...this is the poison pill of Heller/McDonald.