Debates Forum

Debates Forum

  1. Subscriberno1marauder
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    09 Dec '17 13:18
    The House recently passed a law saying that any States' issued permit to carry a concealed handgun would be effective in all 50 States. Apparent from the obvious hypocrisy of right wing States Righters passing a law that overrules dozens of State laws in an area traditionally left to the States (whodey alert), the bill faces serious Constitutional objections as an overreach of Federal power. An article discussing it (though not very clearly) is here: https://www.thetrace.org/rounds/concealed-carry-reciprocity-constitutional-challenges/

    My own opinion is that the bill should fail due to the precedents of United States v. Lopez (1995) and United States v. Morrison, both cases where Congress used the pretext of the Commerce Clause to attempt to regulate unrelated matters (the first regarding guns near schools, the second giving a federal cause of action in domestic violence cases). As explained in the Morrison wiki article:

    With regard to the Commerce Clause, the majority said that the result was controlled by United States v. Lopez (1995), which had held that the Gun-Free School Zones Act of 1990 was unconstitutional. There as in Morrison, the Court stressed "enumerated powers" that limit federal power in order to maintain "a distinction between what is truly national and what is truly local." Lopez therefore limited the scope of the Commerce Clause to exclude activity that was not directly economic in nature, even if there were indirect economic consequences.

    https://en.wikipedia.org/wiki/United_States_v._Morrison

    Some right wingers have thrown a Hail Mary and said the law would be sustainable under the Full Faith and Credit Clause of the US Constitution:

    Article IV, Section 1:
    Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

    But it seems pretty clear that that provision was meant merely to make judgments and other legal findings effective in other States and not grant Congress an extraordinary power to make laws in certain States override the laws of other States nationally where the laws were concerned with matters beyond Federal power i.e. those enumerated and those which fall under the "Necessary and Proper" Clause. Thus, to read into FFCC such a Congressional power is an ironic assertion for right wing legal scholars like Randy Barnett, to make.

    I realize the issue is a bit technical but hey I thought a thread that had (not yet) been polluted by the ongoing flame war ruining this Forum might be useful, informative and/or interesting.
  2. Subscriberno1marauder
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    09 Dec '17 13:30
    A better discussion and a more detailed explanation of what the law does is here: http://prawfsblawg.blogs.com/prawfsblawg/2017/07/firearms-federalism-and-full-faith-credit-can-congress-subject-everyone-to-the-concealed-carry-laws-.html

    Pertinent parts: The CCRA provides that anyone is entitled to carry a concealed handgun in any state that authorizes any sort of "concealed carry" permit if such a person either (1) has a "concealed carry" permit from any other state or (2)"is entitled to carry a concealed firearm in the State in which the person resides." Thus, a resident of a libertarian state that hands out "concealed carry" permits with minimal oversight is entitled by the CCRA to carry their concealed handgun into a state that heavily regulates "concealed carry" permits, allowing such permits only under very limited circumstances. In effect, such a migrant would not only carry a gun with them wherever they traveled but also their domicile state's gun laws as well.

    -------------------------------------------------------------------------------------------------------------------

    This sort of logic goes far beyond gun permits. If Congress really has an Article IV power to authorize any person to export their state's libertarian regime to other states, then Congress could decree that a Texan could move to NYC from Houston (where there is no zoning) and demand that the New York City Planning Commission give "full faith and credit" to her Texas property rights, which allow a skyscraper to be built anywhere permitted by covenants and nuisance law. Congress could likewise confer on Nevadans the right to hire prostitutes in Mississippi or give Coloradans the right to toke up a blunt on the streets of a village in Alabama.

    -------------------------------------------------------------------------------------------------------------------

    Most criminal laws follow the choice-of-law rule of lex delicti because the harm against which they protect is territorial. For that reason, the SCOTUS has long held that each state is normally free to enforce its own laws in its own courts if the underlying conduct bears some substantial connection to that state's citizens or territory. The idea that the criminal (or zoning, or liquor, or other regulatory) measures of one state should be given extra-territorial reach into the territory of another state is so absurd that no one has bothered defending such a view -- at least, not until Sachs, Baude, and Barnett wrote their letter to Representatives Amash, Hudson, and Gowdy.

    Interesting stuff (at least to me).
  3. Standard membervivify
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    09 Dec '17 15:02
    Originally posted by @no1marauder
    But it seems pretty clear that that provision was meant merely to make judgments and other legal findings effective in other States and not grant Congress an extraordinary power to make laws in certain States override the laws of other States nationally where the laws were concerned with matters beyond Federal power i.e. those enumerated and those which fall under the "Necessary and Proper" Clause.
    Before the SCOTUS ruled in favor of gay marriage, could this have been legitimately used to deny recognition of legally married gays in states where it wasn't yet allowed?

    Relating to this thread, could SCOTUS rule bans on concealed carry as unconstitutional? After all, the rationale used for legalizing it is the Second Amendment.
  4. Subscriberno1marauder
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    09 Dec '17 15:452 edits
    Originally posted by @vivify
    Before the SCOTUS ruled in favor of gay marriage, could this have been legitimately used to deny recognition of legally married gays in states where it wasn't yet allowed?

    Relating to this thread, could SCOTUS rule bans on concealed carry as unconstitutional? After all, the rationale used for legalizing it is the Second Amendment.
    Of course, a SCOTUS decision declaring that one had a constitutional right to carry a concealed firearm would moot the entire issue. That is extremely unlikely to happen; even Justice Scalia in Heller conceded the validity of such laws:

    III

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

    https://supreme.justia.com/cases/federal/us/554/570/opinion.html

    Most States that did not recognize gay marriages prior to Obergefell v. Hodges did not recognize out of state gay marriages. The plaintiff James Obergefell in that case had been married in a legal same sex ceremony in Maryland but Ohio refused to recognize the marriage. The SCOTUS decision made such a situation impossible as same sex marriage was legalized in all States and territories of the US. https://en.wikipedia.org/wiki/Obergefell_v._Hodges
  5. Standard membervivify
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    09 Dec '17 16:32
    Originally posted by @no1marauder
    Of course, a SCOTUS decision declaring that one had a constitutional right to carry a concealed firearm would moot the entire issue. That is extremely unlikely to happen; even Justice Scalia in Heller conceded the validity of such laws:

    III

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone thro ...[text shortened]... ized in all States and territories of the US. https://en.wikipedia.org/wiki/Obergefell_v._Hodges
    Thanks for this.

    Your OP made me think of the gay marriage ruling, which was initially over legal ordinances from one state being valid in another. As you said, a SCOTUS decision would moot the concealed-carry issue in the OP.

    You mentioned the unlikely hood of such a ruling being passed, with a valid argument in using the hard-right Scalia. However, with another far-right Justice (Gorsuch) personally appointed by Trump, I think the likelihood of concealed-carry being a right isn't that far-fetched. After all, SCOTUS upheld Trump's travel ban, a decision that most people (including yourself) thought wouldn't happen based on Constitutional grounds.
  6. Subscriberno1marauder
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    09 Dec '17 18:59
    Originally posted by @vivify
    Thanks for this.

    Your OP made me think of the gay marriage ruling, which was initially over legal ordinances from one state being valid in another. As you said, a SCOTUS decision would moot the concealed-carry issue in the OP.

    You mentioned the unlikely hood of such a ruling being passed, with a valid argument in using the hard-right Scalia. Howe ...[text shortened]... n that most people (including yourself) thought wouldn't happen based on Constitutional grounds.
    The four other conservative justices all joined Scalia's opinion. The idea that the Court would, all of sudden, declare it a Constitutional right to have concealed carry is a bit of a paranoid liberal dream. It's not happening.

    To correct your point: A) The SCOTUS has not made a final ruling upholding the travel ban (it has only allowed it to stand while the cases are decided in the lower courts); and B) You are incorrect; I always thought the third travel ban, which omitted preferential treatment for Middle Eastern Christians, and added some non-Muslim countries, would stand. In fact, I think the eventual SCOTUS decision upholding it will get more than the conservative judges and might possibly be unanimous.
  7. Standard membervivify
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    09 Dec '17 19:20
    Originally posted by @no1marauder
    The four other conservative justices all joined Scalia's opinion. The idea that the Court would, all of sudden, declare it a Constitutional right to have concealed carry is a bit of a paranoid liberal dream. It's not happening.

    To correct your point: A) The SCOTUS has not made a final ruling upholding the travel ban (it has only allowed it to stand w ...[text shortened]... ecision upholding it will get more than the conservative judges and might possibly be unanimous.
    Thanks for the clarification.
  8. SubscriberSuzianne
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    09 Dec '17 20:452 edits
    Originally posted by @no1marauder
    Of course, a SCOTUS decision declaring that one had a constitutional right to carry a concealed firearm would moot the entire issue. That is extremely unlikely to happen; even Justice Scalia in Heller conceded the validity of such laws:
    But this kind of forcing red issues down blues states' throats is what is behind Trump appointing judges such as Gorsuch (and whatever other sycophantic judges he can find, made even more scary by Trump's plan to appoint similar finding judges to appellate courts, circuit courts and other lower courts). I share vivify's concern on this.

    We've already seen Republicans having such control of the elections process as to get Trump elected, and we never thought we'd see that, either.
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    10 Dec '17 01:59
    "We've already seen Republicans having such control of the elections process as to get Trump elected, and we never thought we'd see that, either."

    A blatant lie!
  10. SubscriberSuzianne
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    10 Dec '17 11:07
    Originally posted by @mott-the-hoople
    "We've already seen Republicans having such control of the elections process as to get Trump elected, and we never thought we'd see that, either."

    A blatant lie!
    Awwwww, how cute!

    Another 'Fox News' baby!
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    10 Dec '17 17:30
    Originally posted by @suzianne
    Awwwww, how cute!

    Another 'Fox News' baby!
    You could always show your proof that Republicans " controlled the election"...I'll wait!
  12. SubscriberSuzianne
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    10 Dec '17 23:311 edit
    Originally posted by @mott-the-hoople
    You could always show your proof that Republicans " controlled the election"...I'll wait!
    Don't spit your binky out quite yet.

    Google what Greg Palast has been talking about, and Google what Kris Kobach has been doing since 2015.

    No? Here. let me help you:
    http://www.rollingstone.com/politics/features/the-gops-stealth-war-against-voters-w435890
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