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Thread: Possession vs. CHP: Rights or privileges?

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    Regular Member TFred's Avatar
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    Possession vs. CHP: Rights or privileges?

    Place holder for post on the way.

    TFred

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    Regular Member TFred's Avatar
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    Possession vs. CHP: Rights or privileges?

    Here is the latest in an occasional series of posts designed to provoke thought and discussion on how things are, compared to how they should be.

    The premise of this post is that for the most part it is generally held that law-abiding citizens have the right, protected by the Second Amendment, to openly carry firearms. It is equally held that it is a privilege granted by the government, in our case, the Commonwealth of Virginia, to be able to carry a handgun concealed about your person, etc.

    We hold diverse views on this situation, ranging from "no big deal", to "government permission dilutes the meaning of the right to keep and bear arms, and is generally harmful to the cause."

    It is not my intent to comment on either end of that spectrum, but rather to plant the idea that we may not really be operating under two very different ideologies after all.

    Heller and McDonald have affirmed our right to keep and bear arms. Although contrary to what the news media, the gun grabbers and just about everyone else, often including ourselves, will tell you, the Supreme Court has not yet evaluated what are reasonable restrictions on this right. Scalia noted in Heller that there were "presumptively lawful regulatory measures", and that the court was not evaluating them within the scope of the case. (The gun grabbers had a field day with that, as it was practically the only morsel in the ruling that was not a setback for their cause, loudly trumpeting that Scalia proclaimed restrictions were just fine... not at all what he actually said.)

    So where do we stand? As I see it we have two major points where the government controls our access to firearms, specifically handguns.

    First is the point of purchase, which I will extend to possession. (The only difference I am aware of is a Federal requirement to be 21 years old, to purchase from a FLL, compared to 18 years old to purchase privately or be gifted or otherwise possess a handgun.)

    Second is the ability to lawfully conceal a handgun about your person.

    We call the first a right, and the second a privilege, but exactly how different are the disqualifiers, or the "presumptively lawful regulatory measures" that restrict our access to this right and this privilege?

    I am not a lawyer, but I can read and assemble information. I took a look at several sources: The Federal Form 4473, the Virginia State Police web site, "Firearms Purchase Eligibility Test", and the latest version of the Virginia CHP Application form.

    Each of these sources provide a list of disqualifiers, the first two from purchase or possession of a firearm, and the third, from being granted a Concealed Handgun Permit. I don't claim that my list is exhaustive, as I did not chase down the lawful cite for each individual requirement. If you feel my analysis is in error due to that, feel free to do the research and correct me.

    I've attached a .pdf file showing a side-by-side comparison of the disqualifiers, for the "right" to bear arms on the left, and the "privilege" to carry concealed on the right.

    As best I can tell, there are only three substantial differences added to the test for a CHP:

    1. You must be 21.
    2. You cannot be convicted of a misdemeanor within the past 5 years.
    3. You may not have been enrolled in a residential mental health or substance abuse program within the past 5 years.

    There are slight variances in the rest, but they are otherwise very close. Some may not even find it unreasonable to add #2 and #3 to the list of disqualifiers for possession or purchase as well.

    Finally, here is the point of the post:

    Virginia is a SHALL ISSUE state. We all know what that means. Unless you are specifically disqualified, the government MUST issue a CHP to everyone who asks for one. My suggestion to you is that given the fact that the list of disqualifiers are so similar, it makes no sense to claim that one is a "right" while begrudging the other as a "privilege". In a very real sense, a CHP is nothing more than a citizen informing the state government that he or she WILL BE carrying a concealed weapon. The state has no option to deny that permit, any more than the state has the option to deny the right to openly carry that same handgun. The only difference is one extra application, and a check.

    I will grant you that the fee for this stinks, and dilutes my point a little bit. We also pay a fee, just not nearly as much, with every commercial firearm purchase as well. Does that fee change possession or purchase from a right to a privilege? Most would say not.

    So I am claiming that in Virginia and the other Shall Issue states, a CHP is a RIGHT, not a privilege. Any distinction between the inherent "right to possess" and the "right to conceal" a handgun makes no sense, because the "presumptively lawful regulatory measures" that distinguish the two are in fact, nearly indistinguishable.

    TFred

    References:
    Comparison chart
    Federal Form 4473
    Virginia State Police Firearms Purchase Eligibility Test
    Virginia CHP Application
    Attached Files Attached Files
    Last edited by TFred; 08-22-2012 at 06:08 PM. Reason: ETA: Attachments are a bear!

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    Regular Member scouser's Avatar
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    Quote Originally Posted by TFred View Post
    [snip]
    Virginia is a SHALL ISSUE state. We all know what that means. Unless you are specifically disqualified, the government MUST issue a CHP to everyone who asks for one. My suggestion to you is that given the fact that the list of disqualifiers are so similar, it makes no sense to claim that one is a "right" while begrudging the other as a "privilege". In a very real sense, a CHP is nothing more than a citizen informing the state government that he or she WILL BE carrying a concealed weapon.
    I think, especially with the part I bolded, you made a good point, which leads on to the question of is a CHP simply a disguised registration system? Granted it doesn't list what you CC, but it does suggest that the holder possesses firearms. Going a step further, how do we know for sure that the information on the 4473 Form isn't kept somewhere, or whether the fingerprint cards some of us had to submit for our original CHP were really destroyed?

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    Regular Member riverrat10k's Avatar
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    Interesting post.

    Gotta chew on this

    "In a very real sense, a CHP is nothing more than a citizen informing the state government that he or she WILL BE carrying a concealed weapon. The state has no option to deny that permit, any more than the state has the option to deny the right to openly carry that same handgun. The only difference is one extra application, and a check.
    Remember Peter Nap and Skidmark. Do them proud. Be active. Be well informed. ALL rights matter.

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    Regular Member riverrat10k's Avatar
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    Good points, also, Scouser.

    Ya really think all the records are "destroyed". In this digital age? Don't bank on it. I wouldn't take the bet.
    Remember Peter Nap and Skidmark. Do them proud. Be active. Be well informed. ALL rights matter.

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    Campaign Veteran skidmark's Avatar
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    It appears to me that your analysis fails only because you are not recognizing the fact that the General Assembly, in their wisdom (where is that rolling hysterically on the floor emoticon when you need it?), declared that carrying of concealed weapons, which includes handguns, is illegal.

    The General Assembly, again in their wisdom, carved out an exception to the carrying of concealed handguns based on the person desiring to do so not having one or more of a list of disqualifying conditions and the paying of a fee (tax). There is no question that cocealed carry is a privilege granted by the General Assembly, in their wisdom.

    Remember, even SCOTUS has said that as long as there is a way to lawfully bear arms the right to do so has not been abridged - even when doing so involves applying for and being granted some privelege. (Yes, this is not actually what Heller says and is repeated in McDonald. But try to explain it to a non-gun person without falling to that level.) There are a few cases working their way towards SCOTUS addressing that conflict, and most of them seem to have a better than good chance of resolving the dichotomy. All we need is to see if SCOTUS wants to take on the issue so soon.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by skidmark View Post
    It appears to me that your analysis fails only because you are not recognizing the fact that the General Assembly, in their wisdom (where is that rolling hysterically on the floor emoticon when you need it?), .
    There you go Skid



    I'm just reading for now.

    It's an interesting concept and as I aid in private earlier....P4P and permits themselves, are completely different animals.
    This is a permit discussion!

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    Regular Member TFred's Avatar
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    Quote Originally Posted by skidmark View Post
    It appears to me that your analysis fails only because you are not recognizing the fact that the General Assembly, in their wisdom (where is that rolling hysterically on the floor emoticon when you need it?), declared that carrying of concealed weapons, which includes handguns, is illegal.

    The General Assembly, again in their wisdom, carved out an exception to the carrying of concealed handguns based on the person desiring to do so not having one or more of a list of disqualifying conditions and the paying of a fee (tax). There is no question that cocealed carry is a privilege granted by the General Assembly, in their wisdom.

    Remember, even SCOTUS has said that as long as there is a way to lawfully bear arms the right to do so has not been abridged - even when doing so involves applying for and being granted some privelege. (Yes, this is not actually what Heller says and is repeated in McDonald. But try to explain it to a non-gun person without falling to that level.) There are a few cases working their way towards SCOTUS addressing that conflict, and most of them seem to have a better than good chance of resolving the dichotomy. All we need is to see if SCOTUS wants to take on the issue so soon.

    stay safe.
    I understand the distinctions as User has explained several times: Affirmative Defense, and all of that.

    Those distinctions notwithstanding, one could just as easily argue that the wording of the statute is simply outdated, from before we became a "Shall Issue" state. Taking the code as a whole, one could say that carrying concealed is a "de facto right", for anyone who wants to fill out a form and pay the tax.

    It's not too different from the recent Richmond Library sign incident. As illogical as the reasoning was for their sign, we actually have the same situation in the code: "Carrying concealed weapons is prohibited, except as permitted by law." As the library folks told us, and as we enjoy in real life, it is our right to carry concealed in the library, and anywhere else, if we choose to jump through the administrative hoops.

    Remember the foundation of my point here. We are eager to call OC a right even though the disqualifiers for doing so are 90+% common with concealed carry.

    Here comes the crazy talk: Every time we purchase a gun, we pay a $2 fee for a background check that confirms our compliance with those 90+% of the qualifiers for a CHP. What if we bumped that fee up a buck or two, added in those last two qualifiers to the test, and then had the folks in Richmond AUTOMATICALLY mail out a CHP to everyone who buys a gun? It certainly can't cost 20 times more money to check those last two disqualifier items than it does to check the first 15 or so.

    That's about as close to Constitutional Carry as you can get without using the actual term. And the interesting part is that we're ALREADY over 90% there!!

    TFred

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    Regular Member paramedic70002's Avatar
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    To twist TFred's argument, someone with the wherewithal to do so should use this to argue in the General Assembly (again...) by way of a Bill, that CHPs (really the whole 18.2-308 except for other illegal possessions) should be abolished since they are virtually the same as OC.
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    Regular Member Thundar's Avatar
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    Quote Originally Posted by paramedic70002 View Post
    To twist TFred's argument, someone with the wherewithal to do so should use this to argue in the General Assembly (again...) by way of a Bill, that CHPs (really the whole 18.2-308 except for other illegal possessions) should be abolished since they are virtually the same as OC.
    Or...

    Why doesn't the General Assembly waive the backround check for those that have a current CHP just like they do for those with a Curio and Relic License?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Thundar View Post
    Or...

    Why doesn't the General Assembly waive the backround check for those that have a current CHP just like they do for those with a Curio and Relic License?
    Because I'd spend every waking moment yanking chains.
    I hate taking the same side as Saslaw.
    Last edited by peter nap; 08-24-2012 at 08:38 PM.

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    Campaign Veteran roscoe13's Avatar
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    Quote Originally Posted by Thundar View Post
    Or...

    Why doesn't the General Assembly waive the backround check for those that have a current CHP just like they do for those with a Curio and Relic License?
    A C&R is a federal FFL. A C&R holder is only background check exempt for weapons that qualify as C&R....

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by roscoe13 View Post
    A C&R is a federal FFL. A C&R holder is only background check exempt for weapons that qualify as C&R....

    Roscoe
    Virginia specifically exempts C&R holders from all state background check requirements for any firearm, not just for Curios and Relics.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Campaign Veteran roscoe13's Avatar
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    Quote Originally Posted by Thundar View Post
    Virginia specifically exempts C&R holders from all state background check requirements for any firearm, not just for Curios and Relics.
    Site?
    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good." - George Washington

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by roscoe13 View Post
    A C&R is a federal FFL. A C&R holder is only background check exempt for weapons that qualify as C&R....

    Roscoe
    Site?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by roscoe13 View Post
    Site?
    Virginia State Police Procedures Manual for Firearms Dealers, July2012 Edition

    Page VI -1

    VI CRIMINAL HISTORY RECORD INFORMATION CHECK

    D. Exceptions to CHRI Check Requirements

    A CHRI check is not required for:

    1. Transactions between licensed firearms importers or collectors, manufacturers, or dealers. ...
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    For most purposes, the second amendment is being treated as "privilege" and not a "right", even after Heller, etc. Background check to purchase, permits to carry, numerous restrictions as to where you can carry, and on and on. As these court cases move forward, we had best hope that the second amendment moves closer to to treatment as an actual "right". Why? If our second amendment "rights" can be regulated in this manner, why not all of our other rights? What if similar regulations were applied to the first amendment. Perhaps it would be perfectly legal and constitutional to impose a fee and background check before a citizen could write a letter to the editor, or call in to a popular talk radio program to express an opinion or even post here on OpenCarry. And define a confusing array of places and circumstances where you could speak freely in one situation, but not another. Why not? Form a line for your "free speech" permit. Or go to jail.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by markand View Post
    For most purposes, the second amendment is being treated as "privilege" and not a "right", even after Heller, etc. Background check to purchase, permits to carry, numerous restrictions as to where you can carry, and on and on. As these court cases move forward, we had best hope that the second amendment moves closer to to treatment as an actual "right". Why? If our second amendment "rights" can be regulated in this manner, why not all of our other rights? What if similar regulations were applied to the first amendment. Perhaps it would be perfectly legal and constitutional to impose a fee and background check before a citizen could write a letter to the editor, or call in to a popular talk radio program to express an opinion or even post here on OpenCarry. And define a confusing array of places and circumstances where you could speak freely in one situation, but not another. Why not? Form a line for your "free speech" permit. Or go to jail.
    Yes, ABSOLUTELY. And these are the areas that the court must eventually evaluate when the cases regarding the "presumptively lawful restrictions" eventually get back to the top, the Supreme Court. I just hope it is Scalia who is once again writing the majority opinions of those cases.

    TFred

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    Campaign Veteran roscoe13's Avatar
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    Quote Originally Posted by Thundar View Post
    Site?
    27 CFR 478.93
    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good." - George Washington

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    Regular Member carolina guy's Avatar
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    I think you may be on to something. What is the "enabling" legislation for the "privilege" to carry concealed in Virginia? Where did it become illegal? If you compare the Constitutions of VA and NC as bordering states (and there is a lot of commonality with other states as well), they have either made it unconstitutional to carry concealed, or they have not.

    Since VA does not have a Constitutional prohibition against concealed carry, then this sounds a lot less like VA granting a "privilege" and much more like VA granting an "exemption from a restriction of your Constitutional rights".

    NC's concealed carry laws are more like an "exemption from a Constitutional Prohibition"...and honestly, I am not sure how it is actually Constitutional for the General Assembly to "allow" something that it explicitly prohibited.


    Virginia
    Article I
    Section 13. Militia; standing armies; military subordinate to civil power.


    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
    North Carolina
    Article I
    Sec. 30. Militia and the right to bear arms.

    A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.
    Last edited by carolina guy; 08-27-2012 at 03:31 PM.
    If something is wrong for ONE person to do to another, it is still wrong if a BILLION people do it.

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