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Thread: Ok All you "legal" heads, I have one for you...

  1. #1
    Regular Member zekester's Avatar
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    Ok All you "legal" heads, I have one for you...

    I am very aware of Section 23 of our great constitution...

    "Section 23. That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. "....then the exception

    "(2004) Section does not prohibit the General Assembly from enacting statutes allowing or disallowing the carrying of concealed weapons; the Concealed-Carry Act is therefore constitutional. Brooks v. State, 128 S.W.3d 844 (Mo.banc). "

    Question is.....does the "statute" of the Concealed Carry Act just an extension of our "right" (right of every citizen to keep and bear arms in defense of his home, person and property) or a way for the government to "regulate"...there is a reason behind this....but want to get opinions first.

    Z
    Last edited by zekester; 07-05-2010 at 09:59 AM.

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    Regular Member sohighlyunlikely's Avatar
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    Why was CCW

    If you want my opinion to why was CCW given to Missourians. I would say because there were enough people wanting it badly enough that the a lot of politicians realized they had a chance to actually give people something they want. Their choice was to look like the good guy and further their career as politicians or keep denying the will of the people and be voted out. All they really want is to continue their rise to power and stay on the gravy train of being a professional politician.

    Doc

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    Brooks vs state had little to near nothing to do with CCW for the state of Missouri.

    It was an attempt to circumvent the law regarding the funding of the permit process.

    The Hancock amendment basically says the state can not pass a law that cost the localities monies. St Louis county tried to press the issue that the permitting process would cost them barrels of money therefore the CCW permits would not be processed. Since the back ground check is done by the FBI and the total burden on the counties was the finger printing and paperwork filing, it was determined that the sliding scale fees with an upper limit more than covered the cost associated with processing the paper work.

    The position was that the state forcing the counties to fund the license process was unconstitutional under the Hancock amendment, the state supreme court found in favor of the state and the funding for CCW was determined to be constitutional.

    Not sure if that helped your point or not, but it is what happened.

    Missouri has CCW because a lot of folks st aside their personal views and focused on one goal and did not waiver over petty issues in the quest for the goal. It was achieved because folks listened to the legislators and how far they would step out on the branch to make it happen, It happened because folks understood only certain things were possible and some issues would have to wait for future sessions to get done. It happened because a lot of money got spent to make it happen. It happened because when not exactly what everyone wanted, patience was employed instead of referring to supportive politicians as asshats.

    It happened because those whom wanted it wanted it bad enough to play the stupid political games required to make it happen, nothing more and nothing less.

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    Regular Member zekester's Avatar
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    The question of course, does the "statute" extend the right.....or regulate it..?

    Does any "statute" regulate.....( I know of course it does), but when it is actually a statute toward an admendment to the constitution, does it carry over?...

    Is a "right" a right....?....Or does it depend on a "statute" to decide what "right" this is?

    I know this is vague, but as LMTD , (I do have a question and would love to have a link on the " sliding scale") is on the right track, for which I am going.

    Z
    Last edited by zekester; 07-05-2010 at 12:52 PM.

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    Regular Member cash50's Avatar
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    Quote Originally Posted by sohighlyunlikely View Post
    If you want my opinion to why was CCW given to Missourians. I would say because there were enough people wanting it badly enough that the a lot of politicians realized they had a chance to actually give people something they want. Their choice was to look like the good guy and further their career as politicians or keep denying the will of the people and be voted out. All they really want is to continue their rise to power and stay on the gravy train of being a professional politician.

    Doc
    I agree. Most of these politicians use and disregard the Constitution (state and federal) when it advances their cause.

    Zeke- I think it's regulation because money is involved. A right shouldn't cost money to exercise.

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    Regular Member zekester's Avatar
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    Quote Originally Posted by cash50 View Post
    I agree. Most of these politicians use and disregard the Constitution (state and federal) when it advances their cause.

    Zeke- I think it's regulation because money is involved. A right shouldn't cost money to exercise.
    Cash50 is even closer...SCOTUS...Has a decison on this...but the question is...is this still is based on a "statute"....regarding an admendment to the constitution..?.
    Last edited by zekester; 07-05-2010 at 01:20 PM.

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    Quote Originally Posted by zekester View Post
    Cash50 is even closer...SCOTUS...Has a decison on this...but the question is...is this still is based on a "statute"....regarding an admendment to the constitution..?.
    Quote Originally Posted by zekester View Post
    The question of course, does the "statute" extend the right.....or regulate it..?

    Does any "statute" regulate.....( I know of course it does), but when it is actually a statute toward an admendment to the constitution, does it carry over?...

    Is a "right" a right....?....Or does it depend on a "statute" to decide what "right" this is?

    I know this is vague, but as LMTD , (I do have a question and would love to have a link on the " sliding scale") is on the right track, for which I am going.

    Z
    Not sure how much it helps you as vauge as this is however here is the requested info
    From: RSMO571.101
    10. For processing an application for a certificate of qualification for a concealed carry endorsement pursuant to sections 571.101 to 571.121, the sheriff in each county shall charge a nonrefundable fee not to exceed one hundred dollars which shall be paid to the treasury of the county to the credit of the sheriff's revolving fund.

    11. For processing a renewal for a certificate of qualification for a concealed carry endorsement pursuant to sections 571.101 to 571.121, the sheriff in each county shall charge a nonrefundable fee not to exceed fifty dollars which shall be paid to the treasury of the county to the credit of the sheriff's revolving fund.

    Slidng scale is sort of close, but by and large, most do charge the full 150 bucks, I mean really, it is still the goobernment and they are going to take the max they can if we will put up with it lol. Here is a link to the STATUTE which it most certainly is, http://www.moga.mo.gov/statutes/C500-599/5710000101.HTM

    If you are thinking some how the funding process being held as constitutional it makes the regulation something its not, your flirting with something that never was.

    St. Lous's case was not that the CCW law was not legal, it was an attempt to say the 150 was not enough to cover the processing which meant the county would have to lay out funds to preform the duties associated with the license, something the Hancock amendment strictly forbids. They failed as 150 is more than enough funding to cover the cost of the activities according to MO supreme court.

    MO 23 specifically defines concealed carry as a regulated activity, 571 makes it a shall issue licensed activity that can not be preempted by localities, CCW is "protected" by statute aka Missouri state law, not the constitution of the US or Missouri.

    While many are flirting with the uncle Ted quote of the "2nd amendment is my license to concealed carry" it remains a dangerous route that only folks like uncle Ted can afford to explore. Carry concealed without a license in the state of Missouri and get caught, your going to need a dump truck filled with money to save your freedom and will quite likely lose your rights to touch firearms again in your life.

    Do I think that is accurate, yes, fair and what the intent of the founders, no, but I ain't the one whom shall drop the gavel at anyone's hearing and while they have latitude, judges are bound by the statutes and your going down for it without any doubt.

    Yes, the AG in Wisconsin said he would not file charges, that is not binding on any DA in any county whom has an anti-agenda and decides to make a name for himself. Heller and McDonald are about $300k from assistance along with about 2.5 years of wait time and a lot of court time.

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by zekester View Post
    The question of course, does the "statute" extend the right.....or regulate it..?

    Does any "statute" regulate.....( I know of course it does), but when it is actually a statute toward an admendment to the constitution, does it carry over?...

    Is a "right" a right....?....Or does it depend on a "statute" to decide what "right" this is?

    I know this is vague, but as LMTD , (I do have a question and would love to have a link on the " sliding scale") is on the right track, for which I am going.

    Z
    Actually, RSMO 571.107.1(6) does neither. It doesn't "extend a right", nor does it "regulate a right". What RSMO 571.107(6) does is define boundaries for a PRIVILEGE (you have no Constitutional guarantee to have protection from the law if you carry a concealed firearm in the State of Missouri) that you are being "granted" by the state in RSMO 571.030.4 and 571.101. Carrying a concealed firearm in the public domain in Missouri is a privilege that you must have state permission to take part in, just like driving a vehicle on public roads or practicing law in our courts. Our concealed carry laws have, in no way, amended our State Constitution.

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    wow

    Quote Originally Posted by cshoff View Post
    Actually, RSMO 571.107.1(6) does neither. It doesn't "extend a right", nor does it "regulate a right". What RSMO 571.107(6) does is define boundaries for a PRIVILEGE (you have no Constitutional guarantee to have protection from the law if you carry a concealed firearm in the State of Missouri) that you are being "granted" by the state in RSMO 571.030.4 and 571.101. Carrying a concealed firearm in the public domain in Missouri is a privilege that you must have state permission to take part in, just like driving a vehicle on public roads or practicing law in our courts. Our concealed carry laws have, in no way, amended our State Constitution.
    Dang you guys are smart... Nice explanation.

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    Quote Originally Posted by sohighlyunlikely View Post
    If you want my opinion to why was CCW given to Missourians. I would say because there were enough people wanting it badly enough that the a lot of politicians realized they had a chance to actually give people something they want. Their choice was to look like the good guy and further their career as politicians or keep denying the will of the people and be voted out. All they really want is to continue their rise to power and stay on the gravy train of being a professional politician.

    Doc

    It's because they found a way to tax your 2A rights, nothing more. And if you look at 2A and the recent incorporation of it, any infringement is unconstitutional. Infringement meaning (very basic at that) an encroachment upon or limiting thereof...ie requiring out of pocket expense for a permit, requiring the permit at all, firearms registration acts and penalties, and so much more. These all encroach and limit YOUR 2A.

    But back to the OP. Was that entire section repealed or was it just the disallowance of concealed weapons repealed and replaced with CCW statute? The reason I ask is very specifically it says to defend home, person and property. If memory serves the Castle Doctrine does not allow the defense of property unless it qualifies as a domicile or vehicle. So if the portion in the OP was not completely repealed then there's still a section of the Missouri Constitution that allows for the defense of property and our own lawmakers overlooked it somehow. Anyone know?
    Last edited by heresyourdipstickjimmy; 07-13-2010 at 02:28 PM.

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by heresyourdipstickjimmy View Post
    It's because they found a way to tax your 2A rights, nothing more. And if you look at 2A and the recent incorporation of it, any infringement is unconstitutional. Infringement meaning (very basic at that) an encroachment upon or limiting thereof...ie requiring out of pocket expense for a permit, requiring the permit at all, firearms registration acts and penalties, and so much more. These all encroach and limit YOUR 2A.

    But back to the OP. Was that entire section repealed or was it just the disallowance of concealed weapons repealed and replaced with CCW statute? The reason I ask is very specifically it says to defend home, person and property. If memory serves the Castle Doctrine does not allow the defense of property unless it qualifies as a domicile or vehicle. So if the portion in the OP was not completely repealed then there's still a section of the Missouri Constitution that allows for the defense of property and our own lawmakers overlooked it somehow. Anyone know?
    You are confusing the Castle Doctrine with your right to protect yourself. They are not dependent upon, nor synonymous with, one another. The "Castle Doctrine" in Missouri merely provides you with criminal and civil protections if/when you do use force to defend yourself and are in fact adjudged to have been justified in using such force, as well as defining that you have no duty to retreat from your dwelling or vehicle and in fact may use physical force and/or deadly force against someone who unlawfully enters or attempts to unlawfully enter.

    Your right to defend yourself is absolute ANYWHERE you may happen to be in Missouri, as long as you have justification as is outlined in RSMo Chapter 563 (specifically, sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061).

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    Quote Originally Posted by heresyourdipstickjimmy View Post
    It's because they found a way to tax your 2A rights, nothing more. And if you look at 2A and the recent incorporation of it, any infringement is unconstitutional. Infringement meaning (very basic at that) an encroachment upon or limiting thereof...ie requiring out of pocket expense for a permit, requiring the permit at all, firearms registration acts and penalties, and so much more. These all encroach and limit YOUR 2A.

    But back to the OP. Was that entire section repealed or was it just the disallowance of concealed weapons repealed and replaced with CCW statute? The reason I ask is very specifically it says to defend home, person and property. If memory serves the Castle Doctrine does not allow the defense of property unless it qualifies as a domicile or vehicle. So if the portion in the OP was not completely repealed then there's still a section of the Missouri Constitution that allows for the defense of property and our own lawmakers overlooked it somehow. Anyone know?
    Quote Originally Posted by cshoff View Post
    You are confusing the Castle Doctrine with your right to protect yourself. They are not dependent upon, nor synonymous with, one another. The "Castle Doctrine" in Missouri merely provides you with criminal and civil protections if/when you do use force to defend yourself and are in fact adjudged to have been justified in using such force, as well as defining that you have no duty to retreat from your dwelling or vehicle and in fact may use physical force and/or deadly force against someone who unlawfully enters or attempts to unlawfully enter.

    Your right to defend yourself is absolute ANYWHERE you may happen to be in Missouri, as long as you have justification as is outlined in RSMo Chapter 563 (specifically, sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061).
    I didn't see any confusion in what I asked. It was direct and to the point as both pieces of Statute differ slightly in their wording. So I'll repeat myself, which is becoming a habit on this board I do not like. Note that my question was regarding "property" and not defense of self or others. But, thanks for posting up those RSMO numbers as others may want/need to explore those. Link to RSMO search: http://www.moga.mo.gov/statutesearch/

    (copied from above, also please refer to the OP-original post for reference) Was that entire section repealed or was it just the disallowance of concealed weapons repealed and replaced with CCW statute? The reason I ask is very specifically it says to defend home, person and property. If memory serves the Castle Doctrine does not allow the defense of property unless it qualifies as a domicile or vehicle. So if the portion in the OP was not completely repealed then there's still a section of the Missouri Constitution that allows for the defense of property and our own lawmakers overlooked it somehow. Anyone know?
    Last edited by heresyourdipstickjimmy; 07-14-2010 at 11:07 AM.

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by heresyourdipstickjimmy View Post
    I didn't see any confusion in what I asked. It was direct and to the point as both pieces of Statute differ slightly in their wording. So I'll repeat myself, which seems to be because some on this board simply don't have their heads facing forward in class as they're too busy whispering to their neighbors and passing notes.

    (copied from above, also please refer to the OP-original post for reference) Was that entire section repealed or was it just the disallowance of concealed weapons repealed and replaced with CCW statute? The reason I ask is very specifically it says to defend home, person and property. If memory serves the Castle Doctrine does not allow the defense of property unless it qualifies as a domicile or vehicle. So if the portion in the OP was not completely repealed then there's still a section of the Missouri Constitution that allows for the defense of property and our own lawmakers overlooked it somehow. Anyone know?
    Yes, you are confused, apparently so much so that you don't even realize it. The "Castle Doctrine" is stand alone legislation. It doesn't rely on or depend on any other legislation to serve it's purpose. Your right to defend your property also stands on it's own. It doesn't rely on or depend on the "Castle Doctrine" to serve it's purpose. The "Castle Doctrine", in no way, disallows the defense of property.

    563.041. 1. A person may, subject to the limitations of subsection 2, use physical force upon another person when and to the extent that he or she reasonably believes it necessary to prevent what he or she reasonably believes to be the commission or attempted commission by such person of stealing, property damage or tampering in any degree.

    2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

    3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

    4. The defendant shall have the burden of injecting the issue of justification under this section.
    Last edited by cshoff; 07-14-2010 at 05:36 PM.

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