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Thread: A formative theory on the legal route to state wide preemption.

  1. #1
    Regular Member ChiangShih's Avatar
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    A formative theory on the legal route to state wide preemption.

    In light of the McDonald v. Chicago and Heller v. D.C. case, we know that the supreme court, specifically Alito, concluded substantive due process must of included the right to bear arms and owning a handgun is tied into the fundamental right of self protection. In respect to incorporation Alito states, "a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice."

    Now we know the Chicago's law may not expressly prohibited handgun ownership, but through methods of restriction if effectively had done so. This is also the opinion of Alito and for the most part the supporting judges. We also know that the court recognizes and reiterates the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Also that, "incorporation does not imperil every law regulating firearms."

    (Now dismissing that argument of the ruling being specifically related to handgun ownership in the home, and focusing more on the court's opinion, wording, and ruling; specifically for the purposes of developing this theory.)

    In analysis of the two quoted statements it would appear that the prohibition of open carry is not considered an infringement of a fundamental right. As the right to own or have a handgun is still an option. However, how one must carry the gun is regulated. In the respect of incorporation of the 2nd and 14th amendment as well as the courts opinion, and in the interest of the development of this theory, lets assume and accept this (regulation of open carry is legal and up to the state/municipalities) is within the prescribed parameters of the ruling, law, and the constitution.

    So, fundamentally, if we were to get preemption passed through forcing the hand of the state, we are tasked with proving that OC prohibition presents an infringement of our substantive and incorporated rights. The right we hold already in ruling meets Alito's "scheme of ordered liberty" test.

    From a legal perspective, at first glance, OC does not seem to present an infringement, as it is simply a regulation on the greater right. Regulation and exterior law being upheld and supported by the court.

    However, the court did seem to make clear or at least clearly imply that all out restriction or deprivation of arms by the state or municipalities, expressly written or ambiguously implied, would not be upheld.

    Using this perspective of thought and opinion, how can we apply this to advance preemption. This brings us back to the question: How can we using this theory develop a legal strategy to force the states hand in preemption of open carry.

    My hypothetical answer follows:

    Because of the convergence of two governing laws, one from a state level and the other from a municipal level, when applied to a particular set of circumstances, creates an event of negative constitutionality, thus leading to the violation of the substantive rights articulated by recent Supreme Court rulings.

    Missouri law states that to obtain a CCW one must be 23 years of age. In the state of Missouri there is no statutory limit on the open carry of a firearm.

    Now imagine for a moment a scenario that plays out everyday in Missouri, a 21 year old lives in or stuck in a city where open carry is prohibited by municipal ordinance. The dilemma is of course, the individual can not obtain a CCW for 2 more years, and he or she is legally prohibited to open carry. This essentially creates a situation where the convergence of the two restrictions come together to deprive this individual of their immunities, privileges, and rights as a citizen. Two laws that effectively strip the individual of their means of self-defense; self-defense which is fundamental to our scheme of ordered liberty and system of justice. Thus, violating the 2nd and 14th amendment in the perspective articulated by Justice Alito and the overall ruling of the court.

    This theory on the legal route to state wide preemption is, as I stated, formative. It is an idea, rough in its conception and undoubtedly so in its presentation here. So I ask, what does the community and those more savvy in this field think? Is this a possible route to consider or research more deeply? Does it contain any fatal errors in its law or theory? Let me know.

    -James H.
    ChiangShih
    Last edited by ChiangShih; 11-11-2010 at 02:13 AM.
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    I think that you may be on to something there. In our push for preemptive statute, what age should we push for, 18, 21 or 23?
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    Regular Member ChiangShih's Avatar
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    Quote Originally Posted by patriotthad View Post
    I think that you may be on to something there. In our push for preemptive statute, what age should we push for, 18, 21 or 23?
    I'm not sure what age we would push for currently but if in fact this theory could be manipulated and implemented it lends itself to a couple divergent outcomes. Hypothetically if this worked and it came down to a court decision we could either see a state law prohibiting municipalities from prohibiting open carry or a statutory limit placed on open carry, thus preempting its legality for a specific age and up. If there is preemption for specific age and up I would figure it would have to be 23 and up, if not they would have to reduce the CCW age to match the open carry preemption age or else the core theoretical conflict would still exist.

    Again, this is all hypothetical and my knowledge, or lack thereof, of the intricacies and complexities of this matter may have caused me to create or miss an existing fatal flaw in the idea.
    Last edited by ChiangShih; 11-11-2010 at 10:21 AM.
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