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Thread: a new idea for our OC battle

  1. #1
    Regular Member hammer6's Avatar
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    Lightbulb a new idea for our OC battle

    so, just as i do often in my free time, i was researching various supreme court decisions and what not, and i had an idea. tonight i was reading about the supremacy clause in the constitution, because i asked myself the question- "can a state law over-ride a state supreme court decision?". so i googled. and googled. and i spent about 3 hours going all over the place, from: the supremacy clause, federal preemption, supreme court decisions, federalist papers, international treaties, and more.


    so we had the Heller decision, which told DC that it couldn't prohibit guns in houses because of the second amendment. then we had the Mcdonald decision, which Chicago argued that the Heller decision didn't apply to them because the 2nd amendment didn't apply to the states. the SCOTUS told Chicago otherwise, and thus said the 2nd amendment applies to the states. then i thought of the 10th amendment and the supremacy clause. first, we have the supremacy clause,

    "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
    and then we have the 10th amendment,
    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
    so with that, we can understand that our federal government is supreme, and any law a state has that is in contradiction with it, is void. but the limit here is that the supremacy of the federal government MUST be in line with the constitution. i read two federalist papers about this idea: number 33 by alexander hamilton, and number 44 by james madison. the 10th amendment basically says that if something is not listed in the constitution, the states are supposed to take care of it....

    then i found some different SCOTUS rulings that struck down some state laws based on them being in conflict with federal law. i'll give a few quotes:

    Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981)
    "A state statute is void to the extent that it actually conflicts with a valid Federal statute." Edgar v. Mite Corporation, 457 U.S. 624 (1982)
    Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the achievement of Congress's discernible objectives. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992).
    and there's more.

    so look at the last quote, and see where it says "interposes an obstacle"? well, with the Heller decision, the Mcdonald decision involving 2nd amendment incorporation through the due process part of the 14th amendment, (plus some of the SCOTUS opinions i have seen on others' signatures here on the forum regarding a state making a right into a privilege by imposing a fee and requiring a license) AND with the supremacy clause, wouldn't it be affirmative to say that florida's law on handgun carry is an obstacle to me exercising my 2nd amendment SUPREME right? i can't open carry, and if i want to conceal carry, i have to purchase a permit to exercise a privilege to carry.

    now the other argument is to look at this from a 10th amendment perspective, which i can easily dispel. the 10th amendment says that whatever the constitution tells the federal government it can or can't do, or tells the states what they can do, the rest of those decisions are left up to the states. thus we have gay marriage in new york. if roe v. wade gets repealed, then that would be up to the states. UNLESS the federal government passes a marriage amendment, or an abortion amendment. then that would be supreme, and no longer up to the states.

    so, gun law is not left up to the states, because it is already in the constitution, and it states that it can't be infringed. therefore, since the federal government is supreme, the only law that matters is the 2nd amendment. if there were no 2nd amendment, then the 10th amendment would apply. unless the federal government were to pass an amendment...

    and this also includes SCOTUS rulings....state court rulings can't be in conflict with the SCOTUS ruling.


    so here's the deal. how can i abide by the supreme law of the land, ie "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", if my state law is in conflict by infringing on that right? the part they are infringing on is the "right" part. i don't have a "right" to OC in florida. i don't have a "right" to CC in florida. if i PAY for a permit, i'm ALLOWED to CC. according to the SCOTUS, that's not a right but a privilege, and they've already said it's okay to ignore that law and obey the right, if it's guaranteed by the constitution. the other part is the florida constitution has their own "2nd amendment" in it: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." now, i'm not striking down the legitimacy of the florida constitution- the reason for the florida constitution is because of the 10th amendment to the federal constitution. BUT, the RKBA was already addressed in the federal constitution via the 2nd amendment. so, aritcle 1 section 8 a, of the florida constitution is in conflict with the 2nd amendment in the federal constitution. EVEN if it were exactly the same as the 2nd amendment, it wouldn't matter, because the 2nd amendment is supreme to the florida constitution, and the 10th amendment doesn't apply here because it is already listed in the constitution. and that means the federal government is restricted by that amendment, and it is supreme over any state law about RKBA.


    so why are we even caring about getting legislation passed? do we need not to look at it from this angle? we're already getting proof of the legitimacy of the 2nd amendment at the state level through the SCOTUS...chicago and DC BANNED gun ownership, but the SCOTUS said they couldn't because of the 2nd amendment, with help from the 14th for the chicago case...! so, how could the SCOTUS not be so inclined to rule the same way in a case involving the state of florida? using their previous opinions about states requiring a fee to exercise a right (something in alabama or mississippi regarding free speech, among others), and the fact that there IS no right in florida. i don't need a permit to picket in front of an abortion clinic, i don't need a permit to not consent to any search and seizure of my property, i don't need a permit to not testify against myself, i don't need a permit to get a fair trial, i don't need a permit get a lawyer, i don't need a permit for a trial by jury....and those aren't considered "privileges", those are considered rights. all those amendments are honored in florida, except the second one - they make it a privilege to only those who give them money every 7 years. (and after waiting 90 days to get confirmation.)




    maybe a peaceful march in tallahassee, "briefly" OCing every few minutes for a few minutes at a time - while also reminding them of the US constitution, the supremacy clause, the 10th amendment restrictions, the 14th amendment incorporation of the 2nd amendment to the states, the SCOTUS decisions of Heller and McDonald - will help them make the right decision. they can make everything easy: save our state the embarrassment of a SCOTUS trial, and just align our constitution with the US constitution, thus making OC/CC legal per US citizenship.

    ?



    also on a side note- all they would need to do would be to take out "except that the manner of bearing arms may be regulated by law."
    also - it says "shall not be infringed in the FL constitution, with the exception for the "manner of bearing arms" can be regulated by law. it doesn't say that they can limit places where we can't carry them...federal law already has prohibited places. i haven't researched that, but i don't know if the prohibited places statute has any effect of law...?


    IANAL but i stayed at a holiday inn express once...
    Last edited by hammer6; 08-16-2011 at 04:27 AM.
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    Regular Member 77zach's Avatar
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    Good thoughts. But we're still mentally masturbating. If the system wasn't hopelessly corrupt, especially at the federal level, then you're right. But for the most part, the courts are there to rubber stamp the "laws" that are passed-to give the government whatever it wants and every once and awhile throw the people a bone. Here is an example of the "right" they gave residents of D.C: over a process of several months undergo psychological and physical testing, firearms training, extensive background check, months long waiting periods, and a registration fee, altogether coming to hundreds of dollars so you may keep a gun that holds less than 10 rounds in your home. Gee, some right!

    Now, SAF and others are trying to slowly chip away at gun control. It's possible the federal courts may give Illinois a restrictive licensing scheme to carry concealed. It's possible it may tell Georgia that church carry ban is impermissible. But, this is a very, very slow process and chances are that even if they heard our grief about the OC ban, they would not overturn it. Courts are loath to undo what the legislature does unless it is over something trivial. Most senior judges are anti-gun and wouldn't want to be responsible for making Fl become "the wild, wild west." Which is ridiculous, but "gun control" is like a tenet of the establishment's religion.

    Bottom line, there is probably an easier path through the legislature. Stogie implies that OC was just 1-3 votes short in the Senate. The House and governor are already in our corner, so this is the path of least resistance.

    Courts should be the backup plan. If the next 3 sessions fail, and the idiot public elects an anti-OC governor, then you get 4 years of ZERO chance for OC legalization. That's 4 years to try the courts. Maybe by that time TX, OK, and SC will have OC, it will be even more popular, and the courts will be bold enough.
    Last edited by 77zach; 08-16-2011 at 08:12 AM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

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    Regular Member mach1chris's Avatar
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    False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Thomas Jefferson

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    Regular Member mach1chris's Avatar
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    You certainly did a lot more research on this subject then I thought anyone of you guys would do.
    False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Thomas Jefferson

  5. #5
    Regular Member hammer6's Avatar
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    Quote Originally Posted by 77zach View Post
    Good thoughts. But we're still mentally masturbating. If the system wasn't hopelessly corrupt, especially at the federal level, then you're right. But for the most part, the courts are there to rubber stamp the "laws" that are passed-to give the government whatever it wants and every once and awhile throw the people a bone. Here is an example of the "right" they gave residents of D.C: over a process of several months undergo psychological and physical testing, firearms training, extensive background check, months long waiting periods, and a registration fee, altogether coming to hundreds of dollars so you may keep a gun that holds less than 10 rounds in your home. Gee, some right!

    Now, SAF and others are trying to slowly chip away at gun control. It's possible the federal courts may give Illinois a restrictive licensing scheme to carry concealed. It's possible it may tell Georgia that church carry ban is impermissible. But, this is a very, very slow process and chances are that even if they heard our grief about the OC ban, they would not overturn it. Courts are loath to undo what the legislature does unless it is over something trivial. Most senior judges are anti-gun and wouldn't want to be responsible for making Fl become "the wild, wild west." Which is ridiculous, but "gun control" is like a tenet of the establishment's religion.

    Bottom line, there is probably an easier path through the legislature. Stogie implies that OC was just 1-3 votes short in the Senate. The House and governor are already in our corner, so this is the path of least resistance.

    Courts should be the backup plan. If the next 3 sessions fail, and the idiot public elects an anti-OC governor, then you get 4 years of ZERO chance for OC legalization. That's 4 years to try the courts. Maybe by that time TX, OK, and SC will have OC, it will be even more popular, and the courts will be bold enough.

    well zach- here's the thing about the whole thing going on in DC...the SCOTUS simply told DC it couldn't RESTRICT gun possession in the home, because the 2nd amendment allowed it. well, DC had to comply, and they did. BUT, the SCOTUS never told them how they were to allow it- just simply they had to. so, that's going to take another lawsuit...

    but Heller 2 is seeking to get carry in DC. we're still waiting on that decision...

    if OC in florida is only 1-3 votes short in the senate, then let's get it done. but i think some of this national and SCOTUS information needs to be used in the persuasion process. because sooner or later, it's going to be re-election time...

    and i'm not just talking about gun carry laws..if there are other laws on the books in contradiction with the US constitution, then those need to be addressed to. if they don't want the exposure, they'll most likely start lining up the laws in the state...at least for the time being, until the smoke blows over....
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    Regular Member Rich7553's Avatar
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    A couple of notes:

    1. SCOTUS declared RKBA [I]inside the home[I] is protected under 2A because that was not a certified question before the court. They have not ruled on RKBA outside the home, except to support their ruling. From their comments, it is presumed that this is also protected. In fact, SCOTUS mentions prohibitions on carry in "sensitive places such as schools and government buildings" would be presumably constitutional. If carry outside the home were not protected under 2A, why would the court mention places outside the home where carry could presumably be prohibited? Two cert petitions have been filed on point (see http://www.abajournal.com/news/artic...weapons_outsi/), and the court is due to decide on granting the cert petitions on September 15th.

    2. The concept that constitutional rights are absolute is somewhat flawed. For example, strict interpretation of the First Amendment would not prohibit slander or libel. Strict interpretation of the Second Amendment would not preclude felons or the mentally unstable from bearing arms. So the idea that 2A rights are not to be "infringed" is more idealistic than realistic. When determining limitations to constitutional rights, the court must determine the level of scrutiny to be applied to the instant case. Scrutiny levels include rational basis review, intermediate scrutiny, and strict scrutiny. Each review level determines what criteria must be met by a governmental agency in order to restrict a right. For example, a rational basis review almost always favors the government and requires the lowest level of evidence necesary to support the government's position. Since 2A has been declared by SCOTUS to be a fundamental right, rational basis scrutiny would not usually apply. Intermediate scrutiny, the next level up, requires the government to prove that the limitation furthers an important government interest in a way that is substantially related to that interest. Strict scrutiny is the highest scrutiny level, and requires that the limitation is narrowly tailored and least restrictive in means to achieve a compelling government interest. It is usually applied to questions of fundamental rights. In Ezell v. City of Chicago, the U.S. Seventh Circuit Court of Appeals took a novel, innovative approach to the question which review level to apply to the 2A questions raised in that case. The opted for a "sliding scale" approach, in which the court weighed the proximity of the issue to the core of the right, and applied that scrutiny level to the issue. For example, the court in that instant case chose to use strict scrutiny to decide if Chicago's ban on shooting ranges in the city limits was unconstitutional. Because the core of the right was to keep and bear arms, the court decided that in order to exercise the right, persons must have a method of achieving proficiency with firearms. The city argued that ranges were available in surrounding communities outside of the city limits. The court likened this to Chicago prohibiting the right to free speech within the city merely because such free speech could be exercised elsewhere, and denied the city's arguement.

    3. The political realities are still a problem. SAF is currently pursuing a case in California, in which they are arguing in favor of shall-issue concealed carry because the state's unloaded OC statute does not satisfy "readily accessible/ready to use" for the purposes of self-defense. They will not support anything like unlicensed OC at this time as it would jeopardize their efforts for nationwide shall-issue.
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    Regular Member 77zach's Avatar
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    Quote Originally Posted by Rich7553 View Post
    3. The political realities are still a problem. SAF is currently pursuing a case in California, in which they are arguing in favor of shall-issue concealed carry because the state's unloaded OC statute does not satisfy "readily accessible/ready to use" for the purposes of self-defense. They will not support anything like unlicensed OC at this time as it would jeopardize their efforts for nationwide shall-issue.
    Yeah, you can't blame them for that either. California is a big prize, a huge state, bigger than many countries economically and politically. They're also planning on taking their "assault weapons" ban down too. If they can bring Ca and IL in line, I guess that means they'll take on Long Island, Manhatten, and the evil states of NJ and NY. The Japanese can keep Hawaii for all I care, lol.

    When I can OC in Central Park, we'll know the war is won.
    Last edited by 77zach; 08-16-2011 at 06:41 PM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

  8. #8
    Regular Member hammer6's Avatar
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    Quote Originally Posted by Rich7553 View Post
    A couple of notes:

    1. SCOTUS declared RKBA [I]inside the home[I] is protected under 2A because that was not a certified question before the court. They have not ruled on RKBA outside the home, except to support their ruling. From their comments, it is presumed that this is also protected. In fact, SCOTUS mentions prohibitions on carry in "sensitive places such as schools and government buildings" would be presumably constitutional. If carry outside the home were not protected under 2A, why would the court mention places outside the home where carry could presumably be prohibited? Two cert petitions have been filed on point (see http://www.abajournal.com/news/artic...weapons_outsi/), and the court is due to decide on granting the cert petitions on September 15th.

    2. The concept that constitutional rights are absolute is somewhat flawed. For example, strict interpretation of the First Amendment would not prohibit slander or libel. Strict interpretation of the Second Amendment would not preclude felons or the mentally unstable from bearing arms. So the idea that 2A rights are not to be "infringed" is more idealistic than realistic. When determining limitations to constitutional rights, the court must determine the level of scrutiny to be applied to the instant case. Scrutiny levels include rational basis review, intermediate scrutiny, and strict scrutiny. Each review level determines what criteria must be met by a governmental agency in order to restrict a right. For example, a rational basis review almost always favors the government and requires the lowest level of evidence necesary to support the government's position. Since 2A has been declared by SCOTUS to be a fundamental right, rational basis scrutiny would not usually apply. Intermediate scrutiny, the next level up, requires the government to prove that the limitation furthers an important government interest in a way that is substantially related to that interest. Strict scrutiny is the highest scrutiny level, and requires that the limitation is narrowly tailored and least restrictive in means to achieve a compelling government interest. It is usually applied to questions of fundamental rights. In Ezell v. City of Chicago, the U.S. Seventh Circuit Court of Appeals took a novel, innovative approach to the question which review level to apply to the 2A questions raised in that case. The opted for a "sliding scale" approach, in which the court weighed the proximity of the issue to the core of the right, and applied that scrutiny level to the issue. For example, the court in that instant case chose to use strict scrutiny to decide if Chicago's ban on shooting ranges in the city limits was unconstitutional. Because the core of the right was to keep and bear arms, the court decided that in order to exercise the right, persons must have a method of achieving proficiency with firearms. The city argued that ranges were available in surrounding communities outside of the city limits. The court likened this to Chicago prohibiting the right to free speech within the city merely because such free speech could be exercised elsewhere, and denied the city's arguement.

    3. The political realities are still a problem. SAF is currently pursuing a case in California, in which they are arguing in favor of shall-issue concealed carry because the state's unloaded OC statute does not satisfy "readily accessible/ready to use" for the purposes of self-defense. They will not support anything like unlicensed OC at this time as it would jeopardize their efforts for nationwide shall-issue.

    how are you implying that i should interpret this post? lol...
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  9. #9
    Regular Member hammer6's Avatar
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    2. The concept that constitutional rights are absolute is somewhat flawed. For example, strict interpretation of the First Amendment would not prohibit slander or libel. Strict interpretation of the Second Amendment would not preclude felons or the mentally unstable from bearing arms. So the idea that 2A rights are not to be "infringed" is more idealistic than realistic. When determining limitations to constitutional rights, the court must determine the level of scrutiny to be applied to the instant case. Scrutiny levels include rational basis review, intermediate scrutiny, and strict scrutiny. Each review level determines what criteria must be met by a governmental agency in order to restrict a right. For example, a rational basis review almost always favors the government and requires the lowest level of evidence necesary to support the government's position. Since 2A has been declared by SCOTUS to be a fundamental right, rational basis scrutiny would not usually apply. Intermediate scrutiny, the next level up, requires the government to prove that the limitation furthers an important government interest in a way that is substantially related to that interest. Strict scrutiny is the highest scrutiny level, and requires that the limitation is narrowly tailored and least restrictive in means to achieve a compelling government interest. It is usually applied to questions of fundamental rights. In Ezell v. City of Chicago, the U.S. Seventh Circuit Court of Appeals took a novel, innovative approach to the question which review level to apply to the 2A questions raised in that case. The opted for a "sliding scale" approach, in which the court weighed the proximity of the issue to the core of the right, and applied that scrutiny level to the issue. For example, the court in that instant case chose to use strict scrutiny to decide if Chicago's ban on shooting ranges in the city limits was unconstitutional. Because the core of the right was to keep and bear arms, the court decided that in order to exercise the right, persons must have a method of achieving proficiency with firearms. The city argued that ranges were available in surrounding communities outside of the city limits. The court likened this to Chicago prohibiting the right to free speech within the city merely because such free speech could be exercised elsewhere, and denied the city's arguement.



    i understand the scrutiny part. but i never said that constitutional rights were absolute. i just said they were supreme. meaning that if the constitution says you can do this" but a state says you can't, the constitutional law is the one that counts, because the 10th amendment says so. if there's no constitutional law on something, then a state can make whatever law they want.


    check this out:

    "It is claimed, however, that the ultimate question in determining the constitutionality of this license tax is whether the state has given something for which it can ask a return. That principle has wide applicability. State Tax Commission v. Aldrich, 316 U.S. 174, and cases cited. But it is quite irrelevant here. This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the Federal Constitution." Murdock v. Pennsylvania
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    Regular Member Rich7553's Avatar
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    Quote Originally Posted by hammer6 View Post
    i understand the scrutiny part. but i never said that constitutional rights were absolute. i just said they were supreme. meaning that if the constitution says you can do this" but a state says you can't, the constitutional law is the one that counts, because the 10th amendment says so. if there's no constitutional law on something, then a state can make whatever law they want.


    check this out:

    "It is claimed, however, that the ultimate question in determining the constitutionality of this license tax is whether the state has given something for which it can ask a return. That principle has wide applicability. State Tax Commission v. Aldrich, 316 U.S. 174, and cases cited. But it is quite irrelevant here. This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the Federal Constitution." Murdock v. Pennsylvania
    I just posted that for info purposes. Many people don't realize that SAF and NRA have agendas that don't necessarily involve what's right, at least to the point that they are ready to tackle these issues immediately. There are a bunch of folks on the forums and on facebook who simply parrot, "shall not be infringed" without realizing the effect it might have on people who are easily influenced. Believe it or not, Sean has spoken to Alan Gura (yes, that Alan Gura), on OC in Florida. From a legal standpoint, he thinks we have a pretty good chance to challenge the OC ban in court based on the Murdock case and some other legal precedents. But at the same time, he cannot jeopardize the cases SAF is involved in by taking that position quite yet. His primary goal, or should I say SAF's primary goal, is to achieve nationwide shall-issue first.
    Rich
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  11. #11
    Regular Member hammer6's Avatar
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    Quote Originally Posted by Rich7553 View Post
    I just posted that for info purposes. Many people don't realize that SAF and NRA have agendas that don't necessarily involve what's right, at least to the point that they are ready to tackle these issues immediately. There are a bunch of folks on the forums and on facebook who simply parrot, "shall not be infringed" without realizing the effect it might have on people who are easily influenced. Believe it or not, Sean has spoken to Alan Gura (yes, that Alan Gura), on OC in Florida. From a legal standpoint, he thinks we have a pretty good chance to challenge the OC ban in court based on the Murdock case and some other legal precedents. But at the same time, he cannot jeopardize the cases SAF is involved in by taking that position quite yet. His primary goal, or should I say SAF's primary goal, is to achieve nationwide shall-issue first.


    okay that's what i thought. yeah i agree about people throwing around "shall not be infringed" and what not. it makes me feel good also, that gura thinks that...that shows me that i'm not out of my mind, but most likely on the right track.....


    i also understand the motives of the SAF and the NRA....and also the nationwide shall issue. it's been a long time coming.
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  12. #12
    Regular Member hammer6's Avatar
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    i just read this in PARKER v. DC:


    Thus, the freedom of speech and of the press
    (article 1) does not permit the publication of libels,
    blasphemous or indecent articles, or other publications
    injurious to public morals or private reputation; the
    right of the people to keep and bear arms (article 2) is
    not infringed by laws prohibiting the carrying of
    concealed weapons; the provision that no person shall
    be twice put in jeopardy (article 5) does not prevent a
    second trial, if upon the first trial the jury failed to
    agree, or if the verdict was set aside upon the
    defendant’s motion; nor does the provision of the same
    article that no one shall be a witness against himself
    impair his obligation to testify, if a prosecution against
    him be barred by the lapse of time, a pardon, or by
    statutory enactment.


    this wasn't from this case, but the court quoted it from a SCOTUS ruling in Robertson v. Baldwin...and in that case, the court was discussing the scope of the term "involuntary servitude"...so that just goes to show how something not related to the 2nd amendment can be coined with it..
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  13. #13
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    caveat: this is personal opinion, not legal opinion - don't try this at home.

    I've argued that pre-emption applies at any time there is a conflict as the result of dual sovereignty. The word has been applied to the application of the supremacy clause, but as near as I can tell, never to the application of the Tenth Amendment. There have been cases, however, that applied state law in preference to federal law because state sovereignty trumps federal wish-fulfillment. Theoretically, the states have pre-emptive power in the areas of health, education, public welfare, and the police power, since the Constitution grants none of these powers to the U.S.

    As to the Bill of Rights being "absolute", I would argue that, as written, it is absolute, as well as supreme, but only as to the United States. "Substantive due process" is worse than a legal fiction, it's an oxymoron. Substance is not the same as procedure, and can't be equated. The application of the Bill of Rights to the governments of the states is absurd. Each state's constitution stands in parallel to that of the U.S., and they are designed to function at the same hierarchical level (below the true sovereign, The People). To my mind, what "due process of law" means, as stated in the Fourteenth Amendment, is not that Constitutional limitations on federal power apply to the states, but that each state must guarantee that its citizens receive the "process" which is "due", under the laws and constitution of that state. The reason that institutionalized racism was endemic in parts of the U.S. (the City of Alexandria, Va. public schools were desegregated in 1971 - "Remember the Titans" - my own graduating class), was that the Supreme Court of the United States thought that actually requiring the states to provide due process in a real way was a joke.

    I think we need a constitutional amendment to create a constitutional court, made up of justices appointed by each of the states. Anyone aggrieved by a decision of the U.S. Supreme Court as to any issue of fundamental constitutional interpretation would have a right to an appeal on that issue to the Constitutional Court. It is my opinion that Marbury v. Madison was wrongly decided - the Constitution is not a matter of federal law that can be "interpreted" willy-nilly by the Court; it is the charter for the federal government, it is the creature and property of the People, within which the U.S. is authorized to act. And, just as a corporate or municipal charter describes the authority to act, and thus creates boundaries and limits on the power to act, the Constitution of the U.S. functions as the charter for the entity created thereby. What Mr. Justice Marshall said, if I may paraphrase, is that the Constitution is federal law; that the U.S. Sup. Ct. is the ultimate arbiter of what federal law means; and that, therefore, the Court is the ultimate arbiter of what the Constitution means. To me, that syllogism is a lot like the standard one people get in "introduction to symbolic logic" classes: All cats are green; Max is a cat; therefore, Max is green. True, as a purely logical proposition, but a false conclusion nonetheless.

    My personal opinion is that it requires no interpretation, it means precisely what it says, and anyone who purports to be "interpreting" the Constitution is merely figuring out and rationalizing ways to subvert the Constitution. That's why I call myself a "Constitutional fundamentalist." Sola scriptura ("Only that which is written.", a phrase used by so-called Reform Theology to eliminate the authority of the Papacy, asserting the Bible as written to be the sole authority for Christian guidance.) As we have seen here, we really don't need the U.S. Supreme Court to "interpret" the document. Our vigorous discussions on the matter have revolved around the dichotomy between what the document says and how it is used by the U.S., not on any real debate about what the words in the document say or mean.

    We need a Constitutional Court that is not beholden to the U.S. for its authority.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  14. #14
    Regular Member 77zach's Avatar
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    Quote Originally Posted by user View Post

    We need a Constitutional Court that is not beholden to the U.S. for its authority.
    Another court? If you or I are sitting on it, I'm sure all our problems will be solved. But they're not going to let me, lol. I think it would be more effective to remove the suppurating orifice that is the feddle gumint.
    Last edited by 77zach; 08-17-2011 at 10:34 AM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

  15. #15
    Regular Member hammer6's Avatar
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    Quote Originally Posted by user View Post
    caveat: this is personal opinion, not legal opinion - don't try this at home.

    I've argued that pre-emption applies at any time there is a conflict as the result of dual sovereignty. The word has been applied to the application of the supremacy clause, but as near as I can tell, never to the application of the Tenth Amendment. There have been cases, however, that applied state law in preference to federal law because state sovereignty trumps federal wish-fulfillment. Theoretically, the states have pre-emptive power in the areas of health, education, public welfare, and the police power, since the Constitution grants none of these powers to the U.S.

    As to the Bill of Rights being "absolute", I would argue that, as written, it is absolute, as well as supreme, but only as to the United States. "Substantive due process" is worse than a legal fiction, it's an oxymoron. Substance is not the same as procedure, and can't be equated. The application of the Bill of Rights to the governments of the states is absurd. Each state's constitution stands in parallel to that of the U.S., and they are designed to function at the same hierarchical level (below the true sovereign, The People). To my mind, what "due process of law" means, as stated in the Fourteenth Amendment, is not that Constitutional limitations on federal power apply to the states, but that each state must guarantee that its citizens receive the "process" which is "due", under the laws and constitution of that state. The reason that institutionalized racism was endemic in parts of the U.S. (the City of Alexandria, Va. public schools were desegregated in 1971 - "Remember the Titans" - my own graduating class), was that the Supreme Court of the United States thought that actually requiring the states to provide due process in a real way was a joke.

    I think we need a constitutional amendment to create a constitutional court, made up of justices appointed by each of the states. Anyone aggrieved by a decision of the U.S. Supreme Court as to any issue of fundamental constitutional interpretation would have a right to an appeal on that issue to the Constitutional Court. It is my opinion that Marbury v. Madison was wrongly decided - the Constitution is not a matter of federal law that can be "interpreted" willy-nilly by the Court; it is the charter for the federal government, it is the creature and property of the People, within which the U.S. is authorized to act. And, just as a corporate or municipal charter describes the authority to act, and thus creates boundaries and limits on the power to act, the Constitution of the U.S. functions as the charter for the entity created thereby. What Mr. Justice Marshall said, if I may paraphrase, is that the Constitution is federal law; that the U.S. Sup. Ct. is the ultimate arbiter of what federal law means; and that, therefore, the Court is the ultimate arbiter of what the Constitution means. To me, that syllogism is a lot like the standard one people get in "introduction to symbolic logic" classes: All cats are green; Max is a cat; therefore, Max is green. True, as a purely logical proposition, but a false conclusion nonetheless.

    My personal opinion is that it requires no interpretation, it means precisely what it says, and anyone who purports to be "interpreting" the Constitution is merely figuring out and rationalizing ways to subvert the Constitution. That's why I call myself a "Constitutional fundamentalist." Sola scriptura ("Only that which is written.", a phrase used by so-called Reform Theology to eliminate the authority of the Papacy, asserting the Bible as written to be the sole authority for Christian guidance.) As we have seen here, we really don't need the U.S. Supreme Court to "interpret" the document. Our vigorous discussions on the matter have revolved around the dichotomy between what the document says and how it is used by the U.S., not on any real debate about what the words in the document say or mean.

    We need a Constitutional Court that is not beholden to the U.S. for its authority.



    that's exactly how i am- it says what it says, and that's what it means. BUT- as we all know, right now that's pointless. unless there is a complete simultaneous overhaul of the federal government for the next 25-30 years, that won't happen. so, the best we can do is to use the information we have, and try to come up with a solution. but i agree with what you are implying..
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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  16. #16
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    Quote Originally Posted by 77zach View Post
    Good thoughts. But we're still mentally masturbating. If the system wasn't hopelessly corrupt, especially at the federal level, then you're right. But for the most part, the courts are there to rubber stamp the "laws" that are passed-to give the government whatever it wants and every once and awhile throw the people a bone. Here is an example of the "right" they gave residents of D.C: over a process of several months undergo psychological and physical testing, firearms training, extensive background check, months long waiting periods, and a registration fee, altogether coming to hundreds of dollars so you may keep a gun that holds less than 10 rounds in your home. Gee, some right!

    Now, SAF and others are trying to slowly chip away at gun control. It's possible the federal courts may give Illinois a restrictive licensing scheme to carry concealed. It's possible it may tell Georgia that church carry ban is impermissible. But, this is a very, very slow process and chances are that even if they heard our grief about the OC ban, they would not overturn it. Courts are loath to undo what the legislature does unless it is over something trivial. Most senior judges are anti-gun and wouldn't want to be responsible for making Fl become "the wild, wild west." Which is ridiculous, but "gun control" is like a tenet of the establishment's religion.

    Bottom line, there is probably an easier path through the legislature. Stogie implies that OC was just 1-3 votes short in the Senate. The House and governor are already in our corner, so this is the path of least resistance.

    Courts should be the backup plan. If the next 3 sessions fail, and the idiot public elects an anti-OC governor, then you get 4 years of ZERO chance for OC legalization. That's 4 years to try the courts. Maybe by that time TX, OK, and SC will have OC, it will be even more popular, and the courts will be bold enough.
    Well looks like you guys in Florida have a gun victory now, come Oct 1st, 2011 a lot of your regulations rules and laws will become Null & Void.
    Your Governor just helped you out.
    Local places are already taking the "No Gun " signs down now as I speak.
    I'm not sure how this will effect OC-ing, but your state & Governor is doing a good thing now.
    Robin47

  17. #17
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    Sola scriptura ("Only that which is written.", a phrase used by so-called Reform Theology to eliminate the authority of the Papacy, asserting the Bible as written to be the sol
    e authority for Christian guidance.) As we have seen here, we really don't need the U.S. Supreme Court to "interpret" the document.


    The problem here is if this was the case we would not have over 3000 protestant denominations all claiming "Sola Scriptura" with all kinds of different interpretations of scripture.

  18. #18
    Regular Member hammer6's Avatar
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    Quote Originally Posted by Robin47 View Post
    Well looks like you guys in Florida have a gun victory now, come Oct 1st, 2011 a lot of your regulations rules and laws will become Null & Void.
    Your Governor just helped you out.
    Local places are already taking the "No Gun " signs down now as I speak.
    I'm not sure how this will effect OC-ing, but your state & Governor is doing a good thing now.
    Robin47


    i'm so confused....is this a SERIOUS post?
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    doubt is a distraction from reality. fear is acknowledging doubt as reality.

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  19. #19
    Campaign Veteran Schlitz's Avatar
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    Quote Originally Posted by Robin47 View Post
    Well looks like you guys in Florida have a gun victory now, come Oct 1st, 2011 a lot of your regulations rules and laws will become Null & Void.
    Your Governor just helped you out.
    Local places are already taking the "No Gun " signs down now as I speak.
    I'm not sure how this will effect OC-ing, but your state & Governor is doing a good thing now.
    Robin47
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

  20. #20
    Regular Member mach1chris's Avatar
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    Quote Originally Posted by Robin47 View Post
    Well looks like you guys in Florida have a gun victory now, come Oct 1st, 2011 a lot of your regulations rules and laws will become Null & Void.
    Your Governor just helped you out.
    Local places are already taking the "No Gun " signs down now as I speak.
    I'm not sure how this will effect OC-ing, but your state & Governor is doing a good thing now.
    Robin47
    Glad to see that there is finally someone that know's what they are talking about...
    Last edited by mach1chris; 08-18-2011 at 07:58 PM.
    False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Thomas Jefferson

  21. #21
    Campaign Veteran Schlitz's Avatar
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    Quote Originally Posted by mach1chris View Post
    Glad to see that their is finally someone that know's what they are talking about...


    Please step away from the thread and place your hands where I can see them....




    Please lift one foot off the ground like this and point to the "there / their / they're" you are suppose to use while touching your nose with the other hand.
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

  22. #22
    Regular Member mach1chris's Avatar
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    Quote Originally Posted by Schlitz View Post


    Please step away from the thread and place your hands where I can see them....




    Please lift one foot off the ground like this and point to the "there / their / they're" you are suppose to use while touching your nose with the other hand.
    HAHAHAHA!!!.... It was supposed to be a joke Schlitz.
    Last edited by mach1chris; 08-18-2011 at 07:57 PM.
    False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Thomas Jefferson

  23. #23
    Regular Member mach1chris's Avatar
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    I still can't stop laughing Schlitz
    False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Thomas Jefferson

  24. #24
    Regular Member hammer6's Avatar
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    Quote Originally Posted by mach1chris View Post
    HAHAHAHA!!!.... It was supposed to be a joke Schlitz.


    then why did you edit it?
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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  25. #25
    Founder's Club Member thebigsd's Avatar
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    Quote Originally Posted by hammer6 View Post
    then why did you edit it?
    Schlitz,

    Don't worry. You're still winning the grammar debate. He still has the word "knows" with an apostrophe in it. Lol.
    "When seconds count between living or dying, the police are only minutes away."

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