1936 case law

hammer6 · Nov 25, 2011

"We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safe-guarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution."

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=297&invol=233

so then why was the heller decision so important? i know it focused on the 2nd amendment, but this kinda says that too, right?

so, my question is this: the florida constitution says, "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." but, there is legislation that says i can't carry into a bar, or club, etc. on the other hand, i've been to pennsylvania, where there is no restriction on carrying in a bar. how is it that florida can restrict my right to carry in a bar, when pennsylvania allows it? and, on top of that, the US constitution doesn't list any prohibited places.....

protias · Nov 29, 2011

PA doesn't technically allow carrying into bars, they just do not prohibit it.

As for WI, we have "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Yet we have a few places prohibited even though both state and federal Constitutions do not. It is because of laws that were created somehow override the higher law (Constitution). The Constitution does not grant rights, but rather reaffirms that right.

Beretta92FSLady · Nov 29, 2011

hammer6 said:
[snip]

so, my question is this: the florida constitution says, "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." but, there is legislation that says i can't carry into a bar, or club, etc. on the other hand, i've been to pennsylvania, where there is no restriction on carrying in a bar. how is it that florida can restrict my right to carry in a bar, when pennsylvania allows it? and, on top of that, the US constitution doesn't list any prohibited places.....

The wording is purposeful. The Florida constitution acknowledges the right of the people to "keep and bear arms." The next portion is a bit tricky, because one could argue the Florida constitution is asserting the right of the people, asserting the authority of the state, and that neither shall be infringed (not sure if the quote you provided is syntactically an exact copy of the actual text - if it is not, I would recommend you provide an exact syntax of the portion you have quoted). The clarifying portion to the quote is that the Florida constitution, after asserting its lawful authority as something which cannot be infringed, establishes that it can lawfully regulate the bearing of arms, but by omission, cannot regulate the "keep[ing]" of arms. Let's get real here though. If Florida establishes itself as the authority (as it has), and asserts that it can regulate bearing of arms, then Florida, if it wishes, can regulate the "keep" portion as well. It could also be argued that the implication of distinguishing between "keep," and "bear" is that the "keep[ing]" of arms is absolute, while the "bear[ing]" of arms is not.

I have to say - the line you offered is vague. I am sure they kept it vague on purpose. Typically, when the state, and a person is battling one another in court, the state wins. You could say that Florida, by the wording of your quote, is flaunting its authority, knowing that chances are, you will lose in a legal battle, if the accusation was levied against you that Florida has the authority, and that you did not conform to the law.

"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."

This goes back to an old debate about what constitutes an "infringement?" There is no doubt that the Constitution states that the people have a right to keep and bear arms.

hammer6 · Nov 29, 2011

Beretta92FSLady said:
The wording is purposeful. The Florida constitution acknowledges the right of the people to "keep and bear arms." The next portion is a bit tricky, because one could argue the Florida constitution is asserting the right of the people, asserting the authority of the state, and that neither shall be infringed (not sure if the quote you provided is syntactically an exact copy of the actual text - if it is not, I would recommend you provide an exact syntax of the portion you have quoted). The clarifying portion to the quote is that the Florida constitution, after asserting its lawful authority as something which cannot be infringed, establishes that it can lawfully regulate the bearing of arms, but by omission, cannot regulate the "keep[ing]" of arms. Let's get real here though. If Florida establishes itself as the authority (as it has), and asserts that it can regulate bearing of arms, then Florida, if it wishes, can regulate the "keep" portion as well. It could also be argued that the implication of distinguishing between "keep," and "bear" is that the "keep[ing]" of arms is absolute, while the "bear[ing]" of arms is not.

I have to say - the line you offered is vague. I am sure they kept it vague on purpose. Typically, when the state, and a person is battling one another in court, the state wins. You could say that Florida, by the wording of your quote, is flaunting its authority, knowing that chances are, you will lose in a legal battle, if the accusation was levied against you that Florida has the authority, and that you did not conform to the law.

"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."

This goes back to an old debate about what constitutes an "infringement?" There is no doubt that the Constitution states that the people have a right to keep and bear arms.

i copy and pasted directly from the state constitution at the florida.gov website.

actually, the part about the lawful authority of the state is something the people have the ability to defend..at least that's how i read it, since there's no comma there. and it says "manner", not location. so technically, they don't allow open carry, and they PRIVILEGE concealed carry. That means they REALLY aren't following their own constitution.....if they deny open carry, they MUST allow concealed carry WITHOUT a permit, or vice-versa....

Beretta92FSLady · Nov 29, 2011

hammer6 said:
i copy and pasted directly from the state constitution at the florida.gov website.

actually, the part about the lawful authority of the state is something the people have the ability to defend..at least that's how i read it, since there's no comma there. and it says "manner", not location. so technically, they don't allow open carry, and they PRIVILEGE concealed carry. That means they REALLY aren't following their own constitution.....if they deny open carry, they MUST allow concealed carry WITHOUT a permit, or vice-versa....

OC, and CC are not the same form of carry. I know, semantics, right! I believe that individuals in all states should not be denied OC, nor CC. That being stated, I do not confuse the two forms of carry as being the same, and do not agree that the law permitting OC without permit, but mandating CC only with permit as contradictory.

With regard to the "lawful authority of the state," it seems that such an issue would be better resolved by individuals voting. I would really like to know if any courts have ruled on the wording of that portion of the Florida constitution. The more times I read the sentence, it is becoming apparent to me that the wording was not purposeful, and if it was, then it had to have been made so for the sole sake of vagueness.

hammer6 · Nov 29, 2011

Beretta92FSLady said:
OC, and CC are not the same form of carry. I know, semantics, right! I believe that individuals in all states should not be denied OC, nor CC. That being stated, I do not confuse the two forms of carry as being the same, and do not agree that the law permitting OC without permit, but mandating CC only with permit as contradictory.

With regard to the "lawful authority of the state," it seems that such an issue would be better resolved by individuals voting. I would really like to know if any courts have ruled on the wording of that portion of the Florida constitution. The more times I read the sentence, it is becoming apparent to me that the wording was not purposeful, and if it was, then it had to have been made so for the sole sake of vagueness.

i agree- not the same form of carry. BUT- according to other case law (summary: a state can't turn a right into a privilege by requiring a permit..), if a state denies OC, they MUST allow CC withOUT a permit. And for states that denies CC, they MUST allow OC withOUT a permit. if they deny BOTH, then in my opinion, they are making their law (state law) greater than the supreme law (US Constitution). my theory is, since the 2nd amendment exists in the Constitution, then no state can make a law that prohibits carry in ANY place. if it were NOT in the Constitution, then, per the 10th amendment, the state would have the say. but it's not the case. states don't have the right, actually, ABILITY, to allow or deny carry. period.

1936 case law

hammer6

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protias

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Beretta92FSLady

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hammer6

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Beretta92FSLady

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hammer6

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