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Can't Require a License to Exercise a Right

Beretta92FSLady

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I swore off breaking responses up, but there are exceptions:

I removed your overall bold and both bolded and capatialized the word that matters. It says "A" right, not the "THE" right. As they use the word "a" that means it applies to any right granted by the Constitution. Had they used the word "the" right then it would only apply to the specific right they were ruling on. It is only through twisting the plain reading one can come to the meaning that it doesn't apply to all Rights from the bit that is quoted.

You are right, I got a bit ahead of myself. And yes, the reference to "A right," as you stated, I agree. But then we move on to this:

Now there could be more in the ruling that makes it only apply to the first amendment, but the quoted part is clear in that it applies to all rights as granted* by the Constitution. The only way for the quoted part to only apply to the first amendment is if one changes the word "a" for "the" which fundamentally changes the meaning of the sentence as the word "a" is broad and "the" is specific.

granted* No right is "granted" by the Constitution, it is affirmed.

Interesting that the Finding referred to Rights as "granted," not affirmed. I will let that stand as an example of what I have been stating for some time- that Rights are granted, they are bestowed, not affirmed - in application of course. The so-called Spirit is that the Rights are affirmed. But those are two separate matters.


I will agree in that this talk is all speculative, but only because there is no court ruling listed that refers to this ruling and even if there was it could still be overturned by a later ruling. But the plain English reading of the quoted part is clear. Below will be a further breakdown of the English quote.

"A state" - Meaning any state and not just the specific state in the court case
"may not impose A charge" - Meaning that a state can't require ANY charges
"for the enjoyment of A right" - "enjoyment" - the possession or exercise of a legal right (World English Dictionary). stating that it applies to ANY right
"granted by the Federal Constitution." - stating what document is defining the right.

The document is hardly defining the Right. The document is offering a general outline of notions. It is the Justices, the majority Finders, that are defining, and setting the parameters of the Right.

So by the sentence breakdown it doesn't make sense for every use of the word "a" to be interchangable with the word "any" but then for the "a" before "right" to suddenly be very specific into which right it is referring to. And the second amendment is a right "granted" by the Federal Constitution. The only question then is the age old arguement that the second amendment is a communal right and not an individual right. If it isn't an individual right then it would be mute; but that is a different arguement and the "communal" arguement doesn't make sense w/o taking the amendment out of context and twisting into a triple pretzel.


I am pretty sure Rights were intended to be for Individuals. Except one point is being missed, that the Founding Fathers, in all of their glorious, infinite knowledge - let's face it, they screwed up! - referred to the Federal Government doing things for the "common good" (I believe it was 51). So, how do we account for this contradictory message, that of Individual, and that of Communal good? It appears that the individual good is contingent on the communal good.
 

Beretta92FSLady

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I would argue that the 14th amendment incorporated all rights against the states, but that the 14th amendment hasn't been actively and equally applied.


It is because such things must be mandated by SCOTUS through a Finding. Just another example of why the Founding Fathers thought it a safer bet that there be a strong central Government, at the expense of the States power.
 

wrightme

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Interesting that the Finding referred to Rights as "granted," not affirmed. I will let that stand as an example of what I have been stating for some time- that Rights are granted, they are bestowed, not affirmed - in application of course. The so-called Spirit is that the Rights are affirmed. But those are two separate matters.
No, the reality is that Rights are NOT granted by the BoR. The quoted SCOTUS decision uses antiquated verbiage.
 

wrightme

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The document is hardly defining the Right. The document is offering a general outline of notions. It is the Justices, the majority Finders, that are defining, and setting the parameters of the Right.
minutia.

The salient point is that it appears that you now agree that the passage I cited was NOT limited in scope to only the First Amendment. The passage I cited DOES make reference to the collective of "Rights 'granted' [recognized as protected from infringement] by the Constitution [and by extension, that Bill of Rights which enumerates them]."
 
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wrightme

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I am pretty sure Rights were intended to be for Individuals. Except one point is being missed, that the Founding Fathers, in all of their glorious, infinite knowledge - let's face it, they screwed up! - referred to the Federal Government doing things for the "common good" (I believe it was 51). So, how do we account for this contradictory message, that of Individual, and that of Communal good? It appears that the individual good is contingent on the communal good.
Are you claiming that "common good" has "Communal good" as a synonym?
 

Beretta92FSLady

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minutia.

The salient point is that it appears that you now agree that the passage I cited was NOT limited in scope to only the First Amendment. The passage I cited DOES make reference to the collective of "Rights 'granted' [recognized as protected from infringement] by the Constitution [and by extension, that Bill of Rights which enumerates them]."

I agree that the passage in its context was not limited to the scope of only the First Amendment.

But whether it is applicable to the Second Amendment is up to SCOTUS. I know that you are likely going to state that it is established, and does not require SCOTUS to make a Finding. There are still a number of issues, that I outlined in previous posts, that require attention.
 

wrightme

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I agree that the passage in its context was not limited to the scope of only the First Amendment.

But whether it is applicable to the Second Amendment is up to SCOTUS. I know that you are likely going to state that it is established, and does not require SCOTUS to make a Finding.
You should avoid ASSuming what the other might say, and await their actual comments.
Have I claimed differently? It does not automagically apply just because it appears to fit.

You claimed 'if it applied, there would already be a case.' No.

It may or may not ever be presented to the bench. But, understanding that SCOTUS has made that statement in a decision is VERY useful information to hold.



Beretta92FSLady said:
There are still a number of issues, that I outlined in previous posts, that require attention.

Which do you still feel are valid, since the cited passage DOES reference the BoR, and not only the 1A?
 
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Beretta92FSLady

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Have I claimed differently? It does not automagically apply just because it appears to fit.

You claimed 'if it applied, there would already be a case.' No.

It may or may not ever be presented to the bench. But, understanding that SCOTUS has made that statement in a decision is VERY useful information to hold.

I am sorry, I did get ahead of myself there. I should have stated that, "if it applies, there will be a petition to SCOTUS that includes the Finding, and SCOTUS will utilize it as they see fit." *had to add a bit more!

I am not stating that the Finding we are discussing here is not useful. I am stating that it is not necessarily useful.
 
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Aknazer

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Interesting that the Finding referred to Rights as "granted," not affirmed. I will let that stand as an example of what I have been stating for some time- that Rights are granted, they are bestowed, not affirmed - in application of course. The so-called Spirit is that the Rights are affirmed. But those are two separate matters.

If it is granted then it can be taken away. As one is not supposed to take away another's rights then they are not "granting" rights, but rather affirming them. The use of the term "granted" I would argue is an improper use, but that isn't something that can be fixed now.


The document is hardly defining the Right. The document is offering a general outline of notions. It is the Justices, the majority Finders, that are defining, and setting the parameters of the Right.

You are focusing on the wrong thing here. I guess I should have better explained it but I was after brevity. The point is that that part of the sentence is stating where the "right" is coming from. So for example I could say I have a "right" to drive a car and therefore things like tags or requiring insurance are illegal, but this ruling wouldn't apply because only rights as defined/listed/stated/whatever-word-you-want by the Federal Constitution (so not even "rights" listed by a state Constitution) are affected by this ruling.

I am pretty sure Rights were intended to be for Individuals. Except one point is being missed, that the Founding Fathers, in all of their glorious, infinite knowledge - let's face it, they screwed up! - referred to the Federal Government doing things for the "common good" (I believe it was 51). So, how do we account for this contradictory message, that of Individual, and that of Communal good? It appears that the individual good is contingent on the communal good.

I don't even know what you're going on about here. There is no contradictory message. The point I was making was the fallacy that the 2a is a "communal" right and not an individual right. Many people have argued that since it uses the word "people" it isn't an individual right, but that arguement has been rejected by the SCOTUS and for good cause. I mean honestly, there is no way to have it only apply to the "people" but not the individual as it is the individual that makes up the "people."

It is because such things must be mandated by SCOTUS through a Finding. Just another example of why the Founding Fathers thought it a safer bet that there be a strong central Government, at the expense of the States power.

The Founding Fathers didn't write the 14th amendment. It came after the Civil War. So no it isn't an example of the Founding Fathers thinking it safer to have a strong central Government at the expense of States power.
 

Aknazer

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I agree that the passage in its context was not limited to the scope of only the First Amendment.

But whether it is applicable to the Second Amendment is up to SCOTUS. I know that you are likely going to state that it is established, and does not require SCOTUS to make a Finding. There are still a number of issues, that I outlined in previous posts, that require attention.

The SCOTUS can overturn anything. So no it doesn't require a ruling to find it applicable, and just because there is a ruling doesn't truely mean it is applicable. I mean if one were to look at the Miller ruling they can plainly see that the law is unconstitutional, but since no evidence of SBR/SBS/etc was submitted the SCOTUS of the time ruled as they did. One can also find rulings that have overturned previous rulings. The SCOTUS could also decide that while it is "applicable" that the government also has a reasonable need to regulate and therefore ignore the ruling and support permits.

So even if the SCOTUS has or has not ruled on something, that doesn't change if it is applicable. One simply needs to look at the plain English reading and not try to twist things around.
 

KBCraig

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If the various parties will stopping ******* on each other for a moment, the cite the OP is looking for is:

http://law.justia.com/cases/federal/appellate-courts/F2/230/486/232145/

230 F.2d 486: Evelyn Miller, Appellant, v. United States of America, Appellee
United States Court of Appeals Fifth Circuit. - 230 F.2d 486
February 29, 1956

Specifically:

The claim and exercise of a constitutional right cannot thus be converted into a crime.
 

Beretta92FSLady

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The Founding Fathers didn't write the 14th amendment. It came after the Civil War. So no it isn't an example of the Founding Fathers thinking it safer to have a strong central Government at the expense of States power.

I am sorry, I should have been more clear about this. I was speaking to the overall function of the Constitution, not the Amendments themselves.
 

Beretta92FSLady

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The SCOTUS can overturn anything. So no it doesn't require a ruling to find it applicable, and just because there is a ruling doesn't truely mean it is applicable. I mean if one were to look at the Miller ruling they can plainly see that the law is unconstitutional, but since no evidence of SBR/SBS/etc was submitted the SCOTUS of the time ruled as they did. One can also find rulings that have overturned previous rulings. The SCOTUS could also decide that while it is "applicable" that the government also has a reasonable need to regulate and therefore ignore the ruling and support permits.

So even if the SCOTUS has or has not ruled on something, that doesn't change if it is applicable. One simply needs to look at the plain English reading and not try to twist things around.

Wrong, no person can plainly see that - a person may only speculate that to be the case.

I agree that a Finding does not necessarily equate to the application of the Finding. If SCOTUS has not made a Finding regarding a particular Law, the Law is treated as though it is Constitutional. Only at the time the Law is Found to be not-Constitutional, is it then not-Constitutional.
 

Beretta92FSLady

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If the various parties will stopping ******* on each other for a moment, the cite the OP is looking for is:

http://law.justia.com/cases/federal/appellate-courts/F2/230/486/232145/

230 F.2d 486: Evelyn Miller, Appellant, v. United States of America, Appellee
United States Court of Appeals Fifth Circuit. - 230 F.2d 486
February 29, 1956

Specifically:

The claim and exercise of a constitutional right cannot thus be converted into a crime.

The Court must have been speaking to an Absolute Right. I know nothing of such things in the Constitution. Who "claims" a right to be such? Who "excercise(s)" that Right? Those are two different things. Unless you are stating that the claim is made by the citizen, and that the exercise is also taken by the citizen. It seems that the Constitutionality of a Right can only be established by SCOTUS, and then claimed by the citizen. But considering the recent Findings in D.C., and Chicago, the Right that the citizen is Found to have, is not absolute in anything but the Right to keep arms. The bearing of arms is another issue. The Finding speaks nothing to the Right being exercised not being regulated, for instance, a permit, for instance, a charge levied for the permit.
 

wrightme

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If the various parties will stopping ******* on each other for a moment, the cite the OP is looking for is:

http://law.justia.com/cases/federal/appellate-courts/F2/230/486/232145/

230 F.2d 486: Evelyn Miller, Appellant, v. United States of America, Appellee
United States Court of Appeals Fifth Circuit. - 230 F.2d 486
February 29, 1956

Specifically:

The claim and exercise of a constitutional right cannot thus be converted into a crime.

No, that is about whether it is a crime or not. The question was whether a license can or cannot be required.


I found that cite already.
 

wrightme

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The Court must have been speaking to an Absolute Right.

You might want to re-read that cite he presented.....

The claim and exercise of a constitutional right cannot thus be converted into a crime.

There. Does that emphasize the relevant portion enough?


The court specifically stated "Constitutional Right." How you come to your false conclusion is simply too far from logical to even envision.


I thought you only spoke to observations, and didn't twist it to what you desired it to mean.
 
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rushcreek2

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I have read Murdock v PA and understand that decision - to paraphrase - that a state, or local governmental body can license (regulate) HOW a fundamental substantive right is actually exercised IF A COMPELLING GOVERNMENT INTEREST exists as long as the licensing process is not capricious, and does not systematically suppress the exercise of a given right. Also - that any FEE charged for such a license must only serve to offset the cost of administering the licensing/regulatory program , and not constitute a source of general revenue.

Most state "shall issue" CCW licensing statutes appear to be consistent with this standard presented in Murdock v PA.

That's what I took away from reading the decision.
 
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