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Can't Require a License to Exercise a Right

Beretta92FSLady

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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.

Thank you for that. I agree.
 
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wrightme

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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.

What "compelling government interest" do you allege that "most state 'shall issue' ccw licensing statutes" are operating under?
 

hammer6

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As arbitrary as "Right" is, at least the application of what is a "Right" in this context, I will state that a "Right" does not exist until it is affirmed (deemed to be) by SCOTUS.


i don't agree with that...that's not the purpose of SCOTUS. what does the 9th amendment say? here: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

we have allowed the Constitution to be interpreted as limits on PEOPLE, instead of the government....a lot of laws in America are unconstitutional, because the government doesn't have the power to rule on it...like: gay marriage. why is it even an issue? it's a civil right. however, if a state wishes to ban it, then so be it, because it is NOT listed in the Constitution. (ie: 28th amendment: gay marriage is illegal) and also abortion. the SCOTUS turned this into law, when it had no right to...the federal government can't ban it, because it's not in the Constitution, but a state sure can, if the voters decide so.

that leads me to the second amendment. the Constitution has put a restraint on the federal government AND the states by informing them that keeping and bearing arms is an individual right, and can NOT be infringed. now, this already applied to the states per the 10th amendment, because it says: "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." the right to carry a gun is not a state issue in my opinion, because the Constitution deals directly with it. it's listed in the Constitution so the fed can't touch it, and since it IS in the Constitution, it hasn't been delegated to the states. (unlike gay marriage or abortion, which is NOT in the Constitution).

it's not up to the SCOTUS to tell me i have the right to free speech, or the right to carry a gun, or the right to trial by jury, or the right to be free of unreasonable search and seizure....the Constitution PLAINLY lays that out there. now, i can see the SCOTUS disallowing federal law on abortion, but not state law, per the 10th.


we've allowed our rights to be decided by 9 people who are so far removed from normal society that it's ridiculous.
 

hammer6

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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.


i don't agree with that, because there is a SCOTUS ruling that says an unconstitutional law is NEVER valid, and it's as if it never existed, and we should ignore it. i'll find the case and show it to you.
 

hammer6

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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.

hmmm...florida doesn't fall under that ideology. florida is a SHALL ISSUE state, which means simply this: if you are not prohibited from owning a firearm, you can carry it.

but, instead of just allowing all legally possessed firearms to be carried, they require us to pay over $120 to get a little ID card that says we are legal. if being legally able to own a firearm is the ONLY requirement to carry one in florida, then why the need to pay for a license to declare that? it's a little absurd, and i think should fall under the thinking that the state of florida can't require me to get that license to carry a firearm because i am exercising a constitutional, not STATE, right.
 
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Beretta92FSLady

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i don't agree with that, because there is a SCOTUS ruling that says an unconstitutional law is NEVER valid, and it's as if it never existed, and we should ignore it. i'll find the case and show it to you.

I will not refute that there is a Finding (the Finding was merely a matter of wishful thinking). The not-Constitutional Law is always valid until it is either stay the Law, or Find it to be not-Constitutional.


[snip] here: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

[snip].

I do wonder, what is a Right? Also, who determines what that Right is?
 
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Haman J.T.

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First, the issue before the Court was an ordinance issue, not a State law issue - would the Court have ruled differently if the issue were concerning a State law, who knows!

Second, I realize that the Finding concerned First Amendment activities, but the following sentence is a sticker: "While the borough did have an interest in preserving the public peace, the Jehovah's Witnesses were soliciting "peacefully and quietly," http://www.oyez.org/cases/1940-1949/1942/1942_480 . Basically, the question now is, "is the CC/OC of sidearms a peaceful and quiet activity? If it is not, then the State, or city, does have the authority to levy a tax of sorts. It appears that this case has to do with "ordinance," and "solicitation." Unless you are attempting to form an angle that the carrying of sidearms is a form of solicitation, then it doesn't seem to be applicable.

I am sure there is some person on here that might offer a rebut to my post - I may be wrong about the focus of the case.
OCers are absolutely peacefull and quiet! It's the uneducated and the ignorant that make all the noise!
 

Haman J.T.

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hmmm...florida doesn't fall under that ideology. florida is a SHALL ISSUE state, which means simply this: if you are not prohibited from owning a firearm, you can carry it.

but, instead of just allowing all legally possessed firearms to be carried, they require us to pay over $120 to get a little ID card that says we are legal. if being legally able to own a firearm is the ONLY requirement to carry one in florida, then why the need to pay for a license to declare that? it's a little absurd, and i think should fall under the thinking that the state of florida can't require me to get that license to carry a firearm because i am exercising a constitutional, not STATE, right.
We just need someone with deep pockets to take this all the way to the SCOTUS and get it cleared up once and for all! CARRY ON!
 

hammer6

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I will not refute that there is a Finding (the Finding was merely a matter of wishful thinking). The not-Constitutional Law is always valid until it is either stay the Law, or Find it to be not-Constitutional.




I do wonder, what is a Right? Also, who determines what that Right is?


i'm saying- the SCOTUS has said that...not my opinion. I've just got to find that case

EDIT:

FOUND IT!
"All laws which are repugnant to the Constitution, are null and void." Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176
 
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Brimstone Baritone

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hmmm...florida doesn't fall under that ideology. florida is a SHALL ISSUE state, which means simply this: if you are not prohibited from owning a firearm, you can carry it.

but, instead of just allowing all legally possessed firearms to be carried, they require us to pay over $120 to get a little ID card that says we are legal. if being legally able to own a firearm is the ONLY requirement to carry one in florida, then why the need to pay for a license to declare that? it's a little absurd, and i think should fall under the thinking that the state of florida can't require me to get that license to carry a firearm because i am exercising a constitutional, not STATE, right.

What is the money used for? The portion of the money that is used to offset the costs of licensing are theoretically valid. Any part that goes into a "General Fund", or is otherwise used for other than offsetting costs, is arguably invalid. You just need someone to pony up the money to make the argument.

As for the issue of making Constitutional Rights illegal, you can make the argument that someone carrying concealed without a permit is claiming his right to bear arms. A statute that makes it a crime to CCW without a permit is arguably unconstitutional. Once again, someone must make the argument.

Here's a twist for you. If the decision forbids licensing the peaceful exercise of a right, but allows for licensing a 'privilege' that might incite or alarm, then shouldn't it be CC that is the unrestricted right and OC that requires a license? ;)
 

DKSuddeth

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i'm saying- the SCOTUS has said that...not my opinion. I've just got to find that case

EDIT:

FOUND IT!
"All laws which are repugnant to the Constitution, are null and void." Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176

while this is great, in theory, none of that matters anymore. To nearly all of the congress/president and nearly all of the judiciary, it's less about the constitution and more about 'public policy'. If state and federal courts can find and uphold through legal cases that there is no longer a right to resist the unlawful actions of a police officer, simply because public policy finds that resistance against law enforcement, no matter how unlawful their actions, is not going to stop the arrest or de-escalate the violence. Our rights are no longer important, nor is what the constitution has written on it. It is more important that we limit ourselves to what the courts say because 'they know best'. it's been a sad few decades for this country on it's downward spiral.
 

Beretta92FSLady

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i'm saying- the SCOTUS has said that...not my opinion. I've just got to find that case

EDIT:

FOUND IT!
"All laws which are repugnant to the Constitution, are null and void." Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176

I wait this whole time, and this is what you give me! LOL. Seriously. Then I ask you, who determines which Laws are, and are not "repugnant?" Keep in mind, whatever is found to be "repugnant" is ex post facto. Man's crude attempt at taking back an injury that has already been inflicted.
 

hammer6

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I wait this whole time, and this is what you give me! LOL. Seriously. Then I ask you, who determines which Laws are, and are not "repugnant?" Keep in mind, whatever is found to be "repugnant" is ex post facto. Man's crude attempt at taking back an injury that has already been inflicted.

it doesn't say what is FOUND repugnant, it says which ARE repugnant. therefore, if theres a law out there that doesn't line up with the constitution, it's void.
 

Beretta92FSLady

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it doesn't say what is FOUND repugnant, it says which ARE repugnant. therefore, if theres a law out there that doesn't line up with the constitution, it's void.

I see. So what are you stating here, that things that are repugnant are a priori? Next you are likely going to state that the Finding is merely affirming those things that ARE repugnant. I wonder what elusive source these Justices derive a priori Findings.
 
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hammer6

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I see. So what are you stating here, that things that are repugnant are a priori? Next you are likely going to state that the Finding is merely affirming those things that ARE repugnant. I wonder what elusive source these Justices derive a priori Findings.

you know i don't speak spanish baxter, in english please!
 

Right Wing Wacko

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There is some other language later in the ruling that leaves an opening for some "fees".

In all of these cases the issuance of the permit or license is dependent on the payment of a license tax. And the license tax is fixed in amount and unrelated to the scope of the activities of petitioners or to their realized revenues. It is not a nominal fee [SIZE=-1][319 U.S. 105, 114] [/SIZE] imposed as a regulatory measure to defray the expenses of policing the activities in question. 8 It is in no way apportioned. It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment.

This would leave one to beleive that a license fee could be valid as long as it's ment to defer some of the expenses involved (IE Background checks, etc)

Personally, I beleive ANY fee should be a violation, but I have not yet and very likely never will be appointed to the Supreme Court. :uhoh:
 

Beretta92FSLady

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There is some other language later in the ruling that leaves an opening for some "fees".



This would leave one to beleive that a license fee could be valid as long as it's ment to defer some of the expenses involved (IE Background checks, etc)

Personally, I beleive ANY fee should be a violation, but I have not yet and very likely never will be appointed to the Supreme Court. :uhoh:

Governments don't run on love. They need money to complete their task. Background checks cost man-hours. The person who should pay the bill is not tax payers, rather, the individual looking for a CCP. I know, it is not very socialistic, but it works!

Also, there is no guarantee that changing a couple of members of SCOTUS will change the Finding. They will likely find that the Government has the Constitutional Authority to levy a fee. The question that could come up, in the case of some states (Washington state charges a nominal 52 (?) dollar fee) that the fee is excessive.
 
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zekester

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Read the entire ruling!

I have read this entire thread....with the "a's"...and the like but if you had read the entire court case....you may have seen this from the ruling...

http://supreme.justia.com/cases/federal/us/319/105/case.html#113


"It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant
if it does not do so. But that is to disregard the nature of this tax. It is a license tax -- a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."



"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"

May get the argument about the 1st, because that is what this case is about....but pretty clear to me "A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."

You notice it says "right".....not priviledge!!!

Another part of the ruling...

"It is only in recent years that the freedoms of the First Amendment have been recognized as among the fundamental personal rights protected by the Fourteenth Amendment from impairment by the states."

Didn't Heller and the Chicago ruling do the same for the 2nd?
 
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zekester

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“A person cannot be compelled "to purchase, through a license fee or a license tax, the privilege freely granted by the constitution." [Footnote 9] Blue Island v. Kozul, 379 Ill. 511, 519, 41 N.E.2d 515”
 

DKSuddeth

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“A person cannot be compelled "to purchase, through a license fee or a license tax, the privilege freely granted by the constitution." [Footnote 9] Blue Island v. Kozul, 379 Ill. 511, 519, 41 N.E.2d 515”

and depending upon the intellectual honesty of any federal judge, you'll most likely hear the following upon your lawsuit dismissal or your conviction.

The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

U.S. v. Cruikshank (1876)
 
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