CHP: Privilege vs. Right

Gunslinger · Nov 2, 2010

entartet17 said:
No, it doesn't. The 14th Amendment does not incorporate the Bill of Rights. SCOTUS can say it wants but that does not change the intent of the amendment nor the plain reading of it from saying otherwise.

SCOTUS has also upheld the ability of the federal government to ban certain types of firearms, regulate their sale, and so on. Do you agree with that? SCOTUS has rubber-stamped the erosion of our liberties and the growth of government (especially since the New Deal). Oh, and THE CONSTITUTION is the "law of the land" not the Supreme Court.

I never said government confers rights. Rights exist independent of government decree. But, you said, "The Second Amendment addresses the Right to keep and bear. Concealed is a form of 'to bear'" in regards to state restrictions on concealed carry. The 2nd Amendment was not intended to apply to the states. It is a limit on federal power. Every federal restriction on the right to bear arms is unconstitutional. States, who exist as free and sovereign entities, can restrict firearm ownership/carrying/etc as long as it does not violate that particular state's constitution. Does that mean I think states should restrict gun rights? Of course not.

Yeah, I'm a total statist. Despite the fact that I'm a minarchist (in the Nozickian sense), constitutionalist Old Right conservative, and borderline anarcho-capitalist (aka the exact opposite of statism). I agree that rights do not come from the government. But using the 2nd Amendment to criticize state firearms restrictions is ridiculous. Anyone who claims to respect and uphold the U.S. Constitution cannot ignore the intent of its drafters and the plain reading of the text. Libertarians/Conservatives should not stoop to the level of the Left by rewriting the Constitution to get their policy preferences enacted.

The 14th Amendment guarantees "Equal protection of the law." To each citizen of the United States. While the due process clause has been in vogue when incorporating, the simple fact is that the later amendments interact with the BoR in many situations. The Constitution doesn't stop with the 10th Amendment. The 14th clarifies, by either clause, the first 10 with respect to applicability. John Marshall said "it is a Constitution we are expounding." The provision for additional amendments is the vehicle to do so.

McCulloch v. Maryland (1819)
McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316 (1819).

We must never forget that it is a constitution we are expounding.
4 Wheaton 316, 407.
This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.
4 Wheaton 316, 415.
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
4 Wheaton 316, 421.
The power to tax involves the power to destroy.
4 Wheaton 316, 431.

wrightme · Nov 3, 2010

entartet17 said:
No, I'm questioning specific decisions made the court, not making broad assertions regarding every SCOTUS decision. You're the one who is making an argument that whatever SCOTUS says is settled law and cannot be questioned, thereby lumping together every decision handed down by the court regardless of whether or not the decision is correct.

What do you present that counters my view that SCOTUS decision is "settled law?"

I do not agree with all SCOTUS decisions. But, what do you offer that supports your view? SCOTUS decisions ARE 'settled law."

Whether you like it or not, SCOTUS is the arbiter. Until and unless enough desire change, it IS our reality. We don't have to agree with SCOTUS decisions, or like them, but that does not invalidate them.

Gunslinger · Nov 3, 2010

wrightme said:
What do you present that counters my view that SCOTUS decision is "settled law?"

I do not agree with all SCOTUS decisions. But, what do you offer that supports your view? SCOTUS decisions ARE 'settled law."

Whether you like it or not, SCOTUS is the arbiter. Until and unless enough desire change, it IS our reality. We don't have to agree with SCOTUS decisions, or like them, but that does not invalidate them.

Settled law at that time, subject to change in the future as we have seen repeatedly. "Good" decisions need to be written so meticulously that they remain unchallenged in the future, even with a complete change in the leanings of the court. This doesn't happen often, unfortunately. To quote OW Holmes in Buck v Bell "three generations of idiots is enough." One of our greatest jurists. But who now would advocate the sterilization of the mentally retarded outside of Hitler? The Constitution, op cit, always has been a living document, like it or not. Very few parts are sacrosanct.

wrightme · Nov 3, 2010

Gunslinger said:
Settled law at that time, subject to change in the future as we have seen repeatedly. "Good" decisions need to be written so meticulously that they remain unchallenged in the future, even with a complete change in the leanings of the court. This doesn't happen often, unfortunately. To quote OW Holmes in Buck v Bell "three generations of idiots is enough." One of our greatest jurists. But who now would advocate the sterilization of the mentally retarded outside of Hitler? The Constitution, op cit, always has been a living document, like it or not. Very few parts are sacrosanct.

"Repeatedly?" Not so much. How often has SCOTUS reversed itself?

Also, other than SCOTUS, who 'negates' or 'reverses' SCOTUS decisions?

Gray Peterson · Nov 3, 2010

wrightme said:
"Repeatedly?" Not so much. How often has SCOTUS reversed itself?

Also, other than SCOTUS, who 'negates' or 'reverses' SCOTUS decisions?

There have been 17 constitutional amendments passed, some of them in response to SCOTUS decisions. The 11th, the reconstruction amendments, the 16th, 23rd, and 26th amendments are specifically to SCOTUS decisions.

If a future SCOTUS tries to overturn Heller or McDonald, it'll compete with the 26th amendment with the fastest passage of a constitutional amendment. Guaranteed. If Congress refuses to pass something with 2/3rds vote on both House, a constitutional convention will get called.

since9 · Nov 3, 2010

bogidu said:
IS a CHP a right or a privilege?

That's a tough one. The RKBA is a right. As it does not specify the method of carry, I would argue that the right applies to both OC as well as CC.

My personal belief is that it's ridiculous to require people to jump through hoops for a CHP when no permit is required for OC, as the method of carry doesn't matter - it's a firearm. I don't like the firearms safety course requirement, either, as I'm far better trained than what they teach in those classes. I do, however, support the idea that people should be well-trained, both in terms of firearms safety as well as in operation. Leaving a firearm lying around the home where a child can get to it is as stupid as carrying a firearm without being proficient in its use.

bogidu · Nov 3, 2010

From the OP

Thanks Walt, that's what I determined from reading this thread. The government, through intent or apathy has chosen to allow the waters to be muddied so that cc is now a privilege rather than a right.

Thank you all for your time and input on helping clarify this for me, I sincerely appreciate it.

Bill

wrightme · Nov 4, 2010

Gray Peterson said:
There have been 17 constitutional amendments passed, some of them in response to SCOTUS decisions. The 11th, the reconstruction amendments, the 16th, 23rd, and 26th amendments are specifically to SCOTUS decisions.

Yet up to the time of such amendments, those decisions WERE "settled law." And, they typically do not overturn their own decisions, without VERY good reason.

GP said:
If a future SCOTUS tries to overturn Heller or McDonald, it'll compete with the 26th amendment with the fastest passage of a constitutional amendment. Guaranteed. If Congress refuses to pass something with 2/3rds vote on both House, a constitutional convention will get called.

Gunslinger · Nov 4, 2010

wrightme said:
"Repeatedly?" Not so much. How often has SCOTUS reversed itself?

Also, other than SCOTUS, who 'negates' or 'reverses' SCOTUS decisions?

All of the civil rights rulings going back to the mid 1800s have been reversed from Dred Scott thru Brown; commerce clause rulings have been reversed at least a half dozen times I can think of since Marshall; 5/6th Amendment rights were introduced as new law in the '60s--Miranda, Gideon, Escabedo-- then recently modified; campaign finance was reversed just recently; 2A decisions have been all over the board until recently with the last two. What the Black/Frankfurter days did put aside the Holmes era. Warren Court changed much settled law; Roberts court continues.

since9 · Nov 5, 2010

wrightme said:
Yet up to the time of such amendments, those decisions WERE "settled law." And, they typically do not overturn their own decisions, without VERY good reason.

As gunslinger has made it clear with his examples, our law is not "settled."

Nor is SCOTUS required to reverse itself in order to overturn a SCOTUS decision. Congress can do that as part of our nation's checks and balances.

While Amendments are required for either establishing or overturning Constitutional law, Amendments are not required for overturning SCOTUS decisions. Provided federal legislation does not itself violate Constitutional law, SCOTUS cannot halt it. If they attempt to do so and Congress feels the law is required, they can elevate the law to the Amendment level:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof..."

Thus, Amendments require 2/3 of both houses and 3/4 ratification of the States, and once ratified, the amendments are part of the Constitution and Constitutional law, and therefore not subject to SCOTUS overrule.

wrightme · Nov 5, 2010

Gah!

I KNOW all that. But, until such happens, a SCOTUS decision IS "settled law." You cannot ignore it just because it doesn't match your view or likes.

since9 said:
As gunslinger has made it clear with his examples, our law is not "settled."

Nor is SCOTUS required to reverse itself in order to overturn a SCOTUS decision. Congress can do that as part of our nation's checks and balances.

While Amendments are required for either establishing or overturning Constitutional law, Amendments are not required for overturning SCOTUS decisions. Provided federal legislation does not itself violate Constitutional law, SCOTUS cannot halt it. If they attempt to do so and Congress feels the law is required, they can elevate the law to the Amendment level:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof..."

Thus, Amendments require 2/3 of both houses and 3/4 ratification of the States, and once ratified, the amendments are part of the Constitution and Constitutional law, and therefore not subject to SCOTUS overrule.

Of course. And until such happens, SCOTUS is the arbiter of it.

CHP: Privilege vs. Right

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