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Possession vs. CHP: Rights or privileges?

TFred

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Possession vs. CHP: Rights or privileges?

Here is the latest in an occasional series of posts designed to provoke thought and discussion on how things are, compared to how they should be.

The premise of this post is that for the most part it is generally held that law-abiding citizens have the right, protected by the Second Amendment, to openly carry firearms. It is equally held that it is a privilege granted by the government, in our case, the Commonwealth of Virginia, to be able to carry a handgun concealed about your person, etc.

We hold diverse views on this situation, ranging from "no big deal", to "government permission dilutes the meaning of the right to keep and bear arms, and is generally harmful to the cause."

It is not my intent to comment on either end of that spectrum, but rather to plant the idea that we may not really be operating under two very different ideologies after all.

Heller and McDonald have affirmed our right to keep and bear arms. Although contrary to what the news media, the gun grabbers and just about everyone else, often including ourselves, will tell you, the Supreme Court has not yet evaluated what are reasonable restrictions on this right. Scalia noted in Heller that there were "presumptively lawful regulatory measures", and that the court was not evaluating them within the scope of the case. (The gun grabbers had a field day with that, as it was practically the only morsel in the ruling that was not a setback for their cause, loudly trumpeting that Scalia proclaimed restrictions were just fine... not at all what he actually said.)

So where do we stand? As I see it we have two major points where the government controls our access to firearms, specifically handguns.

First is the point of purchase, which I will extend to possession. (The only difference I am aware of is a Federal requirement to be 21 years old, to purchase from a FLL, compared to 18 years old to purchase privately or be gifted or otherwise possess a handgun.)

Second is the ability to lawfully conceal a handgun about your person.

We call the first a right, and the second a privilege, but exactly how different are the disqualifiers, or the "presumptively lawful regulatory measures" that restrict our access to this right and this privilege?

I am not a lawyer, but I can read and assemble information. I took a look at several sources: The Federal Form 4473, the Virginia State Police web site, "Firearms Purchase Eligibility Test", and the latest version of the Virginia CHP Application form.

Each of these sources provide a list of disqualifiers, the first two from purchase or possession of a firearm, and the third, from being granted a Concealed Handgun Permit. I don't claim that my list is exhaustive, as I did not chase down the lawful cite for each individual requirement. If you feel my analysis is in error due to that, feel free to do the research and correct me.

I've attached a .pdf file showing a side-by-side comparison of the disqualifiers, for the "right" to bear arms on the left, and the "privilege" to carry concealed on the right.

As best I can tell, there are only three substantial differences added to the test for a CHP:

1. You must be 21.
2. You cannot be convicted of a misdemeanor within the past 5 years.
3. You may not have been enrolled in a residential mental health or substance abuse program within the past 5 years.

There are slight variances in the rest, but they are otherwise very close. Some may not even find it unreasonable to add #2 and #3 to the list of disqualifiers for possession or purchase as well.

Finally, here is the point of the post:

Virginia is a SHALL ISSUE state. We all know what that means. Unless you are specifically disqualified, the government MUST issue a CHP to everyone who asks for one. My suggestion to you is that given the fact that the list of disqualifiers are so similar, it makes no sense to claim that one is a "right" while begrudging the other as a "privilege". In a very real sense, a CHP is nothing more than a citizen informing the state government that he or she WILL BE carrying a concealed weapon. The state has no option to deny that permit, any more than the state has the option to deny the right to openly carry that same handgun. The only difference is one extra application, and a check.

I will grant you that the fee for this stinks, and dilutes my point a little bit. We also pay a fee, just not nearly as much, with every commercial firearm purchase as well. Does that fee change possession or purchase from a right to a privilege? Most would say not.

So I am claiming that in Virginia and the other Shall Issue states, a CHP is a RIGHT, not a privilege. Any distinction between the inherent "right to possess" and the "right to conceal" a handgun makes no sense, because the "presumptively lawful regulatory measures" that distinguish the two are in fact, nearly indistinguishable.

TFred

References:
Comparison chart
Federal Form 4473
Virginia State Police Firearms Purchase Eligibility Test
Virginia CHP Application
 

Attachments

  • disqualification_comparison.pdf
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Shoobee

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The closest that you can come to Federal law on that issue is the recent USSC decision in Heller. This lays out Scalia's views on behalf of the narrow 5-man majority.

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Note that Heller overturns previous law under Miller.

http://www.constitution.org/2ll/bardwell/miller_v_texas.txt

Note however that Miller is technically not law, however most legal beagles had treated it as such and quoted it as such until Heller recently came along.

Here is more history on the legal developments as well, even besides Miller.

http://www.constitution.org/2ll/bardwell/supreme_cases.html

After you read all of this, then you too will be a well informed enthusiast.

Bottom line is this, that Heller has ensured (for the moment, until it is overturned at some point in the future by an even more activist USSC) that all Americans in America have the right to "keep and bear" arms *in their homes* ready to go, loaded.

And in any other public places, Heller gives the States a blank check to write any laws they want. You need to *read* it.
 
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scouser

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[snip]
Virginia is a SHALL ISSUE state. We all know what that means. Unless you are specifically disqualified, the government MUST issue a CHP to everyone who asks for one. My suggestion to you is that given the fact that the list of disqualifiers are so similar, it makes no sense to claim that one is a "right" while begrudging the other as a "privilege". In a very real sense, a CHP is nothing more than a citizen informing the state government that he or she WILL BE carrying a concealed weapon.

I think, especially with the part I bolded, you made a good point, which leads on to the question of is a CHP simply a disguised registration system? Granted it doesn't list what you CC, but it does suggest that the holder possesses firearms. Going a step further, how do we know for sure that the information on the 4473 Form isn't kept somewhere, or whether the fingerprint cards some of us had to submit for our original CHP were really destroyed?
 

riverrat10k

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Interesting post.

Gotta chew on this

"In a very real sense, a CHP is nothing more than a citizen informing the state government that he or she WILL BE carrying a concealed weapon. The state has no option to deny that permit, any more than the state has the option to deny the right to openly carry that same handgun. The only difference is one extra application, and a check.
 

skidmark

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It appears to me that your analysis fails only because you are not recognizing the fact that the General Assembly, in their wisdom (where is that rolling hysterically on the floor emoticon when you need it?), declared that carrying of concealed weapons, which includes handguns, is illegal.

The General Assembly, again in their wisdom, carved out an exception to the carrying of concealed handguns based on the person desiring to do so not having one or more of a list of disqualifying conditions and the paying of a fee (tax). There is no question that cocealed carry is a privilege granted by the General Assembly, in their wisdom.

Remember, even SCOTUS has said that as long as there is a way to lawfully bear arms the right to do so has not been abridged - even when doing so involves applying for and being granted some privelege. (Yes, this is not actually what Heller says and is repeated in McDonald. But try to explain it to a non-gun person without falling to that level.) There are a few cases working their way towards SCOTUS addressing that conflict, and most of them seem to have a better than good chance of resolving the dichotomy. All we need is to see if SCOTUS wants to take on the issue so soon.

stay safe.
 

peter nap

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It appears to me that your analysis fails only because you are not recognizing the fact that the General Assembly, in their wisdom (where is that rolling hysterically on the floor emoticon when you need it?), .

There you go Skid
rofllg.gif



I'm just reading for now.

It's an interesting concept and as I aid in private earlier....P4P and permits themselves, are completely different animals.
This is a permit discussion!
 

TFred

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It appears to me that your analysis fails only because you are not recognizing the fact that the General Assembly, in their wisdom (where is that rolling hysterically on the floor emoticon when you need it?), declared that carrying of concealed weapons, which includes handguns, is illegal.

The General Assembly, again in their wisdom, carved out an exception to the carrying of concealed handguns based on the person desiring to do so not having one or more of a list of disqualifying conditions and the paying of a fee (tax). There is no question that cocealed carry is a privilege granted by the General Assembly, in their wisdom.

Remember, even SCOTUS has said that as long as there is a way to lawfully bear arms the right to do so has not been abridged - even when doing so involves applying for and being granted some privelege. (Yes, this is not actually what Heller says and is repeated in McDonald. But try to explain it to a non-gun person without falling to that level.) There are a few cases working their way towards SCOTUS addressing that conflict, and most of them seem to have a better than good chance of resolving the dichotomy. All we need is to see if SCOTUS wants to take on the issue so soon.

stay safe.
I understand the distinctions as User has explained several times: Affirmative Defense, and all of that.

Those distinctions notwithstanding, one could just as easily argue that the wording of the statute is simply outdated, from before we became a "Shall Issue" state. Taking the code as a whole, one could say that carrying concealed is a "de facto right", for anyone who wants to fill out a form and pay the tax.

It's not too different from the recent Richmond Library sign incident. As illogical as the reasoning was for their sign, we actually have the same situation in the code: "Carrying concealed weapons is prohibited, except as permitted by law." As the library folks told us, and as we enjoy in real life, it is our right to carry concealed in the library, and anywhere else, if we choose to jump through the administrative hoops.

Remember the foundation of my point here. We are eager to call OC a right even though the disqualifiers for doing so are 90+% common with concealed carry.

Here comes the crazy talk: Every time we purchase a gun, we pay a $2 fee for a background check that confirms our compliance with those 90+% of the qualifiers for a CHP. What if we bumped that fee up a buck or two, added in those last two qualifiers to the test, and then had the folks in Richmond AUTOMATICALLY mail out a CHP to everyone who buys a gun? It certainly can't cost 20 times more money to check those last two disqualifier items than it does to check the first 15 or so.

That's about as close to Constitutional Carry as you can get without using the actual term. And the interesting part is that we're ALREADY over 90% there!!

TFred
 

paramedic70002

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To twist TFred's argument, someone with the wherewithal to do so should use this to argue in the General Assembly (again...) by way of a Bill, that CHPs (really the whole 18.2-308 except for other illegal possessions) should be abolished since they are virtually the same as OC.
 

Thundar

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To twist TFred's argument, someone with the wherewithal to do so should use this to argue in the General Assembly (again...) by way of a Bill, that CHPs (really the whole 18.2-308 except for other illegal possessions) should be abolished since they are virtually the same as OC.

Or...

Why doesn't the General Assembly waive the backround check for those that have a current CHP just like they do for those with a Curio and Relic License?
 

peter nap

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Or...

Why doesn't the General Assembly waive the backround check for those that have a current CHP just like they do for those with a Curio and Relic License?

Because I'd spend every waking moment yanking chains.
I hate taking the same side as Saslaw.
 
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roscoe13

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Or...

Why doesn't the General Assembly waive the backround check for those that have a current CHP just like they do for those with a Curio and Relic License?

A C&R is a federal FFL. A C&R holder is only background check exempt for weapons that qualify as C&R....

Roscoe
 

Thundar

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Virginia State Police Procedures Manual for Firearms Dealers, July2012 Edition

Page VI -1

VI CRIMINAL HISTORY RECORD INFORMATION CHECK

D. Exceptions to CHRI Check Requirements

A CHRI check is not required for:

1. Transactions between licensed firearms importers or collectors, manufacturers, or dealers. ...
 

markand

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For most purposes, the second amendment is being treated as "privilege" and not a "right", even after Heller, etc. Background check to purchase, permits to carry, numerous restrictions as to where you can carry, and on and on. As these court cases move forward, we had best hope that the second amendment moves closer to to treatment as an actual "right". Why? If our second amendment "rights" can be regulated in this manner, why not all of our other rights? What if similar regulations were applied to the first amendment. Perhaps it would be perfectly legal and constitutional to impose a fee and background check before a citizen could write a letter to the editor, or call in to a popular talk radio program to express an opinion or even post here on OpenCarry. And define a confusing array of places and circumstances where you could speak freely in one situation, but not another. Why not? Form a line for your "free speech" permit. Or go to jail.
 

TFred

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For most purposes, the second amendment is being treated as "privilege" and not a "right", even after Heller, etc. Background check to purchase, permits to carry, numerous restrictions as to where you can carry, and on and on. As these court cases move forward, we had best hope that the second amendment moves closer to to treatment as an actual "right". Why? If our second amendment "rights" can be regulated in this manner, why not all of our other rights? What if similar regulations were applied to the first amendment. Perhaps it would be perfectly legal and constitutional to impose a fee and background check before a citizen could write a letter to the editor, or call in to a popular talk radio program to express an opinion or even post here on OpenCarry. And define a confusing array of places and circumstances where you could speak freely in one situation, but not another. Why not? Form a line for your "free speech" permit. Or go to jail.
Yes, ABSOLUTELY. And these are the areas that the court must eventually evaluate when the cases regarding the "presumptively lawful restrictions" eventually get back to the top, the Supreme Court. I just hope it is Scalia who is once again writing the majority opinions of those cases.

TFred
 
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