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Can't Require a License to Exercise a Right

Aknazer

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I've heard this stated multiple times on the board and I agree with it for multiple reasons, but I was wondering if there is case law to back up this statement. If there is case law can someone please post it so that I can learn from it and use it when this comment comes up in conversation.
 

wrightme

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WOOT!

Found it!

JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943)



aka Murdock v Pennsylvania et al


Murdoch v Pennsylvania link at supreme.justia.com





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.
 
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Beretta92FSLady

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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.
 
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wrightme

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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.


Whether the focus was on an ordinance or not.......

Please peruse the quote I pulled from the decision, and specifically the portion I placed in bold.

"A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."





In this case, it appears that not only did SCOTUS rule on the narrow, they defined the broad.
 

Beretta92FSLady

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Whether the focus was on an ordinance or not.......

Please peruse the quote I pulled from the decision, and specifically the portion I placed in bold.

"A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."





In this case, it appears that not only did SCOTUS rule on the narrow, they defined the broad.

Ok, I see where you are going with this. So, the right to carry is an enjoyment of a right? I am serious, not trying to be argumentative. Also, are you stating that a SCOTUS Finding regarding a First Amendment right also extends to all other Amendments of the Constitution? The Second Amendment right has been granted, and affirmed by recent SCOTUS Findings, although, it appears that the right of the Second Amendment is only absolute in that States cannot ban outright, the right to keep, and bear arms.
 

wrightme

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Ok, I see where you are going with this. So, the right to carry is an enjoyment of a right? I am serious, not trying to be argumentative.
???? I am not "going anywhere with this," other than posting the requested cite the OP requested. And further correcting what I felt was your misinterpretation of the relevance.

Beretta92FSLady said:
Also, are you stating that a SCOTUS Finding regarding a First Amendment right also extends to all other Amendments of the Constitution?
I made no statement whatsoever about it.

BUT, your question DOES represent a logical extension of the decision quoted. To parse it out a bit, the SCOTUS decision and the section I pulled it from did not say "A state may not impose a charge for the enjoyment of the First Amendment Right." That would have been a narrow statement. Instead, they made a broad statement, that IMHO, should apply to ALL Rights recognized and protected by the Constitution and BoR.

Beretta92FSLady said:
The Second Amendment right has been granted, and affirmed by recent SCOTUS Findings, although, it appears that the right of the Second Amendment is only absolute in that States cannot ban outright, the right to keep, and bear arms.
Not exactly. The Second Amendment has been incorporated against the states. The ultimate outcome has yet to be determined. The court cases so far have been of very narrow focus.
 
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Beretta92FSLady

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[snip]

Not exactly. The Second Amendment has been incorporated against the states. The ultimate outcome has yet to be determined. The court cases so far have been of very narrow focus.

For the OP, here lies your answer. The answer is no, the Finding offered concerning the First Amendment is not applicable to the Second Amendment. One might argue that it is implied, or that it is a natural conclusion from the wording of the Finding - but such things belong in the arena of speculation.
 

wrightme

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For the OP, here lies your answer. The answer is no, the Finding offered concerning the First Amendment is not applicable to the Second Amendment. One might argue that it is implied, or that it is a natural conclusion from the wording of the Finding - but such things belong in the arena of speculation.
Why not? Do you not have an understanding of what "Right" means, wrt SCOTUS statements?

What do you base your claim upon?

So far, you haven't 'answered.' You have attempted to declare.
 
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Beretta92FSLady

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Why not? Do you not have an understanding of what "Right" means, wrt SCOTUS statements?

What do you base your claim upon?

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. Now, the meaning of "Right" is also arbitrary, because there are "Right" that are treated as though it is absolute (which it is not), and there is a contingent "Right," - wait, the former belongs under "contingent Right." I admit that the term "arbitrary" is a pretty strong term, and functions as a whim along a historical context. A "Right" is bestowed. In our case, the "Right" was generally bestowed by men who are reaching many generations from their graves a general notion of "Right."

Describe to me what "Right" means to you, and I will tell you if I agree with you. I have offered the notion, and application of "Right."

I just picked this contradictory description of "Right," random Google search: "A right is the sovereignty to act without the permission of others." http://www.freerepublic.com/focus/f-news/973633/posts

I do not agree with the above definition of a "Right." Unfortunately, the "sovereignty to act without permission" is dependent on permission. One has not Right unless it is afforded to them.

An example: There are individuals who believe that non-U.S. citizens (illegal aliens specifically) should not be afforded Rights under the Constitution. The implication is that the Rights under the Constitution are bestowed, Rights are not fundamental, Rights are not so-called "Natural Rights."
 
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wrightme

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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. Now, the meaning of "Right" is also arbitrary, because there are "Right" that are treated as though it is absolute (which it is not), and there is a contingent "Right," - wait, the former belongs under "contingent Right." I admit that the term "arbitrary" is a pretty strong term, and functions as a whim along a historical context. A "Right" is bestowed. In our case, the "Right" was generally bestowed by men who are reaching many generations from their graves a general notion of "Right."

Describe to me what "Right" means to you, and I will tell you if I agree with you. I have offered the notion, and application of "Right."

I just picked this contradictory description of "Right," random Google search: "A right is the sovereignty to act without the permission of others." http://www.freerepublic.com/focus/f-news/973633/posts

I do not agree with the above definition of a "Right." Unfortunately, the "sovereignty to act without permission" is dependent on permission. One has not Right unless it is afforded to them.

An example: There are individuals who believe that non-U.S. citizens (illegal aliens specifically) should not be afforded Rights under the Constitution. The implication is that the Rights under the Constitution are bestowed, Rights are not fundamental, Rights are not so-called "Natural Rights."

It does not matter what "Right" means to us. What matters is that SCOTUS made a specific statement, which I quoted, which is in direct contradiction to your bloviation.


Since you seem to desire to sidestep the specific quote I presented, here it is. Again.

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.
Pay especial attention to the portion I bolded. While it could be argued that they meant "granted by..." as opposed to "recognized by," I doubt it would parse out that way. Given the prior sentence made the statement about First Amendment, and also "Bill of Rights," it is not logical to assume SCOTUS didn't speak of the Bill Of Rights 'rights' when making their statement. That invalidates all the stuff you try to say.
 
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Beretta92FSLady

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It does not matter what "Right" means to us. What matters is that SCOTUS made a specific statement, which I quoted, which is in direct contradiction to your bloviation.

Unfortunately, SCOTUS made a few statements around the one you quoted. You, and me could go on about this forever. if you believe that it 'should be' that way, then, it should be.
 

wrightme

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Unfortunately, SCOTUS made a few statements around the one you quoted.
Oh, so if you have something to present about what SCOTUS said, then why didn't you use that, instead of the irrelevant stuff you presented?

Do you not believe that the statement I cited is "SCOTUS speaking of the Bill of Rights?"
Beretts92FSLady said:
You, and me could go on about this forever. if you believe that it 'should be' that way, then, it should be.
It sounds as if you believe it 'should be that a state can license a Right.' Is that accurate?
 
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Beretta92FSLady

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Oh, so if you have something to present about what SCOTUS said, then why didn't you use that, instead of the irrelevant stuff you presented?

Do you not believe that the statement I cited is "SCOTUS speaking of the Bill of Rights?"

SOCUTS was speaking to the BOR, as it relates to the First Amendment. Unless you can tie what SCOTUS stated in its totality to the Second Amendment, you don't even have a basis for a functioning argument - one that leads from one to the other.


" A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."

There could be a number of assumptions, and implications derived from the quote you provided. Yes, one could argue that it is applicable to the Second Amendment, and that individuals should not be charged for exercising a right. On the other hand, one could argue that, the imposition of charge for what is a right granted as it relates to the Second Amendment is unlike the practice of solicitation of religious Dogma, but rather, the Second Amendment CC/OC being NOT a solicitation of anything, is not applicable to the Finding - is not applicable to the quote you have provided.

Also, I should add, that this line speaks to those Rights that are incorporated, or maybe I am wrong about this. I should add, just in case, yes, the Second Amendment is incorporated. Now, that does not mean sh*t when it comes to how the Finding relates to the Second Amendment, until of course, there is some argument that such a Finding is applicable to the Second Amendment. But for now, as i stated previously, it is speculative.
 
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wrightme

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SOCUTS was speaking to the BOR, as it relates to the First Amendment. Unless you can tie what SCOTUS stated in its totality to the Second Amendment, you don't even have a basis for a functioning argument - one that leads from one to the other.


" A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution."

There could be a number of assumptions, and implications derived from the quote you provided. Yes, one could argue that it is applicable to the Second Amendment, and that individuals should not be charged for exercising a right. On the other hand, one could argue that, the imposition of charge for what is a right granted as it relates to the Second Amendment is unlike the practice of solicitation of religious Dogma, but rather, the Second Amendment CC/OC being NOT a solicitation of anything, is not applicable to the Finding - is not applicable to the quote you have provided.

Also, I should add, that this line speaks to those Rights that are incorporated, or maybe I am wrong about this.
Yes, maybe you ARE wrong about this.
I already addressed it adequately.

Had they intended to only speak of the First Amendment, they would not have made the broad "a right granted by the Federal Constitution," after referencing the Bill of Rights.
THat isn't a statement about not limiting solicitation, it is a statement about not licensing 'a Right granted by.....'

There just aren't many ways to limit that statement to less than the Bill Of Rights. There isn't "need" to tie that to the specific amendments, it includes them.

It does seem as if you are attempting to argue for what YOU desire....a limit.
 
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Beretta92FSLady

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Yes, maybe you ARE wrong about this.
I already addressed it adequately.

Had they intended to only speak of the First Amendment, they would not have made the broad "a right granted by the Federal Constitution," after referencing the Bill of Rights.
THat isn't a statement about not limiting solicitation, it is a statement about not licensing 'a Right granted by.....'

There just aren't many ways to limit that statement to less than the Bill Of Rights. There isn't "need" to tie that to the specific amendments, it includes them.

It does seem as if you are attempting to argue for what YOU desire....a limit.

Then if that is the case we would have definitely seen something brought up about this over the years as an argument for CC/OC. the Finding has been on the books for how many decades now... My impression by the lack of any attempt at arguing from the Finding for the Second Amendment is that it is not applicable.

Personally, I think that the wording of the Finding is disingenuous. First, SCOTUS states that a Right is granted by. Second, SCOTUS, at the time, was speaking to Rights incorporated, or am I wrong?
 
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wrightme

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Then if that is the case we would have definitely seen something brought up about this over the years as an argument for CC/OC. ?

No. In case you have forgotten, the Second Amendment hasn't been incorporated against the states until very recently. Claiming "if that is the case we would have definitely seen something brought up" is quite premature.....

Give it time, incorporation only happened less than 2 years ago.
 

Aknazer

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SOCUTS was speaking to the BOR, as it relates to the First Amendment. Unless you can tie what SCOTUS stated in its totality to the Second Amendment, you don't even have a basis for a functioning argument - one that leads from one to the other.


" A state may not impose a charge for the enjoyment of A right granted by the Federal Constitution."

There could be a number of assumptions, and implications derived from the quote you provided. Yes, one could argue that it is applicable to the Second Amendment, and that individuals should not be charged for exercising a right. On the other hand, one could argue that, the imposition of charge for what is a right granted as it relates to the Second Amendment is unlike the practice of solicitation of religious Dogma, but rather, the Second Amendment CC/OC being NOT a solicitation of anything, is not applicable to the Finding - is not applicable to the quote you have provided.

Also, I should add, that this line speaks to those Rights that are incorporated, or maybe I am wrong about this. I should add, just in case, yes, the Second Amendment is incorporated. Now, that does not mean sh*t when it comes to how the Finding relates to the Second Amendment, until of course, there is some argument that such a Finding is applicable to the Second Amendment. But for now, as i stated previously, it is speculative.

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.

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.

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.

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.
 

Aknazer

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No. In case you have forgotten, the Second Amendment hasn't been incorporated against the states until very recently. Claiming "if that is the case we would have definitely seen something brought up" is quite premature.....

Give it time, incorporation only happened less than 2 years ago.

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.
 
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