TexasCHLforum.com

mloamiller wrote:

baldeagle wrote: So long as the government does not break into or encroach upon your right to keep or bear arms, any action they take would be constitutional by legal definition. No right is absolute. All rights must be balanced against the rights of others.
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Similarly, you have the right to keep and bear arms, but you may not do so in a manner that is threatening to or endangers other people. The question is obviously raised, who decides what is threatening to or endangers other people? The answer is the people do, through their representatives. So, if you want "constitutional carry" (or more accurately unlicensed carry), you must convince the people that it will not endanger them or threaten them in some way.

In general, I agree with the statements above, but I think the last sentence contradicts them. Yes, our rights are limited by the impact they have on the rights of others (unless the "others" are conservative, heterosexual Christians, but that's a different thread). However, we shouldn't have to prove that our exercising our rights will not endanger or threaten others. The reverse should be true - those who want to limit our rights should be required to prove that our excising those rights will adversely impact the rights of others. So in the context of this thread, has it been proven that constitutional (unlicensed) carry is a threat to others? I don't think so.

As it has been said many times in many ways, it isn't the carrying of a gun that threatens others, it's the intent and motivation of the one carrying it, and no law or license is going to impact that.

Perhaps I wasn't eloquent enough. What i was trying to say is that, within the context of our rights, restrictions on those rights are determined by the people through their representatives. That's why "assault" weapons were banned for a while but are not banned now. That's why concealed carry was once illegal but is now the norm.

Whatever our rights might be, the people will decide what restrictions there are on those rights, right or wrong, constitutional or not. Obviously, if one believes that open unlicensed carry should be legal, then one must convince enough of the people that their representatives will make it so. Some states have done that. Others have not. But constitutional carry is a misnomer adopted by the unlicensed carry proponents in an obvious effort to claim righteousness for their position. Carry is constitutional. Licensed or unlicensed is a matter for the people to decide. If it were not so, we would have unlicensed carry now nationwide.

IOW, however ineloquent I may be, the battle is in the legislature, not the courts, and those who desire unlicensed carry must fight that battle to win it.

The 2nd Amendment says that the right to keep and bear arms "shall not be infringed".

Infringement means "A breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract, or right."
Keep means "a term meaning to hold, to maintain, to support, to retain in possession and to take care of."
Bear means "To support, sustain, or carry; to give rise to", or to produce, something else as an incident or auxiliary."
Shall means "As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to "may,") to carry out the legislative intention and In cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense."

So long as the government does not break into or encroach upon your right to keep or bear arms, any action they take would be constitutional by legal definition. No right is absolute. All rights must be balanced against the rights of others.

For example, you have the right to freedom of speech, but you do not have the right to trespass on my property. Therefore you have no freedom of speech on my property. This comes up quite frequently in internet discussion groups and blogs, where people constantly complain about being censored on private fora.

Similarly, you would no right to keep or bear arms on my private property. This is why the legislature cannot mandate that businesses and private universities allow carry in their establishments. However, they can, and have, required that businesses post their desire to prevent your carry in a specific manner.

You have freedom of speech, but you do not have the right to endanger other people with your speech. Thus the famous dicta that you cannot yell fire in a crowded theatre.

Similarly, you have the right to keep and bear arms, but you may not do so in a manner that is threatening to or endangers other people. The question is obviously raised, who decides what is threatening to or endangers other people? The answer is the people do, through their representatives. So, if you want "constitutional carry" (or more accurately unlicensed carry), you must convince the people that it will not endanger them or threaten them in some way.

No constitutional right is unlimited, and that includes the 2nd. In the early days of our Republic, concealed carry was considered something that evil men did, so it was banned. Later, open carry was banned in Texas for various reasons that take too long to explain here. The Supreme Court has affirmed the right to bear arms but has not yet ruled about carrying outside the home. There is no question that unlicensed carry does not appear in the Constitution, despite the strident efforts of some to claim that it does. The government has the right to regulate the bearing of arms but I believe those regulations must meet the strict scrutiny standard.

I haven't looked at the case you cite yet, so I can't comment on it. There may be elements to it that make it different from the Heller decision and compelled the Supreme Court's decision not to hear the case. Or they may be waiting for some other decision before hearing the arguments and ruling.