Is requiring a permit to carry constitutional?

Moderators: carlson1, Charles L. Cotton


Topic author
v7a
Banned
Posts in topic: 2
Posts: 371
Joined: Wed Feb 04, 2015 6:29 pm

Is requiring a permit to carry constitutional?

#1

Post by v7a » Mon Jun 08, 2015 12:15 pm

The OCT crowd contend that carry permits are unconstitutional. Of course, whether something is unconstitutional is determined by the U.S. Supreme Court and not Chipotle AR-15 ninjas.

San Francisco has an ordinance which requires guns in the home to be locked up when not on your person (i.e. it's illegal to have the gun unlocked in your nightstand when you're sleeping). A 79 year old black woman, represented by the NRA, sued the city and lost (Jackson vs. San Francisco). Today, the U.S. Supreme Court declined to hear her appeal (with Thomas and Scalia dissenting from the rejection - see page 11). A similar ordinance (requiring trigger lock) was struck down in Heller vs D.C. As the dissent makes clear, the Supreme Court is refusing to reaffirm their prior decision in Heller.

The 5 justices who gave us Heller are still on the court. They just refused to reaffirm Heller. To think that this same court would strike down carry permits as unconstitutional is beyond delusion.

With this rejection, the 9th Circuit (as well as other anti-gun circuits) will be emboldened to uphold every gun control law.


Topic author
v7a
Banned
Posts in topic: 2
Posts: 371
Joined: Wed Feb 04, 2015 6:29 pm

Re: Is requiring a permit to carry constitutional?

#2

Post by v7a » Mon Jun 08, 2015 12:53 pm

Also in CA9 news, the panel of judges that will hear Peruta en banc was just released:

THOMAS (Clinton)
PREGERSON (Carter)
SILVERMAN (Clinton)
GRABER (Clinton)
McKEOWN (Clinton)
W. FLETCHER (Clinton)
PAEZ (Clinton)
CALLAHAN (G.W. Bush)
BEA (G.W. Bush)
N.R. SMITH (G.W. Bush)
OWENS (Obama)

California requires "good cause" to get a CHL. Peruta is the case where a 3-judge panel previously ruled that self-defense must be accepted as good cause. With this en banc panel, the ruling is guaranteed to be overturned.

User avatar

baldeagle
Senior Member
Posts in topic: 3
Posts: 5240
Joined: Tue May 25, 2010 8:26 pm
Location: Richardson, TX

Re: Is requiring a permit to carry constitutional?

#3

Post by baldeagle » Mon Jun 08, 2015 1:01 pm

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.
The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms. James Madison
NRA Life Member Texas Firearms Coalition member


jerry_r60
Senior Member
Posts in topic: 2
Posts: 381
Joined: Tue Mar 08, 2011 6:47 pm

Re: Is requiring a permit to carry constitutional?

#4

Post by jerry_r60 » Mon Jun 08, 2015 4:54 pm

This doesn't really address the specific issue of the constitutionality of licensing but it does get deep into constitutional interpretation of the 2nd amendment. If you have the time and desire, this is the assenting opinion of the Heller case written by Scalia. It's very educational to read through it.

https://www.law.cornell.edu/supct/html/07-290.ZO.html" onclick="window.open(this.href);return false;


Ruark
Senior Member
Posts in topic: 1
Posts: 1042
Joined: Tue Nov 22, 2011 8:11 pm

Re: Is requiring a permit to carry constitutional?

#5

Post by Ruark » Mon Jun 08, 2015 9:04 pm

I'm not surprised that OCT is claiming that. They're always talking about "muh sekkunt 'mendmunt rites." It's especially pointless to jabber about your sekkunt 'mendmunt rites to LEOs, as the OCT types are wont to do. Your typical street cop doesn't go around thinking in terms of constitutional law, and such language will most likely just irritate him.
-Ruark

User avatar

The Annoyed Man
Senior Member
Posts in topic: 1
Posts: 23701
Joined: Wed Jan 16, 2008 12:59 pm
Location: North Richland Hills, Texas
Contact:

Re: Is requiring a permit to carry constitutional?

#6

Post by The Annoyed Man » Tue Jun 09, 2015 12:10 am

jerry_r60 wrote:This doesn't really address the specific issue of the constitutionality of licensing but it does get deep into constitutional interpretation of the 2nd amendment. If you have the time and desire, this is the assenting opinion of the Heller case written by Scalia. It's very educational to read through it.

https://www.law.cornell.edu/supct/html/07-290.ZO.html" onclick="window.open(this.href);return false;
I believe that is the first time I've read his opinion all the way through. I'm glad I did, because it confirms statements I've been making all along in other Internet fora.
Give me Liberty, or I'll get up and get it myself.—Hookalakah Meshobbab
I don't carry because of the odds, I carry because of the stakes.—The Annoyed Boy

User avatar

Glockster
Senior Member
Posts in topic: 2
Posts: 1075
Joined: Tue Mar 25, 2014 7:48 am
Location: Kingwood, TX

Re: Is requiring a permit to carry constitutional?

#7

Post by Glockster » Tue Jun 09, 2015 8:24 am

The Annoyed Man wrote:
jerry_r60 wrote:This doesn't really address the specific issue of the constitutionality of licensing but it does get deep into constitutional interpretation of the 2nd amendment. If you have the time and desire, this is the assenting opinion of the Heller case written by Scalia. It's very educational to read through it.

https://www.law.cornell.edu/supct/html/07-290.ZO.html" onclick="window.open(this.href);return false;
I believe that is the first time I've read his opinion all the way through. I'm glad I did, because it confirms statements I've been making all along in other Internet fora.
:iagree:

Frankly I've never understood how some have held contrary opinions as from a historical perspective there are many extremely well researched texts that draw directly from documents written by our founding fathers, and they are extremely clear. And I think that Scalia does a god job in summarizing that.
NRA Life Member
My State Rep Hubert won't tell me his position on HB560. How about yours?


shootnfish
Junior Member
Posts in topic: 1
Posts: 8
Joined: Fri Aug 06, 2010 3:10 pm

Re: Is requiring a permit to carry constitutional?

#8

Post by shootnfish » Tue Jun 09, 2015 8:38 am

This question is just a matter of opinion at this time and will probably take many years before it is settled by the courts. As with any right, it can be regulated by the government, and the question is where the line in drawn. Alan Gura of the Second Amendment Foundation thinks requiring licensing is Constitutional. He addresses the issue in one of his speeches that is on youtube.

My question is ... can the government make it impossible to exercise a fundamental right without breaking the law?

Imaging this scenario. You are a poor person living in a bad neighborhood. You do not own a car or have a drivers license or a CHL. You ride public transportation to get around. Crime is increasing in your neighborhood and you want to have a gun for home defense. In Texas, there is no way to buy a gun and get it home without breaking the law. You cannot legally carry it home either open or concealed. You cannot have someone go buy it for you because that is an illegal straw purchase. You cannot have someone drive you home from the gun shop because the law says you can only carry in a vehicle owned or controlled by you.

User avatar

Glockster
Senior Member
Posts in topic: 2
Posts: 1075
Joined: Tue Mar 25, 2014 7:48 am
Location: Kingwood, TX

Re: Is requiring a permit to carry constitutional?

#9

Post by Glockster » Tue Jun 09, 2015 12:08 pm

One thing that I have pondered for awhile along this general topic of constitutionality has to do with all the states that have OC based on constitutionality vs. those that don't. Having come from a state with the first constitution, and that it is considered constitutional carry there, I don't understand then how some other states formed after the first 13 and then the Bill of Rights determine that it isn't constitutional. What basis exists that is used to determine that citizens in one state have more or fewer constitutional rights than others?
NRA Life Member
My State Rep Hubert won't tell me his position on HB560. How about yours?


JSThane
Banned
Posts in topic: 1
Posts: 610
Joined: Sun Sep 18, 2011 12:07 pm

Re: Is requiring a permit to carry constitutional?

#10

Post by JSThane » Tue Jun 09, 2015 1:55 pm

Short version: No, it is not, by the very text of the Second Amendment.

Long version: It's the cards we're currently dealing with, and until we can drag our government back to its founding document, it's an unconstitutional rule we have to deal with. See also: Departments of Energy, Education, Justice, Transportation, Homeland Security, and many, many others. See also: Common Core, attempts to pre-empt the Constitution via international treaties, Obamacare, free-speech zones, deliberate mis-readings of the First Amendment to attack specific religions, deliberate ignorance of the Tenth Amendment, deliberate ignorance of the Ninth Amendment, and many, many others.

Forcing expansion of recognition of our rights through our state and federal legislatures is a very long, very slow process, because we're forcing them to do something that's not in their own best interests (or rather, the interests of continued and expanded governmental power). It IS do-able, but it requires that the pro-rights advocates be even more stubborn and intractable in their end-goals than our opponents, and that we ensure that ANY compromise we make is one where the OTHER side gives something up, no matter how small, in exchange for us giving NOTHING up.

The recent Open Carry / Campus Carry laws passed in Texas are a good example of this. They are both nowhere nearly what they should be. Neither one is Constitutional on its face, not to a plain reading of the Constitution, due to the allowance of certain continued infringements (license required, colleges still allowed to "off-limits" certain areas), but they are both -better- than what had been the case prior. Concessions, even if small, even if still far away from a plain-text reading of the Constitution, were still made that bring us that small bit closer to a plain-text reading.

The concealed carry movement took years to ramp up to momentum. So will the Constitutional movement. In some areas, concealed carry is still a battle being fought. My hope and prayer is that my children will see a return to Constitutionality, not just in firearms, but in all areas, even if I never see it.


jerry_r60
Senior Member
Posts in topic: 2
Posts: 381
Joined: Tue Mar 08, 2011 6:47 pm

Re: Is requiring a permit to carry constitutional?

#11

Post by jerry_r60 » Tue Jun 09, 2015 2:49 pm

And to be fair and balanced....

Here is the dissent:
https://www.law.cornell.edu/supct/html/07-290.ZD.html" onclick="window.open(this.href);return false;

Unfortunately with just a couple seat changes, there can be a very well written opinion that goes the other way. I think Scalia does a great job in arguing against however, I know there is strong support in the country for interpreting it in line with the dissent.


jeffrw
Member
Posts in topic: 1
Posts: 57
Joined: Sat Mar 17, 2012 1:02 am

Re: Is requiring a permit to carry constitutional?

#12

Post by jeffrw » Fri Jun 12, 2015 11:57 am

Regarding the original question, I think it depends on the permitting process itself. In my opinion, the way we do it in Texas is constitutional. The process of obtaining a CHL is designed to ensure that (1) you're not a criminal, (2) you're not mentally unstable, (3) you're well-informed about the laws and the responsibility involved, and (4) you can safely operate a gun and shoot reasonably straight. None of those requirements seem unreasonable or unduly burdensome. You demonstrate those things, and you'll be issued a permit. And if you can't demonstrate those things, you shouldn't be carrying a gun.

There are a couple of potential issues I see. First, getting a permit costs money. For me, the fees weren't unduly burdensome, but I could see how in a small number of cases, they might be prohibitive. If so, that could be a constitutional issue to address. Second, those who are in the 18-20 age range probably have a good argument that they should have the same rights as other legal adults. For the most part, though, I think we have it about right.

In contrast, I am definitely not okay with "may issue" permitting systems, where even after meeting all the requirements above, a local official is completely free to decide that you don't really "need" a gun or a carry permit. A Constitutional right that can be nullified at the whim of a local official is no right at all. Thus, the permitting processes in jurisdictions like New York City are unconstitutional.

Here is the difference: In Texas, we basically start with the presumption that you have that right. If you want to actually exercise it, then yes, we want to verify first that it's safe for you to do so, and that you know what you're doing; but unless there's a real problem, everyone who applies is approved and free to carry. In New York City or San Francisco, they start with the presumption that you don't have the right to carry, and that you must obtain special permission by proving that you're in a specific and unusual situation; essentially all applications are denied. The former system is probably constitutional; the latter is definitely not.


cb1000rider
Senior Member
Posts in topic: 1
Posts: 2505
Joined: Wed Jun 12, 2013 3:27 pm

Re: Is requiring a permit to carry constitutional?

#13

Post by cb1000rider » Fri Jun 12, 2015 2:39 pm

jeffrw wrote:Regarding the original question, I think it depends on the permitting process itself. In my opinion, the way we do it in Texas is constitutional. The process of obtaining a CHL is designed to ensure that (1) you're not a criminal, (2) you're not mentally unstable, (3) you're well-informed about the laws and the responsibility involved, and (4) you can safely operate a gun and shoot reasonably straight. None of those requirements seem unreasonable or unduly burdensome. You demonstrate those things, and you'll be issued a permit. And if you can't demonstrate those things, you shouldn't be carrying a gun.
For the sake of argument, why not extend that logic to gun purchases or transfers? It stands to reason that the same requirements should apply to both firearm ownership and firearm possession. If we did it there, a license for possession becomes unnecessary.

I'm not really advocating that, but I'm just pointing out that the constitution allows us to both keep and bear arms. Why do additional burdens (at all) apply to one side of that and not the other? Why does the burden not apply to long guns? It just doesn't make a lot of sense to me, but I'm not constitutional legal scholar.

User avatar

maintenanceguy
Member
Posts in topic: 3
Posts: 85
Joined: Tue Nov 25, 2014 11:24 pm

Re: Is requiring a permit to carry constitutional?

#14

Post by maintenanceguy » Fri Jun 12, 2015 6:17 pm

Would it be constitutional to require a background check, training, competency test, and a paid fee to obtain a license to criticize a government official? To present a defense if charged with a crime? To keep the police from searching your home without cause or from taking your private property?

"Sorry Sir, you're search and seizure license is expired so we're going to take your car and look around your house to see what else we might want."
"Sorry Sir, you didn't pass the "right to a trial" competency exam so we're just going to sentence you without a trial."
"Sorry Sir, your check bounced for your "freedom of religion license". You won't be able to attend church or pray until you contact your bank."

Either the Second Amendment enumerates a right or it doesn't.

User avatar

nightmare69
Senior Member
Posts in topic: 3
Posts: 2024
Joined: Thu Feb 21, 2013 9:03 pm
Location: East Texas

Re: Is requiring a permit to carry constitutional?

#15

Post by nightmare69 » Fri Jun 12, 2015 7:11 pm

I personally believe that a state requiring a permit to carry is taking away a right and selling it back to you at a premier price. I know a few who cannot justify paying $100 for the class, $140 for the application fee, $10 for the fingerprints, to obtain a CHL.
2/26-Mailed paper app and packet.
5/20-Plastic in hand.
83 days mailbox to mailbox.

Locked

Return to “2015 Legislative Session”