concealed license law unconstitutional?

[DKSuddeth]

Hello all, I haven't posted here in quite awhile but glad to be back.

Looking for opinions on this.

It is my contention that the concealed license law, as it stands right now, is a violation of the 2nd amendment. I know that alot of people will say that the 2nd has never been held against the states but I believe that the 5th circuit AND the northern district of texas federal courts did just that with the emerson case. By clearly stating that the 2nd Amendment is an individual right, they have declared it federally protected. In light of that decision, Murdock v. Commonwealth of Pennsylvania comes in to play. The USSC opinion clearly states that 'A state may not impose a charge for the enjoyment of a right granted by the federal constitution.'

Now, in silveira v. lockyear, Justice Rienhardt went very far in disagreeing with the 5th circuit on the status of the right, but one thing he did say in the opinion is that he agreed with the 5th circuit that cruikshank has been largely discredited. If that is truly the case, then it should stand to reason that Murdoch incorporated all federally protected rights preventing any state from incorporating any license fees or taxes to enjoy that right.

As I see it, so far this only applies to TX, LA, and MS.

feedback please.

[txinvestigator]

Prior to 1996 in Texas you went to jail if you carrid a handgun on or about your person. After that a law abiding citizen could under the CHL law.

The only way you are anyone else are going to change it is to refuse to get a CHL, carry anyway, get arrested and convicted, the appeal to the SCOUS.

[Liberty]

I agree it is unconstitutional, but so are taxes that inhibit freedom of speech, (phone taxes, taxes on Newspapers and magazines, taxes on phone services ...)
Probably sales taxes on guns and ammo are unconstitutional.
Yet, I continue to pay the bills Ya, gotta choose ones battles.

[Kalrog]

The only way you are anyone else are going to change it is to refuse to get a CHL, carry anyway, get arrested and convicted, the appeal to the SCOUS.

Uh, no. You can take something to SCOTUS without being arrested for it. Heller did just that. He sued without ever being convicted or even charged under the DC ban.

[Stupid]

If you have a lot of money to burn, file a lawsuit till it ends. The problem is that you have to do it with lots money and extreme caution on everything in your lawsuit. I imagine a few millions would do the trick.

Or you can do what the other guy, Franklin Sanders, who believes that gold is money. So when he opened a business dealing gold, he never charged sales tax. He went to prison for what he did and still fighting the charges.

[anygunanywhere]

Wow. DKsuddeth didn't even say anything about open carry, LEO, or any other topic some are developing nervous tics over.

Anygun

[DKSuddeth]

explanation received.

[cbr600]

By clearly stating that the 2nd Amendment is an individual right, they have declared it federally protected.

Wake me when NFA '34, GCA '68, et al are declared Unconstitutional as a result of this.

[nitrogen]

My feedback:
The ultimate law of the land is being broken. As a country that supposedly is based on law and order, breaking the supreme law of the land is a big deal.

[sar]

You can always move to Vermont or Alaska.

[KBCraig]

Wake me when NFA '34, GCA '68, et al are declared Unconstitutional as a result of this.

"Declared" being the operative word. That they are unconstitutional is undeniable, but courts won't declare that.

(I actually allow for NFA'34, as written, to be Constitutional, because it's a tax measure instead of a prohibition. Everyone at that time knew and understood that the federal government had no constitutional authority to limit gun ownership, so they taxed certain guns instead.)

[nitrogen]

You can always move to Vermont or Alaska.

My wife won't let me!

Besides, I like Texas better :P

[ELB]

Since we are debating the finer points of law here, let me take a swing too.

The only way you are anyone else are going to change it is to refuse to get a CHL, carry anyway, get arrested and convicted, the appeal to the SCOUS.

Uh, no. You can take something to SCOTUS without being arrested for it. Heller did just that. He sued without ever being convicted or even charged under the DC ban.

Um, sort of. TXI Investigator is not 100% correct, but is probably largely correct. Heller is a special case. He applied for a carry permit and was refused based on D.C.'s law. Therefore the D.C. Court of Appeals ruled he had the standing to challenge the law, because he had been harmed by it. The D.C. Court of Appeals ruled that Parker and the others in the case had no standing because they had not been harmed yet. They had not applied for permits, but "only" wanted to possess functioning firearms. For them to be harmed they would have had to get functioning firearms, then been caught, arrested, and convicted under D.C.'s knuckleheaded laws. Then they could show harm from the law. In spades.

Not all circuit courts have as high a hurdle for showing standing and as I recall, the issue of standing in D.C Court of Appeals vs the other circuits was appealed also, but I don't think SCOTUS picked it up (or I didn't hear about it if they did). In general tho, it seems to be hard to get standing to challenge criminal law without getting busted first.

Break-Break

If I understand DKSuddeth's original point, to wit "The USSC opinion clearly states that 'A state may not impose a charge for the enjoyment of a right granted by the federal constitution," then what he is saying is that the Texas CHL law is unconstitutional because it charges a fee for the CHL. Hey, I'd be happy if the CHL were free, just fill in the forms and send'em in, but the chances of dumping the fee altogether are... well, ever hear of the Chance brothers? Fat and No?

I would be interested to see if it really costs $140 to process a CHL application tho.

elb

[frankie_the_yankee]

"Declared" being the operative word. That they are unconstitutional is undeniable, but courts won't declare that.

(I actually allow for NFA'34, as written, to be Constitutional, because it's a tax measure instead of a prohibition. Everyone at that time knew and understood that the federal government had no constitutional authority to limit gun ownership, so they taxed certain guns instead.)

I agree with you as to the NFA.

As to the GCA of '68, I happen to think that it is possible to deny that it is unconstitutional. In fact, I deny it myself. (IOW, I happen to think it is constitutional, even though I do not particularly like it.)

But recognize that none of us can simply state catagorically that a law is unconstitutional or not. All we can say is that in our opinion it is (or isn't). And we can offer up evidence or arguments to support that opinion of course.

But these differences of opinion can only be resolved in the courts. In the end, the opinion of SCOTUS is all that matters.

So right now, the GCA is on the books, is being enforced, and has not been successfully challenged. This gives it at least a presumption of constitutionality, IMO. And I see little chance that any court will rule otherwise in the forseeable future.

[mr surveyor]

in a quote from the original post at the top of this thread:

"The USSC opinion clearly states that 'A state may not impose a charge for the enjoyment of a right granted by the federal constitution."


I'm not sure I understand the word "granted" in the context it is being used? No one can "grant" rights. Rights can be recognized, but "grant" just isn't correct. Priviledges on the other hand can be granted.