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The Range
Law & Order
House Weighs Bill to Make Gun Permits Valid Across State Lines
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<blockquote data-quote="vvvvvvv" data-source="post: 1636309" data-attributes="member: 5151"><p>I think this was directed at me, so I'll respond.</p><p></p><p>A very strong argument can be made that our natural right to keep and bear arms would be more secure without the involvement of the National Rifle Association in <a href="http://scholar.google.com/scholar_case?case=5141154246897960488" target="_blank"><em>McDonald v. Chicago</em>, 130 S.Ct. 3020 (2010)</a>. Why? Because the Supreme Court agreed on something very important, but decided not to address it because it would be inconvenient to do so as it would broaden the scope of <em>McDonald</em> to open the door to the swift overturning of other decisions based on the <em>Slaughter-House</em> precedent that the Court agreed to be fundamentally flawed so much as to merit revisiting. However, the inconvenience of revisiting, and the fact that the briefs filed in the case largely favored the "tried and true" method of incorporation through Due Process, outweighed the flaws in the minds of four of the Justices.</p><p></p><p>If the NRA truly supported the right to keep and bear arms as being a right <em>protected</em> by the Constitution, they would have pushed hard for Privileges or Immunities.</p><p></p><p>The Fourteenth Amendment offered us two paths to incorporate the Bill of Rights. Path One is through the Privileges or Immunities clause, which reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (which was proposed as a direct solution to the flawed but established caselaw gutting the Privileges and Immunities clause of Article IV Section 2). Path Two is through the Due Process clause, which reads "...nor shall any State deprive any person of life, liberty, or property, without due process of law".</p><p></p><p>The Slaughter-House cases effectively gutted the ability of the Privileges or Immunities clause to provide a path for incorporation of any Rights against the states. In Slaughter-House, the Court held that the Privileges or Immunities clause only applied to those Rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws". Therefore, post-Slaughter-House, you would have to consider the right to keep and bear arms a Right granted by the government rather than a natural right in order to be able to argue for incorporation under the Privileges or Immunities clause. I'm not so sure that most here (including I) would like to take a position in that direction.</p><p></p><p>However, "Virtually no serious modern scholar-left, right, and center- thinks that this [interpretation] is a plausible reading of the Amendment" (Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001), p. 8 of plurality opinion). But even with multiple citations such as the one in the previous sentence, Justice Alito went on to say "We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding."</p><p></p><p>In other words, while scholars have a consensus that Slaughter-House is extremely flawed and should be revisited, we don't want to touch it. (My thinking is that this may have been a compromise to get Justice Kennedy to vote in favor of incorporation.) To not revisit Slaughter-House is kind of disturbing because Slaughter-House arguably did not directly involve any Right enumerated in the Constitution.</p><p></p><p>(Read more at <a href="http://www.altenhofel.com/blog/mcdonald-rkba-and-privileges-or-immunities-clause" target="_blank">http://www.altenhofel.com/blog/mcdonald-rkba-and-privileges-or-immunities-clause</a>)</p><p></p><p>This leaves Second Amendment incorporation at the mercy of "substantive due process" - the exact thing that those four Justices complain about the most for vagueness. Using the Due Process Clause requires the Court to determine if a right is "fundamental" to "our scheme of ordered liberty." This leaves incorporated rights open to attack from Justices who inject their political views into their opinions (and all of them do).</p><p></p><p>In over a century of rulings using the Due Process Clause, no consensus has emerged on the correctness and meaning of precedent cases such as Roe v. Wade. This further proves that Second Amendment incorporation will be left open to manipulation going forward, all because the Court "decline[d] to disturb the Slaughter-House holding."</p><p></p><p>(Read more at <a href="http://www.altenhofel.com/blog/originalists-lose-mcdonald-v-chicago" target="_blank">http://www.altenhofel.com/blog/originalists-lose-mcdonald-v-chicago</a>)</p><p></p><p>The NRA stays in business as long as the people believe that the Second Amendment is threatened. Incorporation under Due Process perpetually guarantees that threat. With a few extremely limited exceptions, Privileges or Immunities would have gotten rid of the NRA's chief reason for being in business.</p><p></p><p><em><a href="http://www.ca3.uscourts.gov/opinarch/093185p.pdf" target="_blank">United States v. Marzzarella</a></em> illustrates this point quite well. The Third Circuit ruled that the federal law barring possession of unmarked firearms as "a longstanding prohibition" allowed by <a href="http://www.law.cornell.edu/supct/html/07-290.ZS.html" target="_blank"><em>DC v. Heller</em> 554 U.S. 570 (2008)</a>.</p><p></p><p>Another example of the slippery slope that Due Process has given us is <em><a href="http://www.ca9.uscourts.gov/datastore/opinions/2011/05/02/07-15763.pdf" target="_blank">Nordyke v. King</a></em>. Remember, <em>Nordyke</em> is not about carrying firearms on county property for self defense, but rather displaying firearms for sale on county property (something that has been misrepresented in many places, some intentionally and some unintentionally). When the panel was reaching a conclusion on the validity of the Alameda County ordinance under the incorporated Second Amendment, the Ninth Circuit held that, even if the real world consequence of the ordinance was prohibiting firearms for self defense on county property, "the restriction leaves open sufficient alternative avenues for obtaining the good or service" because the gun shows could take place elsewhere.</p><p></p><p></p><p></p><p>The NRA has a pattern against the rights protected by the Second Amendment dating back at least to NFA '34. It's not just a few random "mistakes" on the timeline - it's a consistent stance that has the effect of furthering their own existence over the rights that they claim to protect.</p></blockquote><p></p>
[QUOTE="vvvvvvv, post: 1636309, member: 5151"] I think this was directed at me, so I'll respond. A very strong argument can be made that our natural right to keep and bear arms would be more secure without the involvement of the National Rifle Association in [URL="http://scholar.google.com/scholar_case?case=5141154246897960488"][I]McDonald v. Chicago[/I], 130 S.Ct. 3020 (2010)[/URL]. Why? Because the Supreme Court agreed on something very important, but decided not to address it because it would be inconvenient to do so as it would broaden the scope of [I]McDonald[/I] to open the door to the swift overturning of other decisions based on the [I]Slaughter-House[/I] precedent that the Court agreed to be fundamentally flawed so much as to merit revisiting. However, the inconvenience of revisiting, and the fact that the briefs filed in the case largely favored the "tried and true" method of incorporation through Due Process, outweighed the flaws in the minds of four of the Justices. If the NRA truly supported the right to keep and bear arms as being a right [I]protected[/I] by the Constitution, they would have pushed hard for Privileges or Immunities. The Fourteenth Amendment offered us two paths to incorporate the Bill of Rights. Path One is through the Privileges or Immunities clause, which reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (which was proposed as a direct solution to the flawed but established caselaw gutting the Privileges and Immunities clause of Article IV Section 2). Path Two is through the Due Process clause, which reads "...nor shall any State deprive any person of life, liberty, or property, without due process of law". The Slaughter-House cases effectively gutted the ability of the Privileges or Immunities clause to provide a path for incorporation of any Rights against the states. In Slaughter-House, the Court held that the Privileges or Immunities clause only applied to those Rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws". Therefore, post-Slaughter-House, you would have to consider the right to keep and bear arms a Right granted by the government rather than a natural right in order to be able to argue for incorporation under the Privileges or Immunities clause. I'm not so sure that most here (including I) would like to take a position in that direction. However, "Virtually no serious modern scholar-left, right, and center- thinks that this [interpretation] is a plausible reading of the Amendment" (Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001), p. 8 of plurality opinion). But even with multiple citations such as the one in the previous sentence, Justice Alito went on to say "We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding." In other words, while scholars have a consensus that Slaughter-House is extremely flawed and should be revisited, we don't want to touch it. (My thinking is that this may have been a compromise to get Justice Kennedy to vote in favor of incorporation.) To not revisit Slaughter-House is kind of disturbing because Slaughter-House arguably did not directly involve any Right enumerated in the Constitution. (Read more at [url]http://www.altenhofel.com/blog/mcdonald-rkba-and-privileges-or-immunities-clause[/url]) This leaves Second Amendment incorporation at the mercy of "substantive due process" - the exact thing that those four Justices complain about the most for vagueness. Using the Due Process Clause requires the Court to determine if a right is "fundamental" to "our scheme of ordered liberty." This leaves incorporated rights open to attack from Justices who inject their political views into their opinions (and all of them do). In over a century of rulings using the Due Process Clause, no consensus has emerged on the correctness and meaning of precedent cases such as Roe v. Wade. This further proves that Second Amendment incorporation will be left open to manipulation going forward, all because the Court "decline[d] to disturb the Slaughter-House holding." (Read more at [url]http://www.altenhofel.com/blog/originalists-lose-mcdonald-v-chicago[/url]) The NRA stays in business as long as the people believe that the Second Amendment is threatened. Incorporation under Due Process perpetually guarantees that threat. With a few extremely limited exceptions, Privileges or Immunities would have gotten rid of the NRA's chief reason for being in business. [I][URL="http://www.ca3.uscourts.gov/opinarch/093185p.pdf"]United States v. Marzzarella[/URL][/I] illustrates this point quite well. The Third Circuit ruled that the federal law barring possession of unmarked firearms as "a longstanding prohibition" allowed by [URL="http://www.law.cornell.edu/supct/html/07-290.ZS.html"][I]DC v. Heller[/I] 554 U.S. 570 (2008)[/URL]. Another example of the slippery slope that Due Process has given us is [I][URL="http://www.ca9.uscourts.gov/datastore/opinions/2011/05/02/07-15763.pdf"]Nordyke v. King[/URL][/I]. Remember, [I]Nordyke[/I] is not about carrying firearms on county property for self defense, but rather displaying firearms for sale on county property (something that has been misrepresented in many places, some intentionally and some unintentionally). When the panel was reaching a conclusion on the validity of the Alameda County ordinance under the incorporated Second Amendment, the Ninth Circuit held that, even if the real world consequence of the ordinance was prohibiting firearms for self defense on county property, "the restriction leaves open sufficient alternative avenues for obtaining the good or service" because the gun shows could take place elsewhere. The NRA has a pattern against the rights protected by the Second Amendment dating back at least to NFA '34. It's not just a few random "mistakes" on the timeline - it's a consistent stance that has the effect of furthering their own existence over the rights that they claim to protect. [/QUOTE]
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