Representative Richard Hudson (R-NC) issued a press release yesterday about his Concealed Carry Reciprocity Act (H.R. 38), apparently responding to criticism that it would override state gun control laws. Mr. Hudson said:
[S]tate and local laws would still dictate where law-abiding citizens can and can’t carry a concealed firearm. That means if these mayors want to control where people can carry in their municipalities, then they’re free to do that.
Does this mean the bill would allow (for instance) New York City to simply create a bunch of no-go zones that would effectively bar concealed carry by the citizenry? Or is Rep. Hudson just “practicing politics” in the sense of the waitress in that old Billy Joel video?
As I said when Mr. Hudson introduced his bill in January, its language was very particular about existing state laws. It says:
This section shall not be construed to supersede or limit the laws of any State that—
(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or
(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.
H.R. 38 explicitly allows state and local laws enforcing a party’s decision to bar firearms from his or her own private property (like those famous Texas 30.06 signs). It also explicitly permits state and local laws that ban firearms from state or local property.
It’s silent on one question, though: some states (Nebraska, for instance,) bar concealed carry in privately-owned financial institutions, houses of worship, taverns, and the like. What does the silence mean?
Ultimately, that’s something the courts would have to sort out, but it’s a potential hook for a lawsuit. There’s an old statutory interpretation saw in the legal trade that the expression of one thing implies the exclusion of others — or expresio unius est exclusio alterius.
In this case, H.R. 38 allows local laws that bar concealed firearms from public property. It also allows local laws that enforce an individual’s decision to ban firearms from their private property.
Arguably, both of those examples are of property owners (whether public or private) choosing what they’re going to allow on their own property. I could see a court going along with the notion that a law dictating to private property owners what they can or can’t do on their property (as opposed to simply enforcing the property owners’ will) would be distinct, and therefore liable to be ‘superseded’ here.
A slam dunk? Not on your life, especially in a federal court that sits in New York City. Still, it’s within the realm of the ‘reasonably possible’.
These petty complaints from Bloomberg and his collaborators are a waste of breath, though. First of all, I can’t imagine that there are a ton of places that would be impacted by the scenario painted above. Any bank managers, pastors, or bar owners who fear their own patrons could simply post a sign banning concealed carry on their property, which would have the same amount of practical power to prevent criminals from bringing their weapons onto the premises.
Second, even if Rep. Hudson’s bill is passed as written, there’s a simple way that places such as California, New York, and New Jersey could avoid its application entirely: ban concealed carry. For everyone.
That’s all it takes: no more two-track firearms licensing where the animals that are more equal than others get licenses and those without money, power, or connections get to pound sand. Rep. Hudson’s law is only triggered if a state:
(1) has a statute under which residents of the state may apply for a license or permit to carry a concealed firearm; or
(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.
If concealed carry by law-abiding citizens is really such a terrifying thing, then just ban it altogether. No muss, no fuss. Heck, at the rate the Supreme Court is going, they probably wouldn’t even grant cert. to any legal challenges to the bans anyway.
What’s that, you say? Shannon Watts is concerned about going out in public without her armed guards?
Oh, that’s easy. There’s one method of firearms carry that the bill doesn’t touch at all.
A state could allow all the open carry it wants without triggering H.R. 38.
Imagine the photo ops that might create featuring Mike and Shannon.
The most dangerous part of allowing states to restrict carry in certain locations is some states will undoubtedly make laws thrat effectively prohibit carry.
Most of the harsh anti states actually have very few prohibitions on licensed carry. This is because their crooked laws only allow the elite class to carry. Unless those laws where changed for EVERYBODY, not just out of state permit holders , things would stay the same.
Now would really hard anti states like NJ pass laws punishing in state permit holders just to restrict the rights of out of state permit holders. Maybe. But they could easily face lawsuits ( and political fallout ) from
In state permit holders.
Also once a guy from NJ or NY or MD etc can get a PA permit or TX permit and use it in his home state , a lot more people will have legal carry permits. Experience has shown us that the shall issue Jeanie does. It go easily back in her bottle. Those non resident permit holders will vote to expand their rights.
I would also imagine a change in the laws of some states in response to the availability of out of state permits. They may want to get in on the training and license money. I could see significant hard to ignore pressure from gun retailers and ranges urging them to keep that business in the state.
“Most of the harsh anti states actually have very few prohibitions on licensed carry. This is because their crooked laws only allow the elite class to carry.”
This is true of MA, where I live. There aren’t that many location restrictions and few signs posted (frankly, I can’t remember seeing any).
And I’m thrilled with the thought that I’m in the elite class. Finally made it, Ma. Top of the world!
“Also once a guy from NJ or NY or MD etc can get a PA permit or TX permit and use it in his home state”
Not a universal truism. Some states specifically prohibit the use of an out of state carry license to actually bypass the home state gun laws.
Isn’t that what reciprocity is specifically supposed to eliminate?
My understanding is that only persons with valid CCW from their state of resident obtain national carry. The “twist” about out-of-state licensing not being a legal means for a resident to bypass state law is not talked about much. Rather doubt national legislators are aware of the complication.
“My understanding is that only persons with valid CCW from their state of resident obtain national carry.” The House Bill says a license from “a State” in “any State that” meets the requirements. The Senate Bill says the person may carry with a license from “a State” in “any State other than the State of residence of the individual that” meets with the requirements.
I didn’t conclude that rendering. I find it difficult to believe the author of the bill intended to include a license from a state other than the holders home state.
There are two ways of looking at a contract. The four corners approach and the other one (I can’t remember its name, if it has one). The four corners approach is to look at the document. What’s it say? If it is clear, that’s what it means. If it isn’t, you look to evidence outside the contract to figure out its meaning. The other way, you just do whatever the hell you want, I guess.
Justice Gorsuch is a four corners kind of guy and so am I. I don’t care what the author of the bill intended when the bill says something else. Cutting out all the requirements about the person, the gun, and the states’ laws, the House Bill says “a person with a license from a State may carry in any State.” The Senate Bill says “a person with a license from a State may carry in any State other than his own.” The Senate Bill language makes it super clear that the license can be from any state because the carrying State language makes it clear the author knows how to specify, and was thinking about, the residency of the license holder.
You seem to be reading as “what can the words mean”. I read from “common understanding of common words”. Anyone not looking to justify their hope would presume the common understanding of person and state.
You know….Shakespeare was right.
California just changed the law to prohibit CCW on school grounds without superintendent permission.
They have a bill this session to ban it completely.
All in response to the mere THREAT Peruta might happen.
No, this is exactly what will happen. It’s already begun in CA over the mere threat of regular CCW issue.
When we POTG clamor for legislation that supercedes the states, we are no different from the people we consider anathema. The remedy is not copying the other side. The remedy is to elect people of principle who are willing to put courts in their proper place. Congress can put any dispute beyond the reach of the court.
Private property rights work like this. You can have anyone leave your property for any reason. If they don’t, then they’re trespassing. End of story. National Reciprocity doesn’t change that.
As for public property. Since when do local politicians get to deny people what’s specifically guaranteed in the Bill of Rights?!
“Since when do local politicians get to deny people what’s specifically guaranteed in the Bill of Rights?!”
Since, like, the last hundred years? At least?
Actually, the constitution was completely subverted with Marbury vs. Madison.
Well, thank God for the 14th. Rights aren’t rights if a mayor can take them
“Rights aren’t rights if a mayor can take them”
But rights remain rights if a higher level of government restricts them?
Lawmakers are elected by the people. And The Majority in many places do not share the same view of guns. Alaska is not New Jersey. And Vermont is not Alabama. This one size for all kind of law is not a good Idea. The power of a state to set rules should be respected.
No disagreement, here.
“The power of a state to set rules should be respected.”
Unless the ultimate national authority says a particular right shall not be infringed.
“Unless the ultimate authority says they shall not be infringed.”
Not convinced the next revolution is just around the corner. If I die of old age before “shall not be infringed” has its original meaning, reality is “can be infringed”. As a Texan, perhaps you actually saw Waco. And that was not enough?
Absolutely right, Timothy. It’s amazing that people don’t realize you can’t walk into someone’s house and demand they make you dinner any more than you can walk into a Christian baker’s and demand a wedding cake for your gay wedding. It’s not your property, folks. They are allowed to kick you out for some, a few, or no reason at all because it doesn’t belong to you. If the Klan went to a black owned dry cleaners, I would hope they’d be shunned.
Even though it’s not a good idea to disallow guns, it is the right of the owner to kick you out.
“…any more than you can walk into a Christian baker’s and demand a wedding cake for your gay wedding.”
If your neighbor is operating a public accommodation inside their property, the federal commerce clause, and all the civil rights laws DO apply.
We don’t know if you can demand that yet.
We have to wait til next term.
AND/HOWEVER if you chose to open your property to the public- a maid/poolboy, 500 employes, retail customers then you did not received a writ from the creator that allows you to steal THE 2nd from them. You accept them then they can come armed and other laws deal with what might be selective discrimination against an individual. In particular this applies to lower gov’t bodies as everything they own is public property.
Wrong.
The only thing “opening your property to the public” does is make the default “you’re invited in” even if not explicitly invited, as opposed to “you’re not invited” unless explicitly invited.
They can still explicitly revoke that invitation if you break their rules. If you don’t like their rules, then stay OUT! Don’t assume (like a two year old) that they have to cater to your whims while you are on their property.
Boy, you are stubbornly, stupidly wrong about this, aren’t you?
And they can insist their customers enter only through TSA style metal detector stations, should they feel strongly enough to pay for it. Otherwise, concealed is still concealed.
Yeah, once you get around “Congress shall make NO LAW…”, ignoring “shall not be infringed” becomes easier and easier. No mere legislation can reinforce an impossible to misunderstand declaration of “no”, and “not”. Like it or not, the federal courts are overwhelmingly populated with leftists and crybabies. There are 3,294 federal judgeships. Trump only has about 100 openings to appoint. If Trump gets 100 per year, in eight years, we still lose.
Anti-gunners are playing the long game. POTG seem to focus on the latest shiny object (2A “victory”). If any court case or legislation retains or reinforces restrictions on speech and legal gun ownership, it is a loss for constitutionally protected freedom.
Courts are the midterm game.
Culture is the long term game.
Coming from a Californian, culture will eventually destroy or restore everything.
If guns are in common use, people carry for self protection, etc. then restrictions are very, VERY hard to continue to keep long term.
Conversely, with a disarmament public, literally everything will be OK to bend things to the public will. Whether it be courts, legislature, executive actions- everything.
Courts are VERY important- don’t get me wrong. But culture is the true long term game, that we must win. Leftists only have gotten so far from cultural change, over decades, that slowly handed them courts as well. Take back the culture, and eventually everything will fall too.
Not fast enough for freedom and justice, but eventually.
Have the bill include that concealed carry bans imply open carry is allowed, without permits or limitations.
In all seriousness, Mr. Paulsen, can you see a way of wording a reciprocity law that states like Cali, Hawaii and NY won’t pervert?
Why bother circumventing the law with their own when they can just get a leftist judge declare a national injunction against it (Id love to see the horrible legal contortions they’d go through to make that happen).
That’s how they did it with the travel ban. What’s to stop them for doing it with everything else they disagree with?
While true, that ignores the reality on the ground: lots of private “pistol free zones” have never considered concealed carry and don’t even realize that a current state law prohibits concealed carry on their premises. That being the case, many of those private “pistol free zones” would NOT post their premises and concealed carry would suddenly become legal.
Furthermore, if this law passes and a private “pistol free zone” did ban handguns on their premises, violations would be reduced from felony, misdemeanor, or nasty civil infraction (heavy fines, loss of license and/or firearm) to simple trespass in many states. Even that would be a win.
Oh, and for the record, as I read the information provided in this post, this federal law would indeed nix state laws that prohibit concealed carry on all private properties.
Also for the record, I do not believe that states should be able to ban any fundamental rights on private property.
States may make laws that are more restrictive than the Constitution. To Government.
The BOR is negative law. It explicitly stipulates what the Gov CANNOT do. Anything not EXPLICITLY mentioned in the BOR is left up to the States, which may make laws that restrict the Gov further, but CANNOT infringe on the limits placed on it by the BOR.
Every State, County and Municipality that has ANY restrictions on keeping and bearing arms is wide open for massive lawsuits.
It really is that simple.
“Anything not EXPLICITLY mentioned in the BOR is left up to the States”
Except for that whole 14th amendment thing.
“Except for that whole 14th amendment thing.” Shhh. Maybe no one will notice.
“Except for that whole 14th amendment thing.” Shhh. Maybe no one will notice.
Oooppps. Sorry. My bad.
The 14th Amendment essentially made slaves of everyone.
The Congress did not have the power to “free” anyone. So simply made everyone equal.
It created the specialized class known as the “Citizen,” (dweller of the City State of DC).
Anyone claiming to be a Citizen is, by the Law of Exclusivity, not of “The People.”
Anything past the 10th Amendment is Positive Law, granting benefits and privileges to the hoi polloi. Enumerated rights are derived from existence, but can be waived by claiming a subordinate Title (enTitlement).
Everything up to number 10 needs to be repealed.
“Everything up to number 10 needs to be repealed”
Did you mean every amendment subsequent to the 10th should be repealed?
Unfortunately, the founders did not prohibit amendments from conferring benefits, rather than describing additional limits on the central government.
Correct. Everything subsequent to the 10th. Long day.
And correct. The Founders did not explicitly forbid people from voluntarily waiving their rights, or the creation of amendments that would confer privilege at the expense of rights.. Those are the pitfalls and perils of free will. By accepting the Title Citizen, the Constitution applies to that construct from the first usage in the document.
The biggest danger of the whole “private property” issue is when property owners can leverage the power, authority, and violence of the state government to enforce PRIVATE POLICY decisions.
So, for example, when a state enacts a law that makes it illegal to disobey the desired preference of a property owner, the means by which this is enforced is the power of the state, utilizing police, with firearms, to ultimately ensure compliance.
We should NEVER utilize the power of the government to enforce what is a private policy preference among citizens.
Close, but not quite. Swatting or other similar behavior would be inappropriate, however if they don’t have a means of forcing the offender off their property if necessary (i.e. the police) then what reason would someone have to leave if asked by the owner?
After all, personal property rights are enshrined in the constitution, and as a property owner, you have the right to decide who enters your property and how. If someone refuses to leave, you have an armed trespasser. In some states that’s sufficient to warrant lethal force, but not all. The police are a necessary evil.
“then what reason would someone have to leave if asked by the owner?”
Because otherwise the owner may ask 3 of his MMA employees to escort that someone out, or if he cannot afford that, just shoot him.
Umm all laws protecting private property rights do this by definition. Trespassing for example.
LEOUSA allows for a ban on private property.
Property Rights have been in danger for a long time before National Reciprocity became an issue. California New York etc. have had illegal taking problems for a long time now.
I wonder how many people who don’t support Christian bakers property rights but do support national reciprocity???
Federal reciprocity merely means that states must honor the carry licenses issued to non-residents by their home states. All that means is that the state must recognize such non-residents as lawful/legitimate carriers.
It has absolutely nothing to do with regulating what may be carried, or where. NJ can still have their stupid ban on hollow points. New York can still require 10-round magazines. Texas can still enforce 30.06 and 30.07.
Why is this so hard to understand?
Read the statute. It doesn’t just say “we’re gonna have national reciprocity.”
Someone using the force of the government to make private establishments allow X is no different than another group using the force of the government to prohibit X. They are both forms of tyranny.
Your rights end where mine begin. If you are on private property the property owner’s rights trump yours. Simple as that.
If it is a business that is open to the public and then saying that’s “public property” or some other such argument, is nonsense.
This not only regards property rights but the right to associate. That means people are free to discriminate. If I choose to associate with one person but not another then I have by definition discriminated against that other person. Now that it has been enshrined into statutes that this is illegal behavior, the flood gates are open. Good luck…
So the government cannot make a private property owner recognize a constitutional right, but can make a private property owner bake a cake for a gay wedding?
This section shall not be construed to supersede or limit the laws of any State that
If the Constitution is the law of the land, and our rights are universal, then no state should be able to infringe upon any of those rights, just as no state has the authority to restrict civil rights or freedom of speech or anything else.
“If the Constitution is the law of the land, and our rights are universal, then no state should be able to infringe upon any of those rights, just as no state has the authority to restrict civil rights or freedom of speech or anything else.”
I’m afraid that if the above is your theory of law, you are destined to be angry and frustrated forever.
Looks like somebody has been reading all my posts. (I recently posted “expresio unius est exclusio alterius”). Or maybe he also went to law school and read the bill.
One point is that the bill does say more about state law. It says “Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)).” That’s preemption of any local law that prevents a person described in the bill from “possess[ing] or carry[ing] a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce.”
Let’s cut out all of the language unnecessary to the point. “Notwithstanding any provision of the law of any State … a person … may possess or carry a concealed handgun in any State.” (Well I just wrote a way better law). That language alone is enough to say that laws preventing concealed carry in a bank are invalid. If the State could restrict where the right could be exercised, it could eliminate the right. This would render the entirety of the statute meaningless. The additional language that specifically lists the two kinds of laws that the bill would not preempt only strengthens this argument, as Mr. Paulsen pointed out in the article. The only laws specifically excepted from the preemption were specific types of laws that said where carry and possession could be prohibited.
I cannot fathom an honest judge who would rule otherwise.
“That language alone is enough to say that laws preventing concealed carry in a bank are invalid. If the State could restrict where the right could be exercised, it could eliminate the right.”
“The only laws specifically excepted from the preemption were specific types of laws that said where carry and possession could be prohibited.”
You gotta help me out, here. The two statements seem contradictory.
Let’s use examples. A state has three laws about where you can’t take guns. The first is no guns in public schools (i.e., property owned by the government). The second says no guns when the property owner posts a sign following specific requirements. The third says no guns in banks.
“Notwithstanding any provision of the law of any State or political subdivision thereof.” This language preempts all the laws we discussed in our hypothetical state. “(except as provided in subsection (b)).” This language, and subsection (b), says the first and second laws are not preempted. These two laws are “specific types of laws that [say] where carry and possession could be prohibited” that are not preempted. The third law is a law “where carry and possession” is prohibited, but not one that is of the two specific types of place restriction laws excepted from preemption. The first law falls into subsection (b)(2), and the second law falls into subsection (b)(1). The third law falls into neither subsection. It is therefore not a “specific type[] of law[] that” is exempted from preemption.
If I understand correctly, the government (at whatever level) can still have laws restricting firearms in and around government buildings, but private entities may not declare themselves gun free?
How doe the law work, if a government institutes a law/regulation/ordinance that prohibits carry in a bank (or other place of business or activity owned and operated by a private property owner?
“If I understand correctly, the government (at whatever level) can still have laws restricting firearms in and around government buildings,” yes “but private entities may not declare themselves gun free?” no.
“[I]f a government institutes a law/regulation/ordinance that prohibits carry in a bank (or other place of business or activity owned and operated by a private property owner” the law would be preempted (and therefore invalidated and illegal to enforce) by this bill (which isn’t a law, it’s just a bill, a bill sittin’ on Capitol Hill).
The government could pass a law/regulation/ordinance that allows a bank (or all or some private property owners) to prohibit carry.
Thanks for all the interchange. Kinda looks like the conversation is down to just we two, and I am taking up a whole lot of your time. Any lack of understanding here is entirely my fault.
“Kinda looks like the conversation is down to just we two, and I am taking up a whole lot of your time.” That’s why God made commercials.
Perhaps a better way of phrasing it is that exception to preemption is only for some specific “place” restrictions. A law about banks wouldn’t fit into either specific “place” restriction. Sign laws like 30.06 laws fit into both exceptions.
“A law about banks wouldn’t fit into either specific “place” restriction. Sign laws like 30.06 laws fit into both exceptions.”
I retain the impression that “preemption” doesn’t preempt much. My understanding of the bill is that if your state permits you a CCW as a resident, you will be permitted (allowed) to possess your firearm in any other state, subject to whatever complications the law and ordinances in the non-resident states create. Still sounds like the federal requirement that valid driver’s licenses are to be accepted in every state.
In the context of concealed carry and the possession of a handgun intended for concealed carry, it preempts magazine restrictions, ammo rules (sort of), California style approved gun lists, and Texas style no handguns in bars place restrictions.
It also does the driver’s license thing. It also puts into place a lot of procedural protections. It also exempts carriers from the gun free school zone law. More importantly, it makes it to where people in “slave” states can get a license/permit from a free state and carry in their home state. It is mandatory shall issue for every state that licenses concealed carry or has constitutional carry, except it really is a lowest common denominator sort of thing. Arizona CWP’s for everyone! (Their training requirement is satisfied by hunter’s education, and they will send you fingerprint cards in the mail).
It’s not the best law about guns (that’s just the proper application of the 2A), but it’s a lot better than what we have now.
“…it preempts magazine restrictions, ammo rules (sort of), California style approved gun lists, and Texas style no handguns in bars place restrictions.”
It is pathetic lawyers do not write laws in the language of the laws. I just do not see the bill as doing any of the above. I can only conclude that the CCW is being made equivalent of the driver’s license, everything else remains the same, everywhere.
What do you make out of the definition of gun, the thing your allowed to carry and possess? “The term ‘handgun’ includes any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine.”
I just do not “see” where national carry really does delete, make null, repeal, eliminate, vaporize current state laws regarding firearms, beyond making one permit in one state, valid in all others. I do “see” a situation requiring people transporting firearms across state lines to know, in detail, the laws in every jurisdiction in every state where a permit holder intends to travel with said firearm.
As a non-lawyer, I expect to see words to the effect, “Any and all laws regarding the possession, transport, configuration or quantity of guns permitted to be possessed at any time or any place are hereby nullified, void and unenforceable. This provision pertains to, but is not restricted to, barrel length, overall length, fire controls, magazine capacity, ammunition caliber, ammunition purchases, carried or transported. The effect of this legislation is to restore the status of firearms in the US and its jurisdictions to the original condition defined in the Second Amendment to the US Constitution. To wit, “the right of the people to keep and bear arms shall not be infringed”, in any manner whatsoever, regardless of circumstances”, except those firearms confiscated as part of legal apprehension for crimes wherein the use of a gun was active, or intended.”
To TX lawyer,
Isn’t the entirety of what HR38 reciprocity covers and doesn’t basically going to be what the 9th circuit decides to not Preliminary Injunction straight off the bat?
I mean, the travel ban should be considered a dry run for bills under Trump. Only after SCOTUS struck down the PI, did it take effect.
I don’t think, no matter how clearly written any bill is, it will take effect for more than 4 hours before it’s injuncted 10 different ways.
I’d love to know where I’m wrong.
What the 9th decides is more a question of politics than law. I am an observer of politics, but don’t hold myself out as an expert on politics.
That said, a court in the 9th (or anywhere really) that issues a national injunction is playing with fire. After researching the issue, I believe they do not have the authority to do so. I haven’t read the recent per curiam opinion on the visa ban case, but from the results, it sounds like the Supreme Court might agree with me. It sounds like the Court restricted the injunction to the interests of plaintiffs before the Court.
Think about a national injunction. Think about a law that effects everyone in the country. It negatively effects someone out in the 9th. It positively effects someone in the 5th. Both someones have standing. The guy in the 9th sues and gets a national injunction against the law. The gov stops enforcing the law. The gal in the 5th is harmed. She sues in Texas to get the law enforced. The court issues a national order mandating the enforcement of the law.
Which order does the government violate and which does it comply with? They are mutually exclusive. One court must be ignored.
There is a conservative court in Texas that issued national injunctions to stop Obama administration policies. If we have courts on the left and right willing to ignore the constraints on the judiciary, then it is only a matter of time before we get conflicting rulings on like this. If neither Congress or the Supreme Court acts to rein in activist judges, it could lead to the destruction of the judiciary. All government is based on the people complying with the law either out of respect or fear. If no one (including the executive branch) respects the judiciary, it cannot enforce its rulings.
The SC cannot rein-in lower courts on Heller/McDonald. How would SC be able to do it in future? Unless the SC issues arrest orders (and who would deliver the warrant and make the arrest?), and gets convictions, there is nothing but a sense of honor (demonstrably absent in most federal courts) to prevent collapse of the court system.
The founders concept of this nation depended on people always agreeing to abide by the written rules. Minus that agreement, we are England of the days of warring fiefdoms.
“The SC cannot rein-in lower courts on Heller/McDonald.” I swap cannot for will not. That’s kind of the point of the dissents like the one from Peruta.
“The SC cannot rein-in lower courts on Heller/McDonald.” I swap cannot for will not. ”
Did a little (very little) research on the enforcement powers of the SC. Outside of court police who provide security for the building and act maybe as bailiff, I could find nothing that provided the SC with the ability to arrest judges from lower courts, or to even shut down a renegade court (only Congress can do that).
I submit it is no coincidence the ninth circus and others decided they could issue national injunctions contrary to settled SC cases.
“contrary to settled SC cases.” I haven’t seen those cases. I do admit that I only “researched” the issue in response to something someone said on TTAG. But the papers I read all seemed to agree that there is no SC precedent on the issue. The paper I really focused on seemed very well researched.
“I could find nothing that provided the SC with the ability to arrest judges from lower courts, or to even shut down a renegade court (only Congress can do that).” – The Supreme Court’s authority is purely institutional. The reason lower courts are running amok on the 2A is that the SC won’t slam them for it. If they did, the lower courts would comply. If even the courts aren’t willing to comply with the courts, their collapse will come.
Power is more than the ability to physically coerce another to act. “In a room sit three great men, a king, a priest, and a rich man with his gold. Between them stands a sellsword, a little man of common birth and no great mind. Each of the great ones bids him slay the other two. ‘Do it,’ says the king, ‘for I am your lawful ruler.’ ‘Do it,’ says the priest, ‘for I command you in the names of the gods.’ ‘Do it,’ says the rich man, ‘and all this gold shall be yours.’ So tell me – who lives and who dies?” – From Game of Thrones, but I think I heard similar things from the Greeks.
How ’bout this:
“The exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power,” the Supreme Court said in 1950. And lest there be doubt, Congress adopted a provision in 1952 saying the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”
(http://www.latimes.com/politics/la-na-pol-travel-ban-legal-analysis-20170206-story.html)
and this
8 U.S.C. §1182(f))
Section 212(f) of the INA is arguably the broadest and best known of these authorities. It provides, in relevant part, that
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem
necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Or this
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”).
https://supreme.justia.com/cases/federal/us/338/537/
“(a) The admission of aliens to this country is not a right, but a privilege, which is granted only upon such terms as the United States prescribes. P. 338 U. S. 542.”
“(c) It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien. ”
And that is pretty much the extent of my knowledge.
I’ll agree with you that out in the 9th they do a lot of ignoring. More so than any other Circuit. But if the SC slaps them down, they are more likely to stay down on that issue for a while than if the SC just ignores it.
The SC has been ignoring the 2A forever. They’re still ignoring it, but we’ve had more on it in the past two decades than in the preceding two centuries. Look at all the taser bans being overturned. The SC in a relatively weak ruling (but 9-0) basically said there is no justification for banning tasers and the 2A protects them. Under this pressure, liberal cities all over America are getting rid of their taser bans either under threat of lawsuit or as a result of one.
The SC was direct and clear about tasers. Don’t remember all that “reasonable restrictions” jazz.
So maybe more in your wheelhouse then:
If national implications vis a vis a single circuit wouldn’t work, why is Mance v. Holder (ban on interstate sales; found unconstitutional but injunction til DOJ responds) injuncted?
As a Californian, I have watched courts morph into a branch of government of unchecked power and corruption, and no real pushback, including executive ignoring the rulings. Instead, when the exec doesn’t like something, they refuse to defend it (prop. 187 still hasn’t gotten a final ruling in 25 years) whilegay marriage was forced through over the decision of CALIFORNIA VOTERS.
This is what is dangerous to me- we can talk about politics being distinct from law- but I question if that distinction really holds anymore.
I’m not sure I understand your question. This is a decision, as to the law (the basic holding that these restrictions are in violation of the 2A), that I agree with, but I don’t agree with the remedy.
It’s a good example of what I was talking about. If the 5th upholds the decision, I’m pretty sure there will be a Circuit split. The 9th will hold the laws valid. If the court there orders enforcement, the feds will have to decide which order to violate.
They’re probably going with the 5th Circuit in this one because it’s hard to get the executive to enforce a law it doesn’t want to.
This is in reply to your reply (can’t reply to that forked thread) about not understanding what I meant in my post about Mance v. Holder.
You wrote:
“Think about a national injunction. Think about a law that effects everyone in the country. It negatively effects someone out in the 9th. It positively effects someone in the 5th. Both someones have standing. The guy in the 9th sues and gets a national injunction against the law. The gov stops enforcing the law. The gal in the 5th is harmed. She sues in Texas to get the law enforced. The court issues a national order mandating the enforcement of the law.
Which order does the government violate and which does it comply with? They are mutually exclusive. One court must be ignored.”
My point was, we ALREADY have an example of national injunction, if I understand correctly, in that the injunction in Mance v. Holder IS national. Then, courts are ALREADY playing with fire re: gun rights, and that’s a sunk cost, and great predictor of future behavior.
I guess my point was asking/pointing out from my point of view, we’re ALREADY out of the frying pan, into the fire on gun rights.
We’re already at a crisis point/boiling point, there is no theoretical anymore.
Am I wrong? If so, how?
We are only in crisis when there are two contradictory orders. We only have one order on this, and that order has been stayed (meaning it is not in effect). The crisis will arrive when one court orders “don’t do X,” and another court orders “do X.”
Until then we just have a court saying “don’t do X.” That’s easy to comply with.
“I mean, the travel ban should be considered a dry run for bills under Trump. Only after SCOTUS struck down the PI, did it take effect.”
SC broke their own precedent, and created a new law (travel ban) by creating new exceptions to application of the travel ban. No good can come from any instance of the SC legislating from the bench.
No good can come from lower courts, in HI or elsewhere, assuming the authority to rewrite or cancel laws for the entire country.
I think this bill is a encroachment of federal power and the 10th Amendment. The current system of reciprocity agreements by state AG’s has worked; we should not try to nationalize & regulate everything under the Sun that is not really interstate commerce. Like abortion & Gay Marriage, this should be let to the states to decide.
In 1965, George Wallace would have certainly agreed with you.
Bad law does not invalidate a good principle. It is merely an example of how emotion and intent are considered superior to law.
Even if this bill becomes law, it is doubtful that anything will change in New Jersey.
I am all for allowing property owners to prohibit guns on their property, HOWEVER they are then responsible for the safety of those that are on their property and should be held accountable if something happens. This is the case if someone gets hurt on their property, ie slip and fall, so it should also apply when they prohibit people from being able to exercise their own self defense.
“HOWEVER they are then responsible for the safety of those that are on their property and should be held accountable if something happens.”
This is another example of selective application of law. POTG want to believe that because…guns, a private property owner has a greater responsibility for safety of occupants than in the case of someone driving a truck through the door and injuring customers. Or that if there is a drive-by shooting, and no one inside the building is armed, somehow the facility owner is responsible for death and injury caused as a result of the drive-by shooter. Simply put, no private property is responsible for the criminal activity of a third party. But we want that to be so when we visit a neighbor who has not approved of our gun in their house.
But, I suppose, consistency in theory and law is way over-rated.
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