'Licensed' defensive handgun carry: Are we doing it wrong?

[mrjarrell]

The St. Louis Gun Rights Examiner takes a look at the permission to carry vs. rights. My $0.02 is that he's right. We are doing it wrong. Folks like to hold up Indiana as some gun rights Mecca when it's really not even close compared to other states. When I lived in KY I could and did carry a firearm with me in my vehicles to where ever I wanted to go, range, store, etc. Do that here and you're a criminal. We don't have rights in Indiana. We have a privilege that we pay to exercise.

Toward the end of Monday's column, I made an observation about the licensing of defensive handgun carry:

Another reason I rarely approach gun rights advocacy from this angle is that I don't believe in licensing the carrying of a firearm. In submitting to a licensing requirement to carry a firearm, we undermine our own case--that the keeping and bearing of arms is a Constitutionally guaranteed, fundamental human right
​

As gun rights advocates, we argue that the Second Amendment exists to protect an inalienable right--one, indeed, that shall not be infringed. At the same time, though, we have endeavored to persuade the states (successfully, in the vast majority of states) to allow us to ask for (and pay for) a license to carry with us the means to defend our lives and our families. Our "success," in other words, has taken the form of reducing the bearing of arms from a fundamental right, to a privilege.
In asking for that privilege, we have lent implicit legitimacy to the denial of that which we should demand as free citizens. Yes--I know that most states have "shall issue" permitting systems, rather than "may issue," meaning that an applicant who meets the requirements for issuance of a license cannot, in theory, be denied the license. Sure--that's better than giving some police chief or sheriff the power to arbitrarily require someone to be defenseless while in public, but it still is an acceptance that our rights are something granted by government authority, based on our meeting the conditions the government imposes. Does that sound like "shall not be infringed" to you? In only two states, Vermont and Alaska, can citizens legally carry a concealed handgun without first asking permission.
In recent correspondence with a friend, he told me about being arrested decades ago for carrying a handgun without a permit (permits, of course, being impossible for "regular people" to obtain back then). At that time, though, carrying a gun without a government-issued permission slip was, in most jurisdictions, a misdemeanor. He pointed out to me that now, though, our "progress" has brought us to the point where illegally carrying a firearm is (again, in most jurisdictions) a felony, requiring, by federal law, the denial of one's ability to so much as (legally) touch a firearm--for life.

Read the rest at the source.

 

[ATM]

Even though I got the license, I completely agree that it should not be a requirement and that it is an infringement.
Much of the gun code needs repealed - not rewritten. Every time something gets rewritten it tends to get worse.
You end up with 10 laws trying to modify 1.

 

[redneckmedic]

I agree and disagree not because of my beliefs but because my weakness in history and lack of interpretation of law.

Civil War: Federal Gov. Law vs States Law

Does the U.S. Gov have the right to over-rule the state's law?

If yes than we are in a world of hurt with this new admin. If no than the States have every right to tell us if, what, where, when, and how we can carry. Along with any other coo-coo law they come up with.

I do believe this is B.S. on my level of Liberty, but it has some kind of logical sense in my weak law understanding mind.

 

[inxs]

It would be better if were looked upon as a negation of right- instead of a license to carry it would be noted on your drivers license or "state ID" that you have not lost the right to carry.....

 

[ATM]

It would be better if were looked upon as a negation of right- instead of a license to carry it would be noted on your drivers license or "state ID" that you have [strike]not[/strike] lost the right to carry.....

Just label folks who can't carry. Like the different colored background for those under 21 who can't legally drink alcohol.

 

[OneBadV8]

It would be better if were looked upon as a negation of right- instead of a license to carry it would be noted on your drivers license or "state ID" that you have not lost the right to carry.....

If you can lose it, then it is a priviledge not a right. Thin gray line right there.

 

[redneckmedic]

If you can lose it, then it is a priviledge not a right. Thin gray line right there.

Agreed, however, as a convicted criminal you loose your civil rights... don't you? Temporally at least?

 

[hoosiertriangle]

I'd like to suggest that your understanding is offbase just a bit. Our constitution (both state and federal) allows the taking of rights by the government, but only with due process of the law, i.e. conviction of a crime, etc.

The distinction that was made previously is right, I think, that the right should exist first without infringement and taken when due process of the law demands it. The line gets blurry when legislatures start prescribing infringement on the right through due process of the law. The example that comes to mind is whether a non-violent felon should have their right to possess firearms removed as compared to a serial murderer having his right removed. The murder's loss of right to carry seems clear to me to be ok, whereas the non-violent felon's loss of right to carry may not be justified.

If you can lose it, then it is a priviledge not a right. Thin gray line right there.

 

[Kick]

Does the U.S. Gov have the right to over-rule the state's law?

If yes than we are in a world of hurt with this new admin. If no than the States have every right to tell us if, what, where, when, and how we can carry. Along with any other coo-coo law they come up with.

I do believe this is B.S. on my level of Liberty, but it has some kind of logical sense in my weak law understanding mind.

+1

Couldn't have said it better. One one hand, you want the feds to be able to say "yes everyone can carry" but on the other, giving them the power to say yes also gives them the power to say no. Given the current admin. I firmly belive that if they had the power to say "NO" they would faster than anything we have ever seen before.

 

[dburkhead]

+1

Couldn't have said it better. One one hand, you want the feds to be able to say "yes everyone can carry" but on the other, giving them the power to say yes also gives them the power to say no. Given the current admin. I firmly belive that if they had the power to say "NO" they would faster than anything we have ever seen before.

Fallacy of insuffient options.

That's like saying that if the Federal Government can forbid States from establishing Kings (it can--the Constitution requires that each State have a Republican form of State government) that it can require States to have Kings. It doesn't follow.

It's not all or nothing. Having the Federal Government pass laws to enforce provisions of the Constitution when States are in violation of it is not the same as having the Federal Government violate the Constitution.

Example, pre 14th, the 1st Amendment was worded "Congress shall pass no law." This was an explicit restriction on the lawmaking power of the Federal government. The 2nd, however, was worded more broadly "shall not be infringed" and thus can be seen to apply not just to the Federal Government but to all lower divisions (States and divisions within States) as well. (The 14th, ironically enough, has been seen to "incorporate" the 1st, but not the second . . . so far.)

In some areas the Federal Government does have the power to overrule the States, but that power is not unlimited. Thus the "can they or can't they" argument is invalid since it presumes only two positions--always can or always can't--neither of which are the actual "answer."

 

[DustinG]

I agree and disagree not because of my beliefs but because my weakness in history and lack of interpretation of law.

Civil War: Federal Gov. Law vs States Law

Does the U.S. Gov have the right to over-rule the state's law?

If yes than we are in a world of hurt with this new admin. If no than the States have every right to tell us if, what, where, when, and how we can carry. Along with any other coo-coo law they come up with.

I do believe this is B.S. on my level of Liberty, but it has some kind of logical sense in my weak law understanding mind.

The U.S. Constitution applys to the states through the due process and equal protection clauses of the fourteenth amendment. It means that the law of the states, as long as they are part of the union, are trumped by the federal Constitution.

The states are not constitutionally allowed to infringe upon the second amendment!

 

[rambone]

Does the U.S. Gov have the right to over-rule the state's law?

If yes than we are in a world of hurt with this new admin. If no than the States have every right to tell us if, what, where, when, and how we can carry. Along with any other coo-coo law they come up with.

I would like to chime in here. The States (in theory) do have more power than the Federal Government. However, neither has the authority to regulate things that are protected by our Constitution.

Free speech, a right to a trial, freedom of religion, protection from warrantless searches, bearing arms... all of these things are supposed to be off limits for any level of government.

Every government employee is supposed to adhere to the Constitution that holds this Republic together. Checks and balances make this country work. That means that should the Congress pass some infringements on our rights (which it has many times by now), your local police are supposed to honor the constitution and protect your rights, ignoring the blatantly unconstitutional laws. This in effect provides a "check" against the growing Statist government, and ensures liberty will prevail over tyranny.

If only all participants knew the constitution, and understood why we should stop every infringement before things get out of hand. But somehow, over time, making people pay to get a permit to hold a Tea Party Rally no longer seems like a violation of the 1st Amendment. Paying to get a License to Carry no longer seem like a violation of the 2nd. Police DUI checkpoints no longer seem like a violation of the 4th. etc, etc.

Only enforce what the Constitution allows. Read Sheriff Mack's book. Be a public servant, not a government servant.

 

[Delmar]

Agreed, however, as a convicted criminal you loose your civil rights... don't you? Temporally at least?

Can you imagine trying to claim that a convicted criminal looses the right to free speech?

 

[MTC]

Re: 'Licensed' carry

The one thing the Brady/VPC crowd wants, and their default position if they can't get anything else toward their ultimate goal of the complete prohibition of civilian ownership of firearms, is the imposition of some type of licensing and registration scheme.

One peculiar pathology I noticed over the years when talking to many gunowners in Indiana is the constant equation of "shall issue" with a right, and the lengths they will go to silence discussion of this topic. Many seem to think that state-issued permission slip gives them something called "freedom", as they sometimes smugly and arrogantly rub it in the faces of those who live in more restricted states.

The NRA, for their part, has not helped matters in this regard by constantly putting out lists of "right to carry" states. This further contributes to the orwellian redefinition of Rights, since one cannot honestly be said to have a Right if one had to ask or apply for permission in the first place. It has become rationalized and - more ominously for future generations - legitimized in the minds of many people, that you must have permission from the State in order to keep and/or bear arms.
The imposition of a licensing and registration scheme, whether of the gun itself or the owner, is the precise point where a right is rendered into a privilege. No matter how cheap and easy to get, no matter how streamlined the process, no matter how professional and efficient the agency or bureau charged with its administration, it still amounts to: "Your papers, please" - and don't leave home, or get caught, without 'em.

Whenever I have pointed this out to people, even supposedly ardent gun rights supporters, I've been met with insults, snide remarks, rationalizations, and a hundred variations of the armed felon/officer safety argument. Especially with regard to the carrying of one's own personal sidearm in Indiana, many seem to have gone from, "suspect anyone who approaches that jewel" to suspect anyone who approaches the sacred cow enshrined in IC 35-47-2-1. Through conversations with friends, acquaintances and coworkers I've seen all too much evidence that the non-stop battering of media propaganda has taken its toll.

In spite of, or maybe because of, a few smaller victories here and there, some have said, "We'll get it back one day. One step at a time." No, you won't. Once you allow the establishment of a licensing/registration system, you lose. Rights, that is. You are condemned to fight a never-ending battle of attrition - legislative, judicial, social, cultural, and political - to retain or keep from losing further the privileges you are from that point on "allowed" to have. And that is permanent. The longer it's allowed to stand, like concrete setting up, the more permanent it becomes. It becomes the norm, accepted - if not always liked - and ingrained in the culture. Given the current political and demographic trends, even if we are successful at getting so-called "nationwide reciprocity", the best we can hope for is some sort of benignly issued form of a driver's license. So no, you don't get that Right back. Unless...
Unless the gunowner licensing/registration laws, and the invasions of your privacy that they entail [such as submission of fingerprints, photographs, social security numbers, all manner of personal information in what amounts to being booked like a common criminal] are correctly seen as the gross violations of Rights that they really are, by enough of the population to get them repealed.

 

[Lex Concord]

I agree and disagree not because of my beliefs but because my weakness in history and lack of interpretation of law.

Civil War: Federal Gov. Law vs States Law

Does the U.S. Gov have the right to over-rule the state's law?

If yes than we are in a world of hurt with this new admin. If no than the States have every right to tell us if, what, where, when, and how we can carry. Along with any other coo-coo law they come up with.

I do believe this is B.S. on my level of Liberty, but it has some kind of logical sense in my weak law understanding mind.

Many believe the 14th Amendment gave the feds trump over the states. I think this is an incorrect reading.

The federal government was intended to be federal by the founders (as opposed to the current national setup), and should have no primacy over the states.

That being said, I am guessing that much of the concern of allowing states to have their sovereignty, as stated by a self-proclaimed "liberal" attorney I know, is that an "over-arching national government" is the best way to provide for and protect civil liberties across the board. I could not disagree more vehemently.

As far as Constitutions are concerned, the Indiana Constitution seems far less ambiguous regarding the people and arms.

From the Indiana Bill of Rights:

Section 32. Arms--Right to bear

Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.

It could be argued that IN gun laws (with the possible exception of prohibiting felons from possession, though felons are still people) are in violation of Section 32 of the Bill of Rights. Good luck to the person who decides to become the test case, however.

While much time is spent discussing what the relationship between federal law and state law should be, it is important to realize what that relationship actually is. The feds hold many purse strings, and the states have been, until quite recently, pretty reluctant to challenge D.C. on this, the clear language of the 10th Amendment to the U.S. Constitution notwithstanding.

I find great hope in the many 10th Amendment rejuvanation efforts occuring in some of the legislatures of the several states. I pray they continue, and intend to suggest to my Senator and Representative in the IN legislature that they introduce a similar measure related to IN-made firearms as has been seen, most recently in TN.

Also, regarding the states telling us what we can do, I find it far more likely that a grassroots movement would have an easier time influencing lawmakers in Indianapolis, Springfield, or Lansing than that same movement would have influencing decisions in Rome on the Potomac.

 

[mrjarrell]

Lex, Section 32 grants a privilege. It doesn't recognise a right. The people "shall have" a right...that's a granting of something that can be modified or revoked. It doesn't recognise a pre-existent right, like the 2nd Amendment.

 

[Lex Concord]

Lex, Section 32 grants a privilege. It doesn't recognise a right. The people "shall have" a right...that's a granting of something that can be modified or revoked. It doesn't recognise a pre-existent right, like the 2nd Amendment.

Sadly, upon further reflection, I think you are probably right, though my earlier take would be worth the fight to convince the judge (no, not volunteering )

Upon reading the entire BoR for context, there are cases where it seems to be recognizing an existing (inalienable) right

Section 11. Search and seizure

Section 11. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized

There are also cases such as Section 32 (Shall have a right vs. right shall not be infringed), and then clear references to a "privilege", such as the following:

Section 27. Habeas corpus

Section 27. The privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then, only if the public safety demand it.

The most telling of all, however, is this...

Section 1. Inherent rights

Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the People; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the People have, at all times, an indefeasible right to alter and reform their government.

While the section titles may have no weight, they certainly imply that anything not contained in section 1 was not considered to be inherent.

Historically, SCotUS has held (see Presser v. Illinois, United States v. Cruikshank) that the states may limit the right to keep and bear arms. It would, at first, seem that District of Columbia vs. Heller changed things, but we cannot forget that DC is a federal domain, and not a state. It does, however, offer hope in that it recognized that the Second protects an individual right, though it still has deficiencies.

I'm not a lawyer (probably obvious to many ) and I haven't pored over the Heller decision meticulously, but I have read enough to understand that it is not the "silver bullet" that many first thought.

Others have stated that laws need to be changed before they have time to cement to the consistency of bedrock. I agree.

My only question is, "How do we get there?"

 

[Lars]

Great discussion. I agree that we shouldn't need to register, be fingerprinted, beg for permission, and pay for permission to enact our rights. However until the current laws are changed, that's exactly what I'm going to do.

I'm also going to continue to petition my state legislators to take my State and Federal Constitutional rights seriously and eliminate the licensing requirement.