Sunday, June 28, 2015

Recent SOCTUS Decisions Don't Mean Nat'l Concealed Carry

This is about gun rights, not trusting the Supreme Court to enforce our rights, and quashing the rumors that the gay marriage decision equals national concealed carry reciprocity. My opinion is that the Supreme Court’s decisions on gay marriage and Obamacare are outside of their constitutional authority.

Dean Weingarten, from The Truth About Guns, summed it up:
"On June 25th, 2015, the Supreme Court ruled that a law’s language doesn’t matter. What matters: what the Justices want the law to say. We have seen this break-down in the rule of law before. The Warren Court was famous for it. During the so-called Roosevelt revolution of the 1930’s, the Supreme Court went down the same path."
In light of the Supreme Court recent decisions, particularly regarding gay marriage, many are using the majority justices’ abstruse logic to apply to concealed carry permit reciprocity. Currently, it is a guessing game to know which state recognizes what other state’s concealed carry permit. Some Americans hold two or more states’ concealed carry permits to have the maximum number of recognized states. Others, who can’t obtain a concealed permit in their state, obtain an out-of-state permit so that they can legally carry concealed when travelling.

All states issue concealed carry permits; whether they do in practical terms (for instance, D.C. and New Jersey) is another matter. While every state recognizes another state’s driver license, concealed carry permits are subject to myriad rules. Nevada’s requirements (amended by 2015’s SB 175) for out-of-state permit reciprocity are training and verification of the permit through the computer. Some states, like California, refuse to recognize any other state’s permit and do not issue non-resident permits.

Headlines like “SCOTUS Ruling On Same-Sex Marriage Mandates Nationwide Concealed Carry Reciprocity” is being confused as some super-secret constitutional magic happened reversing court decisions and state laws overnight. Some poor fool will take this headline as gospel and get arrested on vacation, all while sounding like a lunatic trying to argue with a cop that gay marriage makes concealed carry legal. Too many gun owners see an article on Facebook and Twitter and fail to read the whole thing, much less understand it. Compounding the problem are writers eager to get article views and ad clicks with sensational claims.

Yes, Americans want to carry in all states, as they rightfully should, but sensationalizing a gun-writer’s constitutional logic in a way that will make many think something changed is irresponsible. Even if this Supreme Court decision is eventually favorably applied to the concealed carry reciprocity debate, it must go through many, many trials and appeals before it would be recognized.

Gay Marriage=National Concealed Carry

Essentially, many states are no-carry zones for Nevadans, even though we can legally drive, marry, and work there, while their residents can legally carry. This is the argument that the writers (Bob Owens, apparently started the discussion) are making: 
"By using the Constitution in such a manner, the Court argues that the Due Process Clause extends 'certain personal choices central to individual dignity and autonomy' accepted in a majority of states across the state lines of a handful of states that still banned the practice. The vast majority of states are 'shall issue' on the matter of issuing concealed carry permits, and enjoy reciprocity with a large number of other states. [...] Using the same 'due process clause' argument as the Supreme Court just applied to gay marriage, my concealed carry permit must now be recognized as valid in all 50 states and the District of Columbia." 
In short, since states must recognize gay marriages in other states, then states must recognize other states’ concealed carry permits.

Not really. Owens is just misunderstanding the argument and oversimplifying things. Again, using mysterious logic, the Supreme Court called gay marriage a ‘fundamental human right’ using equal protection of the law as their argument. ‘Equal protection’ extending to homosexuals and marriage is not the same as whether or not a state should recognize a concealed carry permit from another state.

Owens is looking at the wrong part of the 14th Amendment. The part he should be looking at is the Privileges or Immunities Clause which was what helped win McDonald v. Chicago and used to justify the unrestricted right to travel from state to state. One could argue that since non-resident driver licenses are recognized universally from state to state, then a non-resident concealed carry permit should be recognized too. Additionally, Article IV’s Full Faith and Credit Clause could also apply.

‘Equal protection’ of the law, regarding the ‘fundamental human right’ to self-defense, is already affirmed by the Constitution in the 2nd Amendment. The real matter is forcing states to stop restricting non-residents from carrying concealed in their states by making them recognize valid non-resident permits, or at least issuing them to non-residents. If you read the link to McDonald v. Chicago, you’ll probably have a better understanding of what I’m getting at. Again, it goes back to recognizing licenses issued in one state: if all driver and marriage licenses are recognized in all states, then all concealed carry permits should be recognized in all states, not the fundamental human right of self-defense.

In a way, it’s semantics, but I truly feel that Mr. Owens and the thousands of pundits and re-posters are giving out bad information using poor logic; logic that a court wouldn’t start out with.

Tyranny of the Court

Relying on the Supreme Court to decide what is a ‘fundamental human right’ and what isn’t is incredibly foolish and shows ignorance of how a constitutional republic’s government works. The Constitution puts limits on the government; it does not grant privileges or rights to men. Those rights were granted by God and exist without government approval and despite government oppression.

The 2nd Amendment does not read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall be permitted.” Instead, it reads “shall not be infringed,” as a prohibition to the government.

Regardless of one’s stance on gay marriage, the unilateral actions of the Supreme Court do not bode well for the 2nd Amendment. Why? Obamacare was another unilateral action, abusing both the Constitution and common sense. 
“The 6-3 decision in King v. Burwell allows for federal subsidies on state healthcare exchanges established by the federal government under the ACA. However, the law itself states that only exchanges established by states would be eligible for subsidies.
 Those arguing on behalf of the subsidies to the exchanges said that the particular passage of the law shouldn’t be read literally.
 In a demonstration of twisted logic, the majority has held that the word ‘State’ should be considered in its ‘context’ rather than its actual meaning. The Court has effectively rewritten the law to save it.” (source
Joel B. Pollack from had this to say
“The dissent, by Justice Antonin Scalia, was blistering.
 ‘Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State,'’ he wrote.
 ‘Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.’” 
Justice Scalia and others accused the Supreme Court of acting like a legislature, rewriting a law, something it is not empowered to do. Time and time again, we have seen new practices incorporated by Supreme Court decisions. Take the Miranda Warning. In Miranda v. Arizona, the rapist Miranda’s conviction was overturned because he wasn’t told his confession could be used against him and all the other things we know by heart, thanks to shows like Adam-12. While the 5th Amendment’s privilege against self-incrimination was never in doubt, there was no mandate by the police or court to advise a criminal to shut up.

Chief Justice Earl Warren, created the Miranda Warning out of whole cloth: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning."

Failure to admonish a suspect with the above before questioning him in custody will make any statements or evidence obtained thereafter inadmissible at trial.

The reason Supreme Court decisions are so important, is that under the concept of English Common Law (as adopted by America), case law (prior case decisions on the topic) are respected. Justice Harlan dissented, calling out Chief Justice Warren for making his own law because he knew that no officer or judge would dare disrespect it. 
"[...] nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities." He also quoted Justice Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added." 
Miranda Warnings are small-potatoes in the reality of policing and good for Americans in general. However, the way it was introduced was an appalling abuse of law. A judge created it and mandated it; essentially, Chief Justice Warren made a law without the benefit of being elected. He usurped the legislative power as enacted by the Constitution and trusted to Congress alone. In 1776, we complained about King George’s unilateral actions; today we complain about Obama’s regulations, executive orders, and ‘Czars’, while we ignore the men and women in black robes.

Chief Justice John Roberts' dissent in the gay marriage case was centered on the Supreme Court’s lack of authority to decide the issue, recognizing that it properly belonged to the people. 
"Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many casts a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
 "The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial 'caution' and omits even a pretense of humility, openly relying on its desire to remake society according to its own 'new insight' into the 'nature of injustice.'" 
The truly frightening thing is that the Supreme Court has the last word on virtually everything. They decide if laws are constitutional. They decide what the Constitution and its amendments apply to. The Supreme Court has basically granted itself the ability to interpret the Constitution as it sees fit. While the balance of cases have been properly decided, this is the august body that granted us Plessy v. Ferguson, making ‘separate but equal’ law until it was overturned in 1954 and Dred Scott v. Sandford, which decided that slaves couldn’t possibly be American citizens.

Plessy and Dred Scott were abominations. The Obamacare decision shows that the Supreme Court will distort the meaning of words and use tortured logic to decide what they want. They make laws and react to politics and public pressure, something which is amazing, given Supreme Court’s impolitic status.

Returning to the question of healthcare and gay marriage being ‘fundamental human rights’, what about the fundamental right to self-defense? If the Supreme Court has authority to recognize fundamental human rights, it surely has the authority to enforce them (as it has in other cases). Then why does the Supreme Court allow the 2nd Amendment to be trampled so? 
“Yet unlike marriage, unlike subsidized health Insurance, SCOTUS has allowed states to, in fact… INFRINGE! Hell, some states have made it pragmatically impossible to carry a weapon on your person. So clearly, when it comes to even using the Constitution as a guideline, the SCOTUS has jumped the shark. Regardless of where you line up on same-sex marriage, or even if you personally want free healthcare, there is no arguing that the SCOTUS has displayed an unprecedented use of power when compared to the entirety of American history.” (source
Justice Scalia points out the problem exactly: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”


Even before the gay marriage decision, the blogosphere was alight with criticism for the tactics of Roberts’ court based on the Obamacare decision. 
“The Roberts Court has become an activist court willing to compromise their ethics to legislate from the bench. The statue’s wording, “established by state,” was clear and precise. Roberts twisted legal theory to achieve his politically desired goal. What a shame!
 Americans are staggered in disbelief at Roberts’ atrocious decision. The duplicity of Chief Justice Roberts in his twisting mental gymnastics to rescue Obamacare, once again stokes the public outrage and growing distrust in what was the last bastion of institutional respectability. The hopes and expectations of justice by millions of American citizens have vanished.
 With Roberts’ Supreme Court decision, Americans feel suppressed and assaulted by an ever increasing governmental apparatus.” (source
The Supreme Court rejected an appeal which challenged a ban in San Francisco of requiring guns to be stored useless (unloaded and locked) despite ruling that such a ban was illegal in DC v. Heller. The Supreme Court failed to uphold its own case law. Nick Leghorn of The Truth About Guns was dumbfounded, stating: 
“The court’s inaction means that the decision goes unenforced and local jurisdictions are able to make up their own rules as they go along. Given the court’s reluctance to actually step up and enforce their own decision, disappointments such as this one will continue to be the norm, as lower courts re-define what the Supreme Court stated very clearly in their decision.” 
Everyone hopes that Peruta v. Gore will be the case that the court takes up to finally say there is a right to bear arms in public and that concealed carry permits must be ‘shall issue.’ Even if they do take the case and find favorably, who is to say that they will enforce it or it will even mean anything? Might a later court come along and throw it out the window?

Had gay marriage been decided the other way, no doubt gay America would be criticizing the decision, yet they would have the proper and effective recourse of the ballot box and legislature. Unfortunately, both the liberals and conservatives are using the courts in place of public persuasion and legislation; they way sweeping changes like socialized medicine, taxation, and social changes are expected to be made. Republican leadership, rather than presenting a better solution to the healthcare problem than Obamacare, challenged the law in the court and lost twice.

For anyone on any side of a debate, do you really trust nine people, un-elected by anyone, to make decisions on a vital topic that you care about? And why are we taking such vital matters to a court which could make a final decision, either way, with the only recourse being the difficult process of amending the Constitution?

The Supreme Court cannot be trusted to do the right thing when it uses the wrong logic. Rights exist inherently and do not need the rubber stamp of a court or government. Obamacare and gay marriage are issues for the people via the Congress, not a court. Their reasoning and they manner in which they made their decisions is the source of the problem. Justice Scalia again: "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." Do not look to the nine in robes to decide that the 2nd Amendment means what it says.

We cannot expect the courts to confirm, uphold, or enforce our right to keep and bear arms, nor should we. And no, you can't go to California and carry concealed on your Nevada permit yet.

Note: I don’t care what your opinion on gay marriage or Obamacare is. This article is about a Supreme Court flexing its muscles and why the argument that this decision means national concealed carry reciprocity is premature. Comments are disabled as they will naturally digress from gun rights to other issues.

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