Concealed Carry Reciprocity Act, Written by Idiots?

The Concealed Carry Reciprocity Act (HR 38) is a terribly written law; like kindergartner with a crayon bad.

One can only reasonably assume that whoever drafted it was trying to end-run highly restrictive and no-issue states by sneaking in language that quite arguably could be understood to allow residents of a state like California to carry in California on a non-resident CCW. In one fell, Congressional stroke, the anti-2A state concealed carry bans fall down. While a Supreme Court in on the plan might wink, nod, and go along with the plain interpretation of the law, the Court we do have would probably interpret legislative intent to treat CCWs like driver licenses, if they upheld it at all.

There is language that is supposed to prevent non-residents from being harassed by local police, but instead of being reasonable, it could be construed to prohibit all but a few selective regulations. These objections are discussed in this post.

HR 38 is the wrong approach. Congress can do two things: 1, regulate how states treat the citizens of other states, and 2, enforce laws to prevent civil rights violations. The Constitution requires that every state treat residents and non-residents alike (insofar as its actually possible). Self-defense and the right to keep and bear arms is a civil right.

Congress cannot invalidate state laws by saying that under Federal law, it's okay, according to the Commerce Clause of the Constitution, which HR 38 is claiming is its ability to make this law.

The Commerce Clause is to regulate interstate commerce, basically to keep states from doing stupid things like banning out-of-state truckers so in-state trucking companies can have a monopoly. States would go to war with each other if California required a Texas truck driver to drop his trailer in Truckee or Primm so some guy from Bakersfield could haul it.

Take driver license reciprocity as an example. Imagine some states issue licenses, some don't, and some only issue them to billionaires' chauffeurs and only a handful of states consider your out-of-state license as valid—sorta like CCWs are.

You can take a road trip across the county, but only if you detour around New York, New Jersey, Illinois, and visit the Pacific Ocean in Oregon instead of California. Kinda hurts tourism if you do that, right? Especially if Montana won't recognize your Florida license because they don't have some sort of test question about driving in the snow.

Instead of Congress saying "Every state will recognize as valid any non-resident's driver license," Congress says "You can drive in any state as long as you have a driver license from any state." In the latter approach, it's still illegal to drive in The Pedestrian State, but Congress is saying you can.

What happens is that The Pedestrian State doesn't care, you get arrested, your car towed, and you have to fight the case all the way to the Supreme Court. Just like Mom saying "no," Dad saying "yes," and you getting spanked by Mom anyway because Grandma and Grandpa won't hear your appeal.

Sure, the Senate could pass the law, Trump could sign it, and it could work out, with or without a lot of lawsuits. In that case, it would be Congress simply saying "We have the power to do this and so we're going to do it." Power is a dangerous way to accomplish things and unconstitutional. It's a bully's tactic.

Now I don't have a problem with Congress telling the anti-gun states to pound sand, but they need to do it in a constitutional manner. Congress has the ability to correct civil rights violations like denial of the right to bear arms and it’s time that they treat the RKBA as a civil right.

Congress should use its power under the 14^th Amendment to stop states from infringing on the 2^nd Amendment. Section 5 of the 14th Amendment gives Congress the ability to pass legislation to enforce the provisions of the amendment, namely from Section 1: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Congress needs to recognize that self-defense is essential to protect “life, liberty, and property” and that denying non-residents from carrying legally, as well as practically no-issue policies disarming citizens in the state, that states like CA, HI, NJ, and NY need to be treated like ex-slave states in the late 1860s. Such an approach has a much better chance of withstanding judicial scrutiny.

So whoever wrote the text of the CCRA, you suck and you are stupid. A new bill needs written, which I will include, fresh from my brain, that makes the following changes: 

• Forces states to recognize non-resident CCWs like out-of-state drive licenses;
• Does not preempt local laws;
• Adds “our state, our rules” concealed carry language;
• Removes all carry prohibitions from federal recreation areas (like the Red Rock loaded gun ban); and
• Exempts open carry, where legal, from the Gun Free School Zones Act. 

The language I wrote refers to the 2^nd and 14^th Amendment which gives Congress all the authority it needs. For nervous Congress critters, I put in “handgun” instead of “firearm,” which conjures in the minds of morons someone hiding an AK under his trench coat. Likewise, I’ve struck out concealed where it can be dropped to refer to open or concealed carry, as it should be your choice how to carry.

Anyhow, here’s to the off-chance someone with pull in The Gun Lobby™ or Congress sees this.

SECTION 1. SHORT TITLE.

This Act may be cited as the “Improved Concealed Carry Reciprocity Act of 2017”.

SECTION 1. AUTHORITY

Whereas the Second Amendment to the Constitution guarantees the right to keep and bear arms and the Fourteenth Amendment to the Constitution provides that:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Many States deny the ability of non-residents to legally carry a handgun; and

Congress, having the power to make all laws which shall be necessary and proper for carrying into execution the powers vested by this Constitution, provides a means by which nonresidents of a State whose residents may carry concealed firearms may also do so in the State.

SEC. 3. RECIPROCITY FOR THE CARRYING OF CERTAIN CONCEALED FIREARMS.

(a) In General.—Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:

§ 926D. Reciprocity for the carrying of certain concealed firearms

(a)        Every State, that has a statute under which residents of the State may apply for a license or permit to carry a concealed handgun, shall not infringe upon the right to keep and bear arms by residents of other States by:

(1)   Considering as valid any license or permit issued by a State that permits by a person to carry a concealed handgun; or,
(2)   Not prohibiting any resident of a State having no statute under which residents may apply for a license or permit to carry a concealed handgun from carrying a concealed handgun.

(b)       Nothing in this section shall be construed to permit a resident of a State to carry a handgun in the State in which he or she resides upon a license or permit issued by another State nor without a license or permit if such is required by the State in which he or she resides.

(c)        This section shall not be construed to supersede or limit the laws of any State regulate the place, time, or manner in which concealed handguns may be carried except every State, with respect to carrying of a concealed handgun, shall not abridge the privileges or immunities of citizens of other States and shall not deny to any person, who is not a resident of that State, within its jurisdiction the equal protection of any that regulates the carrying of a concealed handgun.

(1)   When a person asserts this section as a defense in a criminal proceeding, the prosecution shall bear the burden of proving, beyond a reasonable doubt, that the conduct of the person did not satisfy the conditions set forth in subsections (a) and (b).
(2)   When a person successfully asserts this section as a defense in a criminal proceeding, the court shall award the prevailing defendant a reasonable attorney’s fee.
(3)   A person who is deprived of any right, privilege, or immunity secured by this section, under color of any statute, ordinance, regulation, custom, or usage of any State or any political subdivision thereof, may bring an action in any appropriate court against any other person, including a State or political subdivision thereof, who causes the person to be subject to the deprivation, for damages or other appropriate relief.
(4)   The court shall award a plaintiff prevailing in an action brought under paragraph (3) damages and such other relief as the court deems appropriate, including a reasonable attorney’s fee.

(d)       Nothing in this section shall affect the provisions of Section 926A of title 18, United States Code, The Handguns Owners’ Protection Act.

(e)        A person carrying a handgun under the provisions of this section or openly in conformance with all State statutes or regulations shall be deemed to be in compliance with the exemption granted by Section 922(q)(B)(ii) of title 18, United States Code.

(f)        The term ‘identification document’ means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.
(1)   A person who carries or possesses a concealed handgun in accordance with this section shall:
A.    Carry a valid identification document containing a photograph of the person and issued by, or stating, the person’s State of residence; and,
B.     If a resident of a State that has a statute under which residents of the State may apply for a license or permit to carry a concealed handgun, carry a valid license or permit to carry a concealed handgun.
(2)   Presentation of a facially valid identification document containing a photograph and address of a person who is a resident of a State having no statute under which residents may apply for a license or permit to carry a concealed handgun is prima facie evidence that the individual shall be granted the privilege and immunity of subsection (a)(2) of this section.

(g)        A person possessing or carrying a loaded or unloaded handgun in a State may do so, if the possession of the handgun is in compliance with the law of the State, in any of the following areas in the State that are open to the public:

(1)   A unit of the National Park System.
(2)   A unit of the National Wildlife Refuge System.
(3)   Public land under the jurisdiction of the Bureau of Land Management.
(4)   Land administered and managed by the Army Corps of Engineers.
(5)   Land administered and managed by the Bureau of Reclamation.
(6)   Land administered and managed by the Forest Service.

Would the Concealed Carry Reciprocity Act Allow Californians to Carry In-State on an Out-of-State Permit?

Updated: Dec. 7, 2017

Representative Richard Hudson, R-North Carolina, introduced the Concealed Carry Reciprocity Act of 2017, which is a slight change from his 2016 act, adding recognition for permit less "constitutional carry" states.

Hudson characterized his bill as similar to one's driver license being valid in every state, which is an excellent analogy. Current recognition/reciprocity operates as basically a treaty system between states; Nevada chooses what states' permits to recognize or, as some other states do, enter into a formal agreement to recognize each other's permits. This bill would mandate recognition of any CCW permit.

Though Hudson is opaque on the subject (rightly so, as it might torpedo his bill), if one cannot get a CCW permit in his home state, then that person can carry in their home state with a non-resident permit from any state. Liberals are livid about that potential. The press release says the bill "...would allow people with a state-issued concealed carry license or permit to conceal a handgun in any other state that allows concealed carry, as long as the permit holder follows the laws of that state."

Does this mean people who live in California and have an out-of-state CCW can carry legally in California now? On the surface, yes, if you life in California and hold an Arizona, Nevada, Texas (etc.) permit, you, as a California resident, would be allowed to carry without a California-issue CCW. Here's what the Q&A says:

"Q: Will states lose their rights with concealed carry reciprocity?
A: States will still retain their authority to determine regulations for carrying within their borders and may decide where people are and are not allowed to carry concealed in their state."

This statement is pretty ambiguous and seems to be talking about local gun laws, like banning guns from government buildings. The wording of the law doesn't explicitly define what "regulations" apply. The language is difficult, but carefully parsed, seems to indicate that Rep. Hudson intended to allow out-of-state permits, held by residents. Interestingly, LEOSA has similar language (probably a source for this bill) and recent previous versions of this bill all read pretty much the same.

Section (a)

You must first not be prohibited from possessing a firearm and be carrying photo ID (a driver license). Second, you must have a CCW issued by any state, either resident or non-resident, or live in a constitutional carry state and thus doesn't have a permit, may carry a concealed handgun. It creates two classes of carriers:

Category 1-CCWs
"who is carrying a valid license or permit which is issued pursuant to the law of a State"

Category 2-constitutional carry
"or is entitled to carry a concealed firearm in the State in which the person resides"

Let's break down the language. "[1.] and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm [2.] or is entitled to carry a concealed firearm [3.] in the State in which the person resides."

1. Clearly requires a CCW issued by "a State", not the person's state of residence. "a State" means just that; a state, not a specific one (the person's state of residence).

2. "or" separates the requirement and adds the alternative requirement of "entitled to carry a concealed firearm in the State which the person resides." This is referring to constitutional carry states.

"Entitled" is a loaded word. Purists contend that no law or constitution entitles anyone to any rights, but rather restrains the government in respect to an existing right. Second, does "entitlement" require some sort of official recognition of entitlement, like a law stating "Thou shalt have the right to carry concealed"?

CCW "permits" and "licenses" are self-explanatory that they are authorizing the privilege to conceal one's handgun. To "entitle" someone is to give the legal right to do something, i.e. conceal a pistol, which Second Amendment does and constitutional carry states recognize. Entitlement is not permission; it's an acknowledgement that something exists. This distinction is important; by referring to privilege and to entitlement separately, the author is talking about two different subjects.

If the author meant that the person with the permit or license had to be "entitled" to carry the firearm in their state of residence, "entitle" to refer to a privilege would be the wrong word. Also, "or" would have to be subsisted with "and." The entitlement, a recognition of a right by the law, to carry a concealed handgun is the authorization to carry, not a permit or license.

3. "in the State in which the person resides" is seen only here, not in 1. meaning that the entitlement, not the permit or license, is granted by the state of residence.

Subsections (1) requires that the state in which one carries does have laws allowing residents to apply for CCW permits or license and allow concealed carry for lawful purposes; this is every state in the Union save Vermont. Subsection (2) primarily applies to Vermont, which having never banned concealed carry to begin with, never saw any reason to issue CCWs and still doesn't. Idaho, North Dakota, Wyoming, and West Virginia all grant full constitutional carry to only state residents.

On the other hand, one could say that constitutionally, while the 14th Amendment (see below) requires the recognition of things like licences/permits from state-to-state, Congress still can't force a state to allow residents to carry in their home state on an out-of-state permit. That's above my pay grade, but there may be an argument there on states' rights grounds, not that such things matter much anymore.

What It Doesn't Allow

Subsection (b) doesn't override state or local laws on where you can carry (public and private property restrictions). If school or college campuses are off-limits, sorry, they're off limits. Federal law is basically saying that your CCW or your residence in a constitutional carry state only allows you to carry concealed, as if you had a valid permit, in whatever state you are visiting. You still have to abide by the the local laws.

While there is some ambiguity, Hudson's statements indicates that local laws aren't complete invalidated. Again, the Q&A says:

"Q: Will states lose their rights with concealed carry reciprocity?
A: States will still retain their authority to determine regulations for carrying within their borders and may decide where people are and are not allowed to carry concealed in their state."

Do I Have to Follow Local CCW Restrictions? (Subsection (c))

Remember the exemption under section (a) is from a state's concealed carry without a permit laws; it's essentially an equivalent of having a state-issued permit.

You "may not be arrested or otherwise detained for violation of any law or any rule or regulation...related to the possession, transportation, or carrying of firearms" of the state you are carrying in unless you do so in violation of the bill (as in no CCW and you're not from a constitutional carry state).

The bill exempts concealed carriers from the requirement to have an in-state CCW (the "manner...provided for by this section"). By definition, one would be exempt from local CCW restrictions, such as a sheriff's condition that one could only carry to/from the bank, during certain hours, or prohibit one from carrying while in a bar. Those regulations are a condition on issuance, meaning it's an agreement between you and the state that if you don't break their rules, they'll let you carry. Sorta like mom and dad saying you can borrow the car, as long as you don't drive with friends and are home by 12; your driver license doesn't turn into a pumpkin at midnight.

The bill specifically does not exempt one from observing laws on where you can carry (subsection (b)). This would include laws that prohibit concealed carry in bars or churches (private property). Texas 30-06 signs would apply to someone from Arizona. New Mexico can't apply the terms and conditions of their license (NMAC 10.8.2.16) to your Nevada license, in that you must carry the handgun listed on your license.

So state law, yes, you must abide by it, but no, you don't have to follow local conditions of issuance that state-residents have to follow.

Unintended Consequences

A potential problem is a literal interpretation of "may not be arrested or otherwise detained for violation of any law or any rule or regulation...related to the possession, transportation, or carrying of firearms." It sounds a lot like federal preemption of local gun laws. Taken literally, as long as you lived in a constitutional carry state or had a CCW from somewhere, you cannot be arrested or detained for anything related to the possession, transportation, or carrying of firearms, excepting prohibited places (schools, parks, etc.). If it isn't spelled out in the bill, the local cops can't touch you for it.

This could mean that someone carrying in compliance with this section would be exempt from laws such as carrying while intoxicated. In Nevada, it's legal to carry in a bar, but if you're going to soused, you can't carry when you're drunk. It is a crime to possess a firearm while intoxicated; it's not a crime for bars to ban guns under the penalty of trespassing, etc. Heck, even 51% like those of Texas, stupid as they are, would be invalidated because the bill exempts the business's private rules, not Texas state alcoholic beverage regulations.

That's an unintended consequence and probably not the author's intention, as is implied in the Q&A document. Hudson's intent was to make it illegal for police to arrest or detain someone under state law for carrying concealed without an in-state permit. Even so, the language as-is could be interpreted to get rid of a lot of laws that keep the local drunk from fingering his Glock in the bar, etc.

Hurdles

There doesn't seem to be an official legal opinion on whether or not this bill allows one who cannot obtain a permit in his home state (CA) from carrying on a non-resident permit from another state in their home state. A good defense attorney (and there will be test cases) would challenge state statutes based on the federal law where a court would either closely read the text or divine legislative intent. A careful textual analysis would lead to the conclusion that any permit would be valid in any state, resident or not.

That would be an end-run of state license/permit laws. The federal government would be in the concealed carry business and the states would just be the folks writing the permits. Some have argued that forcing states to allow residents to carry in their home state on a permit from other state would be an unconstitutional usurpation of authority and set bad precedence. While we all love the Second Amendment and can agree that states like California need their gun control schemes to be put down hard, federal legislation (this way) isn't the way to do it.

The worry is that if the federal government essentially mandate a state must allow it's residents to carry on any state's permit, the federal government could, in the future, do the opposite and mandate no state allow guns to be carried. Once Congress assumes a power, it can quickly go the other way. There is a congressional remedy though.

Section 5 of the 14th Amendment gives Congress the ability to pass legislation to enforce the provisions of the amendment, namely from Section 1: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." One interpretation is that this means that the Bill of Rights applies to the states, and by extension, Congress can go after states that infringe on constitutional rights. Of course, it's an abstruse area of constitutional law and would probably go to the Supreme Court, but a law compelling all the notorious anti-gun states to fall in line would solve a lot of problems.

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 14^th 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 2^nd 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 2^nd 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 2^nd 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 Breitbart.com 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 5^th 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 2^nd 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.”

Conclusion

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 2^nd 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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