anti-gun letter from Rep. Cindy Noe

[Dashman010]

I beg to differ. The State of Indiana, at the present time, has in place a 100% ban on the possession of a handgun, even openly carried, anywhere outside the confines of one's own home, a restriction which the Founding Fathers did not see fit to enshrine in our constitution. What Indiana DOES have is a system under which the state graciously grants the PRIVILEGE to own or possess said handgun, provided the citizen goes to the state with his hat in his hand and on bended knee to request PERMISSION to own said handgun.

I reiterate that in the State of Indiana there is no right to own a handgun, there is only the PRIVILEGE, which can be either granted by or taken away by the state at its leisure!!!!

Liberty,

As much as I would like constitutional carry, I have to disagree with your assessment of the representative's characterization of Heller, and your notions of Indiana's permit system.

In Indiana, if you meet certain requirements, you have a Constitutionally protected property interest in the issuance of a LTCH (this falls under the 14th Amendment). In other words, so long as you meet the requirements of listed in the statute, the state police is required to issue you a permit. There is no "asking for permission," and the state cannot take away, or not issue, a permit at "its leisure." If the permitting system was discretionary, that is, the state could issue and revoke permits arbitrarily, I have no doubt this might transcend the constitutional boundary (either Indiana's or the 2nd pending McDonald). However, a system that merely asks for information and then allows you to carry virtually anywhere so long as you aren't a felon, fugitive, etc. does not, to me, seem to be unconstitutional.

Also, you repeatedly characterize the right to "own" a handgun, as opposed to carry, and that the people have no right to own a handgun in Indiana. This is wrong. Once again, if you meet the state and federal requirements, no one can stop you from owning a gun. I suppose the legislature could amend the law to prevent people from owning handguns, but, depending on the outcome in McDonald v. Chicago, the state may not be able to regulate this either.

Any way you cut it, I haven't found any evidence that our founding fathers would have thought a permitting system is repulsive to the constitution. If you have, I'd love to see them. Until then, the Supreme Court has repeatedly held that some long as some permitting requirement doesn't substantially burden a right, it's permissible. If your argument is that applying for a permit that must be granted in a timely manner is a substantial burden, then we will just have to agree to disagree on that topic, because I don't believe it legally is.

Finally, the rep's view of Heller, on my reading, is entirely accurate. Heller didn't decide the whole playing field, but was just planting home plate on the field.

 

[JBusch8899]

snip

Justice Scalia was very careful when he worded the majority opinion in Heller.

To overly simplify, it stated that people have a right to own a firearm to protect themselves in their own homes.

 

[Liberty Sanders]

Sorry Dash, I don't buy it.

If the Indiana State Police went door to door and simply gave every citizen in the state a permit to own and carry any kind of firearm anywhere they wanted it would still be a permit. If you need a permit to do something then that thing is a privilege, not a right.

Let me ask you the same thing I asked Noe: would you agree that the State of Indiana would be within constitutional grounds to require you to obtain a permit to purchase, read or publicly possess a newpaper, book or other printed material, a permit you would have to present upon demand of any law enforcement official who knew or suspected that you were in possession of such materials while in any public venue, provided that you "meet the requirements listed in the statute," and provided that the state is required to issue you that permit if you meet those requirements?

Ditto for your church participation.

Aren't the situations identical?

 

[88GT]

Liberty,

As much as I would like constitutional carry, I have to disagree with your assessment of the representative's characterization of Heller, and your notions of Indiana's permit system.

In Indiana, if you meet certain requirements, you have a Constitutionally protected property interest in the issuance of a LTCH (this falls under the 14th Amendment). In other words, so long as you meet the requirements of listed in the statute, the state police is required to issue you a permit. There is no "asking for permission," and the state cannot take away, or not issue, a permit at "its leisure." If the permitting system was discretionary, that is, the state could issue and revoke permits arbitrarily, I have no doubt this might transcend the constitutional boundary (either Indiana's or the 2nd pending McDonald). However, a system that merely asks for information and then allows you to carry virtually anywhere so long as you aren't a felon, fugitive, etc. does not, to me, seem to be unconstitutional.

Also, you repeatedly characterize the right to "own" a handgun, as opposed to carry, and that the people have no right to own a handgun in Indiana. This is wrong. Once again, if you meet the state and federal requirements, no one can stop you from owning a gun. I suppose the legislature could amend the law to prevent people from owning handguns, but, depending on the outcome in McDonald v. Chicago, the state may not be able to regulate this either.

Any way you cut it, I haven't found any evidence that our founding fathers would have thought a permitting system is repulsive to the constitution. If you have, I'd love to see them. Until then, the Supreme Court has repeatedly held that some long as some permitting requirement doesn't substantially burden a right, it's permissible. If your argument is that applying for a permit that must be granted in a timely manner is a substantial burden, then we will just have to agree to disagree on that topic, because I don't believe it legally is.

Finally, the rep's view of Heller, on my reading, is entirely accurate. Heller didn't decide the whole playing field, but was just planting home plate on the field.

Do you not see the disconnect in the logic there? A right is exercised without pre-conditions. Not without limits (yelling fire in a crowded theater). But without pre-conditions. Limits apply to every right. "Your right to swing your fist stops at my nose" kind of thing. But having to meet someone else's idea of acceptability for exercising a right is wrong. Which means that a permit system, by definition, is an infringement on the right to keep and bear arms because we have to act according to an artificial set of standards (meet a pre-condition) before we can exercise that right).

 

[Dashman010]

Sorry Dash, I don't buy it.

If the Indiana State Police went door to door and simply gave every citizen in the state a permit to own and carry any kind of firearm anywhere they wanted it would still be a permit. If you need a permit to do something then that thing is a privilege, not a right.

Let me ask you the same thing I asked Noe: would you agree that the State of Indiana would be within constitutional grounds to require you to obtain a permit to purchase, read or publicly possess a newpaper, book or other printed material, a permit you would have to present upon demand of any law enforcement official who knew or suspected that you were in possession of such materials while in any public venue, provided that you "meet the requirements listed in the statute," and provided that the state is required to issue you that permit if you meet those requirements?

Ditto for your church participation.

Aren't the situations identical?

No, the situation aren't identical, and I'll explain why.

I think where we are differing if the definition of the word "right," and how that definition might be legally different from what you deem to be true. The "right" I'm talking about is a legal right, that is, a right created by law (either the civil law or the law of nature). Therefore, when the founders wrote the Second Amendment, for example, they wrote that the right to be armed for self-defense was a pre-existing one that was not to be infringed. But the phrase "shall not be infringed" is not an absolute one -- no provision of the Constitution is written in absolutes. Therefore, we can prohibit felons from possessing firearms (at least violent felons), and this is not infringing his "rights" because he has forfeited that right by some illegal action. Absent some felony conviction or other disqualifier, however, a person does have a right to have a gun and use that gun for self-defense. The following, however, is where we diverge.

The government has a legitimate interest in ensuring that the people who have forfeited their right don't get access to a weapon. How they do this doesn't matter -- so long as it is done in a non-arbitrary way and a way the does not significantly burden the right. Having people apply for a permit which is timely granted, in my mind and likely in that of almost all courts, does not significantly burden the individual applying for the permit, and, at the same time, furthers the legitimate government interest in making sure killers don't get permits. The same logic would apply for background checks -- doesn't burden you for more than a small amount of time, you get your gun, the government insures guns don't go to psychos. If, however, the State of Indiana took 2 years to issue a permit, I would completely agree this would not comport with a "rights" view of the right to bear arms. But as it stands today, I believe it does -- and therefore the "permit" system is just fine so long as it continues to be administered properly.

You stated that if you need a permit to do something, it is not a right. This is wrong. If you wish to have a large protest down Meridian St., you need to get a permit. If the reason behind this rule was to prevent speech, it would not be constitutional. However, if the governments reason behind the rule is to ensure alternate methods of traffic flow, allow for protection of the group protesting, etc., that interest is entirely legitimate and permissible. Again, this must be administered in a content/viewpoint neutral way and not be arbitrary and the permits must be timely granted.

Finally, with regard to your newspaper inquiry, the situations aren't identical. In the gun scenario, the government has a legitimate interest in making sure dangerous people don't get guns. However, the government has no legitimate interest in ensuring that only certain people read newspapers. The Supreme Court has held that the free exchange of ideas does not stop when you are a felon or otherwise, and therefore, there is no government interest in preventing any person from reading newspapers. This is the critical distinction. Because there is no legitimate reason to check people out before they get a newspaper, ANY burden on the right is per se invalid.

The same goes for the church example. There can be no legitimate reason to stop people from going to the church of their choice other than to burden the right without good reason. It would therefore be unconstitutional.

To the extent that you believe that stopping violent felons, etc. from getting guns is not a legitimate reason, then again, we'll have to agree to disagree, although i have to say I'm going to win that battle in any legislature or Court.

To the extent that you believe that the right to bear arms is absolute, again, we'll have to agree to disagree, and I'll win that battle in the legislature and the courts.

 

[JBusch8899]

......The State of Indiana, at the present time, has in place a 100% ban on the possession of a handgun, even openly carried, anywhere outside the confines of one's own home, a restriction which the Founding Fathers did not see fit to enshrine in our constitution. What Indiana DOES have is a system under which the state graciously grants the PRIVILEGE to own or possess said handgun, provided the citizen goes to the state with his hat in his hand and on bended knee to request PERMISSION to own said handgun.

I reiterate that in the State of Indiana there is no right to own a handgun, there is only the PRIVILEGE, which can be either granted by or taken away by the state at its leisure!!!!

First, the mere ownership of a firearm, to include a handgun, is perfectly lawful to possess without a license from the Indiana State Police.

Secondly, Indiana Code specifically states the fixed areas and manner of transport, where lawful to possess a firearm. This is not only one's home and outdoor property, but fixed place of business.

Third, Heller specifically addressed the subject that a person has the right, subject to reasonable restriction as with all rights, to the means to protect themselves in their own home.

 

[Dashman010]

Do you not see the disconnect in the logic there? A right is exercised without pre-conditions. Not without limits (yelling fire in a crowded theater). But without pre-conditions. Limits apply to every right. "Your right to swing your fist stops at my nose" kind of thing. But having to meet someone else's idea of acceptability for exercising a right is wrong. Which means that a permit system, by definition, is an infringement on the right to keep and bear arms because we have to act according to an artificial set of standards (meet a pre-condition) before we can exercise that right).

No, I don't. I don't see a distinction between a "limit" and a "pre-condition." If a person assaults me, I have a right to fight back in self-defense. However, the self-defense was "pre-conditioned" on the person attacking me first. Likewise, my self-defense is "limited" to situations where I am attacked first. There is no difference, other than in the language you are using.

Likewise, the right to arms is "limited" to people who have not forfeited their right. In order to enforce this, the government has a system to check to ensure you haven't forfeited your right by imposing limited, low burden "pre-conditions." And, as I said in my last post, the "pre-condition" MUST be related to some legitimate government interest. No government interest?-- any pre-condition is unconstitutional.

But having to meet someone else's idea of acceptability for exercising a right is wrong.

If by "someone else" you mean the founding fathers and the states who ratified the Constitution, then I disagree with you. So long as a permitting system does not run afoul of the standards the founders thought reasonable, it's not unconstitutional, and it doesn't transform a right into a privilege. If you read the history, the founders thought that regulations that do not place a substantial burden on the exercise of a right were fine. Applying for a permit and receiving it in a timely fashion is not a substantial burden.

 

[Tactical Dave]

I think America would be more open to gun rights and even to not even needing an LTCH if there were not so many idiots. I have seen a guy (with my own eyes in person) who had an LTCH who got really dumb with it and then later said "I better leave before I start busting caps into people.....". He was also carrying his polished .357 Mag in his front waist band with no holster.......

Years ago people were not as stupid with their guns and are runing it for everyone. Yeah the media is not helping but I put equal blame on the bad eggs that have an LTCH.

 

[88GT]

No, I don't. I don't see a distinction between a "limit" and a "pre-condition." If a person assaults me, I have a right to fight back in self-defense. However, the self-defense was "pre-conditioned" on the person attacking me first. Likewise, my self-defense is "limited" to situations where I am attacked first. There is no difference, other than in the language you are using.

Then let me enlighten you.

Pre-condition: IF you do this, this, this, and this, THEN the state will let you exercise your right.

Limit: IF you exercise your right, THEN the state and the existence of the inherent rights of the the other individuals possibly involved limit the extent of your unfettered exercise.

See the difference? It's all on which side of the "then" the exercise of rights occurs. Notice how there's no hoops to jump through in the "limit" example. No permission to be gained. No fees to pay. Permits fall under the former category. Not bashing someone's head in for the heck of it falls under the latter.

Likewise, the right to arms is "limited" to people who have not forfeited their right. In order to enforce this, the government has a system to check to ensure you haven't forfeited your right by imposing limited, low burden "pre-conditions." And, as I said in my last post, the "pre-condition" MUST be related to some legitimate government interest. No government interest?-- any pre-condition is unconstitutional.

That's a whole different ball game. Forfeiture of rights is irrelevant to application of a pre-condition to exercise the rights. Moreover, and this is probably a discussion for another thread, I am hard pressed to find justification for the usurpation of individual sovereignty at any level. The state exists to protect ME, not the other way around. If there's ever a point in time when the infringement of inherent liberties can be justified on that argument, the state has already failed in some way, shape, or form.

If by "someone else" you mean the founding fathers and the states who ratified the Constitution, then I disagree with you. So long as a permitting system does not run afoul of the standards the founders thought reasonable, it's not unconstitutional, and it doesn't transform a right into a privilege. If you read the history, the founders thought that regulations that do not place a substantial burden on the exercise of a right were fine. Applying for a permit and receiving it in a timely fashion is not a substantial burden.

The FF/ratifying states didn't create/grant these liberties. They recognized their inherent existence by virtue of being man. Think of it as an extension of the "I think therefore I am" thing. "I am therefore I have certain inalienable rights that exist outside and independent of any and all governing authorities." The FF have no more authority to limit the liberties or the exercise of them of any man than our current government does. My liberties are MINE. You cannot take them away. Neither can any government.

I direct your attention at this point to the paragraph above addressing the purpose of government and its role in dealing with the individuals. Regulations on liberties are acceptable only inasmuch as they are directly related to the protection of the liberties of others. Nowhere in our current system do permits come even remotely close to protecting the liberties of others. At best, it's a revenue generation issue for greedy governments. At worst, and sadly I think this is the more common justification, it's an all-out assault on the exercise of the rights.

It is precisely your statist way of thinking that allows the erosion of rights to begin with. The elevation of government to the final arbiter of our rights is completely and utterly antithetical to the FF.

 

[CulpeperMM]

It is precisely your statist way of thinking that allows the erosion of rights to begin with. The elevation of government to the final arbiter of our rights is completely and utterly antithetical to the FF.

I owe you more Rep.

 

[Liberty Sanders]

"Having people apply for a permit which is timely granted, in my mind and likely in that of almost all courts, does not significantly burden the individual applying for the permit, and, at the same time, furthers the legitimate government interest in making sure killers don't get permits. The same logic would apply for background checks -- doesn't burden you for more than a small amount of time, you get your gun, the government insures guns don't go to psychos."

Yes, Dash, it does "significantly burden" individuals.

I hold a LTCH in Indiana. I'm an American and therefore do not need one, but I got it anyway. I went to my local police department and got the paperwork. I took the time and filled it out. I took it back to the police department and had an interview with the police chief, a requirement of his before signing off on it. I then waited the required amount of time and received it in the mail (it was not "timely granted").

I suffered these indignities for only one reason, so that at some future time I would not be forced to kill a misguided law enforcement officer who might labor under the misapprehension that he had a right to disarm me and deprive me of my liberty because I didn't have a permission slip from the government to exercise my 2nd Amendment rights. I was willing to degrade myself and allow this incursion into my rights to this extent.

The fact that I chose to submit to this does not change the fact that the hoops I jumped through were inconvenient. They were unjustifiable. They were extremely burdensome. They were absolutely and utterly intolerable. And they were unconstitutional.

 

[MTC]

As much as I don't like a permitting system any more than the next guy...

You preface your remarks with this, then proceed to give your true opinion of Indiana's permit system as being constitutional using as justification something Gura conceded in another case.

As much as I would like constitutional carry...

Similar preface, yet you proceed to make the compelling state interest argument, reworded later as "the government has a legitimate interest".

In Indiana, if you meet certain requirements, you have a Constitutionally protected property interest in the issuance of a LTCH (this falls under the 14th Amendment).

So the right to bear arms spelled out in Article 1, Section 32 of the Indiana Constitution is somehow turned into a property interest in the issuance of a license, while making it sound as if you're doing him a favor.
License: –noun
1. formal permission from a governmental or other constituted authority to do something, as to carry on some business or profession.
2. a certificate, tag, plate, etc., giving proof of such permission; official permit: a driver's license.
3. permission to do or not to do something.

There is no "asking for permission," ...

When you apply for a job, you are applying for - asking for - permission to work there. When you apply for a driver's license, you are applying for - asking for - permission to operate a motor vehicle. When you apply for a license to carry a handgun, you are applying for - asking for - permission to carry a handgun.

However, a system that merely asks for information and then allows you to carry virtually anywhere so long as you aren't a felon, fugitive, etc. does not, to me, seem to be unconstitutional.

Curious about your definition of constitutional carry that you said you would like, and how that squares with what you later say "does not, to me, seem to be unconstitutional."

Any way you cut it, I haven't found any evidence that our founding fathers would have thought a permitting system is repulsive to the constitution. If you have, I'd love to see them. Until then, the Supreme Court has repeatedly held that some long as some permitting requirement doesn't substantially burden a right, it's permissible. If your argument is that applying for a permit that must be granted in a timely manner is a substantial burden, then we will just have to agree to disagree on that topic, because I don't believe it legally is.

And that's why this matter shouldn't be left to the decision of any court. Requiring all the people to apply for a permit to exercise a right, by definition negates that right and renders it a privilege, conditionally granted by the State. We could see 20, 40, 60 pages of legal contortions justifying an infringement, a violation. It is possible to violate the right of the people, to infringe on that right, without physically touching them or appearing to cause any "substantial burden" at all.

I think where we are differing if the definition of the word "right," and how that definition might be legally different from what you deem to be true.

Next you'll be saying it depends on the definition of the word "IS".

The "right" I'm talking about is a legal right, that is, a right created by law

Rights are inherent, inalienable, not created by law.

Therefore, when the founders wrote the Second Amendment, for example, they wrote that the right to be armed for self-defense was a pre-existing one that was not to be infringed. But the phrase "shall not be infringed" is not an absolute one...

The terms "shall be" and "shall not be" most certainly are absolute.

-- no provision of the Constitution is written in absolutes.

"Congress shall make no law respecting..."
"The right of the people to keep and bear arms, shall not be infringed."

Therefore, we can prohibit felons from possessing firearms (at least violent felons), and this is not infringing his "rights" because he has forfeited that right by some illegal action. Absent some felony conviction or other disqualifier, however, a person does have a right to have a gun and use that gun for self-defense. The following, however, is where we diverge.

It was once widely understood, even without needing to be codified, that one could forfeit or be denied some or all rights after having been convicted of a particularly serious or violent crime. That person and that person alone (and accomplices, if any) shall be held responsible. To require the mass screening of the entire adult population of a State or area through an application for license as a prerequisite to the bearing of arms is to consider everyone guilty until proven innocent.

The government has a legitimate interest in ensuring that the people who have forfeited their right don't get access to a weapon. How they do this doesn't matter...

Oh yes it does, especially when it takes away the rights of the many, because of the previous criminal actions of the few.

Having people apply for a permit which is timely granted, in my mind and likely in that of almost all courts, does not significantly burden the individual applying for the permit, and, at the same time, furthers the legitimate government interest in making sure killers don't get permits. The same logic would apply for background checks-- -- and therefore the "permit" system is just fine so long as it continues to be administered properly.

You stated that if you need a permit to do something, it is not a right. This is wrong.

If you have to apply for permission, you do not have a right.

...the government has a legitimate interest...The Supreme Court has held that...
Because there is no legitimate reason to check people out before they get a newspaper, ANY burden on the right is per se invalid.

You, as the State, have NO legitimate reason to "check me out" and charge me extortion fees to pay for my own fingerprinting and booking before I either purchase or carry a gun, and ANY burden on my right to bear arms is per se invalid. To argue otherwise is to proclaim the The State the master, and the people the slaves.

... i have to say I'm going to win that battle in any legislature or Court.

To the extent that you believe that the right to bear arms is absolute, again, we'll have to agree to disagree, and I'll win that battle in the legislature and the courts.

On 2nd Amendment rights in general, and especially with regard to licensing schemes - To reiterate: When we rely* on judges and lawyers to tell us what our rights are, they will use*, at the very least, some form of the "compelling state interest" argument to justify the violation of our rights.

 

[Dashman010]

"Having people apply for a permit which is timely granted, in my mind and likely in that of almost all courts, does not significantly burden the individual applying for the permit, and, at the same time, furthers the legitimate government interest in making sure killers don't get permits. The same logic would apply for background checks -- doesn't burden you for more than a small amount of time, you get your gun, the government insures guns don't go to psychos."

Yes, Dash, it does "significantly burden" individuals.

I hold a LTCH in Indiana. I'm an American and therefore do not need one, but I got it anyway. I went to my local police department and got the paperwork. I took the time and filled it out. I took it back to the police department and had an interview with the police chief, a requirement of his before signing off on it. I then waited the required amount of time and received it in the mail (it was not "timely granted").

I suffered these indignities for only one reason, so that at some future time I would not be forced to kill a misguided law enforcement officer who might labor under the misapprehension that he had a right to disarm me and deprive me of my liberty because I didn't have a permission slip from the government to exercise my 2nd Amendment rights. I was willing to degrade myself and allow this incursion into my rights to this extent.

The fact that I chose to submit to this does not change the fact that the hoops I jumped through were inconvenient. They were unjustifiable. They were extremely burdensome. They were absolutely and utterly intolerable. And they were unconstitutional.

I suppose we will have to agree to disagree about whether apply for an LTCH significantly burdens your right to arms. I simply don't see it, and even the most pro-gun scholars, such as David Kopel, I think would likely disagree with you. I agree that the process is definitely inconvenient and could probably be more easily taken care of when you buy a gun, but "absolutely and utterly intolerable." C'mon. While you are absolutely entitled to your opinion on these matters (whether it's burdensome, intolerable, justifiable, or otherwise), when it comes to the Constitutionality of these procedures, I can't find any modern or founding era support for your assertion that it is unconstitutional. If you can, again, I'd like to see it, above and beyond mere speculation and conjecture about what you think the founders meant. As pro-gun as I am, the Constitution simply stands for some things and not for others, and I'm not willing to sacrifice what the founders meant for an interpretation that more fully represents my, or your, views.

 

[Dashman010]

You preface your remarks with this, then proceed to give your true opinion of Indiana's permit system as being constitutional using as justification something Gura conceded in another case.

I'm not using Gura's admission as my argument, simply an example of someone who is probably the most well versed person in Second Amendment law stating what the history tells him: permit schemes, administered fairly, don't offend the constitution.

Similar preface, yet you proceed to make the compelling state interest argument, reworded later as "the government has a legitimate interest".

Regardless of whether the interest is legitimate or compelling, if it doesn't burden the right to arms for self-defense, it doesn't matter.

When you apply for a job, you are applying for - asking for - permission to work there. When you apply for a driver's license, you are applying for - asking for - permission to operate a motor vehicle. When you apply for a license to carry a handgun, you are applying for - asking for - permission to carry a handgun.

Ahh but you miss the critical distinction. When you apply for a job, they don't constitutionally have to give it to you. When you apply for a drivers license, they don't constitutionally have to give it to you. But when you apply for an LTCH, under the IN and (likely soon to be) US Constitutions, they MUST give it to you. "Asking for permission" assumes that the person you're asking has a right to say, "no, screw off," but the State has no such right when issuing your LTCH. You're not asking for permission, you're simply asserting that your going to exercise your right to carry a firearm and the state acknowledging that.

Curious about your definition of constitutional carry that you said you would like, and how that squares with what you later say "does not, to me, seem to be unconstitutional."

What I said was that it would be nice to have "Constitutional carry" -- carry where the state eliminates a statutory permitting system. That statement, however, does not mean that a permitting system runs afoul of the Constitution. The statements are mutually exclusive.

And that's why this matter shouldn't be left to the decision of any court. Requiring all the people to apply for a permit to exercise a right, by definition negates that right and renders it a privilege, conditionally granted by the State. We could see 20, 40, 60 pages of legal contortions justifying an infringement, a violation. It is possible to violate the right of the people, to infringe on that right, without physically touching them or appearing to cause any "substantial burden" at all.

If you think the matter shouldn't be resolved in the courts, perhaps you think we should just abolish the constitution altogether, because the constitution places that power with the courts. The fact that you think applying for a permit renders it a privilege is simply erroneous, privileges don't HAVE TO be granted. The permit does so long as your not a screw up. Do you think a permit to march down Meridian St. at rush hour "substantially burdens" free speech? That people should be able to march down meridian anytime they want no matter the cost to how the city runs? Is this permitting system unconstitutional? Because the argument is almost exactly the same in the gun context.

Rights are inherent, inalienable, not created by law.

It's interesting that you cut off the last part of my sentence when quoting, where I said "a right created by law (either the civil law or the law of nature)". Instead, you simply make people think I'm referring to the civil law only, and mislead them in the process. Nice argumentative technique.

The terms "shall be" and "shall not be" most certainly are absolute.

So, by your terms, there is NO permissible gun restriction, speech restriction, otherwise. I think you may be in a very small camp of people with this argument, and given that there were real, actual firearms laws enacted BY THE FOUNDERS post-ratification, it seems quite a silly statement to say that the Constitution was meant to be understood in absolutes.

It was once widely understood, even without needing to be codified, that one could forfeit or be denied some or all rights after having been convicted of a particularly serious or violent crime. That person and that person alone (and accomplices, if any) shall be held responsible. To require the mass screening of the entire adult population of a State or area through an application for license as a prerequisite to the bearing of arms is to consider everyone guilty until proven innocent.

So, by this logic, a convicted rapist who gets out of jail should be able to go and buy a gun, completely unrestricted, and we should simply punish him AFTER he commits a crime with it? It's called prevention. Small burden on everyone, keeps dangerous people from getting guns BEFORE they shoot people. Caveat: I don't necessarily agree with this logic. I think bad people are going to get guns one way or another, but at least a NICS check prevents them from buying them extremely easily. But even if I don't think the logic is sound, that still doesn't mean its unconstitutional. The question is whether the founders would have thought it to offend the constitution, and the scholarship pretty clearly says that it does not.

. . . ANY burden on my right to bear arms is per se invalid.

Good luck with that argument.

On 2nd Amendment rights in general, and especially with regard to licensing schemes - To reiterate: When we rely* on judges and lawyers to tell us what our rights are, they will use*, at the very least, some form of the "compelling state interest" argument to justify the violation of our rights.

It depends on who the lawyer is advocating for -- remember, lawyers are just advocates for a position. I'd like to think I advocate strongly for a proper interpretation of the Constitution consistent with what the founders thought -- which is, btw, gun friendly. Judges on the other hand merely interpret the law, and while some certainly come to better conclusions than others, this is the system THE CONSTITUTION provides for. If you don't like it, we have to Amend or get rid of the document altogether.

 

[mk2ja]

Just wanted to say I'm really enjoying and learning a lot from the good posts in this thread. Thanks to you guys for keeping it civil and using good, reasoned arguments. I tried repping folks for it, but I apparently have to let my rep recharge for today.

 

[Dashman010]

Just wanted to say I'm really enjoying and learning a lot from the good posts in this thread. Thanks to you guys for keeping it civil and using good, reasoned arguments. I tried repping folks for it, but I apparently have to let my rep recharge for today.

Thanks. Intelligent discourse always leads to a better informed, and therefore more intelligent, populace.

 

[Bill of Rights]

...Ahh but you miss the critical distinction. When you apply for a job, they don't constitutionally have to give it to you. When you apply for a drivers license, they don't constitutionally have to give it to you. But when you apply for an LTCH, under the IN and (likely soon to be) US Constitutions, they MUST give it to you. "Asking for permission" assumes that the person you're asking has a right to say, "no, screw off," but the State has no such right when issuing your LTCH. You're not asking for permission, you're simply asserting that your going to exercise your right to carry a firearm and the state acknowledging that.

They don't Constitutionally have to give it to you in Indiana, either... The "Shall issue" requirement is statutory, not Constitutional. As such, all it takes is a change of the statute to take that away. For that matter, it doesn't even take that, but a change in policy:

IC 35-47-2-3
Application for license to carry handgun; procedure
Sec. 3. (a) A person desiring a license to carry a handgun shall apply:
(1) to the chief of police or corresponding law enforcement officer of the municipality in which the applicant resides;
(2) if that municipality has no such officer, or if the applicant does not reside in a municipality, to the sheriff of the county in which the applicant resides after the applicant has obtained an application form prescribed by the superintendent; or
(3) if the applicant is a resident of another state and has a regular place of business or employment in Indiana, to the sheriff of the county in which the applicant has a regular place of business or employment.
The superintendent and local law enforcement agencies shall allow an applicant desiring to obtain or renew a license to carry a handgun to submit an application electronically under this chapter if funds are available to establish and maintain an electronic application system.
(b) The law enforcement agency which accepts an application for a handgun license shall collect the following application fees:
(1) From a person applying for a four (4) year handgun license, a ten dollar ($10) application fee, five dollars ($5) of which shall be refunded if the license is not issued.
(2) From a person applying for a lifetime handgun license who does not currently possess a valid Indiana handgun license, a fifty dollar ($50) application fee, thirty dollars ($30) of which shall be refunded if the license is not issued.
(3) From a person applying for a lifetime handgun license who currently possesses a valid Indiana handgun license, a forty dollar ($40) application fee, thirty dollars ($30) of which shall be refunded if the license is not issued.
Except as provided in subsection (h), the fee shall be deposited into the law enforcement agency's firearms training fund or other appropriate training activities fund and used by the agency to train law enforcement officers in the proper use of firearms or in other law enforcement duties, or to purchase firearms or firearm related equipment, or both for the law enforcement officers employed by the law enforcement agency. The state board of accounts shall establish rules for the proper accounting and expenditure of funds collected under this subsection.
(c) The officer to whom the application is made shall ascertain the applicant's name, full address, length of residence in the community, whether the applicant's residence is located within the limits of any city or town, the applicant's occupation, place of business or employment, criminal record, if any, and convictions (minor traffic offenses excepted), age, race, sex, nationality, date of birth, citizenship, height, weight, build, color of hair, color of eyes, scars and marks, whether the applicant has previously held an Indiana license to carry a handgun and, if so, the serial number of the license and year issued, whether the applicant's license has ever been suspended or revoked, and if so, the year and reason for the suspension or revocation, and the applicant's reason for desiring a license. The officer to whom the application is made shall conduct an investigation into the applicant's official records and verify thereby the applicant's character and reputation, and shall in addition verify for accuracy the information contained in the application, and shall forward this information together with the officer's recommendation for approval or disapproval and one (1) set of legible and classifiable fingerprints of the applicant to the superintendent.
(d) The superintendent may make whatever further investigation the superintendent deems necessary. Whenever disapproval is recommended, the officer to whom the application is made shall provide the superintendent and the applicant with the officer's complete and specific reasons, in writing, for the recommendation of disapproval.
(e) If it appears to the superintendent that the applicant:
(1) has a proper reason for carrying a handgun;
(2) is of good character and reputation;
(3) is a proper person to be licensed; and
(4) is:
(A) a citizen of the United States; or
(B) not a citizen of the United States but is allowed to carry a firearm in the United States under federal law;
the superintendent shall issue to the applicant a qualified or an unlimited license to carry any handgun lawfully possessed by the applicant....

Re-read the passage under "e":
Indiana code specifies that a proper reason is "for the defense of himself or the state" and ISP holds that "good character and reputation" is when the local CLEO finds no criminal history on you. A "proper person" to be licensed is defined objectively in the code and leaves no room for judgment and likewise citizenship is not subject to debate: Either you are or you are not. As noted, though, "Good character and reputation" is subjective and could be reinterpreted at any time.

What I said was that it would be nice to have "Constitutional carry" -- carry where the state eliminates a statutory permitting system. That statement, however, does not mean that a permitting system runs afoul of the Constitution. The statements are mutually exclusive.

No, they're not. Alaska has a permitting system AND Constitutional carry. They issue permits that they themselves do not require, issuing them only for other states that do not consider their citizens worthy of the privilege of being allowed personal firearms outside their homes without state sanction.

If you think the matter shouldn't be resolved in the courts, perhaps you think we should just abolish the constitution altogether, because the constitution places that power with the courts. The fact that you think applying for a permit renders it a privilege is simply erroneous, privileges don't HAVE TO be granted. The permit does so long as your not a screw up. Do you think a permit to march down Meridian St. at rush hour "substantially burdens" free speech? That people should be able to march down meridian anytime they want no matter the cost to how the city runs? Is this permitting system unconstitutional? Because the argument is almost exactly the same in the gun context.

It should not be up to anyone else whether or not I have the ability to exercise my God-given rights in any manner that does not infringe upon the rights and liberties of any other citizen. Not a court, not a police chief, not anyone. Marching down Meridian at rush hour does that by impeding the flow of traffic. I do not agree with a permit system, however:If I choose to march down Meridian, it is my own responsibility if I come to any harm. To the contrary, that I choose to carry a firearm will cause no one any harm in and of itself.

...

So, by your terms, there is NO permissible gun restriction, speech restriction, otherwise. I think you may be in a very small camp of people with this argument, and given that there were real, actual firearms laws enacted BY THE FOUNDERS post-ratification, it seems quite a silly statement to say that the Constitution was meant to be understood in absolutes.

By the Founders' statements, there is no permissible religious, speech, press, assembly, or petition for redress of grievance restriction by Congress. They made no such limitation upon the RKBA. I'm unaware of any firearms laws enacted post-ratification by the Founders, so if you would, please detail these.

So, by this logic, a convicted rapist who gets out of jail should be able to go and buy a gun, completely unrestricted, and we should simply punish him AFTER he commits a crime with it? It's called prevention. Small burden on everyone, keeps dangerous people from getting guns BEFORE they shoot people. Caveat: I don't necessarily agree with this logic. I think bad people are going to get guns one way or another, but at least a NICS check prevents them from buying them extremely easily. But even if I don't think the logic is sound, that still doesn't mean its unconstitutional. The question is whether the founders would have thought it to offend the constitution, and the scholarship pretty clearly says that it does not.

Yes, that convicted rapist, IF he gets out of jail, should have his ability to exercise his rights fully restored once he is released. If he has served his sentence, by what right do we prevent that?
Preventative law enforcement? So because someone might commit a crime, we should restrict their ability to lawfully exercise their rights? Tell me, please, why should this convicted rapist be prevented from lawful ownership of a firearm which he plans to use to defend his wife and children from his former associates?

ETA: If the background checks and rules and controls and other infringements do nothing to serve their stated purpose, why continue doing them? That's like looking for a watch you lost under a tree, under a streetlight because the light's better. Further, as Franklin is often quoted, those who would sacrifice essential liberty to obtain a little temporary safety deserve neither. You can claim that the "scholarship" indicates that the Founders would have or would not have agreed with something, but I need to see some kind of proof before I'm going to believe it.

...

It depends on who the lawyer is advocating for -- remember, lawyers are just advocates for a position. I'd like to think I advocate strongly for a proper interpretation of the Constitution consistent with what the founders thought -- which is, btw, gun friendly. Judges on the other hand merely interpret the law, and while some certainly come to better conclusions than others, this is the system THE CONSTITUTION provides for. If you don't like it, we have to Amend or get rid of the document altogether.

True, lawyers just advocate a position, and as Paul Clement proved first in Heller, then in McDonald, the positions they advocate may be diametric opposites. I would argue that it is not the job of trial judges to interpret the law but rather to arbitrate the case before them and to inform the jury which law is alleged to have been broken... I consider (as did the Founders) it the job of the jury to judge the facts of the case as well as the law itself. If trial judges held to that job, we would not hear of "activist judges"; they would just be keeping order in the court.

You will not hear me advocating getting rid of the Constitution. You will not hear me asking to amend it other than to decrease inappropriately obtained government power (such as the many abuses of the interstate commerce clause), to increase individual liberties (e.g. to reassert the 10A) and perhaps to address the status of "anchor babies" used to obtain citizenship for parents who sneak across the border in the dead of night to squirt out a baby on this side and prevent deportation as a result.

Blessings,
Bill

 

[Dashman010]

They don't Constitutionally have to give it to you in Indiana, either... The "Shall issue" requirement is statutory, not Constitutional. As such, all it takes is a change of the statute to take that away. For that matter, it doesn't even take that, but a change in policy:

Sure, and the legislature could pass a law saying that no-one gets a permit at all. However, that law would likely be constitutionally infirm under the IN constitution and US Constitution (pending McDonald).

Indiana code specifies that a proper reason is "for the defense of himself or the state" and ISP holds that "good character and reputation" is when the local CLEO finds no criminal history on you. A "proper person" to be licensed is defined objectively in the code and leaves no room for judgment and likewise citizenship is not subject to debate: Either you are or you are not. As noted, though, "Good character and reputation" is subjective and could be reinterpreted at any time.

While "good character and reputation" certainly is a subjective standard, there is a reason that ISP has essentially disregarded this language, and that is they don't want to open themselves up to legal challenges for arbitrary enforcement. If, for example, ISP began denying permits to people without any explanation (so you can't even take a gun to the range or transport to some place other than home, work, ffl), the system would likely transcend the constitutional boundary because of its arbitrary enforcement. ***Note: When I am generally talking about the Constitutional boundary, I'm referring to the 2nd Amendment, assuming it will be applied to the states in McDonald***

No, they're not. Alaska has a permitting system AND Constitutional carry

Alaska is really the exception to the rule when defining Constitutional Carry, because States like Vermont and now Arizona simply don't have a permitting system. However, my point is the same: I would be fine with going to a Constitutional Carry system so long as there are adequate other checks during, say, the buying process.

It should not be up to anyone else whether or not I have the ability to exercise my God-given rights in any manner that does not infringe upon the rights and liberties of any other citizen. Not a court, not a police chief, not anyone. Marching down Meridian at rush hour does that by impeding the flow of traffic. I do not agree with a permit system, however:If I choose to march down Meridian, it is my own responsibility if I come to any harm. To the contrary, that I choose to carry a firearm will cause no one any harm in and of itself.

Unfortunately, this is just not how an organized society works. You can't do drugs in your house, even if you plan on staying there and not affecting anyone else because (1) society doesn't think the conduct is proper and has criminalized it; and (2) because doing drugs is not constitutionally protected. In the free speech context (and it's the same in the arms bearing area), you do have a constitutionally protected interest, but the courts have determined that a permitting system, allowing both the people to exercise their rights, and the state to adequately prepare for that exercise, is constitutionally permissible. Your statement "I do not agree with a permitting system" is key: it does not matter what you feel is an infringement, it's what the FOUNDERS felt, and almost all modern scholarship says that they would have thought getting that permit is fine.

By the Founders' statements, there is no permissible religious, speech, press, assembly, or petition for redress of grievance restriction by Congress. They made no such limitation upon the RKBA.

Perhaps not explicitly, but the Constitution doesn't specifically say the 4th, 5th, 6th, or 7th Amendments only apply to acts of Congress or the federal government either. However, it is uniformly understood that when ratified, the the Founders intended the Bill of Rights to apply to the federal government only. Hence 14th Amendment Due Process incorporation against the states. Again, you can argue absolute textualism, but the history of the process is pretty clear, and it doesn't support this absolutist view.

I'm unaware of any firearms laws enacted post-ratification by the Founders, so if you would, please detail these.

A great review is here: Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007) ("Hundreds of individual statutes regulated the possession and use of guns in colonial and early national America.")

Heller also made references to gun laws enacted in the founding era, such as prohibitions on where you can shoot and carry, and opined that these laws were likely permissible because they did not create the burden that the DC statute did: a complete and total loss of use of a entire class of arms. See Heller at 2820.

Yes, that convicted rapist, IF he gets out of jail, should have his ability to exercise his rights fully restored once he is released. If he has served his sentence, by what right do we prevent that?
Preventative law enforcement? So because someone might commit a crime, we should restrict their ability to lawfully exercise their rights? Tell me, please, why should this convicted rapist be prevented from lawful ownership of a firearm which he plans to use to defend his wife and children from his former associates?

Well, once again, this is your opinion, and we'll have to agree to disagree. But your question is telling. We, the people, DO have the authority to prevent this person from bearing arms through our duly elected representatives in the legislature, so long as those enactments do not violate the constitution. And a regulation prohibiting a dangerous felon was clearly permissible in the Founders eyes. That answers the question as to whether we have the right to remove his rights. We clearly do.

And why should we be able to restrict his rights, as a more general matter? Because he has not followed the laws of society, and has shown the utmost disdain and disrespect for other members of society. Because he has chosen to infringe upon other peoples right in the most egregious fashion, the people have chosen to infringe his rights in order to protect themselves.

Now, as a caveat of this, I think that perhaps after 10 years with no other convictions, perhaps that person may be able to petition for a restoration of his right. But I think this should be done on an individual basis, and is not constitutionally required to be made for all.

I note also that the laws of the founding generally restricted only the carrying of firearms to felons committed of crimes of violence, and the emphasis was less on the mere ownership of arms. The point is still the same: people convicted of violent felonies, historically, have had their arms right restricted and this has be long held as a constitutional restriction. See Marshall, Why Can't Martha Stewart Have a Gun? 32 Harv. J.L. & Pub. Pol'y 695 (2009).

 

[Bill of Rights]

Sure, and the legislature could pass a law saying that no-one gets a permit at all. However, that law would likely be constitutionally infirm under the IN constitution and US Constitution (pending McDonald).

A change to may-issue would be (Federal)Constitutionally infirm? Please tell that to CA, NY, NJ, etc! Yes, I recognize you said "pending McDonald". That it is not presently so is proof positive that just because something is held by one or another court does not make it right. The IN Constitution addresses the RKBA by saying the people shall have a right to bear arms in defense of themselves and the state. You seem to be holding that a restricted right is still uninfringed, so a may-issue permit would still be acceptable. Note that I don't agree. I think that "the right of the people to keep and bear arms shall not be infringed" means exactly that. Shall not be infringed. To infringe is to limit or encroach upon. That it's been held in court does not make it fact or right. As is often pointed out, the Court upheld slavery and is still upholding the Slaughter-House cases, and the stated reason in the oral arguments for McDonald addressed 140 years of precedent as being a valid reason to do so.

While "good character and reputation" certainly is a subjective standard, there is a reason that ISP has essentially disregarded this language, and that is they don't want to open themselves up to legal challenges for arbitrary enforcement. If, for example, ISP began denying permits to people without any explanation (so you can't even take a gun to the range or transport to some place other than home, work, ffl), the system would likely transcend the constitutional boundary because of its arbitrary enforcement. ***Note: When I am generally talking about the Constitutional boundary, I'm referring to the 2nd Amendment, assuming it will be applied to the states in McDonald***

So instead, they began using a sheriff's recommendation in the absence of any criminal history as the indication of good character and reputation. Call me crazy, but I don't see a whole lot of difference between that and "may issue"; if the sheriff is anti-gun, his recommendation could be expected to be against the issuance of a LTCH. If that's what ISP is using, we have an arbitrary standard, not an objective one.

Alaska is really the exception to the rule when defining Constitutional Carry, because States like Vermont and now Arizona simply don't have a permitting system. However, my point is the same: I would be fine with going to a Constitutional Carry system so long as there are adequate other checks during, say, the buying process.

Did AZ eliminate their permit entirely or will they continue to issue it for reciprocity? The problem with something like NICS is that people get added into the no-buy category inappropriately and then have to prove their innocence. Would it not be better to address people's actions than to imagine we are capable of predicting their future behavior?

Unfortunately, this is just not how an organized society works. You can't do drugs in your house, even if you plan on staying there and not affecting anyone else because (1) society doesn't think the conduct is proper and has criminalized it; and (2) because doing drugs is not constitutionally protected. In the free speech context (and it's the same in the arms bearing area), you do have a constitutionally protected interest, but the courts have determined that a permitting system, allowing both the people to exercise their rights, and the state to adequately prepare for that exercise, is constitutionally permissible. Your statement "I do not agree with a permitting system" is key: it does not matter what you feel is an infringement, it's what the FOUNDERS felt, and almost all modern scholarship says that they would have thought getting that permit is fine.

You seem to be saying you agree with drug laws. I do not. We proved those to be counterproductive with the 18A, reversing it 14 years later with the 21A. All that really came out of that fiasco was the explosion of organized crime. My statement of what I agree or disagree with addressed the inappropriate and unConstitutional paradigm shift. Sure, people have been conditioned to think that permits are acceptable because that's all they've ever known. I was given a great example of that a few years ago: We have, most of us, been raised to see a fire truck and expect it to be red. If we were to suddenly one day see black trucks with ladders and a pump panel, we would have to do a double-take before we realized what we were looking at. Similarly, had we never seen a society with "permits", granting government the power to allow or disallow carry or in some places, to allow or disallow even the purchase of firearms, we would view the introduction of them as unacceptable. Some of us do so in spite of this level of indoctrination.

Perhaps not explicitly, but the Constitution doesn't specifically say the 4th, 5th, 6th, or 7th Amendments only apply to acts of Congress or the federal government either. However, it is uniformly understood that when ratified, the the Founders intended the Bill of Rights to apply to the federal government only. Hence 14th Amendment Due Process incorporation against the states. Again, you can argue absolute textualism, but the history of the process is pretty clear, and it doesn't support this absolutist view.

To be completely accurate, the 1A was the only Amendment in the Bill of Rights that specified acts of Congress. It's taken as a truism, though, that nothing is IN the Constitution by mistake nor is anything left out of it erroneously. The Founders were very careful as to their phrasing and word choices and that, to me, indicates that they intended only the 1A to be secured specifically against acts of Congress. The whole mess of incorporation via the 14A gives the false impression that some parts of the Bill of Rights were more important to the Founders than others.

A great review is here: Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007) ("Hundreds of individual statutes regulated the possession and use of guns in colonial and early national America.")

I may look that up. In the meantime, would you give me a brief synopsis of a few of them that you think particularly relevant? I can't discuss something intelligently without facts.

Heller also made references to gun laws enacted in the founding era, such as prohibitions on where you can shoot and carry, and opined that these laws were likely permissible because they did not create the burden that the DC statute did: a complete and total loss of use of a entire class of arms. See Heller at 2820.

I still don't understand how Justice Scalia could say this and not see that GCA 1968 both created a complete and total loss of use of an entire class of arms and NFA 1934 did almost the same, restricting ownership of those covered arms extensively; the $200 tax is high today. In 1934, it priced those firearms out of the hands of all but the very wealthy... like Al Capone.

Well, once again, this is your opinion, and we'll have to agree to disagree. But your question is telling. We, the people, DO have the authority to prevent this person from bearing arms through our duly elected representatives in the legislature, so long as those enactments do not violate the constitution. And a regulation prohibiting a dangerous felon was clearly permissible in the Founders eyes. That answers the question as to whether we have the right to remove his rights. We clearly do.

That a power has been taken does not mean it is correct to do so. My question more addressed the correctness of the action: Legalities aside, how can we justify preventing a person by law from self-defense actions against those who would victimize him? Returning to the legalities (and addressing at the same time the "rightness" of the act), if someone is such a threat that they cannot be trusted with weapons (specifically firearms), how can we justify allowing that person out in public where he can access other weapons...knives/pipes/rocks/chemicals... legally, and if that person is still untrustworthy, where we can expect them to obtain firearms unlawfully?

And why should we be able to restrict his rights, as a more general matter? Because he has not followed the laws of society, and has shown the utmost disdain and disrespect for other members of society. Because he has chosen to infringe upon other peoples right in the most egregious fashion, the people have chosen to infringe his rights in order to protect themselves.

And he's been punished for his actions. Is his punishment to be lifelong? If he can never, ever again become a full citizen, what incentive does he have to begin to practice good and lawful behavior?

Now, as a caveat of this, I think that perhaps after 10 years with no other convictions, perhaps that person may be able to petition for a restoration of his right. But I think this should be done on an individual basis, and is not constitutionally required to be made for all.

I note also that the laws of the founding generally restricted only the carrying of firearms to felons committed of crimes of violence, and the emphasis was less on the mere ownership of arms. The point is still the same: people convicted of violent felonies, historically, have had their arms right restricted and this has be long held as a constitutional restriction. See Marshall, Why Can't Martha Stewart Have a Gun? 32 Harv. J.L. & Pub. Pol'y 695 (2009).

Ten years. Why ten? Just an arbitrary number? If he's already served 10, you've just doubled the court's decision as to his sentence. If he's served five years, you've just tripled it. If the court thought he should serve 20, assign him 20, but stop infringing his rights once he's out. If you can never again trust him out, don't release him.

To be clear, I'm addressing the problems I see with the law as it is enforced now as well as the problems I see with your vision of what is and should be.
That said, I respect that you hold those opinions, and I appreciate the civility of this discussion.

Blessings,
Bill

 

[Dashman010]

A change to may-issue would be (Federal)Constitutionally infirm? Please tell that to CA, NY, NJ, etc! Yes, I recognize you said "pending McDonald". That it is not presently so is proof positive that just because something is held by one or another court does not make it right. The IN Constitution addresses the RKBA by saying the people shall have a right to bear arms in defense of themselves and the state. You seem to be holding that a restricted right is still uninfringed, so a may-issue permit would still be acceptable. Note that I don't agree. I think that "the right of the people to keep and bear arms shall not be infringed" means exactly that. Shall not be infringed. To infringe is to limit or encroach upon. That it's been held in court does not make it fact or right.

I think in the long run of things, assuming McDonald comes out in our favor, that states will be required to issue some type of carry permit (concealed or open) as a matter of right. As far as states like California though, they have no state constitutional right to arms, so as it stands now, they could ban guns altogether and it wouldn't violate any constitution. I agree that it doesn't make this right or correct or smart, but they could legally get away with it. Amazingly, the CA attorney general urged the Supreme Court to side with McDonald to secure gun rights for the people of California specifically because CA doesn't have a right to arms in their state constitution. However, I still have to disagree that the phrase "shall not be infringed" is an absolute command. It's just not in the cards of the constitution, and it was never meant to be read that way. No serious scholar would agree with that point of view. In fact, not right in the Constitution was meant to be read literally with no context of the times.

So instead, they began using a sheriff's recommendation in the absence of any criminal history as the indication of good character and reputation. Call me crazy, but I don't see a whole lot of difference between that and "may issue"; if the sheriff is anti-gun, his recommendation could be expected to be against the issuance of a LTCH. If that's what ISP is using, we have an arbitrary standard, not an objective one.

As far as I've read and hear though, ISP does not rely on sheriff's recommendations. There was an article in the IndyStar where IMPD had recommended denial for a whole host of people, but so long as the people met the statutory criteria, ISP issued the permit. The firearms dept of the state police is on record as saying that same. In fact, when I got my permit in Hamilton County, the sheriff there met with me and said "So, I just want to take this time to get to know you a bit, because what I have to say really has no effect on whether or not you get a permit." I realize this is his word and not the law, but that is the way it operates in practice.

id AZ eliminate their permit entirely or will they continue to issue it for reciprocity? The problem with something like NICS is that people get added into the no-buy category inappropriately and then have to prove their innocence. Would it not be better to address people's actions than to imagine we are capable of predicting their future behavior?

I'm not entirely sure with regard to AZ. My initial reading was that they were eliminating permits altogether. With regard to NICS, I realize some people may get added when they don't deserve to be, but in practice that number is a very very very small percentage of law-abiding gun owners. I do think, however, that the system is valuable. Allowing dangerous people to get weapons -- people convicted of serious violent crimes -- extremely easily without any check and then "hoping" they don't commit any further crimes i think it somewhat remiss. If we can easily stop bad people from buying guns easily with a form and a phone call that takes 10 minutes, we should. Even better, if we could do what Michigan does, which is that your LTCH negates the NICS check requirement, there would be no burden at all. But I don't think being entirely reactive (and acting after someone has done something terrible) is intelligent when we can impose low-burden ways of protecting people and be proactive. It's much the same argument as we have for guns: we want to be proactive and have a way to protect ourselves. We don't want to rely on the reactive police, because the damage is done already.

You seem to be saying you agree with drug laws. I do not. We proved those to be counterproductive with the 18A, reversing it 14 years later with the 21A. All that really came out of that fiasco was the explosion of organized crime. My statement of what I agree or disagree with addressed the inappropriate and unConstitutional paradigm shift. Sure, people have been conditioned to think that permits are acceptable because that's all they've ever known. I was given a great example of that a few years ago: We have, most of us, been raised to see a fire truck and expect it to be red. If we were to suddenly one day see black trucks with ladders and a pump panel, we would have to do a double-take before we realized what we were looking at. Similarly, had we never seen a society with "permits", granting government the power to allow or disallow carry or in some places, to allow or disallow even the purchase of firearms, we would view the introduction of them as unacceptable. Some of us do so in spite of this level of indoctrination.

I do agree with some drugs laws, and not others. Drug laws for meth and cocaine, for example, outlaw a substance not necessarily because of the immediate effect of the drugs, but because of the potential addictive effects that drug can have and the resulting consequences. In any event, it is completely permissible constitutionally to ban drugs. I agree that if we had never seen permits, they may seem like a more unwelcome change than if we had seen them. But that doesn't change the fact that at some point they were introduced AND that the founders generally viewed them as constitutionally permissible.

The Founders were very careful as to their phrasing and word choices and that, to me, indicates that they intended only the 1A to be secured specifically against acts of Congress.

I realize that a literal reading may make this seem, to you, like Congress only intended the 1A to apply to Congress. But the history surrounding ratification, the debates between the federalists and anti-federalists, the differences drawn between the Constitution and the Articles of Confederation, and post ratification commentary all suggest, without any real commentary or evidence to the contrary, the the Bill of Rights was only intended to restrict Congress. Even Justice Scalia, an originalist who preaches that we should interpret the text in the context of history as the most valid indicator of the intent of the founders has said that, properly understood, the Second Amendment is only a restriction on Congress. The 14th Amendment was intended to shift that balance, because the states, rather than the federal government, were now the ones infringing the rights of the people. The privileges and immunities clause, as most commentators understand it today, was meant to directly remedy these problems by applying the Bill of Rights, or at least substantial portions of it, to the States. One of the primary reasons for this was the disarmament of freedmen post-civil war.

I may look that up. In the meantime, would you give me a brief synopsis of a few of them that you think particularly relevant? I can't discuss something intelligently without facts.

Essentially, there were laws that heavily regulated the manner of carrying firearms and where those firearms could be carried. Concealed carry was almost uniformly outlawed. There were restrictions on carrying loaded weapons in certain places, and there were laws regarding the safe storage of gunpowder. All of these laws had one thing in common, though, and that was that they didn't substantially burden the right to arms -- the restrictions were minor and did not significantly inhibit the right to arms for self defense.

I still don't understand how Justice Scalia could say this and not see that GCA 1968 both created a complete and total loss of use of an entire class of arms and NFA 1934 did almost the same, restricting ownership of those covered arms extensively; the $200 tax is high today. In 1934, it priced those firearms out of the hands of all but the very wealthy... like Al Capone.

Remember, though, that the 2A has been interpreted to protect only arms "in common use." While machine guns were certainly more prevalent in 1934 than today, i don't think they rose to the level of "in common use." Further, if I recall correctly, the GCA of 1968 didn't eliminate any class of arms, but just included restrictions on the importation of certain firearms. They still could be produced domestically and sold.

That a power has been taken does not mean it is correct to do so. My question more addressed the correctness of the action: Legalities aside, how can we justify preventing a person by law from self-defense actions against those who would victimize him?

I think that as a society, if we deem someone to be violent with concrete proof, i.e. a rape conviction, that we should be able to disarm him. If you break the law by hurting other people, I think we should be able to say, look, if someone comes to victimize you, your not going to get the same advantages as other people because of your previous actions. At the very least, these people shouldn't be able to carry guns in public -- but really I don't have any problem disarming someone who society believes is still capable of seriously injuring people and have shown to have done so previously.

Returning to the legalities (and addressing at the same time the "rightness" of the act), if someone is such a threat that they cannot be trusted with weapons (specifically firearms), how can we justify allowing that person out in public where he can access other weapons...knives/pipes/rocks/chemicals... legally, and if that person is still untrustworthy, where we can expect them to obtain firearms unlawfully?

I suppose this is more of a policy question, and really I somewhat agree with you. We should just increase the penalties for these a-holes that commit serious crimes. Rob someone -- 25 years in jail, then you get your rights back. But I think there are some practical problems there, namely prison population issues that may come into play. Nonetheless, I would have no problem with laws that make penalties much harsher and then allow people a restoration of rights. But I think the criminals were rather spend 3-5 in jail and lose their gun rights than 25-30.

And he's been punished for his actions. Is his punishment to be lifelong? If he can never, ever again become a full citizen, what incentive does he have to begin to practice good and lawful behavior?

People who commit sex offenses are on the sex offender registry forever, and I think that's just the "punishment" for their crime. Likewise, the gun restriction can be considered a lifelong "punishment" for committing a serious violent felony. I think this logic fails miserably for things like mail fraud or securities violations, but I think it is logically sound for rape, murder, robbery, kidnapping, etc.

Ten years. Why ten? Just an arbitrary number? If he's already served 10, you've just doubled the court's decision as to his sentence. If he's served five years, you've just tripled it. If the court thought he should serve 20, assign him 20, but stop infringing his rights once he's out. If you can never again trust him out, don't release him.

10 was a completely arbitrary number I picked out of thin air. I think the important thing is individual assessment. I don't think there is a one size fits all solution. Some people are going to get out of jail because of a plea agreement or otherwise and they may still legitimately be dangerous. Other people may commit burglary at 15, be charged as an adult, and at 20 have been reformed. Different situations call for different measures.

That said, I respect that you hold those opinions, and I appreciate the civility of this discussion.

It is always nice to have civil discussion that enlightens people about the views of others. I appreciate it as well.