TX CHL and the 2nd Amendment

[mbw]

With the two recent decisions from the Supremes, I have some questions in regard to some of our established law, not only in TX but everywhere. I hope that Mr. Cotton will chime in here as well as any other lawyer on the board.

In Heller the Supremes ruled that yes, the 2nd does say that Americans have the right to keep and bear but that governments could put reasonable restrictions on those rights. In McDonald they ruled that the 2nd is incorporated to the states. With those rulings in mind-

1. Is the cost of obtaining a TX CHL a reasonable restriction, or not? Total cost for a first timer can be over $300. To some people that is a lot of money and could deter them from obtaining a CHL.

2. Does the entire CHL program pass the “Reasonable Restriction” test? Not just the cost, but also the fact that an individual can’t carry a handgun in TX without one. Exceptions are of course law enforcement, hunting, and while on private property or property under your direct control. That is unless you upset someone who happens to see you open carrying a firearm.

3. The TX Constitution states that the legislature can regulate the wearing of arms with a view to reduce crime. The 2nd does not mention anything about crime. Will this stand strict scrutiny as I believe that is the test for an incorporated amendment? If someone can’t afford a CHL they are effectively barred from bearing arms, other than long arms, in TX as it now stands.

I am just curious, how do most of you see these issues, or are they non-issues?

[Dragonfighter]

Not having the full recall necessary to outline specifics, but there are fee exceptions for indigent, military, elderly, judicial, retired LEO...etc. That said, considering the laws in proximal states, the rates seem pretty steep. But in many areas we are miles ahead.

IMHO, true second amendment carry does not denote the type of weapon or even suggest a permit for carry. But we have 140 years of eroded rights to rebuild and that may take some patience to fade the chances of further official oppression (digging in of the legislative heels).

[The Annoyed Man]

I don't recall that the majority opinion specifically included "reasonable restrictions" in its language. In fact, I have a PDF copy of the decision, and I searched it for the term "reasonable restriction" without any results. The word "reasonable" appears in it a number of times, but not in conjunction with the word "restriction." The term "certain restrictions" comes up in the opinion, but only in terms of explaining the racially based restrictions against firearms ownership in the early 19th century. There does appear on about pages 53-57 or so, a discussion of Miller and its implications with regard to a citizen militia, and the regulation of weapons "suitable for military use."

As I recall, "reasonable restrictions" came up during arguments when Scalia specifically asked Gura if the 2nd precluded reasonable restrictions, and Gura (in what some feel was skirting very close to the edge of a major tactical error) conceded that government could enact reasonable restrictions. But I don't recall that term being used anywhere else.

Am I not remembering that correctly?

[Ameer]

Maybe the ID requirements for voting in federal elections should be the same as buying a gun from a federal firearms license. That's a reasonable restriction any rational person should agree with.

[mbw]

TAM-

I got the "Reasonable Restrictions" phrase from page 54 section 3 of the Heller case.

[texasjeep44]

In Texas you can carry a handgun concealed on your property, in your car or on property under your control. In fact you can carry it openly except while your in your car on public streets or on someone elses private property. So you have the right to exercise your 2A right that way.

You also have the option of carrying a long gun just darn near anywhere you like, if you have the desire to. Now will you get asked to leave a lot of places by people in control of their property if you walk in Walmart or the local pharmacy with a shotgun in hand. Probably. But that is the right of the property owner to ask you to leave. That won't change one bit if Texas were to allow open carry of handguns, you would still be required to leave if asked by the property owner or other person in charge.

No the 2A doesn't mention crime, but it does mention a well regulated militia. How many of you are members of the Texas State Guard? How many of you would be willing to attend militia training called by your local mayor or county judge or whom ever was given the authority to train the militia?

Article 1 Section 8 of the US Constitution.

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

My guess is that if manditory training was called for once per month (or however often) most proponents of the 2A would be calling foul on brining their own gun and ammo to the county courthouse for that required training.

MBW,

Are you willing to submit yourself to training called on by your local or state authority? Do you see that as an intrigal part of the 2A and US Constitution?

[Ameer]

Are you willing to submit yourself to training called on by your local or state authority? Do you see that as an intrigal part of the 2A and US Constitution?

The militia that fought in Massachusetts on April 19, 1775 was not under the control of King George.

The militia that fought closer to home on October 2, 1835 was not under the control of Santa Anna.

The militia of the second amendement must be independent of government control in a free state.

[RPB]

Due to the Second Amendment's relationship to the Third Amendment, I don't believe one must be part of a militia, but be willing to defend against a militia. The militia being a "necessary evil" but nonetheless, necessary.

Remember the history/legislative historical background which necessitated these:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

We had just declared independence from an oppressive government with soldiers wearing red coats, we weren't going to allow that to occur again.

The quartering acts ... http://en.wikipedia.org/wiki/Quartering_Acts" onclick="window.open(this.href);return false;
"The Quartering Act was one of the reasons for the Second Amendment to the United States Constitution, which authorized a militia. Standing armies were mistrusted, and the First Congress considered quartering of troops to have been one of the tools of oppression before and during the American revolution."


The second amendment, provided that since we need a militia, we'll not infringe on the people's right to bear arms.... to protect themselves from having to quarter soldiers without their consent.

Yes, I'm related to John Adams, and therefore a distant relative of Samuel's.
An elder in my church baptized George Washington.
But, I'm willing to put in more range time, especially if it's paid for by increased taxes on the anti-rights groups. (kidding)


Essentially, it is like if a bunch of armed gangbangers/the crips wearing red, said "We'll spend the night at your house" and you had no right to have a firearm... The second amendment was to ensure that they would only stay with your consent (armed gangbangers, the "crips wearing red" being oppressive soldiers in red coats, still fresh in the colonists' memories)

No, I'm not able to be in the Texas State Guard, but I would if I could (disabilities), but that has nothing to do with my rights as a "people" t

However, the antis will use that "history" as an excuse to say, as they try in Chicago, that to prevent mandatory quartering, the intent was to have a gun at home ONLY, which is an invalid argument, especially "these days." That's beyond the scope of this post though.

I don't personally feel the CHL program is an unreasonable restriction when combined with MPA; but, Ive been wrong once before, 35 years ago, and a divorce remedied that error.

[mbw]

TexasJeep44-

You ask if I would be willing to train in an "Organized Militia".

Sure, I would be glad to, but that has nothing to do with the questions I was asking. By the way, there were and are two militias- Well regulated in the terms of the time it was written meant Organzied and Trained. Usually under the command of an officer appointed by the state or Colonial government as opposed to the federal government. Everyone else was in the regular militia, not organized. Look it up.

And to answer your other question- Do I see the training of a militia as an intrigal part of the 2nd and US Constitution?

No, I do not. The militia clause and the keep and bear clause are two seperate and distinct clauses. Neither depends on the other for validity. The militia clause in the Constitution is separate and apart from the 2nd.

And just to make it very clear, I am not advocating open carry over our present CHL program at all. I believe that they both have a place. CHL in TX is great, I just think that the cost is way out of line for a constitutionally protected right.

Thanks for your comments.

[bnc]

Nice posts, Ameer and RPB.

The right to property is the fundamental right, and being able to defend your property (of which your life is a part) goes hand in hand. The ability to defend that right is not dependent on the source of the threat.


As far as I'm concerned, any restriction is an unreasonable one.

[TLE2]

Personally, I wished they'd phrased it differently, like:

"Because of the possibility of alien invasion, the right of the people to keep and bear arms shall not be infringed."

It might be easier to argue that regardless of the reason given, the right granted is an absolute right.

Also contrast the 2nd with the 1st:

1. Congress shall make no law respecting an establishment of religion...

2.... the right of the people to keep and bear arms shall not be infringed.


Notice that the first amendment says that "Congress shall pass no law". The second amendment is absolute.

[texasjeep44]

MBW,

We will have to agree to disagree on the relationship of the 2A to the militia and being regulated or not or what "well regulated" means. It goes back pre colonization to European Lords/Landowners and tenants.

As far as the cost of getting ones CHL. The state only sets the fees for the state itself. Being anywhere from 25 to 140 bucks on an intial and 70 bucks or less for renewals. If you look at the cost of a CHL over the course of a decade or so it really isn't that bad. If you work it right it is only 21 bucks per year to the state. That is really not oppressive.

As far as the additional cost of the instruction, well that is a market price. I don't feel 100 bucks for 10+ hours of instruction is out of line. Over a decade with renewal that works out to another 16 bucks per year, so added to the 21 for the state your looking at the price of a somewhat decent dinner for two per year cost.

[G.A. Heath]

The right to keep and bear arms is not dependent upon militia service. That is, in a round about way, what we got from Heller and had affirmed against the states in McDonald. Now the way court rulings work, from my understanding, is that they address the issue before the courts. In both Heller and McDonald that issue was the right to keep arms. Yes the decisions do say the right to keep and bear arms however until we get a case that addresses the right to bear arms we will see the issue unresolved based on what I have been told by a retired attorney.

Now the Texas CHL does face a federal lawsuit, in Lubbock, regarding the restriction on people under 21 (with some exceptions) but that case will probably never make it to the Supreme Court due to other cases and the fact that the State of Texas probably will not appeal a ruling removing that restriction (its all about politics). The good news is that there is a case in DC regarding the right to bear arms, with none other than Alan Gura as an attorney.