Martin Albright, a TTAG commenter, had some questions regarding some points in my Feeding The Trolls essay. And giving the answers the justice they deserve requires a little more than the comment section will allow. So let’s get on with it, shall we? When I asked how one reconciled permit laws with the SCOTUS ruling in Murdock v. Pennsylvania which forbade states from charging a fee “for the enjoyment of a right granted by the federal constitution” Martin asked:
Didn’t you just answer your own question? The 2nd amendment guarantees you the right to own (keep and bear) arms, but not necessarily the right to carry them concealed on your person.
An excellent question Martin. Not to go all legal eagle here, but it’s one which hearkens back to the days before the turn of the previous century when, in a dicta to Robertson v. Baldwin, Supreme Court Justice Brown stated…
Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons …
The problems are: 1) Robertson was decided before SCOTUS ruled on Murdock, and 2) it was widely held at that time that only footpads and thieves carried concealed, honest men carried openly. In 1839 in order “to suppress the evil practice of carrying weapons secretly” (and yes, they actually used that phrase in the statute) Alabama passed a law prohibiting concealed carry. This law was tested in State of Alabama v. Reid. Reid was convicted of carrying a concealed weapon but held that the statute violated his rights under the Alabama Constitution. The Alabama Attorney General argued successfully:
That the statute under which the defendant was convicted, did not impair that right, while it proposed to discountenance by punishment, a practice which had been greatly promotive of violence and bloodshed. Every man was still left free to carry arms openly, the only manner in which they could be used for defensive purposes.
So at that time you could lawfully carry without paying any sort of license fee or tax, you just had to carry openly. Mind you, I think the courts were dead wrong in saying states could ban concealed carry. It’s obvious to me that they were more interested in establishing and upholding some sort of control than in applying the Constitution as it was written. Otherwise it would have been impossible to construe a ban on concealed carry as not ‘infringing’ on the right of the people to keep and bear arms.
I’m afraid that you’re mistaken when you state that the terms “keep and bear” refer merely to ownership. As Justice Scalia stated in Heller v. DC:
In Muscarello v. United States 524 U. S. 125(1998), in the course of analyzing the meaning of ‘carries a firearm’ in a federal criminal statute, Justice Ginsburg wrote that ‘[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”
Plainly the phrase “keep and bear” covers both ownership and carriage.
In the next paragraph Martin says:
The very fact that you apply for a permit to do so is an acknowledgement of your recognition of this fact, isn’t it? After all, you don’t apply for a permit to speak freely or petition your government, do you? You don’t have to apply for a permit to be free from unreasonable search and seizure, or to not have your property taken for public use without just compensation or for your right to trial by jury, right?
Martin’s statement that we don’t have to apply for a free speech permit, etc. actually goes to my point that the Second Amendment is treated as the bastard stepchild of the Bill of Rights. As for applying for my permit to carry: A) it was not a recognition or acceptance that the government has the right to ration my civil liberties, it was recognition and acceptance of the fact that they had the power to do so. B) Being the sneaky little snark that I am, I added a little bit of verbiage to the back of the application. Paraphrasing, it simply stated that I was making the application because of threats of force and violence if I carried without a permit, but that my actions in response to those threats did not constitute “Voluntary Compliance”.
For those who do not know the significance of “Voluntary Compliance” let’s give a short example. You have a house and you want to build a shed in your backyard. Being a good citizen, you toddle off to City Hall to find out if there’s any sort of permit you need or form to fill out. Indeed, you discover that there is “just this one form, more of a formality really, they always get approved.” So you fill out the form and wait. You get a letter saying there are questions about your boundary (which, you point out is 50 feet from where you want to put the shed) but as soon as that’s cleared up you should be good to go. But you aren’t. In fact you go back and forth with inspectors and councilmen and all kinds of people before finally saying “The heck with this cockamamie B.S., it’s my danged property so I’m going to build a danged shed!” The city takes you to court, you go in and argue that it is your danged property and do you don’t have to file for a stinking zoning waiver or whatever, anyways!
Then the court ruling comes down: because you started out by applying, you have “voluntarily complied” with the zoning procedures, you no longer have standing to sue.
Another example, this one from real life: A number of years ago the NYPD Chief decided there were too many CCWs in the city, so he informed the office in charge that they should deny one third of all renewals. A jeweler who frequently carried upwards of a half-million in cash and gems had his permit renewal denied, so he sued the city to get it back. Basically the judge told him that once he had voluntarily complied with an arbitrary and capricious process he couldn’t sue on the grounds that it was arbitrary and capricious.
Martin then goes on to say:
I realize I’m in the minority on this site, but I simply don’t believe that the 2nd amendment recognizes a right to carry a concealed handgun. I believe the 2nd amendment recognizes the right to own firearms but the use and carry of those firearms is still subject to regulation by the states.
Well, believe it or don’t, as pointed out by Justice Ginsberg in Muscarello, the phrase bear arms does mean to carry, and according to the 1828 edition of Webster’s American Dictionary of the English Language infringed means “broken; violated; transgresses.” It seems pretty clear to me that banning concealed carry is, indeed, an infringement of our right to bear arms. And please tell me how requiring a license to carry concealed (or, in most states, to carry at all) serves a compelling governmental interest, is narrowly tailored to suit that interest and is the least restrictive way to achieve that compelling government interest?
If a restriction on carry or transport was so severe as to amount to a defacto ban on firearms (for example, a law that said you could only transport a firearm if it was triple locked in an armored car with a police escort) then it would be severe enough to violate the Constitution.
That’s certainly a mighty generous concession you are making there Martin. But tell me, if I don’t need a police escort is it still a de facto ban? How about if we ditch the armored car and just require weapons to be unloaded with a trigger lock, in a locked metal case inside another locked metal case (which I assume is what you mean by triple locked), would that still amount to a de facto ban or not? None of this sits well with the idea that the right to keep and bear arms is a fundamental, enumerated right on par with the right to free speech, freedom of religion, etc.
But if you believe in Federalism, shouldn’t the state have some say in regulating who may carry a firearm in public and where they may carry it?
Nope. No more than they can have some say in regulating who may speak in public (as the state of Louisiana is trying to do), or how people may worship, or who can print a newspaper.
The right to speak freely, worship as you wish, be secure in your home, all of these are fundamental human rights, and we need to quit treating the right to keep and bear arms like the bastard stepchild of the Bill of Rights.