National Preemption

[eye95]

A Bill to Protect the Right to Keep and Bear Arms from Infringement by Local and State Governments

An effort is afoot again to protect individuals from one State having their Right to Keep and Bear Arms from being infringed by another. This effort takes the form of a proposed federal law requiring all States to recognize the firearm licenses of another. There are two main flaws with such a scheme:

One, a Right cannot be licensed. Licenses are, by definition, permission being granted by the government for an individual to act in a given way. Rights, by definition, are acts that an individual can take regardless of government will. Therefore, a Right cannot be licensed! Any act by any government creating or promoting licensure, no matter how liberal, cannot be, by definition, a protection of a Right.

Two, that which the government undertakes to permit, it may chose to prohibit. When we think that allowing government to allow us to act in a given way, we are accepting their authority over that action. That necessarily means that we allow them to prohibit the activity.

For these reasons, this Second Amendment activist opposes so-called national reciprocity bills. If the federal government wants to protect citizens of all States from State and local infringements on the Right to Keep and Bear Arms, they need to follow the example of State pre-emption laws and pass laws proscribing governmental behavior that infringes on the Right.

To that end, I would propose this alternative to national reciprocity. (I am not a lawyer, so look to the intent of this proposal. Someone with legal writing skills could always repair the flaws.)

The Bill:

Whereas the Second Amendment to the Constitution of the United States protects the Individual Right to Keep and Bear Arms from infringement, without specifying what entities may not infringe, thereby enjoining all governmental entities from so infringing, and

Whereas the Ninth Amendment to the Constitution of the United States recognizes the existence (and, therefore, constitutional protection) of Rights not enumerated in that Constitution, thereby protecting the Natural, Creator-Endowed Right to Self-Defense,

Be it enacted that all government entities within the United States of America be prohibited from creating any law, rule, or regulation that restricts the Rights of the People to keep or own personal arms or to bear or carry such arms.

Governmental entities include the federal government, State governments, subdivisions of State governments, and any governmental or quasi-governmental entities that are created by any entity defined by this paragraph, including entities created and shared by multiple governmental entities.

Personal arms, as intended by the Second Amendment to the Constitution of the United States of America, are defined as any arm intended for individual personal use but that can also be used as an individual's militia arm. This includes, but is not limited to, all firearms, knives, and clubs that can be wielded by one single Person. It does not include arms that require more than one Person to operate nor explosive devices.

All such laws, rules, or regulations in existence at the time of adoption or passed into existence after adoption of this act are null and void. Any attempts to enforce such laws after adoption of this act are punishable under law [outlined elsewhere] and subject to civil action [outlined elsewhere] by the Person upon whom enforced.

All such laws, rules, or regulations must be repealed within two years of adoption of this act. Any such laws, rules, or regulations remaining after two years may be removed by civil action with all costs being borne by the governmental agency responsible for the law, rule, or regulation.

Concealment on one's person of arms being carried is a separable act from the act of carry and is not subject to the restrictions of this act.

The open and visible carry of arms on one's person, but not in the person's hand, the carry of arms in any manner in one's home, and the open carry of arms in one's vehicle, not in the person's hand, are specifically protected by this act.

This act shall not be construed to restrict in any way a private property owner's Right to create rules restricting carry on the owner's property. Exception: Property owners may not restrict firearms in the locked vehicles belonging to other persons but allowed by the owner on the owner's property, whether the vehicle is attended or not. Second exception: Property rented as one’s home or business is considered to be the private property of the renter, not of the entity that made the property available for rent.

Governmental entities may create or retain law, rules, or regulations that restrict ownership or carry of arms by Persons

1. Under the age of eighteen,
2. Convicted of a crime as long as that restriction is imposed by sentencing or was imposed by law or sentence prior to adoption of this act,
3. Who have been adjudicated in a hearing before a judge, during which the Person is protected by all constitutional protections afforded defendants in criminal proceedings, as mentally ill and a danger to themselves or others,
4. Who is in the United States of America illegally, or
5. Who would be in physical custody awaiting trial for a felony or violent crime, but has been released while awaiting trial, if a restriction on ownership or carry of arms is a condition of that release.

Governmental entities may restrict possession or carry of arms into governmental facilities (or portions of those facilities) if that facility (or portion of that facility)

1. Is not open to the general public,
2. Is guarded by armed police or armed military security personnel,
3. Has procedures and equipment reasonably designed to ensure no member of the general public may bring arms into that facility, and
4. Contains material or information (not Persons) of so sensitive a nature as to require armed governmental protection.

[Edited to remove some mysterious strike-throughs and corruption of the numbering.]

 

[eye95]

I know that some of the provisions will rankle some of our members. Genuine discussion as to how the suggested bill should be changed and why is more than welcome.

“My way or the highway” responses are, of course, welcome. I just won’t dignify MWOTH-style posts with a response. Obviously, others may choose to do so.

 

[OC for ME]

CC should not be a separable act. SCOTUS will (should?) not contradict Congress on this item.

The "prohibited" persons part, #3, language to prohibit ex post facto adjudications as ERPOs are done now.

The governmental places part will require further consideration. But, at first take #1 is redundant, and #3 seems a wee bit too ambiguous for me. Likely a healthy cynicism of government is at work in my mind at the moment.

Or, a simple, all prior restraints are null and void except for the government places part. Even non-military components of government should have the authority to restrict access to limited locations.

 

[Ghost1958]

Well, just two huge problems.

Constitutionally and upheld in 4 SCOTUS decisions since the 1800s till the 90s I believe, any state that wishes too can simply not recognize that federal decree ,refuse to abide by it and refuse to enforce it.
Leaving it a useless exercise in futility just like National Reciprocity would be.
as the fed in no reach of imagination can field enough federal agents to enforce it in the 5 or so states that WILL say go pound sand.

The feds cannot force states to recognize or enforce federal law. Long settled constitutional law. Not my doing . Just long settled constitutional law.

And two, two thirds of your protect the 2a rights essay , violates the 2A

Sorry to be the wet blanket but thems the facts.

But by all means hash it about as its a interesting exercise .

 

[eye95]

The States are not being asked to enforce federal law. They are being explicitly instructed not to violate the 2A. The recourse would be in federal court (civil lawsuits and criminal trials), enforced by the feds, not the States.

I will address specific points that you make, not generalizations.

 

[Ghost1958]

The States are not being asked to enforce federal law. They are being explicitly instructed not to violate the 2A. The recourse would be in federal court (civil lawsuits and criminal trials), enforced by the feds, not the States.

I will address specific points that you make, not generalizations.

Specifically.

A state does not have to honor what its told by the fed.
It's called the anti commandeering doctrine.

Most do voluntarily because of fed money .

But just like with immigration and pot, some won't ,regardless.

So you've told the states "You have to respect the RTKABA ,along with this laundry list of is that violate the 2nd amendment ". Nj NY CA and a few others say yeah sure, now go away.

You withhold some type of fed funding. They still say, " We don't have too".
Constitutionally they are right. Just like immigration sanctuary cities. SCOTUS has already ruled four times the states are not bound by actions of congress.

Now what do you do.
Your ,you being the fed , are powerless. Money club didn't work. You don't have the manpower to do squat.



We already have a much better protection in the BOR, which was born of a constitional convention , that the states ratified and is binding. Called the 2a.

Can't get states to honor that. Its one sentence clear as a bell and IS binding on the states.
What makes you think they will honor half a book of stuff most of which violates the 2A?

To make it binding you'd have to amend the constitution. Trust ain't happening

 

[eye95]

You are repeating yourself, not addressing the refutation. I’ll wait for something new from someone else. Thank you.

 

[Ghost1958]

Only reason I'm repeating my self is facts ,unlike flights of imagination don't change.

Fact 1. What you propose is unconstitutional, upheld by SCOTUS multiple times. Congress cannot bind the states to any law or act they pass.

Fact 2. The 2A is binding on the states as the states ratified it in the first convention of states that produced the COTUS. The states won't honor that , nor will the fed itself.

3. Most of the list of limitations on your dissertation violate the 2a .

The founders were much smarter than anyone on the inter web. They wrote one clear sentence that absolutely protected the RTKABA .
Fed nor states will honor that and it is binding.

But . You will not hear that. Nor acknowledge the constitutional facts, upheld multiple times and cast in stone unless the COTUS is amended to repeal the 10th A and anti commandeering doctrine.

 

[color of law]

You are repeating yourself, not addressing the refutation. I’ll wait for something new from someone else. Thank you.

 

[hammer6]

Concealment on one's person of arms being carried is a separable act from the act of carry and is not subject to the restrictions of this act.

So we can't carry in the snow?

Governmental entities may create or retain law, rules, or regulations that restrict ownership or carry of arms by Persons

1. Under the age of eighteen,

Says whom?

 

[hammer6]

Specifically.

A state does not have to honor what its told by the fed.

The States DO have to honor the Constitution. That's part of the agreement they signed as an independent country to be admitted into the newly formed United States of America. It's non-negotiable.

 

[eye95]

So we can't carry in the snow?

Says whom?

This is a proposal, so “Says whom?” is kinda silly. Says the State that the federal law would not stop from saying so.

My proposal said nothing about snow.

Bordering on MWOTH.

 

[eye95]

The States DO have to honor the Constitution. That's part of the agreement they signed as an independent country to be admitted into the newly formed United States of America. It's non-negotiable.

More importantly, he does not address the fact that the proposed bill does not “tell them to do” anything.

The specific wording and intent are to tell them what NOT to do.

 

[Ghost1958]

The States DO have to honor the Constitution. That's part of the agreement they signed as an independent country to be admitted into the newly formed United States of America. It's non-negotiable.

Yep. Because it was ratified by the states themselves. As a constitutional amendment would be.

Eye is speaking about an act of congress which does NOT bind the states.

 

[Ghost1958]

More importantly, he does not address the fact that the proposed bill does not “tell them to do” anything.

The specific wording and intent are to tell them what NOT to do.

Same thing. It is an act of Congress . Centuries old settled constitutional law says an act of congress cannot force the states to do squat.

 

[CJ4wd]

IIRC, hasn't the SCOTUS already ruled that the ability to carry is subject to "reasonable restrictions" and said that the 2A isn't "unlimited"?

Eye - have you ever heard of an "emancipated minor"? While it is a rarity even in this day and age. there are some people whose families are so damaged and broken that some children under 18 are legally separated from their parents and declared "independent". They are sometimes as young as 16 and are already earning good money. They are usually child actors whose parents stole their money but there have been others. Are you suggesting that, because these "precocious adults" are under 18, they should still be denied the ability to arm themselves?

 

[color of law]

This is a proposal, so “Says whom?” is kinda silly. Says the State that the federal law would not stop from saying so.

My proposal said nothing about snow.

Bordering on MWOTH.

Sheldon, it was sarcasm.

 

[eye95]

IIRC, hasn't the SCOTUS already ruled that the ability to carry is subject to "reasonable restrictions" and said that the 2A isn't "unlimited"?

Eye - have you ever heard of an "emancipated minor"? While it is a rarity even in this day and age. there are some people whose families are so damaged and broken that some children under 18 are legally separated from their parents and declared "independent". They are sometimes as young as 16 and are already earning good money. They are usually child actors whose parents stole their money but there have been others. Are you suggesting that, because these "precocious adults" are under 18, they should still be denied the ability to arm themselves?

The SCOTUS is philosophically wrong. By the definition of a Right, government cannot restrict it, or it isn’t (actually it never was) a Right. It was a government-granted privilige. I really would like the Constitution to be amended to state that enumerated Rights are absolutely protected from any governmental interference.

Yes, I have hear of emancipated minors. My proposal does not say the minors under 18 may not carry, or even that States must restrict carry by persons under 18, just that the preemption law leaves that call to State governments.

Like most laws, emancipation laws vary widely from State to State. So would their laws regarding carry by minors and emancipated minors.

Thanks for the thoughtful contribution. You can’t know how much I appreciate it!

 

[solus]

So eye95, you posted an incoherent gaggle of words, without any sort of intro/bkgnd except “A Bill to Protect.....”, so can you succinctly summarize & articulate what your almost 1K manifesto’s:

1. Purpose - why is this needed?
2. Goal - ??
3. Who is impacted & how?
4. Whom is presenting and approving your epistle?
5. Ramifications for violating your manifesto’s mandates?
6. Fed or State level?

You put your maifesto out here without anything then get cranky because YOU fail in communication to your audience!

 

[Ghost1958]

The SCOTUS is philosophically wrong. By the definition of a Right, government cannot restrict it, or it isn’t (actually it never was) a Right. It was a government-granted privilige. I really would like the Constitution to be amended to state that enumerated Rights are absolutely protected from any governmental interference.

Yes, I have hear of emancipated minors. My proposal does not say the minors under 18 may not carry, or even that States must restrict carry by persons under 18, just that the preemption law leaves that call to State governments.

Like most laws, emancipation laws vary widely from State to State. So would their laws regarding carry by minors and emancipated minors.

Thanks for the thoughtful contribution. You can’t know how much I appreciate it!

I agree SCOTUS has turned the 2a on its head since Wayyyyyyy back.

However the statement that the RTKABA is a bit of misinformation.

Arms does not only mean guns. It means weapons


Man has kept, born and utilized weapons as long as he has existed. It is a natural right , not granted by any government nor subject to any gov regulations.

The fact that govs across the globe have neutered it doesn't change that. Eliminating the rights of the governed is what government primarily exists to do in order to stay in control.

That they are allowed to do it, and too what extent , rests entirely on the heads of the people .

The founders protected that right in ONE all encompassing sentience that forbade any interference with that right.

Gov of course ignored and ignores it . And will until stopped by the people.

As a people we have so far been tolerant of gov illegal interference with that right, in this nation.

Why anyone would think writing an essay, most of which violates that right, would , one be accepted by free gun owners, and two, be paid any more attention by gov than the 2a ,I cannot fathom.