wackjum wrote:
HGWC, you have your interpretation of the 2nd amendment. However, it is not the current intepretation by the USSC. It is possible that one day, the social mores may change to the point that the 2nd A could be read to mean an inalienable right to carry arms everywhere. Currently, that is not the interpretation.
This is more about the fourteenth amendment isn't it? What the Supreme court has said is that the 2nd amendment doesn't apply to the states at all, only to the federal government. When the issue of incorporation is settled, then all of the state laws that were passed even during the development of the fourteenth amendment will be looked at for the first time. That's exactly what's happening already in Nordyke and the Chicago case.
The Heller decision gave USSC backing to the status quo. This is, to be able to possess guns, and to be able to use them (keep and bear). Anything else is dependent upon interpretation. In your post, you said that the 2nd amendment "clearly" "implies" possession in public.
Apparently, other constitutional lawyers disagree with you. For example, the Nordyke case is directly associated with possessing handguns on public property, and they are raising similar issues as to just what laws the state can pass.
This is not in the 2nd Amendment. The 2A does not make any distinction between home, public, or private property, and open or concealed carry. Instead, it has the line "a well regulated militia," which opens the door for regulation.
That's right it doesn't make any distinction. It says we have the right period, and the Heller case said we have the right individually and for self defense. What, we have the right to self defense in private but not public? I don't think the SC has ever ruled that the 2nd amendment excluded public keep and bear. On the contrary, it's purpose is recognized as to allow the civilian militia to defend against oppression by the government. You can't do that from your backyard.
The right, as far as Heller goes, is a right to purchase and keep firearms around your home. They should be allowed to be kept in a state of readiness to be used (bear).
So, you're saying the Heller decision defines the 2nd amendment such that we have a right to defend our freedoms and our very life from only within our homes? Maybe you need to give it a second glance. It doesn't say that at all. It defines the 2nd amendment as a fundamental individual right for self defense and for defense of the country and our freedoms. It applied that definition to the DC laws and found them unconstitutional. The SC hasn't applied that same definition to a state law banning public possession of handguns, but the same definition would necessarily have to apply. You're suggesting that the Heller decision now enables Congress to pass a law all but flat out barring any public possession of any firearms without running afoul of the 2nd amendment, which just ain't so.
It was not my intention, in responding to this thread, to defend the 2nd amendment. I wanted to provide my perspective on a lawsuit. Any action regarding CHL is not a 2nd amendment violation but a violation of the Texas statute. If you were denied a CHL even though you met all of the requirements, then you would have an action because the statute commands the State to issue the permit. A delay is not a denial. If there was some kind of instruction or informally understood procedure by the state to keep people waiting for forever, this may be construed as a constructive denial. But the evidence does not show that. Instead, it is just being slow. Further, it is not purposefully slow, but based on a reason (manpower shortage, funding shortage, Hurricane Ike). Now you and I may both realize DPS is not taking things terribly seriously, but this would be difficult to prove.
I understand what you're saying. There's all sorts of case law that doesn't impose the 2nd amendment on the states, and that underlies many of your comments. That is about to change though, and Texas could lead the way with one lawsuit. Then there is the standard for scrutiny of state laws against an incorporated 2nd amendment. I may be on shakier ground here in all of my complaints, but Heller made it clear that restricting the right from felons and the mentally unstable would stand. Minor impositions perhaps like registration may stand. Regulations against machine guns might stand, but flat out bans on handguns won't.
What Texas has is just as onerous and restrictive as these other states. It's just the difference between public and private, and the 2nd amendment doesn't allow for such a distinction. It doesn't allow for infringement for every whim of the legislation with a view of controlling crime like it says in the Texas constitution. It's a fundamental right that has not ever been defined as limited to either public or private. It's a right period, not a privilege governed by the whim of the legislators. Some people are indefinitely denied the right altogether to publicly possess the most popular firearm for self defense. All it takes is incorporation, and that won't stand under any standard of scrutiny. One lawsuit could address that.
All of this not to mention state law or the state constitution. Keep and bear is also a fundamental individual right in our state constitution. Granted it's more limited, but it doesn't allow the executive branch of the government to infringe on our rights beyond what the legislature has deemed necessary to control crime. They are exceeding the legislature's power to limit our right that is guaranteed in the state constitution. The legislature lifted the restriction on CHL, and we're entitled to all of our right that they've left us with. Every tiny little bit of it. It's not a fishing license. It's a fundamental right even under our state constitution.
Heller could have been much worse. Instead, it gave us the status quo. Don't make a mile out of an inch.
It doesn't take us all the way where I want to go, but it puts us within reach and that's not just status quo. It's not a minor change in the legal landscape.