-
If you enjoy the forum please consider supporting it by signing up for a NES Membership The benefits pay for the membership many times over.
-
Be sure to enter the NES/MFS May Giveaway ***Canik METE SFX***
interesting article about the future of CCW
- Thread starter Bando_Red
- Start date
he Death of CCW
A look at the future of concealed carry in the Obama era.
By Don B. Kates
In the wake of Barack Obama's election, the gun community has fallen prey to a variety of fears, some of which seem to me to be little less than preposterously paranoid. One fantastic fear is that Obama will try somehow to repeal the concealed-carry revolution by enacting some sort of national CCW ban.
This has inspired me to write a brief history of concealed-carry, within which I shall consider the likelihood of a national concealed-carry ban.
In early English common law there were no restrictions on weapons (except against Jews). Every Christian Englishman was required to be armed, to serve in the militia and to respond when the "hue and cry" went up that a robber or other felon was escaping.
The first restriction on weapons carrying appeared in 1327, during the troubled reign of Edward II. It apparently prohibited coming into court armed, but it could have been read as a general restriction on going armed anywhere.
Whatever it meant, it was widely disobeyed. It was reenacted 50 years later in the also-troubled reign of Richard II, reenactment being a common medieval response to a statute being disobeyed.
This statute lay dormant for three centuries until the reign of the Catholic King James II, who tried to use it to disarm Protestants. His prosecution of the Protestant mayor of Bristol (then England's second-largest city) for carrying a gun ended with the mayor's acquittal on the court's finding that English law entitled "gentlemen" to carry weapons.
American law did not try to restrict weapons carrying until the 19th century's concealed-weapon laws. Though they did literally apply against guns, these laws were aimed at thugs carrying knives, blackjacks and the like.
The 19th century explanation of how these laws were valid: state and federal constitutional protections for the right to arms applied only to the "manly," open carrying of arms, not to thugs carrying secret weapons.
Early in the 20th century, state weapons laws began to allow local government to grant permits so good citizens could carry firearms for their protection. Unfortunately, corrupt local politicians seized upon this as a mechanism for currying favor by allowing the wealthy few to "buy" permits--by contributing to politicians' campaign funds.
During the 1980s, the National Rifle Association began a campaign to enact laws defining rational qualifications for a concealed-carry permit and giving every qualified applicant a right to such a permit. As of today, 40 states have enacted these laws. Of course, California and New York--where concealed-carry corruption is a way of life--are not among the 40.
Now we are told, on what basis I know not, that Obama is planning a federal ban on concealed carry. It is certainly true that Obama is deeply anti-gun despite his mendacious pretenses to the contrary. And it is true that he is from one of the few states that has no exception allowing issuance of concealed-carry permits.
But it is hard to overstate how preposterously paranoid it sounds to suggest that Obama is planning to try to cancel out the NRA's CCW revolution.
Let's begin by understanding the legal basis for concealed-carry laws. Every state except Vermont and possibly Alaska bans concealed carry as a matter of state law. Provisions for a permit (shall-issue or discretionary-issue) are exceptions to that law. The federal government has no constitutional power to alter or abolish state laws.
There are only two ways the federal government could reverse the concealed-carry tide. Congress--not Obama--could enact a federal law conditioning receipt of some kind of federal funds on every state having a concealed-carry ban with no permit exception.
How would that work? Recall the federal 55 mph speed limit. States could not be forced to enact a 55 mph speed limit, but if they didn't they would not receive federal highway funds.
The Death of CCW
The other way to reverse gains in concealed carry would be for Congress--not Obama--to enact a federal ban.
Obama cannot do either except by an act of Congress. And Congress is very unlikely to do either. Congress has more than 190 Republicans, most of whom would vote against either, plus well over 100 Democrats who are at least nominally pro-gun.
And every member of Congress remembers how Congress went Republican in 1994 for the first time in almost 50 years--by passing an "assault weapon" ban.
Particularly vivid are the memories of exactly how this happened: Bill Clinton, who had nothing to lose himself, dragged Democratic legislators to vote for the ban. And in the following election, the Democratic Speaker of the House and 100 others of those who had to be dragged lost their seats.
Democrats got back their control of Congress after 12 years as the party on the outside looking in only because of an unpopular war--and by many of them declaring themselves pro-gun.
My predictions are that Obama would never propose such legislation, and, if he did, it would never even get a committee hearing, much less pass out of committee.
In addition, both instances in which the federal government could overturn state concealed-carry laws raise grave constitutional questions.
Yes, Congress could enact a federal law conditioning receipt of federal funds on every state having a concealed-carry ban with no permit provision. Again, this is how Congress enacted the national 55 mph limit, which it later aborted.
But there is no constitutional right to drive whereas there is a constitutional right to arms. And there is the 10th Amendment, which guarantees states' rights, including the right to legislate their own laws.
Now I am not saying the Supreme Court definitely would overturn such a law. What I am saying is that it raises grave constitutional questions, and I can't see Congress passing it.
And, yes, Congress could enact a federal concealed-carry ban. We don't even have to get to the Second Amendment on this one. The first question is where does Congress get jurisdiction to pass an ordinary criminal law? And the second is, if the courts were to uphold federal a CCW ban, what would be next--a federal shoplifting ban?
The federal courts do not want to be clogged with such garbage. It's for the lowly state courts to deal with. If Congress tried to ban carrying guns, I think the lower federal courts would overturn the ban and the Supreme Court would not review the matter.
But I don't think Congress would ever pass such a ban. Having come back into power finally--courtesy of a president who, however mendaciously, avows support for the right to arms--Democrats are liable to avoid the gun issue like the plague.
They learned in 1994 that attacking guns was unendurably costly. Finally back in power, they have a vast agenda of items they believe are really important.
That agenda does not include guns and they will probably not imperil it by attacking guns.
Last edited:
twofer! thank you both.
responding to the article...
It's minorly reassuring, but not enough that I'll sleep soundly. the people pushing for an AWB tend not to work within the constraints of logic. second, even if democrats were hesitent to try and ram through an AWB, it only takes the tides of politics to change enough that they feel that it's safe. I offer as evidence the hildabeast and AG holder trumping up the guns in mexico issue, as well as all the anti gun politicians that are no doubt finishing up their press releases now to express their outrage over the current wash of nationwide gunviolence we've seen, with the support of the MSM going full tilt for them.
they are attacking right now. it's only subterfuge and psyops now, but it's laying the groundwork for the "invasion" of legislation they wish to pass.
responding to the article...
It's minorly reassuring, but not enough that I'll sleep soundly. the people pushing for an AWB tend not to work within the constraints of logic. second, even if democrats were hesitent to try and ram through an AWB, it only takes the tides of politics to change enough that they feel that it's safe. I offer as evidence the hildabeast and AG holder trumping up the guns in mexico issue, as well as all the anti gun politicians that are no doubt finishing up their press releases now to express their outrage over the current wash of nationwide gunviolence we've seen, with the support of the MSM going full tilt for them.
they are attacking right now. it's only subterfuge and psyops now, but it's laying the groundwork for the "invasion" of legislation they wish to pass.
