FYI - HR 45 Barack Obama's Gun Control

[Pappy]

http://www.americandailyreview.com/home-features-articles-blog/2009/4/16/hr-45-barack-obamas-gun-control.html


The right of the people to keep and bear arms shall not be infringed - Second Amendment to the U.S. Constitution


There are many myths about guns floating around out there that are perpetuated by the Liberal Left. Contrary to their opinion, must gun violence is not caused by automatic weapons, increased gun control does not cut down on crime, and the federal government does not have the right to limit gun ownership in any way, shape, or form.

HR 45, also known as the Blair Holt Firearm Licensing and Record of Sales Act of 2009, is a gun control bill by the Democrats that is in direct conflict with the U.S. Constitution. In short, the bill would make it illegal to own a firearm unless it is registered, you are fingerprinted, you supply a current Driver’s License, you supply your social security number, you submit to a physical and mental evaluation at any time of their choosing, and you report and pay a fee for any change of ownership. Any failure to do any of the above automatically kills your right to own a firearm, and you will be subject to a year in jail. The child provision clause also requires you to keep the gun locked in the home (oh, yeah, if someone breaks into my home I will have plenty of time to go to the other room, unlock the case, pull out the weapon, load it, and beat the criminal to the punch…). Also, the government would have the right to show up at your door and inspect that you are storing your gun as required (sounds oppressive to me).

Historically, when a government demands mandatory registration of weapons, it isn’t very long before they confiscate them. Nazi Germany, the Soviet Union, and China are great examples of that.

If an individual state, based on the vote of the people, desires to put restrictions on gun ownership in the regards to registration, or whatever, it is completely okay for them to do so from a Constitutional standpoint. However, the federal government cannot make any law that infringes on the ownership of a firearm. Period. Read the Second Amendment at the top of this article again, if you don’t comprehend that.

And understand, there is no place in the U.S. Constitution that says federal government trumps or supercedes state law. So, if a state has few laws regarding the registration of a weapon, the federal government cannot create a law that overrides the state law on the issue. This is because, as stated by the U.S. Constitution, gun ownership is not a federal issue. The issue belongs to the states. The federal government, as the 2nd amendment states, cannot infringe upon the right to keep and bear arms.

Let me repeat: It is unconstitutional for the federal government to place any restrictions of any kind on the private ownership of firearms. And the commerce clause is not applicable when it comes to using it to explain federal actions regarding restricting in any way the private ownership of firearms.

This means that HR 45 is unconstitutional, as is any other federal law regarding the private ownership of firearms.

And remember, criminals prefer their victims unarmed. An armed individual, however, is not a victim. An armed individual is a citizen.

[Chilo45]

Let me repeat: It is unconstitutional for the federal government to place any restrictions of any kind on the private ownership of firearms. And the commerce clause is not applicable when it comes to using it to explain federal actions regarding restricting in any way the private ownership of firearms.

But that doesn't seem to stop some from trying to anyhow. What is so difficult for them to understand? Just read exactly what the 2nd Amendment states (no if's and or but's allowed).

And our Judicial system that allows for these supposed legal interpretations to take hold and even get discussed it beyond comprehension.

I have sent my representative (Greg Walden - R) a message asking that he does not allow any support for anything that is against our Constitution, specialty this so called HR45.

[Frank]

There's really a whole bunch of misinformation in that article. I'll just touch on the high points.

[1] "If an individual state, based on the vote of the people, desires to put restrictions on gun ownership in the regards to registration, or whatever, it is completely okay for them to do so from a Constitutional standpoint...."

Nope, not true, at least in the 9th Circuit. That's what incorporation is all about. Cliff Notes version --

In the early 19th century, the Supreme Court ruled that the Bill of Rights did not apply to the states. It applied only to the federal government. However, in the late 19th century, well after the adoption of the 14th Amendment, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the states through the 14th Amendment. This process is known as "incorporation" -- selected rights enumerated in the Bill of Rights have been "incorporated" into the 14th Amendment and thus applied to the states.

Some provisions of the 1st Amendment were not applied to the states until the 1930s and 1940s. Many procedural protections available to criminal defendants in federal court under the Bill of Rights were not available to defendants in state courts until the 1960s. Some enumerated rights, like the 5th Amendment right to indictment by grand jury, and the 7th Amendment right to a jury trial in civil cases, have not been found applicable to the states.

So since Heller, the next order of RKBA business has been to obtain a court decision making the 2nd Amendment applicable to the states. We've just gotten that from the 9th Circuit Court of Appeals. So far it's law only in that Circuit. The case is being discussed on the board here: http://www.gun-politics.org/showthread.php?t=125 .

[2] "...there is no place in the U.S. Constitution that says federal government trumps or supercedes state law. ..."

Nope -- not true at all.

Article VI of the Constitution of the United States provides, inter alia that:

"...This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding...."

Of course things are never all that simple. If they were, we lawyers couldn't make as much money, and I might still have to be working for a living. There have been, for example, cases in which a narrow federal law has been held not to preempt a state law dealing with the same subject matter where, for example, the federal law wasn't broad enough to address the particular issue dealt with by the state law. There are also federal statutes that specifically say that they weren't intended to supersede state laws under some circumstances.

But the overarching principle is that the Constitution itself makes federal law the supreme law of the land.

[3] "...It is unconstitutional for the federal government to place any restrictions of any kind on the private ownership of firearms...."

This isn't even close to true.

It is very well settled in Constitutional law that Constitutionally protected rights may be subject to limited regulation. There is a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

Insofar as the protection of a right by the United States Constitution also applies against a state through the 14th Amendment, a state may regulate that right -- but only if the regulation is permissible in accordance with the foregoing standard.

So I don't know who Douglas V. Gibbs is nor where he gets his information, but he seems to be quite far off the mark.

Now that doesn't mean that HR 45, if enacted in it's current form, might not be found unconstitutional. It looks pretty vulnerable to me.

[Rich-D]

Frank, I much prefer Pappy's opinion! However, we know that you know, the workings of the law. Now, if we could only get Pappy appointed to the U.S. Supreme Court! :)


Rich

[Pappy]

Frank should be the one on the Supreme Court!!!
Rich for Top Cop....
I'll take Secretary of State..first step, withdraw from the UN.
No foreign aid till we take care of our own first.
And don't get me going on illegals!!!!

[kenhwind]

Hey Pappy you forgot something my friend:
"Get the U.S out of the U.N. (agree) and get the U.N. out of the U.S."

[Pappy]

Oh, don't worry, Ken...I'll cover all the bases...... :D

[Rich-D]

Pappy is a real Rabble Rouser! :appld: This place is only two weeks old, and we are taking over the Country. :D

Rich

[Pappy]

BATTLE STATIONS!!!!!! http://smileyonline.free.fr/images/gif/forum/valoranim01.gif

[d90king]

Frank should be the one on the Supreme Court!!!
Rich for Top Cop....
I'll take Secretary of State..first step, withdraw from the UN.
No foreign aid till we take care of our own first.
And don't get me going on illegals!!!!


I also agree whole heartedly with pulling out of the UN. They are a corrupt organization that serve no useful purpose.

The sad part is that our highest court recently had a member promoting "weighing" international law in deciding US laws.... :confused: :scared:

[PhantomAce]

I have often wondered what the legal definition quoted for the word "infringe" or "infringed" is.
Mainly because, depending on which dictionary you use, the definition could be applied in different ways.

For example:
Merriam Webster defines "infringe" as:
transitive verb
1: to encroach upon in a way that violates law or the rights of another <infringe a patent>
2: obsolete : defeat, frustrate
intransitive verb
: encroach —used with on or upon<infringe on our rights>

Now, according to definition "1", if a law is passed allowing regulation of firearms, then it is not "infringement".
Yet, if definition "2" is used, then it seems to me that ANY act meant to "frustrate" would be "infringement", wouldn't it?
So, that being the case, wouldn't making it intentionally more difficult to obtain, keep, and stock supplies for a gun (ammo) be an intentional attempt to "frustrate" gun ownership, and thereby be illegal?

I'm no lawyer, but it seems to me that according to "2", it should be illegal to have ANY gun control laws. That would be registration, concealment, transport, carry, ammo purchase, etc... Wouldn't it?

What am I missing here?

[Frank]

I'm no lawyer, but it seems to me that according to "2", it should be illegal to have ANY gun control laws. ...What am I missing here?You're missing the fact that it is well established law that Constitutionally protected rights may be regulated. So it's not helpful to get too hung up in the dictionary definition of "infringed."

See post #3, above ...It is very well settled in Constitutional law that Constitutionally protected rights may be subject to limited regulation. There is a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).... and http://www.gun-politics.org/showpost.php?p=725&postcount=32.

And yes, I am a lawyer.

[PhantomAce]

Frank:
I knew you were an attorney, and hoped you would chime in. And, yes, I had already read the earlier post.
But, my question still remains, which definition would be the "legal" one, or is the answer "neither"?
Is there a standard definition of the word defined in US law?
Seriously, could this be an example of "what the definition of 'is' is..."?

To "regulate" is one thing, but to intentionally "frustrate" through delay would be a totally different animal, wouldn't it?
For example:
To require a handgun be registered on puchase would be "regulation" in my mind, but to require a waiting period, or limit the number of handguns purchased in a specific period of time would be to delay and "frustrate".
At what point does regulation of a guaranteed right become frustration of that right?

[Frank]

...To "regulate" is one thing, but to intentionally "frustrate" through delay would be a totally different animal, wouldn't it? For example: To require a handgun be registered on puchase would be "regulation" in my mind, but to require a waiting period, or limit the number of handguns purchased in a specific period of time would be to delay and "frustrate". At what point does regulation of a guaranteed right become frustration of that right?...That will all have to be hashed out in court, based on the circumstances of the particular case. But if we get the "strict scrutiny" standard, everything will be evaluated according to that standard.

So we'll be right back to the three prongs of the test I referred to: compelling governmental interest; narrowly tailored; and least restrictive. The government will get to try to make its cased based on that paradigm, and we'll need to try to rebut it. But I don't think we'll see any parsing of the word "infringed."

For example, it's been like that in 1st Amendment cases. That Amendment uses the word "abridged" with regard to the freedom of press and speech. And the cases (which tend to involve such things as requirements for permits for assemblies and parades or injunctions regarding proximity of abortion protesters to abortion clinics) still focus on the elements of the strict scrutiny standard -- not the meaning of "abridged."

So I guess if you need to reconcile the cases to the word, it's not an abridgment for 1st Amendment cases, nor an infringement for 2nd Amendment cases, if it passes the strict scrutiny test. At least that is the practical result.

[d90king]

Frank, wouldn't they use the definition/interpretation of the word based on its definition at the time that the document was written?

[Frank]

...wouldn't they use the definition/interpretation of the word based on its definition at the time that the document was written?In fact in Heller Scalia writes:

"In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used intheir normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation...."

But the decision in Heller doesn't turn or rely on an analysis of the meaning of "infringe." The meanings of other words in the prefatory clause and operative clause to reach the conclusion that the 2nd Amendment describes an individual right. However, the majority in Heller expressly says that the right, like the rights protected under the 1st Amendment, is not unlimited.