Nel's New Day

February 26, 2013

10th Circuit Court Clarifies the Second Amendment

For decades, conservatives in legislatures and on courts have made gun regulations so loose that those who claim Second Amendment rights are going into my state capitol waving guns. Last Friday may have been the turning point for the freedom of people to kill and main others, sometimes without any retribution.

“We conclude that the carrying of concealed firearms is not protected by the Second Amendment . . .” wrote Justice Carlos Lucero on behalf of a three-judge panel of the 10th U.S. Circuit Court of Appeals. In its ruling, the three-judge panel cited a Supreme Court ruling that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”

In Peterson v. Martinez, a Washington State resident challenged Colorado’s concealed carry law, which restricts Concealed Handgun Licenses (CHL) to residents of Colorado. The state’s law allows people to have firearms in their homes, places of business, and vehicles, but to carry a concealed firearm in public places, residents of the state must apply with their local sheriff for a permit; the law allows “each sheriff to implement and administer.”

The court began with Peterson’s narrow point and then expanded into far-reaching national precedent against carrying a loaded handgun outside the home. “In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections,” the court stated. The federal court also rejected arguments that Colorado’s CHL law infringed on the Equal Protection Clause and the Privileges and Immunities Clause.

To avert an appeal to the U.S. Supreme Court, the Tenth Circuit recounted several court rulings and state laws dating back to 1813 and, in addition, based its ruling on prior U.S. Supreme Court cases.

Peterson also used the argument that the ban on concealed carry permits for non-residents infringed on his right to travel, using an example from New York in which state residents paid less to cross a bridge than non-residents. The 10th Circuit explained that the right to travel was economic in nature. “The concealed carrying of a firearm does not impact his ability to pursue common calling or other employment,” the court said, adding that it didn’t limit his joining the National Guard or the military either.

“We conclude that carrying a concealed weapon is not a privilege or immunity protected under Article IV [of the constitution],” the court ruled. “Given that the concealed carrying of firearms has not been recognized as a right … we cannot declare this activity sufficiently basic to the livelihood of the Nation.”

Although gun lovers are fond of quoting the Second Amendment, they may not realize that the version ratified by the states is not the same as the one passed by Congress. Although the differences are slight, they can also change the meaning.

Congress: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

States: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Congressional capitalization of Militia and the comma after “State” could radically change the meaning of the amendment.

In addition, the term “regulated” means “to bring under the control of law or constituted authority.” Regulation means “an authoritarian rule dealing with details or procedure (safety regulations); a rule or order issued by an executive authority or regulatory agency of a government having the force of law.” When referring to “not be infringed,” infringe means “to encroach upon in a way that violates law or the rights of another.” Thus the Constitution allows the government to regulate gun ownership and use.

Although the GOP doesn’t provide government tracking of gun deaths in the United States, informal reports show almost 2300 deaths by guns since the Newtown (CT) massacre on December 14, 2012.

Thanks for reading the above blog. Posts will resume in a week.


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