AlexanderA
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"Adverse selection" is also at work. Other things being equal, gun owners will avoid locating to jurisdictions known to be antigun. This of course accentuates the regional differences and magnifies the electoral power of each side.
Feel like my constitutional rights are being infringed.
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rpenmanparker
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In the USA you don't necessarily get what you deserve, or what you think the Constitution provides for you to get. You get what the courts say you deserve and say the Constitution provides. In other words you have recourse against state laws that you feel impinge on your rights, but that recourse is litigation. Complaining is not useful, but suing may be. That is how it works here.
Now these things wouldn't happen in a more federalized union, one without any states' rights. Frankly that is the governmental model I would prefer. I detest states' rights. They are a gimmick inserted into the Constitution to take advantage of minorities, gun owners included. But that is another discussion...mostly.
herrwalther
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I have traveled to NJ many times. The vast majority of people I know who live there are perfectly content having such strict gun laws. The "feel good" laws have effectively brain washed them. The few people I do know who own firearms in the state, hate the laws they have to dance around.
rpenmanparker
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Did you know that a lot of people never think about gun ownership? Many of them live in New Jersey.
George P
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Just pass on through to somewhere else and don't sweat it.
Best way to avoid LEO harassment (and to really enjoy your trip) is to stay off the Interstates and similar major highways. My wife and I avoid Interstates at all costs, even if the drive takes a little longer.
This will be a bit of a digression, but I'll interrupt this thread for a basic background lesson in how things work.
I. The Relationship Between State and Federal Law
- Our's is a federal system. States are sovereign, political entities. At the time of the founding of our nation each State or Commonwealth effectively ceded some measure of sovereignty to join with the others to become the United States. How much sovereignty each would cede was a central issue in hashing out the Constitution. Our nation would not have come into existence had the States/Commonwealths not retained an acceptable degree of sovereignty.
- A fundamental attribute of government is what's known as police power:
- The police powers of States are broad and general.
- However, as our federal government has been established under the Constitution the federal government has no general police powers. Instead, its powers are specifically described in the Constitution. So, for example, Congress only has the power to pass laws consistent with the specific powers granted to it under Section 8 of Article I of the Constitution (subject to certain limitations set out in Section 9 of Article I).
- That arrangement is acknowledged by the Tenth Amendment to the United States Constitution:
- Deciding whether a law or other act of the federal government is within its power.
- The first issue will be whether a law or act of the federal government is within a power granted to it by the Constitution. So for example, the scope of the power of Congress under the Commerce Clause to pass laws regulating marijuana has been defined and confirmed under a number of Supreme Court decisions, most recently Gonzales v. Raich, 545 U.S. 1 (2005).
- A second issue will be whether a particular federal law impairs rights protected under the Bill of Rights. However, the courts have ruled that some regulation of rights protected by the Bill of Rights is permissible.
- The Founding Fathers assigned to the federal courts the authority to decide what the Constitution means and how it applies to matters in controversy (Constitution, Article III, Sections 1 and 2):
- The first issue will be whether a law or act of the federal government is within a power granted to it by the Constitution. So for example, the scope of the power of Congress under the Commerce Clause to pass laws regulating marijuana has been defined and confirmed under a number of Supreme Court decisions, most recently Gonzales v. Raich, 545 U.S. 1 (2005).
- Deciding whether a law or other act of a state government is within its power.
- While the police powers of a State are general and broad, each State/Commonwealth has its own constitution. A State's constitution may circumscribe powers of the State government and provide explicit protection of some rights.
- Since in the United States each State or Commonwealth has its own government in the form of a representative democracy, the people in each have the opportunity to influence what laws are adopted and how they are implemented.
- While the Supreme Court ruled in 1833 that the Bill of Rights did not apply to the States (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)), some years following the adoption of the Fourteenth Amendment the doctrine evolved of applying some, but not all, of the rights enumerated in the Bill of Rights to the States on a piecemeal basis, using the Due Process Clause of the Fourteenth Amendment. Thus those enumerated rights found applicable to the State have also become limiting factor on the exercise by States of their police power.
- To the extent that the question of the validity of a state law raises an issue under the United States Constitution, the meaning and application of the Constitution is finally a matter to be decided by the federal courts.
- While the police powers of a State are general and broad, each State/Commonwealth has its own constitution. A State's constitution may circumscribe powers of the State government and provide explicit protection of some rights.
- What about when there's federal law and state law on the same subject?
- The whole area of choice of law (where the laws of multiple jurisdictions could be applicable) is a huge, complex, and pretty much non-intuitive subject.
- In general federal law will supercede state law. See The Constitution of the United States, Article VI, Clause 2:
- If the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.
- On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law. Or a federal law could be found to preempt state law if either expressly or by inference the federal law was intended to promote national uniformity with regard to a particular issue.
- Sometimes federal law will be explicit about how a conflict between federal law and state law is to be resolved. An example which comes immediately to mind involves the confidentiality of medical information regulation under HIPAA. Those regulations expressly provide that they don't supersede state laws to the extent providing greater protection of an individual's confidentiality interests. For another example, with regard to firearms regulation, federal law (the Gun Control Act of 1968) expressly doesn't preempt state laws. See 18 USC 927:
- Sometimes there's no conflict between federal and state laws. If something is a crime under federal law but not state law, the crime would be prosecuted by the federal government, and visa versa. An act that is both a federal and state crime can be prosecuted by either, or both, the state and federal governments.
- The whole area of choice of law (where the laws of multiple jurisdictions could be applicable) is a huge, complex, and pretty much non-intuitive subject.
II. Regulation of Constitutionally Protected Rights.
- In District of Columbia v. Heller, 554 U. S. 570 (2008) the Supreme Court found that the Second Amendment protected an individual right; and it applied the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010). Therefore the citizens of every State are entitled to enjoy the RKBA to the extent required by the Constitution, and any regulation by the federal government or a State of the RKBA must be limited in a manner which will pass constitutional muster. The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.
- Even though the Second Amendment now (since Heller and McDonald) is a limit on federal and State power to regulate the RKBA, it's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.
- For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
- Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.
- If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
- Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
- Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
- Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
- In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):
- Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
- Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
- Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
- In the leading case on prior restraint (Near v. State of Minnesota, Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
- In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
- Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.
- So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.
- We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.
III. Regulation of Rights Protected by the Second Amendment
With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:
- Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
- In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
- There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
- The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
- Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
- Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald in 2010, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
- The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.
Thank you all for the informative replies. In response the “I’m surprised you’re surprised “, I’m from the south which is generally an enclave of 2nd A support. I carried a sidearm in uniform after 9/11 and we had authorization to do so, I grab my holster like I grab my phone and keys, basically I’m having culture shock having to abide by the rules most of you live with everyday. I am surprised mainly because I didn’t know these rights have been eroded so far in some of these states. I’m in Jersey now, CCW locked its gun box in the rear hatch of my Jeep. Mags are in a separate bag. I have a permanently mounted highway holster on my drivers seat so if I got pulled over I suppose just seeing that would be “probable cause”....why do I feel like a criminal here...
Metro vs wilderness: the remote areas I frequent alone are exactly why I choose to carry when it’s legal. Besides wildlife, yes, you’re on your own when running into people. No different than the Bronx at 3am....
I do see American Flags flying from porch steps so I think I’m still in the USA......
Thanks for the recommendation of carrying a printed FOPA. I’ll do that as a precaution. I’ll be in this state for at least two months. May come in handy. If I come across a gun shop or range I’ll atop in and talk to them to see how I can do my monthly training.
Metro vs wilderness: the remote areas I frequent alone are exactly why I choose to carry when it’s legal. Besides wildlife, yes, you’re on your own when running into people. No different than the Bronx at 3am....
I do see American Flags flying from porch steps so I think I’m still in the USA......
Thanks for the recommendation of carrying a printed FOPA. I’ll do that as a precaution. I’ll be in this state for at least two months. May come in handy. If I come across a gun shop or range I’ll atop in and talk to them to see how I can do my monthly training.
Phaedrus/69
Member
I'm not sure rights were "eroded". Until the mid 1950's CCW was banned in nearly every state. The "right" to carry a concealed handgun on your person as you go about your day seems to be a fairly modern invention.
alsaqr
Member
FOPA does not apply. Being arrested for noncompliance with NJ law would have dire consequences.
The saga of the Philly lady who carried a handgun into New Jersey:
https://www.philly.com/philly/news/...rdons_Phila__mom_snagged_by_N_J__gun_law.html
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Wow, so that’s two documented cases, recently, of people being arrested flat out. CC is no longer in charge there so I guess you’d be screwed. Well regardless, I’m currently complying with NJ law I think. While the magazines are outlawed in NJ, I’m not a resident, FL plates and they’re in a duffle in the rear. SS198 ammo stored likewise. Weapon cleared and locked in a steel box separately. Sorry if this offends anyone but this is retarded.
As far as “two months”, yes, but I’m only in a region for a few days at a time. Basically not long enough for police officers to get used to seeing my Jeep. I’ll always be “in transit”. It’s strange to me to fear the police, perhaps I should contact someone to ensure I’m in compliance. Then again attracting attention is rarely a good idea.
As far as “two months”, yes, but I’m only in a region for a few days at a time. Basically not long enough for police officers to get used to seeing my Jeep. I’ll always be “in transit”. It’s strange to me to fear the police, perhaps I should contact someone to ensure I’m in compliance. Then again attracting attention is rarely a good idea.
mdauben
Member
They are also a popular "cause" among the general population and receive a lot of support from non-LGBT voters. That's not something gun owners can typically count on, since non-owners are generally indifferent if not actively hostile to gun rights.
<*(((><
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As much as it sucks, especially for those who fought for this country to abide by such laws. I would strongly suggest you buy some limited round magazines (I don't know the magazine limits for most northeastern states, but I would find out) for your firearm and ship your standard capacity mags back to a family or friend in a free state. I get that we need to stand up against these laws but we need everyone's rights secure to fight these laws in the courts. As much as it serves a purpose to have someone arrested for laws such as this for the laws to be potentially thrown up the Supreme Court, I would hate that, that person be you.
G'dale Mike
Member
Thank you for your service. I feel like you and refuse to step foot in a state that restricts my second amendment rights. Also, as posted earlier, there are too many stories of certain state police in these 2a restrictive states who prey on motorists with out of state tags. I would mot expose myself to potential issues that could be life changing by going to say, New Jersey or New York, for starters. Come and visit us in Alabama, you’ll love our state parks and national forests, we are very firearm friendly, AND we have the CMP range in talladega, as modern a range as you will find. Good luck
George P
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You are not seeming to grasp this. If you stay in NJ, you are subject to their rules, and if your guns, ammo, magazines are not allowed to be possessed in NJ, and you are caught, you will face serious issues, including felony jail time possibly. You are only protected traveling THROUGH on your way to another state where what you have is legal to possess.
APSolo, welcome to the THR brotherhood. You are correct in that your Constitutional Rights are being violated, not just in New Jersey, but in every state in the union. The 2nd Amendment gives everyone the right to carry a weapon for personal protection for them and their family. It doesn't give states the right to make one go through a background check and then place a hefty tax (for lack of a better word) on one in order for that person to have a CCP. As far as I'm concerned every state (except those that have passed laws for permit less carry) is in disobedience to the 2nd Amendment.
rpenmanparker
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Maybe so, but it is not your opinion that matters. It is the opinion of the Supreme Court. That is also in the Constitution. And their opinion differs from yours. At least right now. But you ignore that part of the Constitution. Why do so many people think they know better? Why do so many people think their opinions matter when they don’t?
Lots and lots of constitutionally-protected rights require some level of procedural folderol to exercise. Voting often requires registration. Getting married requires a marriage license. Travel outside of, and return to, the nation requires a passport. Owning real property requires filing deeds and such. Lots of peaceable assemblies for speech purposes are subject to permitting requirements.
It is one thing to say that constitution mandates that it be possible and reasonably feasible for someone to exercise the right to carry firearms. That's past where the current law is, but it's not outside the realm of possibility. But the insistence that "constitutional carry" is mandated by the U.S. constitution... well, the odds of the courts ever ruling that way are slim to none. We're a long, long way from being able to credibly make that case.
It is one thing to say that constitution mandates that it be possible and reasonably feasible for someone to exercise the right to carry firearms. That's past where the current law is, but it's not outside the realm of possibility. But the insistence that "constitutional carry" is mandated by the U.S. constitution... well, the odds of the courts ever ruling that way are slim to none. We're a long, long way from being able to credibly make that case.
Whether we are winning is up for debate. Already solidly red states may be passing constitutional carry but new shall issues states aren't happening. Constitutional carry is frozen in Texas due to the raving idiocy of advocates making fools of themselves. Most threatening is the creep of weapons bans and mag bans after each rampage. Our president is a contributor to this trend and cannot be trusted on the gun issues. Heller was no panacea as its language has been twisted (debatedly) to justify the bans in the lower courts but some hints of progress in CA but that might turn into another big Circuit loss and Scotus is an unknown despite the lover fest for Kavanaugh. Getting a handgun should be easy with Heller but that is not the case even for home usage in the strictest states with processes that make take years.
So, here's the deal - the Constitution and its interpretation depends on the language AND the social context of the time. Some will say its from God or a Natural right but that's a practical so-what, if legislators and courts don't believe in your theology or natural view. You think it is obvious. It is not.
It is exactly right that a minority position must gain sympathy and logic for their cause. Is the gun rights world doing that? That is an empirical question. Circular discussion among the choir don't gain much.
So, here's the deal - the Constitution and its interpretation depends on the language AND the social context of the time. Some will say its from God or a Natural right but that's a practical so-what, if legislators and courts don't believe in your theology or natural view. You think it is obvious. It is not.
It is exactly right that a minority position must gain sympathy and logic for their cause. Is the gun rights world doing that? That is an empirical question. Circular discussion among the choir don't gain much.
AlexanderA
Member
The 2nd Amendment uses the word "to bear" arms. That was a term of art in 1791, and meant something more than simply "to carry." One would "bear" arms in a military or militia context, with the accompanying drill, discipline, etc. That implies some degree of regulation as far as carrying, etc. But keep in mind also that in 1791, membership in the militia was universal, at least for free white males of military age. Precisely because of that universality, the RKBA was a universal, and therefore an individual, right.
This was the framework within which the Heller case should have been decided. (That is, the Court should have built upon the 1939 Miller case.) The fact that the original intent -- and the Miller case -- was disregarded by the supposedly "originalist" Justice Scalia will, I believe, be seen in due course as a serious setback for gun rights. The lodestar should have been that each individual citizen has, within reason, the right to own the same weapons as the standing army. Machine guns for everybody? Yes, absolutely.
George P
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Actually, the 2A is about bearing arms to protect the State (as in nation), not you -
Man you guys have me paranoid now. More than I was. I’m doing like 56 in 55 zones. I came up with the a simple solution, the most likely area I’d run into the police is on the road. What I do is get a hotel, then hike the local areas. So I’ll just secure everything in it’s locked steel box in a locked suitcase in my room. That way when I’m driving around to parks, the most likely area to have an issue, I’ll be fine. The Ranger that got in trouble left his loaded gun in his hotel room when he checked out......it happens...I’ll ensure i don’t make that mistake and it’ll stay in my suitcase, unloaded. Perfect? Of course not but nothing ever is. I think it’s the best solution. Whenever it is actually In the car, again, locked and separated, I’ll actually “be” in transit and if punch comes to shove they can escort me right out of the state to ensure compliance lol.
NOT LEGAL ADVICE: APSolo, I think you should just hustle on out of the Garden State until you've gotten studied-up on the law there. Sadly, an escort to the border is not typically the remedy the Jerseyans seek when a naive southerner is caught in violation of their gun laws.
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