Cain: Gun control should be a “state’s decision”

HotAir ^ | June 8, 2011 | Jazz Shaw

[curth]

BLITZER: How about gun control?

CAIN: I support the 2nd amendment.

B: So what’s the answer on gun control?

C: The answer is I support, strongly support, the 2nd amendment. I don’t support onerous legislation that’s going to restrict people’s rights in order to be able to protect themselves as guaranteed by the 2nd amendment.

B: Should states or local government be allowed to control guns, the gun situation, or should…

C: Yes

B: Yes?

C: Yes.

B: So the answer is yes?

C: The answer is yes, that should be a state’s decision.

Video here:

http://hotair.com/greenroom/archives/2011/06/08/cain-gun-control-should-be-a-states-decision/

[mad_as_he$$]

Scratch Cain. Now down to 18 possibles.

[Dead Corpse]

It's a prefatory clause. It gives one example of why the following statement is being made. It isn't sole justification, just additional clarification.

When it was written, the Second was to protect an individual Right to arms without which a militia would be impossible.

[andy58-in-nh]

Here's my take (and Constitutional scholars, feel free to correct me):

States do have the right to regulate some aspects of gun ownership, but.... my reading of the Heller decision is that they cannot issue regulations that as a practical matter would render that right impossible to exercise.

For example, a state may require licensing and training as a condition of handgun ownership, but they cannot require citizens to keep their guns disassembled or under lock and key in their own homes (as in D.C.).

A key issue is the "incorporation" of the Bill of Rights into state law. State regulations that functionally prevent citizens from exercising their right to bear arms in self-defense cannot pass Constitutional muster. State laws in respect of such rights must have a rational relationship to a legitimate state interest (such as public safety).

For example, it is not enough that a state authority maintains that they may mandate gun locks because they make guns "safer", because such laws also make the use of a firearm functionally impossible when it is most needed. But can a state require you to pass a proficiency exam and pay a fee as a condition of empowering a police chief to issue you a license to carry? Yes, it can.

[Ratman83]

see 59

[little jeremiah]

WRONG WRONG WRONG WRONG WRONG!!!!

Okay, he’s crossed off my list!

[Durus]

The operative phrase of the amendment is “the right to keep and bear arms shall not be infringed”. It doesn’t matter what comes before that in terms of what the 2nd amendment means. It could just as easily say “the sun rises in the east and sets in the west, the right of the people to keep and bear arms shall not be infringed”. The founders recognized that an armed populace is a necessity for a state to remain free, not just as protection against a foreign enemy but from against their own government. They had just fought a revolutionary war against their own government and the first thing the British did was try to seize colonists arms. A “well regulated militia” only refers to citizens well armed and well trained in their arms. It does not infer any state control of the militia, nor does it infer that it is the only reason for people to keep and bear arms. Again, the operative phrase, that right which the amendment protects has nothing to do with militias, their method of regulation or anything similar. It’s about the peoples right to keep and bear arms. The preface to the operative phrase is simply one of many possible justifications.

[BenKenobi]

“But can a state require you to pass a proficiency exam and pay a fee as a condition of empowering a police chief to issue you a license to carry? Yes, it can”

Exactly. Well said.

[Dead Corpse]

Requiring licensing and training is an infringement. Period.

Ratification of the BoR was all that was needed for "incorporation". Everything else is bovine scatology dreamed up to screw We the People out of our Rights.

[Dead Corpse]

So we need to get government permission to speak? Worship?

You guys are so off base it is almost sickening.

[Durus]

Constitutionally States only have those powers which are enumerated in their states constitutions. In NH the constitution states "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state". Despite that NH has banned outright a number of arms. No justification, no matter how logical (although generally they are emotional), enumerates any supraconstitutional powers to the state.

On a side note, modern constitutional jurisprudence is a tragedy of horrific proportions. Even those things they get right, they either simply ignore the plain english of the constitution or they twist it to mean something completely different.

[CSM]

Dammit Herman. Why’d you go and do that? The point of the 2nd, or any ammendment, is that it is a restriction on any government that is part of the union. Anything not EXPRESSLY stated in the USSC is then left to the people or the states to govern. The 2nd Amm expressly limits any level of government from passing any law that restricts the rights to bear arms.

[trisham]

Requiring licensing and training is an infringement. Period.

**********************************

Agreed.

[Palter]

Heller was a pathetic decision. Specifically, the court used the defense argument of allowing gun ownership. That of course is wrong.

I don't have to have a reason to use my 2nd amendment, as if the 1st only covered sports talk. If I choose to use a gun as a pillow, I have that right.

Secondly, Heller allows states, cities, etc, to continue to ban guns at schools, public buildings, federal buildings, or any other place deemed "sensitive".

Bye, bye 'rights'.

[Lib-Lickers 2]

oh come on you nitpickers Cain stated TWICE he strongly defends the 2nd amendment.. then thinks the individual states should decided on issues involving guns like conceal/carry, open/carry, assault weapons, clip sizes, ownership age ect..ect.. go look at the different state regs on hand gun and long guns on certain guns.. it doesn’t take a rocket scientist to understand what he was saying in the split second answer time he had.. good Lord let’s not cut the throats of our own good people trying to take the socialist Obama agenda.. this kind of crap like “that’s it for you Caine” is disgusting.. and by the way for you stupid people saying all he’s done in life was being a pizza man and a talk show host need to shoot yourself for dishonesty.. look up the man’s whole employment resume.. it’s better than 99% of the so called conservatives slamming him.. idiots

[andy58-in-nh]

What you describe is called "prior restraint" and is impermissible in all circumstances.

What we are discussing is entirely different. The Heller decision established several things. First is that the right to keep and bear arms is an individual right that precedes the Constitution, which recognizes such rights and does not "grant" them.

Secondly, the 2nd Amendment recognizes that right in individuals regardless of whether or not they are part of a state militia.

Third, the plain language of the Amendment indicates that such a right "shall not be infringed" - meaning by Federal law directly, or by state law other than the permissible police powers of the sovereign states (See Heller decision, p. 54-5 and footnote 26). In particular, this quote from Justice Scalia's opinion states the exception:

"...nothing in our opinion should betaken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms".

The closing paragraph of the opinion also allows that "the Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.." - but the bar has now been set very high, and that is another reason why the decision drives liberal gun-grabbers crazy.

[Ratman83]

The second amendment is clear “the right of the people to keep and bear Arms, shall not be infringed.”

States can not infringe on our rights just like the fads cannot.

“shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

[Huck]

Why is it so hard for people to separate reality from desire? It is simply a FACT that in 2008, by the time the race was half-over, Romney, Huckabee, or McCain was the best we could do.

It has nothing to do with belief. Those were the facts on the ground. All the pundits (talk radio, etc) said that Romney was the last barrier to McCain, so that's who I voted for. Turned out to be for naught, but oh well, it's a short drive to the polling place.

Maybe it's because philosophically I am so far out there, I find compromise easier to accept. I know that sounds counter-intuitive, but it's not. My views will never, ever, ever see the light of day, so every election is a major compromise for me. I therefore see every election as a pragmatic choice. So it doesn't really bother me.

Can we do better? I doubt it. This year, so far, it's Romney vs Pawlenty. Is that impressive? No. But when is the field ever impressive?

[CSM]

Very good post, thank you for taking the time to post it.

[Lib-Lickers 2]

sorry but a state making 50 round clips illegal isn’t infringing on your right to bear arms.. neither is deciding if they want people being allowed to walk down the street with two 45s holstered on each hip

[andy58-in-nh]

...modern constitutional jurisprudence is a tragedy of horrific proportions.

There's no arguing that point - it's true. I am a very strong proponent of the 2nd Amendment (and the owner of numerous firearms). But at the same time, I do recognize a small (very small) window of power under which my state (NH) may regulate the exercise of my rights, for example, as in not being able to carry a firearm into a bank.

The difficulty, as you suggest, is with Constitutional understanding and jurisprudence having been made such a mess during the "Progressive era", how do we trust the courts to draw the line?