Posted on 06/24/2024 5:22:51 AM PDT by marktwain
On August 8, 2023, Associate Justice John F. Coffee, in the Lowell District Court of Massachusetts, wrote an opinion that found the charge of carrying a firearm without a license is unconstitutional on its face when applied to non-residents. The opinion was based on the Supreme Court decision of Bruen.
The case involves a New Hampshire resident, Dean Donnell, who was charged with carrying a firearm without a license in Massachusetts. Donnell could legally carry a firearm in his home state. The court held the right to carry outside the home was at issue, and the conduct in this case is clearly covered by the Second Amendment. Therefore, the burden falls to the Commonwealth to show historical examples of law which evince a comparable tradition of regulation.
As Associate Justice John F. Coffee concluded, the Commonwealth of Massachusetts did not show any historical precedent that limits the rights protected by the Second Amendment to the boundaries of a person’s state of residence. The historical evidence is precisely the opposite. The strictest law of the colonial era specifically exempted people who were traveling from such weapons regulations. From amici curiae brief at the Supreme Court:
In 1686, East New Jersey enacted a law providing that no person “shall presume privately to wear any pocket pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,” and that “no planter shall ride or go armed with sword, pistol or dagger” except certain officials and “strangers, travelling upon their lawful occasions through this Province, behaving themselves peaceably.”3
The opinion of the Lowell District Court is being appealed by the Commonwealth of Massachusetts. The Justices on the appellate court have solicited amicus briefs. From ma-appellate courts.org:
(Excerpt) Read more at ammoland.com ...
The Commonwealth of Massachusetts (”The Gay State”) is so morally,politically and philosophically corrupt that I’m shocked to see *any* state judge ruling correctly on a 2nd Amendment case. After all this *is* the state that gave us the SCOTUS case “Caetano v Massachusetts”. In that case the state’s highest court upheld Caetano’s conviction on a gun charge but somehow it got up to SCOTUS,which ruled 9-0 in Caetano’s favor calling the state supreme court’s argument upholding the conviction as “frivolous”.
While I agree with you about this functionally, legally it is another matter. This is where the 14th Amendment Selective Incorporation doctrine of the SCOTUS runs aground. It will be a very interesting test between State Sovereignty under the 10th Amendment v. the 2nd Amendment right to bear arms. It will depend upon whether the Justices read the 10th correctly:
Seems like there might be some good analogical/parallel arguments to be made here from Obergefell.
Excellent analysis. Thanks
You are quite welcome. The same principles show why the very idea of State permits to carry are Constitutionally absurd once the 14th Amendment is applied, as the Federal government would otherwise have no power to enforce the right of the people to carry against the States. Unfortunately, the power to enforce anything carries with it the power to violate. For a discussion of these principles, see this article I published on FR in 2005, well before Bruen.
“The power to control who is armed is NOT “delegated to the United States;” as the right to keep and bear arms is instead acknowledged by the Constitution as a pre-existing right in the 2nd Amendment. We shall see if they get it right.”
Very nicely put.
Carry on.
Superb!
Under McDonald, the states (and their subdivisions) are as bound by the 2nd Amendment as the federal government is under Heller (and thus Bruen or any other 2nd Amendment case). The 14th has incorporated the 2nd against the states. Thus, this is a pure 2nd Amendment case -the 10th has nothing to do with it, just like in Caetano (which the federal courts would have noticed and ruled upon if that were the case).
I don't think the holding is as absolute. The States bear the responsibility for local law enforcement. As we have just seen, it is States that define restraining orders that were upheld by the SCOTUS, I suspect as a matter of due process. One may apply the same standard to those found by a court to be criminally insane or mentally incompetent.
My preference would be that such a process might be applied as elemtal to inductive training at the age of maturity, such that the unorganized militia might be "well regulated." Nobody could rationally conclude that its current state meets the standard expressed in the 2A as a necessity. See A Well Regulated Militia: Bringing Our Country Together... with the Second Amendment?
While I definitely agree with you that states and their subdivisions are responsible for the enforcement of local laws, the real issue is whether the local law in question can withstand constitutional scrutiny. In this particular case, I think you would agree with me that the law in does not comport with the Second Amendment, as applied to the states under the McDonnell standard. If you have a law that violates the Constitution, anything done under the authority of that law (or any related regulations) is (or certainly should be) void ab initio. Where a law is constitutional, I would certainly agree with you that local laws and regulations dealing with enforcement are a state or local matter, though very much subject to due process requirements. I don’t even think we get to that point, however, as the law in question is being challenged on purely Second Amendment grounds. I don’t think that the Supreme Court (if it gets to that level, and I suspect that it will in a couple of years) will even address any due process issues, except perhaps as dicta.
By the way, I fully agree with you that there should be militia training, and every single state should have laws and regulations to effectuate the goal of having a more prepared population. We face a situation that is almost the exact opposite of Israel last October 7: they were poorly armed, but well trained (on the whole). We are well armed, but poorly trained (on the whole, and certainly in small unit tactics). We should rectify that situation, and thereby Be able to deter any such attack upon our country with a far greater probability.
Pardon the errors, but Siri apparently doesn’t speak English very well.
The question can also be expressed in the reverse. Our federal system allows the differentiation that is the laboratory for liberty. It is the 14th that not only unified Federal "protections" under the BOR, but turned DC into one-stop-shopping for political corruption far from the supposedly watchful eyes of the people. For example, as things are now due to an abominal Warren Court, the people CANNOT institute laws respectful of their free exercise of religion, such as prohibitions against blasphemy or standards of sexual conduct. In that regard I think the 14th has gone WAY beyond its (at least partially corrupt) originalist intent.
BTW, glad you liked the article. It scares most people, as it should. I’d hate to see militia training in Democrat hands.
There are some good reasons for the 14th. How would you feel, for example, if you lived in Minnesota and someday it elected a Moslem governor and Moslem-majority legislature, and they enacted a law making it a felony to blaspheme Mohammed or the Koran?
It’s one thing to have a laboratory, but if some state or locality were to whip up the legislative equivalent of Covid-19, that should be impermissible. Certain basic rights - those in the BOR, apply to ALL Americans, and simply cannot be violated. In fact, that is exactly what is at issue here, and what was at issue in McDonald. We have states that would - any basically have - enacted laws that banned entire classes of arms (not just firearms, but things like brass knuckles and switchblade knives) and effectively banned the right to carry outside of one’s home. Are you in favor of such “laboratories” that are the wet dream of the statists and Leftists (but I repeat myself)?
Interesting 1686 law that was found. However, one of the issues not discussed in the Ammo Land summary was one state’s ability to interfere with interstate commerce.
If a businessman transporting valuable products or cash that could be stolen is crossing a state border in the course of his/her business the Massachusetts law might be an impediment to interstate commerce, which is reserved for the federal government to regulate.
Though I believe that the principal issue here is individual, specifically a second amendment right, I think that you are correct that there is a possible impact on interstate commerce. Perhaps not in this particular case, but in a general sense. I don’t think there would have been any harm whatsoever if the accused had raised this issue at the lowest level. By failing to do so, I believe that he is now precluded from raising it at a higher level. That was, in my opinion, a very big mistake. Raise the issue, and if it has no merit then a court will throw it out, and you can litigate at the next level whether that was proper or not. You raise every single issue that you possibly can, on the theory that if you don’t win in one place, you may in another
Does your state driver’s license end at your state’s border? Or are you able to continue driving in a different state?
Better to confine it than to allow infection of the entire country! That's part of the point in Federalism subject to Natural Law competition among relatively independent jurisdictions with well-defined limits to common authority.
To your tacit point, Islam is a special case because it is a completely alien form of government antithetical to Constitutionally limited powers, having no respect for the free exercise of any other religion. Hence, its adherents are not parties to the social contract that is the Constitution and therefore, to my mind, not deserving of its protections. But that is a separate discussion.
Remember too that an antecedent to the 14th Amendment was the the 14th Article of the original BOR which was rejected by the States. It took the Civil War followed by a 14th Amendment enacted via secret construction, hasty passage, and coerced ratification to force that centralization of powers upon the several States. It's not a happy legacy.
Certain basic rights - those in the BOR, apply to ALL Americans, and simply cannot be violated.
This is simply inaccurate historically and legally as the BOR has NOT been fully incorporated. Consider regulatory takings as an example, or how long it took for the 2A to come under Federal protections. Instead, that selective incorporation process has proceeded stepwise. That is the essential problem of the 14th Amendment as opposed to the 10th. What Constitutes a protection of rights and liberty to one person is a violation to another. That's what happens with competing claims for rights are enforced by a central government.
Are you in favor of such “laboratories” that are the wet dream of the statists and Leftists (but I repeat myself)?
Inasmuch as I consider the consequences of leftist authority an abomination, I'm obviously not a fan. But in a way, I do want things that way, in that it would give Natural Law a chance to exert its 'enforcement' instead of all this legalism and bureaucracy with its many structural pitfalls. With States having full latitude, those jurisdictions enacting such leftist abominations would fall into chaos. People would leave. The rest of the country would enact stronger protections for rights. Eventually those awful States would collapse. That's why I am fine with the (to my mind) evil manner in which California has instituted sexual depravity. I want the rest of the country to understand why that sort of license is such a bad thing instead of accepting the slow poison of half measures coerced by the spectre of witholding Federal funding.
I gave you the example of Kelo, so consider Dobbs as an example of what I mean. Some States will institute outrageous protections for abortion and abominal variations on artificial reproduction as a result. While others will try to enforce vaguely defined protections for life that will then enforce measures that end up being cruel and invasive. The States will experiment with measures that reflect rapidly changing technologies and we will get to watch the consequences develop over sufficient time to see multigenerational consequences, which is why allowing that degree of distinction is important. Enforced uniformity has its own deleterious consequences.
The 14th has been a conduit for an enormous amount of mischief, particularly as regards environmental and regulatory law that goes unnoticed by the public because it IS unform. As a result with (unconstitutional) Federal lands we have enforced uniformity in forest non-management which has precluded large scale examples of superior management, not to mention having served corporate interests to no end exploiting their own lands to greater profit while precluding competition, thus raiding the pocketbooks of every American. There would be no way for activists to claim the outrageous fires we have seen as consequences of "climate change," were whole States able to make their own management decisions.
In other words, "enforced uniformity" can be uniformly bad. So while allowing Natural Law to exerts its punishments does take time and certainly harms its victims, perhaps Federalism allows its "instructions" to take effect without need for expensive and corrupt bureaucracy and courts to be the only functioning means. Look at the cost of that overhead in California.
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