Ep 52: Shall Not Be Infringed
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- Опубликовано: 10 дек 2023
- Magnet, owner of Lion Arms, joins Tyler and Brent to discuss the 2nd Amendment, profiling by the banks, the ATF, and much more!!
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This issue is largely misunderstood because "shall not be infringed" originally applied to Congress. A common sense reading of the Constitution means that the federal government has zero authority in limiting a person's right to carry a gun outside of federal land and buildings. This language does not apply to states, though. There has been gun legislation from state legislatures from the very beginning. There is a longstanding tradition of states banning concealed carry throughout the 19th century to prevent would-be felons from concealing firearms before committing crimes. However, no state had legislation against open carry until the 20th century, especially after the rise of mobsters during Prohibition. The wrinkle is now that under the Incorporation Doctrine--thanks to Scalia's decision in the Heller decision and Alito's decision in the McDonald decision---the 2nd Amendment has been incorporated into the due process clause of the 14th Amendment, which applies to each state. The question is how far that right extends in preventing state legislators from passing gun legislation. After the latest SCOTUS ruling, that right extends to allowing a "law abiding" citizen to have a permit to carry a weapon in public for self-defense.
Personally, I think the Incorporation Doctrine arises from a gross misunderstanding that has caused Constitutional confusion. However, if SCOTUS is going to operate under the Incorporation Doctrine, supporters of the 2nd Amendment should operate under that paradigm to see that the 2nd Amendment extends to the fullest extent possible.
Dealing with police officers and gun confiscation, I think the fear of police departments stems from their behavior post-Wu Flu and post-BLM era. Police officers arrested mothers in parks for not "isolating" during the aggressive flu season three years ago. If police officers will do that because their superiors told them to, it is not a stretch to believe that they will confiscate guns in connection to politicized red flag laws. In large cities especially, police departments are definitely becoming politicized. We already see this behavior in police departments in Europe and the UK, and the same mind virus has infected federal and state legislators in the US. Prominent politicians are on record stating that roughly half the country may need re-education because they voted for Donald Trump. In an era where a political party is weaponizing government institutions to silence political dissidents, abuse of red flag laws is a credible fear.
I appreciate your response and you are clearly well versed in this area …. More than me… but I do have one legitimate question for you, you said the states can make their own laws restricting carrying guns as many city and states have… isn’t that the point of the bill of rights ? If states can supersede our rights then what would happen if a state decided to restrict the first amendment? They would never dream of it so why is it different for the second amendment? Thanks for watching, appreciate the support!
@@brenttucker6246 As originally understood, the Bill of Rights only applied to Congress. This was also the case with the 1st Amendment. At the time of ratification, there were three states that had official state religions--which would be directly opposed to the anti-establishment clause of the 1st Amendment if it also applied to the individual states. This is probably the best example showing that the Bill of Rights did not apply to the states. This was the paradigm for nearly 200 years. In fact, there were blasphemy laws in many states well into the 1950s because at that time the 1st Amendment had not been incorporated into the due process clause of the 14th Amendment. This is also why prior to Engel v. Vitale in 1962, almost every public school in America began the school day with a prayer.
State legislation does not supersede our rights because the state Constitutions and state legislatures are also beholden to the people they govern. This is why state Constitution's address the right to keep and bear arms. For example, Article 1, § 23 of the Texas Constitution states: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.” Some states have been more heavy handed than others. New York, historically, has been bad. But, if a New York resident does not like the gun laws there they can pack their bags and move across the border to New Hampshire, which is a Constitutional carry state. Essentially, the Bill of Rights protected the states rights to legislate health, safety, and morals--not the individuals right. The individual's right gained more prominence with the rise of substantive due process under the Incorporation Doctrine.
Personally, I think Incorporation was a terrible precedent. However, so long as it is the paradigm, supporters of the 2nd Amendment should press for as much protection against the states as possible. This is what is happening right now in the courts. State laws are being struck down by SCOTUS because the 2nd Amendment--in some degree--now applies to the states. This is thanks to the way Justice Scalia drafted Dist. of Columbia v. Heller. It will likely be his greatest contribution to empowering the people of our nation, especially when we consider that the opponents of gun rights could not care less what the Constitution says. In the end, for better or worse, power will win the day.
Good insight, Thanks for the reply!!!
Thank you for engaging. I genuinely enjoy the content.
@@areopagitican7403 ditto
As far as I am aware, Lawful Permanent Resident Aliens (not to be confused with Citizens) can buy/own a gun in the state they permanently reside in.
My son is a cop and they are the biggest gun guys out there
There's a lot of both, and obviously it depends on location within the US. I'm sure you're going to find more anti gun cops in NY than in Texas. I'm in CT which before 2014 was very free, then they made us one of the worst overnight. Dems keep winning here even though all you see are Trump signs and nobody likes our governor. Most cops here in a very restricted state are pro gun, but there are a number (mostly younger generation) who are very anti gun. A girl I grew up with somehow got hired as a cop even though she was far from cut out for it, and I saw a post she made on Facebook saying something about if gun confiscation was ordered you would have no choice but to obey her and she's going to take your guns. Some departments that went along with vax mandates, even if they have since reversed them, ended up losing their good, freedom loving cops who know what it means to be an American, and keeping nothing but "yes men" who follow orders and don't recognize rights and freedoms if a governor or president says those rights are taken away, even though they swore an oath to the constitution not any particular politician, party, or agenda.
Gents, another good podcast. A couple of thoughts… Here is a problem with the “do away with ATF” scenario and spreading out the work to other agencies….if anyone thinks that giving the ATF statutes of enforcement to the FBI and/or HSI means things are gonna go more smooth you have another nightmare coming… it will be ten times worse having those agencies focus on gun crimes. Unfortunately, most people making that assertion have no idea about the types of cases ATF street agents ACTUALLY bring to US Attorneys…there has been plenty of testimony in Congress about this and it seems no one wants to pay attention…are there issues with the regulatory side of ATF?? Sure, bureaucracies are frustrating and the regulatory side of ATF (as opposed to the criminal enforcement side) isn’t comprised of special agents (i.e. street agents) … but if you go into any major high-crime police department or bureau across the country (LAPD, Chicago, Houston etc) you will find ATF agents getting it done side by side with local officers on gang and narcotics task forces across the country.
Congress keeps ATF small, the NRA keeps ATF small, fine, no issues. Yet most people throwing these comments out about no need for ATF have no clue the number of federal/state (state usually lead by ATF task force officers) gang warrants, felon in possession warrants, trafficking warrants etc. which ATF executes daily. There is a reason more ATF agents have been shot on the job per capita compared to other 3-letter agencies because they are out trying their best to target felons who are actually violent.
And no, the ATF isn't "coming for our guns." They are too small of an agency and there is no feasible way to even enforce something like that. But hey, if people want the FBI with its vastly larger budget and manpower to take the lead on that and do away with the ATF, then write your Congressperson and have at it I guess.
Yeah right. . . .you must be a cop, because all these task forces are doing such a great job.
I mean , the street gangs are almost entirely eliminated. . . . In El Salvador.
@@vepr1332 so much to unpack in just how stupid your comment is. Try again dude …
Really appreciate your well laid out comment, that definitely is a valid point.
We dont have the 4th amendment and habeas corpus anymore do you guys know that right?
Good Suff!
I’m an FFL and can use WIX as well as a big bank.
I know that a vast majority of police are good dudes trying to do the best job but to say that their wouldn’t be local and especially federal law enforcement that will happily go door to door to enforce gun laws is shortsighted. Duncan Lamp was killed sleeping in his bed by the Maryland swat team serving a no knock red flag warrant and when red flag are served they usually are no knock why would you want to warn an armed suspect. On the other side it was really cool seeing local sheriff’s and police departments refusing to enforce arbitrary COVID policy so there is definitely 2 sides to that coin and what it’s going to take is good cops standing up for what they believe in. I don’t know who died and decided the ATF was a lawmaker but that’s not supposed to be how this country works because if the head of the ATF gets his was we are all screwed.
That fucking beard man 😂😂😂 Awesome.
A greencard is the word he's looking for
No it’s asylum
Yes, the ATF does their job and it’s normally fucking with legal gun owners