Nationwide concealed carry for LEOS

Concealled carry for me, but not for thee. This is headed in the right direction, but does not go far enough by a LONG SHOT. The feds do have a reason to clarify the interpretation of the 2nd Amendment, however, the case law as I understand it does not apply the 2nd to the states. IANAL but it appears to me on its face that a plain reading of the 10th or 14th Amendments would support that conclusion. David, you are the resident legal beagle, what say you?

Yup, caselaw as it exists is that the 2nd amendment is not applied to the states via the 14th amendment. To be precise, there are couple of Supreme Court cases to that effect from the 19th century (when NO rights were held to be applicable to the States), and lower courts now point out that the precedent may be old, but it's for the Supremes to proclaim whether it's outdated.

I've reached the conclusion that the only 14th Amendment reading that has any intellectual honesty to it is TOTAL incorporation (or a modified total incorporation) under the Privileges and Immunities Clause. There's too much evidence of original intent and original understanding for any other conclusion. Right off the top, Dred Scott says US bill of rights liberties are "privileges and immunities" of citizens (and include freedom of assembling and keeping and carrying arms), the 14th Amendment was meant to flatten Dred Scott, and it says all states must respect the "privileges and immunities" of US citizenship. Pretty clearly, I'd say, even before we get to all the Congressional and popular media references to the amendment being meant to protect bill of rights liberties and others (i.e., 10th Amendment and also right guaranteed in original constitution ... no ex post facto laws, etc.).

The 19th century Supreme Ct case are to me result-oriented in the worst possible way. Underlying them is "OMIGOD! That interpetation would radically upset how we've always looked at the rights of people, and we just can't believe that Congress and the ratifiers intended that!" Then play a word game to achieve the desired result. (Rights of US citizens must be something other than rights of State citizens. Hmm.. why? So therefore anything that we can argue is inherent in any free govt, including the State govts, cannot be a P&I of national citizenship. The more fundamental a right is, the less it is a P&I of national citizenship. P&Is can only include, oh, the right to petition *Congress* (Since before the federal constitution there was no Congress and thus no State right to petition it), travel interstate without passports, etc.

“[I] have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states. "- Patrick Henry

It appears that Patrick Henry has given the answer by his rhetorical question. When the Federal Government was formed through the present constitution it erased the previous status that people were citizens of their state first, then citizens of the new national government. The Constitution’s supremacy clause makes it clear that the federal Constitution is supreme and the people of this new federal government are first citizens of the United States. States therefore cannot deprive the citizens of the United States by restricting the Federal Bill of Rights to which they owe their highest allegiance.

Patrick Henry also sees the problem with the Federal versus State powers over the militia theory with his argument of the doctrine of implied powers. “The clause which says that Congress shall "provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers," seemed to put the states in the power of Congress. I wished to be informed, if Congress neglected to discipline them, whether the states were not precluded from doing it. Not being favored with a particular answer, I am confirmed in my opinion, that the states have not the power of disciplining them, without recurring to the doctrine of constructive implied powers. If, by implication, the states may discipline them, by implication, also, Congress may officer them; because, in a partition of power, each has a right to come in for part; and because implication is to operate in favor of Congress on all occasions, where their object is the extension of power, as well as in favor of the states. We have not one fourth of the arms that would be sufficient to defend ourselves. The power of arming the militia, and the means of purchasing arms, are taken from the states by the paramount powers of Congress. If Congress will not arm them, they will not be armed at all.”

When the early States interpreted the meaning of their own bill of rights which where modeled after the U.S. Bill of Rights, they came to different conclusions on what the “right of the people to keep and bear arms shall not be infringed” meant and allowed. See Bliss v. Commonwealth, Ky, (1822), and Nunn v. State, Ga. (1846). These varying opinions would nullify the Federal Bill of Rights because the citizens of the United States are being deprived of rights by certain state courts or state legislatures.

"States therefore cannot deprive the citizens of the United States by restricting the Federal Bill of Rights to which they owe their highest allegiance." Mr. Digiacinto - I agree wholeheartedly with your logic, however, as Mr. Hardy has pointed out, the case law is not with you. I wish it was. Patrick Henry may have "got it" but plenty of courts wanted it their own way. As far as I am concerned the Supremacy Clause and the 10th Amendment ought to do the trick. Now that we have the 14th too that really ought set the courts straight. But no, legislatures pass laws which infringe on the privileges and immunities of US citizens and courts routinely enforce them. The question in my mind, is how do we proceed from here? I wish I had compelling answers. Your point - that at least some of the founding generation understood these issues in a certain way is a start. Now, how do we legislate or litigate and win the day?

“To be successful in war, one must know history.” - General George S. Patton, Jr.

We win this war with constant attacks against the enemy’s weak points. We have the 5th Circuit’s Emerson case. We build upon our victory by picking easy cases to win in the courts. The cases exist, people just need to be willing to put up the money for the court costs. Here in Virginia despite being the oldest government, there is not one single case law dealing with our Constitution’s phraseology: “the right of the people to keep and bear arms shall not be infringed.” Why? Because 99.9% of the people do not know that those words did not exist in Virginia’s Bill of Rights until 1971. Virginia is ripe for a court interpretation of the State’s Bill of Rights and with the historical documents now known to exist, it would help the rest of the country with the history because those words were specifically added to mirror the U.S. Constitution.

David, it appears that you do not have the final draft of the law. Here's what's in the final:

SEC. 3. EXEMPTION OF QUALIFIED RETIRED LAW ENFORCEMENT OFFICERS FROM STATE LAWS PROHIBITING THE CARRYING OF CONCEALED FIREARMS.

(a) In General- Chapter 44 of title 18, United States Code, is further amended by inserting after section 926B the following:

`Sec. 926C. Carrying of concealed firearms by qualified retired law enforcement officers

This section was inserted specifically to exempt retired LEO's. There are all kinds of conditions attached, such as length of service before retirement, etc., but it's in there.

A simple googling of HR 218 will give you the complete version.

Relating to the "firearm that has been ... in interstate commerce" stipulation of that law, how hard would it be to argue that the very second that a firearm is transferred to either a distributor or a licensed dealer, it has entered interstate commerce, regardless of whether it crossed a border?

RE: the interstate commerce requirement, I think it it is kind of odd that the mere fact that a gun has crossed state lines allows the gun to be carried by a LEO. The important part of the law is the status of the "carrier," not so much the firearm. I know the author of the law had to stretch interstate commerce into to empower it, but the logic seems kind of attenuated. But then again I have a rather restricted view of interstate commerce.
C.A.G.

Bravo the restricted view of interstate commerce. But the authors of this law at least tipped their hat to Federalism, as I understand it and would like it to be.

My post on the topic here.