Online chat on Heller today

The question thinking people are now asking is one I actually pondered right after Emerson: what about local and state officials who try to violate someone's RKBA and section 1983?

THE NEXT STEP:

The Heller Opinion has two quotable points on the right to travel while armed. Note in the first citation below that I construe the term "everyone else" to include merchant seamen in interstate travel as supported in Scalia's Footnote 7: "Navigation" and "Travelling"

Also Note in the Second Citation the inference that state statutes prohibiting persons, when on a journey, or as travellers from wearing or carrying concealed weapons, are unconstitutional. But what of "open carry in interstate travel?" The inference or implication here is that "open carry in interstate travel" is an "absolute right" not subject to any regulation at all. This point and the question of incorporating the Second Amendment through the Fourteenth Amendment need clarification by judicial challenge. I present at bottom a federal statute that is now ready for such a judicial challenge.

FIRST CITATION:

Justice Scalia, Page 9.

"Keep arms" was simply a common way of referring to possessing arms, for militiamen and everyone else. [FN7]

[FN7] See, e.g. , 3 A Compleat Collection of State-Tryals 185 (1719) ("Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?"); T. Wood , A New Institute of the Imperial or Civil Law 282 (1730) ("Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale . . ."); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) ("Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, &c."); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734)("Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance"); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) ("if [papists] keep arms in their houses, such arms may be seized by a justice of the peace"); Some Considerations on the Game Laws 54 (1796) ("Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece . . . ?"); 3 B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right: "This is one of our many renewals of the Saxon regulations. 'They were bound ,' says Mr. Selden, 'to keep arms for the preservation of the kingdom, and of their own person' "); W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with reference to colonists' English rights: "The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation"); 3 R. Burn, Justice of the Peace and the Parish Officer 88 (1815) ("It is, however, laid down by Serjeant Hawkins, . . . that if a lessee, after the end of the term, keep arms in his house to oppose the entry of the lessor, . . ."); State v. Demp sey , 31 N. C. 384, 385 (1849) (citing 1840 state law making it a misdemeanor for a member of certain racial groups "to carry about his person or keep in his house any shot gun or other arms").

SECOND CITATION:

Page 46.

"As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question." 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).

LAW TO CHALLENGE:

18 U.S.C. § 926A. Interstate Transportation of Firearms

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

P.S.

Do you notice any similarities between 18 U.S.C. § 926A and the strickened D.C. gun control law?

See also:

CODE OF FEDERAL REGULATIONS

TITLE 27--ALCOHOL, TOBACCO PRODUCTS, AND FIREARMS

CHAPTER II--BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, DEPARTMENT OF JUSTICE

PART 478 COMMERCE IN FIREARMS AND AMMUNITION
Subpart C - Administrative and Miscellaneous Provisions

27 C.F.R. § 478.38 Transportation of Firearms.

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where such person may lawfully possess and carry such firearm to any other place where such person may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

Letalis Maximus asked, "what about local and state officials who try to violate someone's RKBA and section 1983?"

Then it's likely that lots of lawyers are going to learn about section 1983 suits, and lots of cities and states are going to be footing the legal bills.

Ultimately, it will be D.C. that will be paying for Alan Gura's legal services. ... Oh, my! Suppose they have not yet realized that?

Thank you, for taking my questions and for all your hard work.

Thanks for taking my questions!

Thanks for being accessible and answering questions! It was a great chat with some informative answers.

I wish I had been able to make this. Is there a transcript?