The states aren't very logically consistent on ID laws. Illinois requires an FOID to bear arms but not an ID to vote. Arizona requires an ID to vote but not one to bear arms. Vermont is probably the most consistent non-ID state, not requiring an ID to vote and also not requiring an ID even to conceal carry a gun.
I can sort of buy the ID argument from places like Vermont but the arguments in many/most states are just complete bullshit where they've worked backwards to rationalize it and that's why there is no consistency for ID gating of rights within even the same state.
US basically has a firearms license but by exclusion. Anyone with felonies or DV violations can't have guns, neither can illegal immigrants, neither can drug users . There are probably fewer Americans that can legally buy ammo and guns than Canadians by %.
If you use the ATFs guidelines on what is considered a prohibited person, it likely applies to about half of all US adults that are prohibited from buying ammunition. This when you consider ~30+% of US has used cannabis/fentanyl/etc or misused a prescription drug in the past year, the insane number of people we've made felons, the fact that restraining orders are now practically part and parcel of divorce negotiations as leverage (permanent restraining order bars you from owning guns), and then the fact that DV convictions are incredibly common in USA (police automatically arrest someone if they show up on a domestic complaint), then add the illegal immigrant population on top of that.
> US basically has a firearms license but by exclusion.
The essential quality of a license is that you have to affirmatively apply for it, so it operates by inclusion, not exclusion. You're like saying "We basically have an opt-in system, but it operates by opting out." I get your point that it has a similar effect, but words have meaning.
I don't think the licenses are hard to get anyway. The hardest part is satisfying the storage requirements.
As a bit of trivia, when congress defunded the ability for felons to restore their firearm rights, they actually forgot part of it. By an accident of history, felons can still get an explosives license.
People would probably use smuggled primers if arms were outlawed. The rest of the chemistry is easy enough to work with and the primers are small enough they'd likely flow along with fentanyl with the cartels anyway.
Black powder guns, at least ones of antique design (but modern production), are federally ~unregulated already anyways. A 6 year old in North Dakota could order one mailed right now to his house, no background checks, right off the internet -- legally.
There is also the "felon carry" as its called late 19th century black powder percussion pistols, you can also order off the internet, regardless of criminal history and with no scrutiny of the chain of custody.
The check elected officials have on this is to pack the courts. This is what FDR threatened to do to get through (at the time unconstitutional, now magically "not") a bunch of popular legislation.
The size of the Supreme court is not defined in the Constitution. So, packing the court is not unconstitutional. It is dishonest and shady as hell. But, the only check on the power of each branch are the other two branches that don't desire to be sidelined by one branch growing more powerful. All three branches are supposed to be in contention for power within the bounds of their interpretation of the Constitution. It is the duty of the other two branches to deem an action of the third branch as unconstitutional.
But, the system has been broken over time. Congress abdicated the majority of their power to the executive and somehow judicial became the official arbiters of constitutionality.
Only if it could be done in an apolitical way, which seems impossible in the current political climate. The legitimacy of the US Federal Government depends on the perceived continuity of the (now mythical) constitutional order. If one party or the other packs the court without bipartisan support for their nominees in the Senate, it would be denounced by the other as an authoritarian end-run around the constitution--as a revolutionary rather than a mere procedural act. IMO this would be more likely to foment disunion than it would be to restore the bygone constitutional order.
The fabrication of legitimacy is indeed the main task of the supreme court.
However violence is another way to project legitimacy. Putting someone away for life or drone striking a goat farmer provides real legitimate proof of power.
The government is much stronger than it was 100 or 200 years ago. So perhaps it can dispense with appearances of judicial legitimacy using the currency of violence. It's not clear they need to continue with the fiction of an impartial court to hold their grasp; like a space ship they can jettison that hallowed out rocket having already safely been placed into orbit.
FDR is written about phenomenally in US history books for reasons that don't seem to match the reality of what happened. We can separate foreign policy wins from domestic policy losses, just like we do now.
The now-heralded New Deal was getting torn apart by the Supreme Court, program after program for half the decade. And the remaining parts of the New Deal still exist on shaky constitutional ground if you really look at how much of an abberation they are and how they survived. Spoiler alert, for things that remain its nearly impossible to get standing in Federal Courts to question them and the people that could get standing aren't interested and benefit from them.
FDR threatened to pack the courts, just like modern presidents and party constituents demand.
It was actually very partial that the FDR-era Supreme Court backed off from that threat. So to consider our current Supreme Court to be the aberration is inaccurate, it is even more autonomous.
Everything I look at gives me the opposite conclusion of the public discourse, except when I'm in very small legal circles.
Isolating yourself to small legal circles can unfortunately open yourself to the vulnerability of mistakenly appealing to the authority of legal training that has specifically been tailored for success in the system we're in, which may optimize for coming to conclusions that help you win cases rather than optimizing for some other analysis. Looking at the bigger picture is an entirely different skill set than having legal training to be a good lawyer, so I think it's folly to place in special stake in "small legal circles" for this and in the worst case, might usher you into an echo chamber built out of practical adaptation.
If I wanted a healthy view I might include those with legal backgrounds but they would only be a small selection of the landscape of ideas to draw from, I certainly wouldn't place special stock in the "legal" community.
I'll watch out for that. But ultimately I do want my view of the world to be the law of the land, which means "win cases", specifically reflecting my view and my currently obscure arguments. My observation is that populist arguments are the ones that fail because they don't understand the mechanisms and obscurity.
A now-less-obscure view is based on the observation that the New Deal used a completely novel and expansive view of the interstate commerce clause that completely subjugated the states and essentially created a parallel nation overlaying the collection of states - what was called the Federal government for practicing federalism was now only nominally federal, as Congress now only grants exceptions for state autonomy just to retain support on occasion. Despite how disruptive it would be to review this arrangement, this 100 year use of the interstate commerce clause is completely on shaky constitutional ground
The entire federal agency apparatus could be Thanos-snapped out of existence, just like the 1930s Supreme Court was doing
(I don't want that specific thing to happen, and I don't see the alternate federal authority for most of the agencies and their regulations if it were to happen, so that would be very disruptive)
I don't view the New Deal changes in constitutionality as prevailing through some from of reasoning of arguments per se, just projection of power. Projection of power is unlikely to be changed through lawfare. Usually it is not relinquished without violence. The violence that set the stage for consolidation of federal power, IMO, was in large part the civil war (removal of secession as a check on federal power, IMO the most powerful check states had) but of course also the concerns from the aftermath of WWI.
The fact the ICC was used is the least consequential part of the whole thing. That's just what was picked by the whig-gods to present legitimacy to the projection of power. Could have just as well been a proclamation from god under some other system. If the ICC expansion non-sense is struck out of some kind of convenience for some matter they are attending to, I don't think it changes much, just means the priest will utter some other magic phrase.
The overwhelming use of civil instead of common law by the world would beg to differ that there is any consensus on this.
I agree with a lot of the advantages of common law that can sort of legislate through precedent. But it does make it basically impossible to be on notice of what is illegal and what isn't, particularly in the modern world where not only are there hundreds of thousands of law and thousands of pages of federal "regulations" bound as law but you also have to know all the precedent and asterisks to the interpretations to know what is actually illegal.
Yaeh this is a thing states do. South Dakota went in cahoots with the courts to cancel the ballot initiative to legalize weed, and California went in cahoots with the courts to sabotage prop 8 (the banning of gay marriage).
That's not why it was "struck down" by SCOTUS. It was struck down because California intentionally did not defend the case in SCOTUS, leaving the proponents (i.e., those representing the majority vote) to defend it in SCOTUS. Then SCOTUS determined the prop 8 voters didn't have standing to defend prop 8, essentially defaulting the decision through a perverse chickenshit technicality and remanding it back to the lower courts.
SCOTUS did not find gay marriage bans unconstitutional in that case. Only the 9th circuit did, and California intentionally stopped defending it at the 9th circuit because the 9th circuit is and was pro gay marriage.
You could just as easily stuff most of those things under the "general welfare" clause if you do the same rigamarole of years and years of precedent hand-waving. We live in a post constitutional state. The constitution is just something worked to backwards so the guys who function as our priests/gods point to the document because that's the only way to feign some sort of legitimacy to our government.
Ultimately none of us signed the constitution and all of those people that did are dead. It is a religious artifact used by the whig
-god people to argue they are right. Not something followed with faith to the historical context nor literal contract.
(edit: to below trying to compare bad-faith ICC to good-faith general welfare, you must apply similar levels of creativity and bad faith. Ban things through high or impossible to pay taxation. "Tax" behavior to force people to do something in a certain way, make very heavy penalties for not paying the tax, and also make it extremely difficult to buy the tax stamps (this is how they did drug control until they decided to use the new fraud of "interstate" commerce).
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars … But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
I agree, from the other side of the aisle. The Constitution is merely a well-guarded piece of toilet paper now. Culture matters way more than legal documents in preserving a nation, and our culture has waned too significantly. I believe we've entered the "Byzantine" phase of America.
SCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce.
So SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
I don't agree that requiring a talisman is irrelevant-- ineptly drafted laws will lack them and fail more easily. The legislative effort to add it may not happen later, especially once judicial review has spoken negatively of the underlying constitutionality of the law.
It also is not of no effect-- it's an element of defense and people have escaped GFSZ act because the government failed to satisfy interstate commerce (and internet search suggests the some courts have taken it to mean that the presence of the gun in the school zone itself must have impacted interstate commerce, rather than just the gun's past purchase did). Every element the prosecution must prove at any level increases the marginal cost of prosecution and makes it less likely to be imposed on more marginal cases.
I can sort of buy the ID argument from places like Vermont but the arguments in many/most states are just complete bullshit where they've worked backwards to rationalize it and that's why there is no consistency for ID gating of rights within even the same state.
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