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Could the Supreme Court’s gay marriage ruling set the stage to justify national concealed carry reciprocity?

June 27, 2015

 When the Supreme Court ruled that all States must recognize same sex marriages which were conducted in other States the 14th Amendment’s Due Process Clause was used as justification for the decision. Brietbart has an interesting article about this decision and how it could possibly be used to justify national concealed carry reciprocity.

  Here is more:

The SCOTUS legalized same sex marriage by finding a right which Justices Anthony Kennedy, Ruth Bader Ginsburg , Sonia Sotomayor, Stephen G. Breyer, and Elena Kagan ruled as beyond a state-by-state prerogative via the 14th Amendment.

Crucial in this ruling is the fact that same sex marriage–now recognized by the SCOTUS–is not the only right the 14th Amendment shields from state-by-state prerogative and/or recognition.

Consider this pertinent aspect of the court’s Majority Opinion, written by Justice Kennedy and printed by the LA Times:

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.

  The use of the word most and not the word all is quite interesting, which amendment in the Bill of Rights would the Supreme Court believe is not covered under the Due Process Clause of the 14th Amendment? Could it be the Second Amendment?

    If the Supreme Court is going to be consistent the answer should be no because the high court has already ruled in the McDonald v Chicago case that the Second Amendment is incorporated in the 14th Amendment. Here is more from the above-linked article:

Now the question–Are 2nd Amendment rights among those “protected by this Clause”?

If we take the SCOTUS at its word, then yes, 2nd Amendment rights are protected under the 14th Amendment. After all, it was by viewing 2nd Amendment rights as incorporated under the 14th Amendment that the SCOTUS struck down Chicago’s gun ban inMcDonald v Chicago (2010).

Moreover, two years earlier–in District of Columbia v Heller (2008)–the SCOTUS ruled that the 2nd Amendment rights were “fundamental” in and of themselves as well as “fundamental to the Nation’s scheme of ordered liberty” (IIT Chicago-Kent College of Law)

So we have, on the one hand, Justice Kennedy expressing the majority opinion for same sex marriage by writing that “The fundamental liberties protected by [the Due Process Clause] include most of the rights enumerated in the Bill of Rights.” And we have a 2008 SCOTUS decision (Heller) explaining that 2nd Amendment rights are “fundamental” and a 2010 SCOTUS decision (McDonald) barring Chicago from a gun ban on the basis that 2nd Amendment rights are incorporated by the Due Process Clause of the 14th Amendment.

Because a concealed carry license is the vehicle through which many 2nd Amendment rights are exercised in states other than your own, there seems no way to avoid the implication that a state ought to have to recognize a concealed carry license from another state, just as states are now required to recognize same sex marriage licenses from other states.

  That seems only logical to me but damn I am sure that is going to make liberals’ collective heads explode! But let us take it one step further, here is part of the Supreme Court’s decision:

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28.

(a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court.

  Again it seems to me that the same could be said in regards to the Second Amendment and if the Supreme Court looks at history, precedence, and principles it would seem as though all States must honor concealed carry licences issued in other states.

  There is however one difference between these two issues and it is a glaring one: whereas the Second Amendment is actually mentioned in the Constitution the issue of marriage is not which means that if either issue should be left up to the purview of the States it should be marriage and not the right to keep and bear arms for that is a universal right protected by the Constitution.

  I would not expect anything to come from this but it is an interesting argument and I would love to see somebody make the case in the courts.

Malo periculosam libertatem quam quietum servitium

29 Comments leave one →
  1. Brittius permalink
    June 27, 2015 7:07 pm

    Reblogged this on Brittius.

    Liked by 1 person

  2. June 27, 2015 10:53 pm

    Oh, Steve, of course not! The 14th Amendment is only good for what the left endorses. If the left doesn’t like it then the 14th doesn’t apply.

    Liked by 1 person

  3. Bruce permalink
    June 28, 2015 2:09 pm

    Goes to show you that when law is made up out of thin air like Scalia says, anything is possible.

    Liked by 2 people

  4. lou222 permalink
    June 28, 2015 2:46 pm

    OT, You know a year ago when we had drought levels in the midwest? Well, it is safe to say that is not going on right now….I just got the grass cut, again, we have 10 days now of rain coming in, about 3.5 inches. I can barely work in when I get to cut and we do not have water standing somewhere.

    You know something I would like to know?? You regulars (and you know who you are), would it be possible to put what general area you are from? I am from Central Illinois. Not that I need to know, but sometimes it helps to know when you have typed something. Thanks.

    Liked by 2 people

    • June 28, 2015 2:53 pm

      We are getting heavy rain today but I believe it is supposed to clear up tomorrow and it looks as if the Fourth is supposed to be nice.
      I am in New Hampshire but I think you knew that already. 🙂

      Liked by 1 person

      • lou222 permalink
        June 28, 2015 3:32 pm

        Yes, I knew where YOU are! I am going to spend the Fourth with my brother and his wife, will have a couple hour drive home, but in the Miata, it is more a pleasure than a pain to get out on the Interstate…I just have to be watchful at night, she is tiny and black and big trucks don’t tend to see her.

        Liked by 1 person

    • June 28, 2015 3:47 pm

      NW Ohio, I live right on Lake Erie.

      Liked by 1 person

      • lou222 permalink
        June 28, 2015 4:06 pm

        Glad to know, I bet you have beautiful views there!

        Liked by 2 people

      • June 28, 2015 4:24 pm

        My dad is a sailor, so I spent my summers crewing on his sailboat in all the races the area yacht/sailing clubs host. That’s how I gauged the passage of summer – by what races were coming up. 🙂

        Liked by 1 person

      • lou222 permalink
        June 28, 2015 5:00 pm

        I grew up on the Mississippi River, but that would be different than what you had. A couple years ago up In Chicago along the Navy Pier we saw the Tall Ships come into the harbor, they were making their rounds on a race and were beautiful. I think they are going to be back this summer

        Liked by 2 people

      • June 28, 2015 10:44 pm

        My bro-in-law works for Hershey in Memphis. He used to have an engineering consulting business with Hershey as one of his clients. He’s consulted for them in PA, Memphis, and Mexico. The traveling back and forth really took a toll on both of them.

        When he consulted for the Hershey Memphis plant, he stayed with my aunt – she lives in West Memphis, just across the Mighty Mississip in AR. I have visited her at least once a year since I was about 17.

        When he accepted the full-time position at Hershey, he and my sister decided to get an apartment in Memphis. He spends most of his time there, but she travels back and forth quite a bit. They have a gorgeous apartment on Mud Island looking out over the Mississippi River. If it wasn’t for the heat & humidity, I would seriously consider moving there. She posts sunsets over the River on fb all the time.


      • lou222 permalink
        June 29, 2015 12:36 am

        My son and family live in Little Rock, Ark., so we go by Memphis when we head down there. It is humid, that is for sure, but it is humid here as well. I went to Salt lake City about 15 years ago and had a most wonderful experience of NOT constantly sweating in the summer…it would be great to live in an area where it was not humid. In the St. Louis area, we lived in Edwardsville on the Illinois side and it is up in the cliffs, so the view is beautiful and to go up the River Road in Alton Il. to Grafton where the Illinois and Mississippi come together is beautiful. The current is very fast on the river, so not alot of small boats are ever on it. The bluffs are full of eagles and up that far in Alton there are boats out, it is just down by St. Louis you do not see them. At Alton they have the Locks that bring the barges in and take them to the level they need to be before being let out again, it is cool to watch. I miss being down there, I guess growing up in E. St. Louis, once a river rat, always a river rat.

        Liked by 1 person

      • July 1, 2015 7:07 pm

        That sounds simply lovely, Lou.

        Liked by 2 people

      • June 28, 2015 5:59 pm

        Every summer there is a Regatta race on the Charles River in Boston, I have never actually watched it though.

        Liked by 2 people

    • June 28, 2015 4:01 pm

      Oh, and we got pounded yesterday. Flooding all over the region. Trees and power lines down all over, including a power line in front of my house. The lake was higher than I’ve ever seen it – or remember it. Spent 3 hours last night helping my sister pump over 4 inches of water out of her basement. It came up through the toilet and shower drain!!!

      She has a huge basement, divided into 5 rooms plus a bathroom. We had 3 water pumps going and I was assigned the task of sweeping/pushing the water out of my bro-in-law’s work room towards the laundry room where the sump pump is. Fun times. 🙂

      Liked by 1 person

      • lou222 permalink
        June 28, 2015 4:10 pm

        Been there and done that, before we put a system in the basement…I remember using the squeege and heading for the sump pump, then the wet dry vac and emptying that over and over and then the dehumidifier….I do NOT miss that, we had a full finished basement, as well. You find out how strong you are when you are lifting sofas and chairs, etc and putting them on top of the shuffle board table and the pooltable, the long bar. You just start putting stuff anywhere you can to get it off the floor. You also learn NOT to have cardboard boxes on the floor.

        Liked by 2 people

  5. June 28, 2015 4:17 pm

    “There is however one difference between these two issues and it is a glaring one: whereas the Second Amendment is actually mentioned in the Constitution the issue of marriage is not which means that if either issue should be left up to the purview of the States it should be marriage and not the right to keep and bear arms for that is a universal right protected by the Constitution.”

    Sorry, I am going to have to quibble on this. The Constitution was never intended to be an enumeration of our rights. This is why they were opposed to having a bill of rights. IMHO, marriage is one of those rights that is (rather should be ) protected by the 9th. Of course, that amendment is way too dangerous (for the state) for the court to ever consider.

    Liked by 1 person

    • June 28, 2015 4:17 pm

      They = the Federalists

      Liked by 1 person

    • June 28, 2015 6:02 pm

      You are 100% right about that Terrant. Many of the founders were afraid to add a BoR to the Constitution because they did not want it to be construed as meaning that these were our only rights. I concede that point but damn I wish I did not include that sentence in my post! 🙂


    • June 28, 2015 10:26 pm

      Hamilton warned us and he was right.

      Marriage may be one of the Rights protected by the IXth, but since it is not named in the Constitution, the federal government has no jurisdiction over it. It remains the purview of the states. Just like abortion, education, and the other state powers stolen by the federal government.

      Liked by 1 person

  6. July 1, 2015 2:00 pm

    The Right to keep and bear arms is NOT abolished at a State Border; “State Law cannot reduce any rights…a State cannot restrict the Right guaranteed in ‘full incorporation’ (which the 2d/14th was)–Bill of Rights is ‘binding’ on Government,” See, California v. Ramos, 463 U.S. 992, 1014, 103 Sct 3446, 77 led 2d 1171 (1983). The “Liberals” may have stepped upon their “privates” when the legalized all Marriage Licenses from every State…”No State Law may abrogate any Constitutional Right,” see, Art 6, Section 2 entitled “Supreme Law”; See, also, Maybury vs. Madison (SCOTUS 1803), which has never been overruled or changed since it became Law in 1803, stating: “All Laws which are repugnant to the Constitution are Null and Void,” which is pretty clear in its “plain language” meaning.

    Liked by 1 person


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