This raises a more fundamental issue: what constitutional power does state or national government have to license anything. If we take seriously the Fifth Amendment prohibition on disablement and deprivation of life, liberty, or property without due process of law, and extension of the jurisdiction of the federal courts to questions involving such rights of a citizen against his state, then every person has a public right to do anything the legislative branch does not have the power to legislatively disable or deprive one of.
I think that is summed up as "if it doesn't say you can't, then you can." But I think the real issue there is not what is specifically said or unsaid, but how much is implied by extension from other provisions of the Constitution. We didn't get the changes in the 1960s civil rights cases by much more than a thin thread of implication from the Interstate Commerce Clause. The Ultimate Issue then might become exactly what does the "legislative branch ... not have the power to legislatively disable or deprive one of" that the courts might not have even considered yet?
Skipping s few logical steps, one reaches the conclusion that the only power of government to license anything is the power of a proprietor to license the use of something it owns. Does the state "own", as sole proprietor, the exclusive right to pursue any occupation, to travel, to carry a firearm, or any of the other things other than use of its land, facilities, equipment, and such? The simple answer is no.
In reality, to my way of thinking at least, that is a justifiable "libertarian" position to take. However, while I enjoy the picture it paints, I have a hard time believing that the states do not have at least some kind of ownership or proprietary interest, if not power, to control certain behaviors or activities, whatever they might be, if only for the public weal, if for no other reason. Maybe that's my "liberal" side speaking out but I didn't know I actually had a liberal side....
Then, again, once the states get involved in certain activities, let's use road construction for one, do they not by extension get an ownership interest in the roads that they build? Arguably, the funds are the money of the taxpayers, and are public funds, but those funds are delivered to the states for the completion of state functions. Does that give the states no proprietary interest?
All a state can do, under this line of reasoning, is judicially disable the exercise of a right and deprive one of the exercise of it. It can't forbid the exercise of the right to all persons it does not issue a permit to. This means that if a state wants someone to stop carrying a firearm, or operating a vehicle, or practicing law, they have to petition a court of competent jurisdiction to obtain a court order for disablement and deprivation, after proof beyond a reasonable doubt that the right, if not disabled, would pose an unacceptable risk to the public safety or order, or as the lawful penalty for an offense.
What makes the operation of a vehicle a right? Where is that enumerated? We can argue all day about whether or not the right to keep and bear arms in the Federal Constitution applies to the several states and we can even point to the several states' constitutions which so often contain RKBA sections or one sort or another. But if the state creates courts for the fair and equitable enforcement of its laws does it not have a proprietary interest in those courts and who can prosecute causes therein? While it is presumed that an individual can always prosecute his or her own cause, where it there a right that permits anyone to do so for anyone else?
...snip interesting issue of the state certificate....
I will snip the Hiibel case issue, too, but respond to it by saying that in that instance, I agree with Mr. Roland one hundred percent. I find that decision most distressing and his brief analysis quite correct.
***GRJ***
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