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View Full Version : 9th Circuit reciprocity? could that work?


gunsmith
04-24-2009, 11:20 AM
with nordyke won, and many of us having Utah and NV ccw's, why not bring a lawsuit demanding CA, OR, HI etc recognize our ccw's?

stag1500
04-24-2009, 11:29 AM
California and Hawaii would have to be Shall-Issue states first before reciprocity could ever happen.

dustoff31
04-24-2009, 11:38 AM
with nordyke won, and many of us having Utah and NV ccw's, why not bring a lawsuit demanding CA, OR, HI etc recognize our ccw's?

The full faith and credit clause is not really full faith and credit. States routinely pick and choose what public acts of other staes they will or will not honor. And federal courts have been very reluctant to get into that, especially in the area of guns.

There are several states that do not recognize other states non-resident permits issued to their residents.

Maestro Pistolero
04-24-2009, 11:42 AM
California and Hawaii would have to be Shall-Issue states first before reciprocity could ever happen.

Not necessarily. It's a new game now. We have an individual right and incorporation against the states. Keep and bear means keep and bear, even if the Heller case was only about carrying in the home.

Name one other constitutionally protected right that ends beyond your doorstep. And we know that unloaded firearms do not meet the standard set forth in Heller that guns may be loaded and available "for immediate use for self defense."

It's either going to be loaded open carry, or loaded concealed carry with a license, or both. States will not be able to discriminate solely on a person's state of residence. California simply cannot deprive someone of a constitutionally protected right just because they are from Arizona.

It's going to take a little while, but I believe this is where we will end up.

fairfaxjim
04-24-2009, 1:00 PM
Reciprocity requires reciprocation - CA has nothing to reciprocate with. In the CCW realm states will honor anothers CCW, in return for that state honoring theirs. Nearly all states require that those states whose CCW's they honor have equal or greater issue requirements. Having a "good cause" requirement scattered about 58 individual sheriffs offices makes that pretty much impossible to evaluate from another state (hell it's impossible if your here.)

It would also require some sort of enabling legislature for the recognizing of out of state CCW's in CA. If you've been following what is going on with our own "shall issue" legislation at this very moment, I think you will see how unlikely that is at this time. I think even if a court decision was made that struck down good cause and essentially made CCW "shall issue", there still would not be a course for recognizing out of state CCW's without legislative action. There is no legislative restriction against it to overtun in the courts.

press1280
04-24-2009, 6:37 PM
Reciprocity requires reciprocation - CA has nothing to reciprocate with. In the CCW realm states will honor anothers CCW, in return for that state honoring theirs. Nearly all states require that those states whose CCW's they honor have equal or greater issue requirements. Having a "good cause" requirement scattered about 58 individual sheriffs offices makes that pretty much impossible to evaluate from another state (hell it's impossible if your here.)

It would also require some sort of enabling legislature for the recognizing of out of state CCW's in CA. If you've been following what is going on with our own "shall issue" legislation at this very moment, I think you will see how unlikely that is at this time. I think even if a court decision was made that struck down good cause and essentially made CCW "shall issue", there still would not be a course for recognizing out of state CCW's without legislative action. There is no legislative restriction against it to overtun in the courts.
Agreed, but CA may then have to issue permits to non-residents also....

GuyW
04-24-2009, 6:58 PM
Reciprocity requires reciprocation...

Who care about repricocity? - make CA honor other's permits...
.

fairfaxjim
04-24-2009, 8:07 PM
Who care about repricocity? - make CA honor other's permits...
.

I thought the OP, 9th Circuit reciprocity? could that work? and pretty much all of us who were responding to his question.

But to respond to your suggestion, request, or demand, why should CA honor other's when they don't issue their own? Once 2A incorporation has allowed court cases to successfully challenge that, then I would immagine a case could follow that may pave the way for CA to honor other states CCW. I truly belived that it will take a series of successful court actions. First would be to move the 2A individual right from Heller's "in the home" to pretty much anywhere. The stated restrictions in Heller that allow limiting the individual 2A right will have to be broadened or found to not apply. Then, absent the legislature seeing the light, a successful challenge will have to be made to the CA "good cause" aspect of CCW issuance that results in shall issue. Following that, again either the legislature has an "aha" moment, sees the error of their ways and recognizes all other states CCW permits or someone successfully mounts a court challenge that agrees with Maestro Pistolero's view that to not do so would be a violation of their constitutional rights based on location (or residence, or some other geographical basis.)

I see it as a rather protracted ordeal, and will most likely have to renew my Utah CCW more than once before it can benefit me here in CA.

gunsmith
04-24-2009, 9:53 PM
I don't care what we call it, I want my rights recognized, I do not want to face jail for carrying.
Sorry if I got it wrong...my aim is true

Maestro Pistolero
04-24-2009, 10:01 PM
It needs to be universally accepted like an out of state drivers license.

The stated restrictions in Heller that allow limiting the individual 2A right will have to be broadened or found to not apply.

I don't believe the Heller ruling is a limitation to carry only in the home. That's all that Gura ask for, so that is all the remedy they provided. Guru was dumb like fox on that point.

By making such a humble request, the court was more inclined to get over the hurdle of the individual right issue, at least I think that was part of the strategy. Nowhere in Heller is it articulated that the right does not exist outside the home. In fact there is more than just a hint to the contrary, otherwise why have all the commentary about carry in sensitive places, etc? So it is a right to carry outside the home, just not anywhere, any gun, anytime, remember that? This is just what I remember, and it's been a little while since I re-read he decision.

Gator Monroe
04-24-2009, 10:08 PM
The 9th Jerkit court of shlemiels ...

Gray Peterson
04-24-2009, 11:25 PM
Ok, first let's get a few things straight.

First off, you will not get a ruling forcing recognition out of any court, regardless of 9th Circuit our not. The only thing that *may* change is that in certain states, only recognizing "home state" licenses will go away (Colorado, Michigan, New Hampshire, as an example), and that has more to do with equal protection and P&I under Saenz v. Roe than RKBA in specific.

What you will see, however, is the likelyhood of "state residents only" carry licenses go away. For example, California's restrictions to "residents of the county" only is too restrictive against out of state residents. Since California's CCw law is both a loaded carry license and a concealment license, it is likely, shortly after a court ruling making California's license to carry a way of exercising a fundamental right. I can see a court case making applications available for out of state applicants.

fairfaxjim
04-25-2009, 8:34 AM
It needs to be universally accepted like an out of state drivers license.



I don't believe the Heller ruling is a limitation to carry only in the home. That's all that Gura ask for, so that is all the remedy they provided. Guru was dumb like fox on that point.

By making such a humble request, the court was more inclined to get over the hurdle of the individual right issue, at least I think that was part of the strategy. Nowhere in Heller is it articulated that the right does not exist outside the home. In fact there is more than just a hint to the contrary, otherwise why have all the commentary about carry in sensitive places, etc? So it is a right to carry outside the home, just not anywhere, any gun, anytime, remember that? This is just what I remember, and it's been a little while since I re-read he decision.

I'll let Mr. Gura speak in his own words:
There are significant, practical limits on the number of arguments that can be put together in one lawsuit. In our case, we chose to focus on the handgun and functional firearms bans – and that was plenty work for the courts to consider. ....

That does not mean that the rest of the D.C. Code with respect to firearms is constitutional. Much of it is not. But the entire code was not directly at issue in our case. It is our hope that Mayor Fenty and the City Council, or Congress, if the Mayor and City Council are unwilling to do so, sit down with their code books and the Supreme Court’s opinion, and make a serious effort to conform the former to the latter. If the political branches do not make the city’s firearm laws constitutional, then as we’ve seen, the courts will do it for them.

However, the judgment in this case relates only to the provisions that were struck down, and the city appears to be complying with the literal command of the judgment. Again, we do not believe that everything the city is doing is constitutional. Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban. But these are not issues that can be resolved in the context of the current case.
The full text of Mr. Gura's review of the Heller decision is at: http://dcguncase.com/blog/2008/07/18/clearing-the-air/

The Nordyke court used Heller extensively to incorporate the 2A, but still recognized the limitations in the Heller opinion:
[13] Heller tells us that the Second Amendment’s guarantee
revolves around armed self-defense. If laws make such
self-defense impossible in the most crucial place—the home
—by rendering firearms useless, then they violate the Constitution.
[14] But the Ordinance before us is not of that ilk. It does
not directly impede the efficacy of self-defense or limit selfdefense
in the home. Rather, it regulates gun possession in
public places that are County property.
[15] To summarize: the Ordinance does not meaningfully
impede the ability of individuals to defend themselves in their
homes with usable firearms, the core of the right as Heller
analyzed it. The Ordinance falls on the lawful side of the division,
familiar from other areas of substantive due process doctrine,
between unconstitutional interference with individual
rights and permissible government nonfacilitation of their
exercise. Finally, prohibiting firearm possession on municipal
property fits within the exception from the Second Amendment
for “sensitive places” that Heller recognized. These considerations
compel us to conclude that the Second
Amendment does not invalidate the specific Ordinance before
us. Therefore, the district court did not abuse its discretion in
denying the Nordykes leave to amend their complaint to add
a Second Amendment claim that would have been futile.

Were it not for those limitation, then Nordyke would have prevailed. The extremely good news is that both the SCOTUS and 9th Circuit got the 2A being an individual right, and even more important that the 9th Circuit found that it is incorporated by the 14th amendment, vacating their previous finding in Hickman v. Block that the 2A was not an individual right.
[2] To reach this argument on the merits, we must first
decide whether Heller abrogated Hickman. It did. Hickman
rested on our conclusion that the Second Amendment protects
only a collective right; Heller squarely overruled such conclusion.
See Heller, 128 S. Ct. at 2799 (“There seems to us no
doubt, on the basis of both text and history, that the Second
Amendment conferred an individual right to keep and bear
arms.”). Thus the basis for Hickman’s holding has evaporated,
and the opinion is clearly irreconcilable with Heller. In such
circumstances, we consider our prior decision abrogated by
higher authority.4 See Miller v. Gammie, 335 F.3d 889, 899-
900 (9th Cir. 2003) (en banc).

I agree that Heller did leave a lot undecided in the breadth of the opinion. I think some of that will be decided quickly as cases come in light of Heller and now Nordyke, but some issues will be a long time in being decided.

With all of this, many of the gun laws currently standing in the states (& in D.C.) where Heller is now incorporated are unconstitutional. IMHO, the state legislatures (nor the cities who also may have unconstitutional gun laws) are not going to take it upon themselves to "rectify their wrongs", but rather, at least in CA, they will attempt to circumvent 2A rights in any way possible. Each and every law will have to be overtuned by a court decision. We are a long way from "any gun, anytime."

Pvt. Cowboy
04-25-2009, 10:15 AM
I don't know if it helps any, but NV recognizes CA CCWs even though CA doesn't extend us the courtesy in return...

GunSlinga
04-26-2009, 4:05 PM
The 9th Jerkit court of shlemiels ...

And the 2nd Jerkit Court of Slemiels wrote an opinion (http://www.ca2.uscourts.gov/decisions/isysquery/d6ed02fb-5890-495b-8d48-8f13eb63b2b2/1/doc/03-9123_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d6ed02fb-5890-495b-8d48-8f13eb63b2b2/1/hilite/) in 2005 in which they held that David Bach, an ideal candidate for carry who was licensed in VA, could not look to A2P&I (http://www.calguns.net/calgunforum/showpost.php?p=2379606&postcount=143) to compel NY to grant him a carry license.

Bach also challenges New York’s licensing regime under the Privileges and Immunities Clause of Article IV, section two of the Constitution. He contends that “New York’s prohibition on allowing nonresidents such as Bach to obtain a firearms license violates the Privileges and Immunities Clause.”

Bach suggests that New York’s licensing scheme unconstitutionally discriminates against both his protected rights under the Privileges and Immunities Clause and the “right to travel” secured therein. But the “right to travel,” at least in this context, is simply a shorthand for the protections of the Privileges and Immunities Clause of Article IV, as travel – movement from one State to another – is at the core of every Privileges and Immunities Clause challenge. As the Supreme Court has explained, the “right to travel,” in the constitutional context, “embraces at least three different components.” Saenz v. Roe, 526 U.S. 489, 500 (1999). Two of those components, “‘the right of free ingress and regress to and from’ neighboring states,” id. at 500-01 (quoting United States v. Guest, 383 U.S. 745, 758 (1966)), and “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State,” id. at 3
502-04, are inapplicable here. The third and only relevant component is merely a restatement of rights arising under Article IV – “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in [a] second State.” Id. at 501. Bach’s appeal depends on only this last guarantee that, “by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the ‘Privileges and Immunities of Citizens in the several States’ that he visits.” Id. at 501. His appeal thus condenses to the challenge that New York’s handgun licensing scheme unconstitutionally discriminates against nonresidents with regard to a protected privilege under the Clause.

Because we hold that New York’s interest in monitoring gun licensees is substantial and that New York’s restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interest, we reject Bach’s Article IV Privileges and Immunities Clause challenge.

Gray Peterson
04-26-2009, 4:20 PM
The Bach case is no longer applicable.

GunSlinga
04-26-2009, 5:36 PM
The Bach case is no longer applicable.

That's great news, and I can certainly see why Bach's 2A non-incorporation issue is in flux, but what, if any, PHD (http://www.calguns.net/calgunforum/showpost.php?p=2375896&postcount=140) addresses A2P&I in a RKBA context?