PDA

View Full Version : Nordyke "loss" Is Really About Open Carry


hoffmang
04-25-2009, 11:23 AM
There is a very important facet of the Alameda County Ordinance that most people are unaware of when they are worried that the "loss" in Nordyke is a serious detriment to the decision.

Before I explain, please read the actual ordinance with emphasis on exception 3:

9.12.120 Possession of firearms on county property prohibited.
A. Findings. The board of supervisors finds that gunshot fatalities and injuries are of epidemic proportions in Alameda County. [A bunch of data showing that the crime fighting efforts of the county are piss poor.]
B. Misdemeanor. Every person who brings onto or possesses on county property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.
C. County Property. As used in this section, the term county property means real property, including any buildings thereon, owned or leased by the county of Alameda (hereinafter "county"), and in the county's possession, or in the possession of a public or private entity under contract with the county to perform a public purpose, including but not limited to real property owned or leased by the county in the unincorporated and incorporated portions of the county, such as the county park in Sunol and the Alameda County Fairgrounds in the city of Pleasanton, but does not include any "local public building" as defined in Penal Code Section 171b(c), where the state regulates possession of firearms pursuant to Penal Code Section 171b.
D. Firearm. "Firearm" is any gun, pistol, revolver, rifle or any device, designed or modified to be used as a weapon, from which is expelled through a barrel a projectile by the force of an explosion or other form of combustion. "Firearm" does not include imitation firearms or BB guns and air rifles as defined in Government Code Section 53071.5.
E. Ammunition. "Ammunition" is any ammunition as defined in Penal Code Section 12316(b)(2).
F. Exceptions. Subsection 9.12.120B does not apply to the following:
1. A peace officer as defined in Title 3, Part 2, Chapter 4.5 of the California Penal Code (Sections 830 et seq.);
2. A guard or messenger of a financial institution, a guard of a contract carrier operating an armored vehicle, a licensed private investigator, patrol operator, or alarm company operator, or uniformed security guard as these occupations are defined in Penal Code Section 12031(d) and who holds a valid certificate issued by the Department of Consumer Affairs under Penal Code Section 12033, while actually employed and engaged in protecting and preserving property or life within the scope of his or her employment;
3. A person holding a valid license to carry a firearm issued pursuant to Penal Code Section 12050;
4. The possession of a firearm by an authorized participant in a motion picture, television, video, dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.
5. A person lawfully transporting firearms or ammunition in a motor vehicle on county roads;
6. A person lawfully using the target range operated by the Alameda County sheriff;
7. A federal criminal investigator or law enforcement officer; or
8. A member of the military forces of the state of California or of the United States while engaged in the performance of his or her duty.
G. Severability. [blah blah]


What Nordyke held is that "open space venues" are "sensitive places." Note however that the ordinance doesn't ban loaded carry per 12050. It may not at all be outside the state's power to limit the possession of firearms at public venue/events (think baseball/football games) when licensed carry is still legal.

Also note that carry for self defense was never an argument raised by either side in Nordyke. The two reasons the Nordykes lost was the open space venues = sensitive places and that the County isn't required to facilitate the exercise of individual rights - just not get in the way.

A funny side thought. Gun shows can go on in Alameda if, after we get shall issue through the courts, all exhibitors acquire licenses under PC 12050.

Side thought two: How can a place that hosted more than a decade of gun shows all of a sudden turn sensitive?

Things will get very interesting here.

-Gene

Soldier415
04-25-2009, 11:27 AM
And I eagerly await the fun that will no doubt start soon...:)

n2k
04-25-2009, 11:36 AM
Gene,

Do you have a sense of how the Anti’s will try to defend against the onslaught of lawsuits that will occur after Nordyke?

Perusing through their websites and blogs, all seems quiet on the western front…….

ke6guj
04-25-2009, 11:39 AM
A funny side thought. Gun shows can go on in Alameda if, after we get shall issue through the courts, all exhibitors acquire licenses under PC 12050.ha ha

Side though two: How can a place that hosted more than a decade of gun shows all of a sudden turn sensitive?

Things will get very interesting here.

-Genetru dat.

tgriffin
04-25-2009, 11:42 AM
Gene,

Do you have a sense of how the Anti’s will try to defend against the onslaught of lawsuits that will occur after Nordyke?

Perusing through their websites and blogs, all seems quiet on the western front…….

Calm before the storm friend. But guess what... we are the ones bringing the thunder.

wash
04-25-2009, 1:29 PM
Have the Nordykes been denied a CCW license yet?

nobody_special
04-25-2009, 1:33 PM
Gene, let me point out two things.

First, the post (http://www.calguns.net/calgunforum/showpost.php?p=2374161&postcount=720) I just wrote in the main Nordyke thread is directly on-point here.

Second, there is a big difference between banning firearms at "baseball/football games" and public parks. The former are generally access controlled private events held on public grounds. Public parks are, well, public, and the courts have consistently held that one does not give up their rights when on public land... or rather, it was consistent until Nordyke.

RomanDad
04-25-2009, 1:44 PM
There is a very important facet of the Alameda County Ordinance that most people are unaware of when they are worried that the "loss" in Nordyke is a serious detriment to the decision.

Before I explain, please read the actual ordinance with emphasis on exception 3:


What Nordyke held is that "open space venues" are "sensitive places." Note however that the ordinance doesn't ban loaded carry per 12050. It may not at all be outside the state's power to limit the possession of firearms at public venue/events (think baseball/football games) when licensed carry is still legal.

Also note that carry for self defense was never an argument raised by either side in Nordyke. The two reasons the Nordykes lost was the open space venues = sensitive places and that the County isn't required to facilitate the exercise of individual rights - just not get in the way.

A funny side thought. Gun shows can go on in Alameda if, after we get shall issue through the courts, all exhibitors acquire licenses under PC 12050.

Side thought two: How can a place that hosted more than a decade of gun shows all of a sudden turn sensitive?

Things will get very interesting here.

-Gene

Gene. Not sure if you've seen it or not, but the CPOA immediately issued a (completely half-assed) legal opinion on what Nordyke means for police.... And Completely IGNORES the fact that you posted above (I, was thinking it did so on State Preemption grounds as well.)

I can forward it to you if you would like.


BTW, I especially like that the Alameda BOS recognized that 12050 is a license to carry a "firearm", and not a "CONCEALED firearm"..... They certainly seem sharper than many of the CLEOs we encounter on this issue.

RomanDad
04-25-2009, 1:45 PM
Gene,

Do you have a sense of how the Anti’s will try to defend against the onslaught of lawsuits that will occur after Nordyke?

Perusing through their websites and blogs, all seems quiet on the western front…….

Its called "Whistling past the graveyard" my friend.

nick
04-25-2009, 2:04 PM
And I eagerly await the fun that will no doubt start soon...:)

Got more demolition scheduled, or what? :p

2009_gunner
04-25-2009, 2:31 PM
9.12.120 Part D defines a firearm only be be one which operates through an explosion. So could rail guns be sold on county property?

Edit: It would be somewhat entertaining to sell homemade super low power (1 ft/sec) rail guns on county property, as it doesn't seem to be against their law.

Edit 2: I think these 2 posts could justify reasons for people using alternative firearms
http://www.calguns.net/calgunforum/showthread.php?t=177084
http://www.calguns.net/calgunforum/showthread.php?p=2292520

wash
04-25-2009, 3:18 PM
There was just that Supreme Court case about solid fuel model rocket engines. The traditional fuel is now legal in large sizes because the burn rate is lower than the explosive threshold. Perhaps we need to investigate new propellants and slow burn primers.

ZRX61
04-25-2009, 3:26 PM
There was just that Supreme Court case about solid fuel model rocket engines. The traditional fuel in now legal in large sizes because the burn rate is lower than the explosive threshold. Perhaps we need to investigate new propellants and slow burn primers.


Any SoCal ranges that aren't owned by the military that allow rocket launchers? :)

hoffmang
04-25-2009, 3:43 PM
Second, there is a big difference between banning firearms at "baseball/football games" and public parks. The former are generally access controlled private events held on public grounds. Public parks are, well, public, and the courts have consistently held that one does not give up their rights when on public land... or rather, it was consistent until Nordyke.
I think you miss my point. You can carry in a public park in Alameda, you just need a 12050 Carry License.

Got more demolition scheduled, or what? :p

The blitz is coming. Probably far sooner than the other side ever expected...

-Gene

lioneaglegriffin
04-25-2009, 3:48 PM
I think you miss my point. You can carry in a public park in Alameda, you just need a 12050 Carry License.



The blitz is coming. Probably far sooner than the other side ever expected...

-Gene

its always better that way, we have been on red/orange alert since november. Nothings gonna sneak up on us it seems, but i can't say the same for the brady's

Theseus
04-25-2009, 3:49 PM
This is wonderful!

It proves still more that it isn't about making the places safer by eliminating guns and applying it evenly, but that it is merely an attempt to restrict WHO(M) is carrying. The same with school zones even with its own 12050 exemptions.

nobody_special
04-25-2009, 5:02 PM
I think you miss my point. You can carry in a public park in Alameda, you just need a 12050 Carry License.
I didn't miss anything. That's still a denial of a fundamental right in public, which is not done for any other enumerated right. Even if 12050 licenses were shall-issue it would still be unacceptable. Again, compare with 1st amendment time/place/manner restrictions: they're still subject to intermediate scrutiny and they cannot be intended to suppress the 1st amendment activity. The Alameda law completely suppresses the exercise of 2nd amendment rights.

The permit exception is completely irrelevant. One does not need a permit for personal speech in a public park or street. It's different for organized activities, which is in fact what Nordyke was about. I agree that Alameda should not be forced to advocate 2nd amendment activities, that's fine; but the Court erred in deciding that all "public spaces" are 2nd amendment free zones.

FreshTapCoke
04-25-2009, 5:14 PM
The blitz is coming. Probably far sooner than the other side ever expected...

-Gene

This is like being a kid and having to wait until Christmas Day to open our presents, except we don't even know what day Christmas is.

Can we pleeeaasseee open one of our presents early? :D

nick
04-25-2009, 5:38 PM
This is like being a kid and having to wait until Christmas Day to open our presents, except we don't even know what day Christmas is.

Can we pleeeaasseee open one of our presents early? :D

Of course, since supposedly we're adults, patience comes with that package.

hoffmang
04-25-2009, 6:23 PM
I didn't miss anything. That's still a denial of a fundamental right in public, which is not done for any other enumerated right.

Except for the Fourth Amendment at airports (and arguably the First there also.)

It also happens all the time for certain First Amendment rights. Witness parade permits and street performer licensing.

You have an unsophisticated view of the actual jurisprudence of fundamental rights.

-Gene

CSDGuy
04-25-2009, 6:25 PM
Well, those parade permits and street performer licenses are really just to allow the use of the public streets and sidewalks for a private venture... ;)

Right...

bulgron
04-25-2009, 6:36 PM
Except for the Fourth Amendment at airports (and arguably the First there also.)

It also happens all the time for certain First Amendment rights. Witness parade permits and street performer licensing.

You have an unsophisticated view of the actual jurisprudence of fundamental rights.

-Gene

Yes, but can they generally deny parade permits for some classes of citizens, but not others? How about street performer licenses? The answer, I think, is not.

And, at that, they're licensing unusual activities that might interfere with the routine comings and goings of the public. A fellow walking around with a pistol in his pocket (or on his hip) shouldn't interfere with any such thing, unless you start with the (broken) assumption that that fellow's pistol is likely to leap out of his pocket and start killing people.

The bottom line is, there's an intersection of the public's right to proceed unhindered and unharmed, and the individual's right to exercise a fundamental right (carrying an arm) for his own personal protection that has yet to be examined by the courts. We all know that an individual who has chosen to be armed is not very likely to interfere with the general public's right to access the commons, but the courts have not yet been convinced of that. Which is the whole point of the exercise which we now undertake, I think.

hoffmang
04-25-2009, 6:57 PM
Yes, but can they generally deny parade permits for some classes of citizens, but not others? How about street performer licenses? The answer, I think, is not.


You're pointing out an issue with the licensing procedure - not the requirement of needing a license to carry a gun on Alameda County property.

Also, who are the citizens allowed to carry on Alameda County property ex the 12050 license holders? Hint that cops don't count in the 9th - whether that's right or wrong.

-Gene

Falkirk
04-25-2009, 7:37 PM
The blitz is coming. Probably far sooner than the other side ever expected...

-Gene


That's music to my eyeballs.:thumbsup:

nobody_special
04-25-2009, 7:55 PM
Except for the Fourth Amendment at airports (and arguably the First there also.)

It also happens all the time for certain First Amendment rights. Witness parade permits and street performer licensing.

You have an unsophisticated view of the actual jurisprudence of fundamental rights.
Airports are substantially different from public parks. For one thing, they are access controlled and have armed secuirty -- they are clearly a "sensitive place."

Have you actually looked at 1st amendment case law?

Permits for commercial activity, parades, etc. are allowed because (1) they are non-discriminatory, (2) they do not suppress 1st amendment activity, and (3) they survive intermediate scrutiny by serving some other legitimate government interest. That isn't true of the Alameda law; it serves only to directly suppress 2nd amendment activity.

Let me quote from Hauge v. CIO:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent "riots, disturbances or disorderly assemblage." It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly "prevent" such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right....


But regarding 2nd amendment rights, that is exactly what the 9th Circuit just ruled: uncontrolled official suppression of the right to carry is okay.

hoffmang
04-25-2009, 7:58 PM
But regarding 2nd amendment rights, that is exactly what the 9th Circuit just ruled: uncontrolled official suppression of the right to carry is okay.

No. If you have a license to carry under PC 12050 (kind of like a parade permit) you can carry in Alameda public parks.

Now there remains a problem with how PC 12050 permits are issued.

-Gene

sierratangofoxtrotunion
04-25-2009, 8:21 PM
Now there remains a problem with how PC 12050 permits are issued.

-Gene

This is what my eyes focused on immediately on Monday.

nobody_special
04-25-2009, 8:39 PM
No. If you have a license to carry under PC 12050 (kind of like a parade permit) you can carry in Alameda public parks.

Now there remains a problem with how PC 12050 permits are issued.

-Gene
No, Gene... and I'm not an idiot.

The Hauge decision that I just quoted specifically struck down a law requiring a permit for 1st amendment activities in public spaces. The application to Nordyke is direct.

Read this again (emphasis added):


We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent "riots, disturbances or disorderly assemblage." It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly "prevent" such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right....

This SCOTUS precedent allows for regulation for "comfort and convenience" -- that's where you get permits for parades etc., because a parade inconveniences other street traffic. But it specifically disallows the use of permits to deny the exercise of a fundamental right in open spaces.

This is on-point, SCOTUS precedent which directly contradicts the holding in Nordyke. The only difference is the number of the amendment at issue.

And even if12050 permits were non-discretionary, the Alameda statute would not survive scrutiny under the protections afforded to the 1st amendment. The cost is discriminatory. There's plenty of case law regarding poll taxes.

bulgron
04-25-2009, 9:19 PM
And even if12050 permits were non-discretionary, the Alameda statute would not survive scrutiny under the protections afforded to the 1st amendment. The cost is discriminatory. There's plenty of case law regarding poll taxes.

Yes, but are the courts prepared to offer the same level of scrutiny, and therefore the same level of protection, to the second as they do the first? I've noticed that the courts can arrive at almost any outcome they want, if they want to badly enough.

So the question is, does at least SCOTUS want to protect the right-without-a-license for the second like they do the first? If they don't want to do that, they won't. They'll just find some argument by which they don't have to.

Personally, I think THIS court will arrive at that conclusion. But let one of our friends go away, or simply change his mind, and that'll be the ballgame for our right to go armed in public.

hoffmang
04-25-2009, 9:21 PM
No, Gene... and I'm not an idiot.

So me directly contradicting you is calling you an idiot?


The Hauge decision that I just quoted specifically struck down a law requiring a permit for 1st amendment activities in public spaces. The application to Nordyke is direct.


So lets see where SCOTUS has upheld the need to obtain non discretionary parade permits:

Cox v. New Hampshire (http://en.wikipedia.org/wiki/Cox_v._New_Hampshire)
Walker v. City of Birmingham (http://www.oyez.org/cases/1960-1969/1966/1966_249)

The Second Amendment is likely to be like speech - not exactly like speech. You can bear arms on Alameda County public lands if you have a permit.

Instead of claiming some analogous speech ruling, make a cogent argument for why Alameda can't force you to obtain a non-discretionary (assume that permits are fixed) permit to carry on Alameda owned property.

Simply appealing to the right to bear arms isn't nearly enough.

-Gene

PS. Your cost argument/poll tax issue is about the PC 12050 process - not about Alameda's ordinance.

nobody_special
04-25-2009, 10:22 PM
So me directly contradicting you is calling you an idiot?
No. My comment was a reaction to your earlier "unsophisticated" comment.

So lets see where SCOTUS has upheld the need to obtain non discretionary parade permits:

Cox v. New Hampshire (http://en.wikipedia.org/wiki/Cox_v._New_Hampshire)
Walker v. City of Birmingham (http://www.oyez.org/cases/1960-1969/1966/1966_249)

Yes, let's look at those. From the Wikipedia description of Cox:

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions.

The Court also ruled that the government has an interest in knowing about parades ahead of time so that it can arrange proper security and policing - regardless of the political or religious content of the message of the parade. Thus the government is justified in taking into account the time, manner, and place of a proposed parade in order to determine whether a license may be granted or denied. Further, the license fee did not amount to a fee or tax upon the views expressed in a parade; rather, it was an administrative fee that was needed to cover the extra costs borne by the community when parades occur. The Court thus rejected the claim that the licensing fee infringed on anyone's right to assemble:

No interference with religious worship or the practice of religion in any proper sense is shown, but only the exercise of local control over the use of streets for parades and processions.

Such a restriction would never be applied to an individual walking down the street. The purpose of the restriction was not to deny the 1st amendment right completely, but to regulate it in the interests of traffic control, to allow the city to arrange policing, etc. And if the administrative fee for the permit burdened the right, I imagine it would have been struck.

The Alameda law goes beyond any ordinary time/place/manner restriction, as it is a total ban on all county property -- regardless of what that property may be. Is that not an overly broad definition of a sensitive place?

Now, let's look at the description of Walker:

The Court upheld the arrests since Walker failed to use proper judicial procedures to test the injunction's validity. Even though, Justice Stewart admitted, the injunction seemed broad and vague, and the marchers may not have enjoyed due process when applying for the permit originally, simply disobeying the injunction was illegitimate as "no man can be judge in his own case . . . however righteous his motives."

That doesn't sound like a strong foundation for a requirement to license a fundamental right... it sounds like a procedural issue.


The Second Amendment is likely to be like speech - not exactly like speech. You can bear arms on Alameda County public lands if you have a permit.

That's actually very different from speech; it's an abrogation of the right to bear.


Instead of claiming some analogous speech ruling, make a cogent argument for why Alameda can't force you to obtain a non-discretionary (assume that permits are fixed) permit to carry on Alameda owned property.

Simply appealing to the right to bear arms isn't nearly enough.

Without any RKBA, obviously Alameda can do whatever it wants regarding firearm regulations. I'm not sure if you'll find this argument better than a "simple appeal" but here it is...

Let's assume that a non-discretionary and reasonably inexpensive permit process exists. The Alameda ordinance would pass a rational basis test, but that standard of review was specifically excluded by Heller. It should not pass intermediate scrutiny when applied to an individual's right to self-defense. Unfortunately, the Nordyke challenge was based on commercial activity rather than self-defense.

If you're looking for a non-lawyer argument, it's simple: the Alameda ordinance is a burden on the exercise of a fundamental right. If you have to get a permit (a document granting permission) merely to exercise the right, then clearly it wasn't a right to begin with. This would essentially prevent LOC, which is unacceptable. Consider the original right to bear arms in colonial/revolutionary times. While certain places were prohibited (markets, I believe?), that was pre-incorporation, and I believe a blanket prohibition of carry on public lands would not have been tolerated.

A right to privacy argument could perhaps be made as well.

7x57
04-25-2009, 10:49 PM
Of course, since supposedly we're adults, patience comes with that package.

We're adults? Who knew?

7x57

nick
04-25-2009, 10:56 PM
We're adults? Who knew?

7x57

That's where "supposedly" comes in. I was making an assumption for the sake of argument.

7x57
04-25-2009, 11:01 PM
That's where "supposedly" comes in. I was making an assumption for the sake of argument.

Ah, yes, technically one could assume something contrary to all evidence and see what sort of amazing consequences would follow. Back in the real world, we'll all keep behaving like hyperactive, candy-overdosed three-year-olds waiting for the dominos to keep falling after Heller and Nordyke.

Maybe this is the time to mention that one reason I laugh at "two weeks" is that it reminds me of what my father always said when we asked how long before we would get to our destination (usually about seven seconds after the previous inquiry). He'd always say "ten more minutes." Which is another reason to think we all resemble impatient little kids.

7x57

nick
04-25-2009, 11:08 PM
Ah, yes, technically one could assume something contrary to all evidence and see what sort of amazing consequences would follow. Back in the real world, we'll all keep behaving like hyperactive, candy-overdosed three-year-olds waiting for the dominos to keep falling after Heller and Nordyke.

Maybe this is the time to mention that one reason I laugh at "two weeks" is that it reminds me of what my father always said when we asked how long before we would get to our destination (usually about seven seconds after the previous inquiry). He'd always say "ten more minutes." Which is another reason to think we all resemble impatient little kids.

7x57

Yep, they don't teach Latin in schools anymore... :)

avdrummerboy
04-25-2009, 11:10 PM
As usual, some guy guarding someones money can travel armed to protect that money, but a person cannot carry to defend his (or her for all us politically correct people) life. How truly sad.

7x57
04-25-2009, 11:11 PM
Yep, they don't teach Latin in schools anymore... :)

I think this is a strong contender for the most-inside-joke-on-Calguns award this year. ;)

7x57

hoffmang
04-25-2009, 11:17 PM
Let's assume that a non-discretionary and reasonably inexpensive permit process exists. The Alameda ordinance would pass a rational basis test, but that standard of review was specifically excluded by Heller. It should not pass intermediate scrutiny when applied to an individual's right to self-defense. Unfortunately, the Nordyke challenge was based on commercial activity rather than self-defense.

At intermediate scrutiny, non discretionary carry licensing is a very small burden when balanced with the Counties desire to keep gang bangers from shooting up the county fair. I'm not saying I like the outcome, I am saying that that's the analysis you're up against in court whether you like it or not or whether it is "correct" or not.


If you're looking for a non-lawyer argument, it's simple: the Alameda ordinance is a burden on the exercise of a fundamental right. If you have to get a permit (a document granting permission) merely to exercise the right, then clearly it wasn't a right to begin with. This would essentially prevent LOC, which is unacceptable. Consider the original right to bear arms in colonial/revolutionary times. While certain places were prohibited (markets, I believe?), that was pre-incorporation, and I believe a blanket prohibition of carry on public lands would not have been tolerated.

Don't you realize that you shot yourself in the foot with your last line? If, back when gun control was "don't store too much black powder in urban homes" that it was acceptable to ban the carry of firearms at markets that that is exactly analogous to county fairs?

This whole argument that "licenses means its not a fundamental right" is an applause sign. You say it, but I don't think you've read the law widely enough to be authoritative with it. If it were so then how the hell does the state require broadcast licenses? How does the state tax different methods of disseminating the same speech differently? How does the state prohibit the practice of law without a license? How does the state require public companies to file information disclosures? How does the state require you to at least sign and submit your tax return? How does the state require you to submit to a search to enter the seat of government? This list goes on and on.

If only your argument was as clean and certain as you'd wish it to be.

-Gene

KylaGWolf
04-25-2009, 11:27 PM
Gene. Not sure if you've seen it or not, but the CPOA immediately issued a (completely half-assed) legal opinion on what Nordyke means for police.... And Completely IGNORES the fact that you posted above (I, was thinking it did so on State Preemption grounds as well.)

I can forward it to you if you would like.


BTW, I especially like that the Alameda BOS recognized that 12050 is a license to carry a "firearm", and not a "CONCEALED firearm"..... They certainly seem sharper than many of the CLEOs we encounter on this issue.

Can you forward that to me too. Sorry a bit of a law geek here :D

hoffmang
04-25-2009, 11:47 PM
Can you forward that to me too. Sorry a bit of a law geek here :D

RomanDad,

Email it to me and I'll post it in the publicly accessible hoffmang.com archive.

-Gene

nobody_special
04-26-2009, 12:43 AM
At intermediate scrutiny, non discretionary carry licensing is a very small burden when balanced with the Counties desire to keep gang bangers from shooting up the county fair. I'm not saying I like the outcome, I am saying that that's the analysis you're up against in court whether you like it or not or whether it is "correct" or not.

The interest-balancing approach was discarded by Heller: "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."

Don't you realize that you shot yourself in the foot with your last line? If, back when gun control was "don't store too much black powder in urban homes" that it was acceptable to ban the carry of firearms at markets that that is exactly analogous to county fairs?
I'm not certain about the market ban; that's something I vaguely recall from reading Heller documents, and it may have been during colonial times. Regardless, it was not nearly as far-reaching as the Alameda statute, which bans carry on all county-owned lands. Also, this was not a federal prohibition so the 2nd did not apply.

This whole argument that "licenses means its not a fundamental right" is an applause sign. You say it, but I don't think you've read the law widely enough to be authoritative with it.

I'm not a constitutional law scholar, nor am I a lawyer, but I have investigated a bit. I have yet to see a case where another enumerated right is licensed in such a way. You do not need a license to meet a friend or carry on a conversation in a park. You do not need a license to write a letter in public. I think we can agree that any court would cheerfully overturn any law requiring a permit for those 1st amendment activities.

I keep coming back to 1st amendment rights for a reason: I can't think of another enumerated right which, like the 2nd amendment, protects individual day-to-day activity, aside from perhaps the right to vote. The rest of the bill of rights acts to restrict government and guarantee due process.
If it were so then how the hell does the state require broadcast licenses?
There is no right to radiate electromagnetic radiation, and the government has a legitimate interest in regulating the spectrum. The content of radio and TV broadcasts may be protected under the 1st amendment, but there is no right to broadcast.
How does the state tax different methods of disseminating the same speech differently?
Now that is a good question, though obscure. We've discussed (http://www.calguns.net/calgunforum/showthread.php?t=133664&page=2) it before.
How does the state prohibit the practice of law without a license?
There is no enumerated right to practice law. Regulation of commerce generally falls under the authority of the government.
How does the state require public companies to file information disclosures?
See above.
How does the state require you to at least sign and submit your tax return?
Taxation is a power of Congress listed in the Constitution. You have no right to not be taxed.
How does the state require you to submit to a search to enter the seat of government?
The 4th amendment only prohibits "unreasonable" searches... I think of that as a built-in reduction of the level of scrutiny. Presumably that one was considered reasonable.
This list goes on and on.
And so do my answers. Most of these questions are not pertinent, as they do not address the exercise of an enumerated right.

hoffmang
04-26-2009, 12:58 AM
And so do my answers. Most of these questions are not pertinent, as they do not address the exercise of an enumerated right.

Except where they do. Explain the difference between the electromagnetic spectrum in Alameda County and the County fairgrounds. Are you seriously claiming that broadcast isn't speech? I love how you just waive away both the Fourth Amendment implications of the First Amendment right to petition the government for the redress of grievances.

Also, intermediate scrutiny is a balancing test that is higher than the one that Scalia was dismissing in Heller. You need to read Klein v. Leis (www.sconet.state.oh.us/rod/newpdf/0/2003/2003-ohio-4779.pdf). The important background that that case will not give you is that OCers were being arrested for "disorderly." As soon as this OH Supreme Court case was ruled on, it became clear to the OH legislature that they would either liberalize CCW (and thus make it shall issue) or face wide open carrying. OH became a shall issue state in 2004, shortly after the decision in Klein.

The manner one carries in is very likely going to be regulated as long as the core right to bear arms is available. In Alameda parks and at the fair grounds, Alameda has proscribed the manner in which you carry to require you to have a PC 12050 license. That there are problems with 12050 doesn't necessarily mean there are problems with the Alameda ordinance.

You need to do two things. First you need to understand how broadly the First Amendment isn't actually protected. Second, you need to be able to appeal to other fundamental rights, and not just speech, if you're going to argue an absolutist interpretation of bear arms.

-Gene

hoffmang
04-26-2009, 1:05 AM
Now that is a good question, though obscure. We've discussed (http://www.calguns.net/calgunforum/showthread.php?t=133664&page=2) it before.


Leathers v. Medlock (http://www.oyez.org/cases/1990-1999/1990/1990_90_29/).


Question:

Does differential taxation of different media violate the First and 14th Amendments? Does differential taxation of members of the same medium violate the First and 14th Amendments?

Conclusion:

No and no.

-Gene

hoffmang
04-26-2009, 1:11 AM
There is no enumerated right to practice law. Regulation of commerce generally falls under the authority of the government.


How is writing a legal opinion not speech?

-Gene

cousinkix1953
04-26-2009, 2:14 AM
A funny side thought. Gun shows can go on in Alameda if, after we get shall issue through the courts, all exhibitors acquire licenses under PC 12050.

Side thought two: How can a place that hosted more than a decade of gun shows all of a sudden turn sensitive?

Things will get very interesting here.

-Gene
That's easy. A bunch of gang bangers got into a gunfight at the Alameda county Fair on the 4th of July weekend in 1998. There were no gun shows on the property at the time; but anti-gun politicians have to blame somebody for the unrelated shooting incident one year later...

nobody_special
04-26-2009, 2:36 AM
Except where they do. Explain the difference between the electromagnetic spectrum in Alameda County and the County fairgrounds. Are you seriously claiming that broadcast isn't speech?
Well, one consists of photons and is governed by Maxwell's equations, while the other is a piece of land made of baryonic matter. Should I continue? :p

Here is the relevant SCOTUS decision excerpt:
The Regulations, even if valid in all other respects, must fall because they abridge, say the appellants, their right of free speech. If that be so, it would follow that every person whose application for a license to operate a station is denied by the Commission is thereby denied his constitutional right of free speech. Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, is subject to government regulation.
The Supreme Court disallowed 1st amendment protection for broadcasting, due to the "limited facilities" of radio. The spectrum has been "owned" by the government since at least the 1930s. It is leased out and the content of the broadcasts are supposedly protected under the 1st amendment, though the truth of the matter is different. Broadcasts have not been given the same traditional 1st amendment protections as other forms of media such as newspapers. There are strict yet arbitrary regulations of indecency, the fairness doctrine was upheld for broadcast but not for newspapers, etc.

I fail to see a significant connection between this folly of law and the Alameda statute. (Well, apart from the fact that both are folly.) The federal regulation of the spectrum is allowed due to a special circumstances -- the scarcity argument, and the intrusiveness of broadcasts -- and I don't see a direct analogue of those principles for Alameda. There is no scarcity which is remedied by 12050 licenses, and carrying a firearm at the park or fairgrounds is not similarly intrusive. (Heller's "sensitive place" argument is not equivalent; the logic would be circular.)

I love how you just waive away both the Fourth Amendment implications of the First Amendment right to petition the government for the redress of grievances.

I suspect such searches pass strict scrutiny given the government's interest in securing it's buildings. I'm not saying I agree with this result. I'm also not sure that it is necessary to enter a government building to petition for the redress of grievance... it probably depends on the grievance.

I'm aware of Klein and I know that's the way CC is handled by the courts. Consider this: if the logic of Klein is also good in California (and I believe it is), and given the Nordyke ruling, we essentially have no right to bear in public even with incorporation. What if the legislature were to remove 12050 permits altogether? It's within their power. Then where is the right to bear?
The manner one carries in is very likely going to be regulated as long as the core right to bear arms is available. In Alameda parks and at the fair grounds, Alameda has proscribed the manner in which you carry to require you to have a PC 12050 license.
The possession of a license is not a regulation of the manner of carry, it is a regulation of who can carry. That point is of supreme importance. It is true even if the permits are shall-issue. Again, consider that the legislature could repeal PC12050. Also, doesn't PC12031 provide an exception for people who have licenses under PC12050? So what I said is doubly true, because the possession of a license actually provides an exemption from the manner restriction.
You need to do two things. First you need to understand how broadly the First Amendment isn't actually protected. Second, you need to be able to appeal to other fundamental rights, and not just speech, if you're going to argue an absolutist interpretation of bear arms.

I've looked at some case law for the 1st amendment. I've looked into free speech zones, though they seem to be on pretty shaky ground. I could try to substitute the 4th amendment, but that's a lot messier since "freedom from search and seizure" isn't something you do. Besides the feds don't respect the 4th at all these days... regardless of the written and case law. Other 1st amendment rights such as assembly work just fine though. I haven't looked into freedom of religion yet, maybe I should.
How is writing a legal opinion not speech?
One can have (and write) an opinion on legal matters without actually practicing law. I'm not sure of California's definition of the unlicensed practice of law, but I'm willing to bet it would be limited by free speech issues if it were overly broad.

Liberty1
04-26-2009, 5:08 AM
In plain English :p:


IMO, which doesn't count for much but I'd hope some attorney (hey Alan!) would make the argument that the 2nd A. is NOT like other fundamental rights and doesn't deserve the same levels of scrutiny.

It deserves MORE because the Right to defend my life where ever I go is about defending MY LIFE. None of the other "rights" approach that importance as having once lost ones life the other "rights" mean nothing!

And so long as I'm forced by government into government buildings (DMV, Court, Police Stations, etc...) OR MY tax money is used to create and fund schools or "open space" I should not be stripped to my ability to defend my life (wife, children, parents, friends, romansdad, countrymen!), with PEACEFUL possession of the best tools for that job. Let "sensitive" government employees be protected like bank employees with ballistic glass; glass around the judge, around the clerk, around the prosecutor, around the defendant, around the jury, but not where I carry in the public gallery. And let government employees carry if they wish (they should not be disarmed either).

Sensitive Places should be SECURED if they are so sensitive. Public spaces and DMV lobbies must not be turned into victim rich zones. I do hope these arguments get made. And the sooner the better.

Keep fighting the good fight Nobody Special! If we can influence just a little any argument our side makes then it is I hope made that much more pure.

Liberty1
04-26-2009, 5:17 AM
For gits and shiggles; could an individual with a valid 12050 PC license to carry loaded and exposed (valid only in their county of less then 200,000 population) still carry UOC (as they would not then be exempt from 12031) at the Alameda fairgrounds based on the Alameda exemption language seeming to give a blanket exemption to all license holders?

Scarecrow Repair
04-26-2009, 7:06 AM
Such a restriction would never be applied to an individual walking down the street.

I am sure no legal scholar, but there is indeed a severe restriction on walking down the street: you will be given a ticket for jaywalking. If you actually want to get out in the street itself and not restrict yourself to sidealks and crosswalks, you will need to be driving a car and you will need a driver's license.

RomanDad
04-26-2009, 8:20 AM
The problem I see, is the two of you are not arguing the same thing....

You THINK you are.... But you aren't.

One of you is arguing philosophy (what SHOULD BE, not necessarily what IS) and backing it up with some incomplete legal arguments.


One of you is arguing law (the distillation of Philosophy into real life code) as it stands today.

hoffmang
04-26-2009, 9:43 AM
The problem I see, is the two of you are not arguing the same thing....

You THINK you are.... But you aren't.

One of you is arguing philosophy (what SHOULD BE, not necessarily what IS) and backing it up with some incomplete legal arguments.


One of you is arguing law (the distillation of Philosophy into real life code) as it stands today.

Unfortunately I'm not even sure the philosophy argument is correct. The government owns the spectrum in exactly the same way that Alameda County owns the fairgrounds.

Both are the conduits for exercising a fundamental right. Both require licenses to do so.

I'd prefer it not to be so, but it is the state of the law - even for speech.

nobody: Lines and lines of text are not argument when you assume your conclusion up front.

-Gene

bulgron
04-26-2009, 9:45 AM
I've been wading through these arguments and trying to come out the other side with some sense of whether the courts will actually support our carry rights. Again, it seems to me that if the people in the courts want to support them, they will. Otherwise, we won't have carry rights.

That said, I believe a state license to carry will probably be considered constitutional by the courts. Consider the radio spectrum argument, which allows for a licensing due to the scarcity of the resource. Here, the government and the courts considered reality (the resource is scarce) and so decided to allow regulation of speech where that limited resource is concerned.

There are no scarcity arguments to be made for the carrying of arms, but there is a public safety argument to be made. Simply put, someone who is untrained in the use of arms or who is otherwise unreliable is potentially a menace if allowed to go about in public with a firearm. And so, because of the (perceived) reality that an untrained user of an arm represents an unacceptable risk to society, the requirement for a license could very well be upheld by the courts.

Now, I don't actually think that untrained users of arms represent such a large threat that the infringement of a right through licensing is supportable. But I'm not the one sitting on the courts. It's the fears and prejudices embodied in people who have little familiarity with firearms who will make this decision. And they, I fear, will think that the obvious answer (training is better than no training, and a license is required to ensure training) is acceptable where the rights of an individual intersect with the rights of the general public.

What I can't see is how the courts will uphold California's current arbitrary and capricious licensing scheme. I think 14th amendment equal protection and 2A right to arms for self defense will both demand shall-issue licenses, provided that the core training requirements have been met by the user.

Of course, those training requirements can't be too onerous. If they are, all we'll need is a sympathetic client (say, someone handicapped) to lower the bar until virtually the entire population is capable of meeting the training requirements.

After that, the whole thing becomes an argument of what is a sensitive area and so what places in society can the government prevent me from bearing my arms, even with my license.

Since I am not a lawyer, I'm sure I'm missing a boatload of things here. Yet I also know that the courts are capable of arriving at any outcome that they want. I hope what they want is to support, at a minimum, shall-issue licenses. Otherwise, I think I'll never get to cross my front doorstep with a loaded firearm. At least, not in the state of California.

nobody_special
04-26-2009, 10:08 AM
Gene, I did not assume my conclusion. Consider these arguments:

1. The federal regulation of the spectrum is allowed due to a special circumstances -- the scarcity argument, and the intrusiveness of broadcasts -- and I don't see a direct analogue of those principles for Alameda. There is no scarcity which is remedied by 12050 licenses, and carrying a firearm at the park or fairgrounds is not similarly intrusive.

2. The possession of a license is not a regulation of the manner of carry, it is a regulation of who can carry.

I haven't seen them refuted.

nobody_special
04-26-2009, 10:12 AM
I am sure no legal scholar, but there is indeed a severe restriction on walking down the street: you will be given a ticket for jaywalking. If you actually want to get out in the street itself and not restrict yourself to sidealks and crosswalks, you will need to be driving a car and you will need a driver's license.
And where is the enumerated right to drive? This is just another time/place/manner restriction. It is not directed at restricting the right to travel, and in fact it does not impede pedestrian travel. The Alameda ordinance does impede the 2nd amendment right to bear.

PatriotnMore
04-26-2009, 10:26 AM
Simply put, someone who is untrained in the use of arms or who is otherwise unreliable is potentially a menace if allowed to go about in public with a firearm.

If we are going to start making up rules contrary to the written law, I would agree. Also, anything is game, including you have no right at all.
Moreover, if we are going to start down that road, anyone who buys a firearm should have to attend classes to demonstrate their proficiency, right? After all, they will be out and about in society also.
Moreover, who is going to set the standard?
What will be the standard for deaf, paraplegic, and others physically handicapped?

Personally, it is my contention no one should need a piece of paper, or demonstrate proficiency to exercise a right. Should we adopt the same standards to freedom of speech? How about freedoms regarding religion?

Furthermore, I refuse to buy into the reasoning that armed open carry is not the issue written about in the Constitution. That is simply an argument designed by lawyers to water down what was clearly given to us. The language does not state in the home, or on the person, it simply says we have the right to BEAR arms, and that shall not be infringed. Therefore it covers both on the person, and in the home, not one or the other.

nobody_special
04-26-2009, 10:26 AM
There are no scarcity arguments to be made for the carrying of arms, but there is a public safety argument to be made. Simply put, someone who is untrained in the use of arms or who is otherwise unreliable is potentially a menace if allowed to go about in public with a firearm. And so, because of the (perceived) reality that an untrained user of an arm represents an unacceptable risk to society, the requirement for a license could very well be upheld by the courts.

For 1st amendment rights, such a requirement would be subject to strict scrutiny. It would have to be narrowly tailored and minimally restrictive. I question whether Alameda's complete ban absent a permit would satisfy those requirements even if the permit process were fair and inexpensive. It certainly does not satisfy strict scrutiny with the current permit process.

CCWFacts
04-26-2009, 10:36 AM
That said, I believe a state license to carry will probably be considered constitutional by the courts.

I'm sure it will be. Heller suggested that idea. All rights can be regulated to some extent, and the regulation that's appropriate for a deadly weapon is different from the regulation that's appropriate for a pen and paper, or for holding a religious belief. That should be obvious; the harm that can be done with a gun is instant and irreversible and as tangibly real as is possible. Writing something on paper isn't like that. Some people here may not agree with that philosophically, but that's how it's going to work in the real world.

nobody_special
04-26-2009, 10:44 AM
Heller suggested that idea. [that a state license can be required for carry]
Citation please?

yellowfin
04-26-2009, 10:47 AM
The key advantage enjoyed by the First Amendment is that its forms of exercise and avenues for doing so are numerous. Not so with the 2nd.

Mazilla
04-26-2009, 10:54 AM
All rights can be regulated to some extent, and the regulation that's appropriate for a deadly weapon is different from the regulation that's appropriate for a pen and paper, or for holding a religious belief. That should be obvious; the harm that can be done with a gun is instant and irreversible and as tangibly real as is possible. Writing something on paper isn't like that.

I completey disagree, more damage has been done via pen and paper. "The pen is mightier than the sword" or gun in this case. :p

bulgron
04-26-2009, 11:06 AM
If we are going to start making up rules contrary to the written law, I would agree, also, anything is game, including you have no right at all.

The thing that people seem to be missing is that the judicial system is a game. The people involved in that game, the judges in particular, can make the rules of the game give them whatever result they want. As evidence A, I point to the way the courts twisted the original Miller opinion (which wasn't really an opinion) all out of context until, some 70 years later, we almost had no individual right to arms protected by the US Federal Bill of Rights.

Judges seem adept at bending over backwards to protect constitutional rights when they themselves hold those rights dear. But when judges find no utility in a right, when they think a right does not represent good public policy, then they are capable of doing the reverse: dodging and weaving and doing everything in their power to refuse to protect that right.

I believe we will see the courts dance as hard as possible to avoid protecting American's right to arms. Many (most?) of them don't like the right, so they will refuse to protect it. That we rest all our hopes for the right of Americans to carry arms upon the health and good cheer of five justices sitting in a single court is all the evidence that I need to prove this point.

We will never get the "shall not be infringed" version of the right that most everyone here thinks we should have. But if we're very very lucky (and I do mean LUCKY) we might be able to cling to some kind of a shall-issue version of "shall not be infringed."

PatriotnMore
04-26-2009, 11:16 AM
The thing that people seem to be missing is that the judicial system is a game. The people involved in that game, the judges in particular, can make the rules of the game give them whatever result they want. As evidence A, I point to the way the courts twisted the original Miller opinion (which wasn't really an opinion) all out of context until, some 70 years later, we almost had no individual right to arms protected by the US Federal Bill of Rights.

Judges seem adept at bending over backwards to protect constitutional rights when they themselves hold those rights dear. But when judges find no utility in a right, when they think a right does not represent good public policy, then they are capable of doing the reverse: dodging and weaving and doing everything in their power to refuse to protect that right.

I believe we will see the courts dance as hard as possible to avoid protecting American's right to arms. Many (most?) of them don't like the right, so they will refuse to protect it. That we rest all our hopes for the right of Americans to carry arms upon the health and good cheer of five justices sitting in a single court is all the evidence that I need to prove this point.

We will never get the "shall not be infringed" version of the right that most everyone here thinks we should have. But if we're very very lucky (and I do mean LUCKY) we might be able to cling to some kind of a shall-issue version of "shall not be infringed."

Although I agree that is the reality, that does not mean we should buy into it, or argue based on their interpretation. We have the written Constitution, word for word. They have a philosophical concept, based on opinion.

Our argument, and rights need to be based on the written word, if we allow this door of incorrect interpretation, we open it for all others.

Stop buying into their argument, and demand them to show you where in the Constitution it is written, from which they draw their opinion from. Once the argument is based on the written word, not a concept, everyone can accept a ruling. Not only that, the historical context needs to be applied to the argument, without it, there is no reference from which it was drafted, or the meaning it was meant to convey.

nobody_special
04-26-2009, 11:56 AM
Another possible argument that I haven't investigated... I believe most states allow unlicensed, loaded open carry. That suggests to me that (a) the public safety issues may not be so compelling as to overcome a strict scrutiny standard, and (b) there may be case law protecting open carry under a state constitutional provision.

BigDogatPlay
04-26-2009, 12:00 PM
I believe most states allow unlicensed, loaded open carry.

In the interest of a correct record, according to opencarry.org 11 states allow open carry without license.

http://www.opencarry.org/opencarry.html

Sgt Raven
04-26-2009, 1:29 PM
I am sure no legal scholar, but there is indeed a severe restriction on walking down the street: you will be given a ticket for jaywalking. If you actually want to get out in the street itself and not restrict yourself to sidealks and crosswalks, you will need to be driving a car and you will need a driver's license.

I can ride a bicycle in the streets without a license. :thumbsup:

Shotgun Man
04-26-2009, 1:32 PM
Many municipalites have licensing requirements for the actual bike. Cops have been known to use the lack of displayed license as PC for a detention.

hoffmang
04-26-2009, 2:24 PM
Gene, I did not assume my conclusion. Consider these arguments:

1. The federal regulation of the spectrum is allowed due to a special circumstances -- the scarcity argument, and the intrusiveness of broadcasts -- and I don't see a direct analogue of those principles for Alameda. There is no scarcity which is remedied by 12050 licenses, and carrying a firearm at the park or fairgrounds is not similarly intrusive.

You assume its a scarcity argument - it is not. It is an interference argument. The argument goes that broadcasters would step all over each other if their speech wasn't licensed. Too bad that has very little bearing in reality. The government licenses the use of common property for speech.


2. The possession of a license is not a regulation of the manner of carry, it is a regulation of who can carry.

You assume that a license isn't a manner restriction. A parade or gathering permit or a permit to use the park for such is a manner restriction. If the license is non discriminatory it survives intermediate scrutiny and probably strict scrutiny as well (you'll note the OH Supreme Court falling to intermediate scrutiny when the regulations were about equivalent alternative means to carry). If anyone who isn't otherwise prohibited can get the license, how does it regulate who can carry?

Why do you ignore that the right to assemble can and often does require a license? It's a fundamental right that can be and often is licensed.

I've cited case law after case law to you about licenses of fundamental rights and what I hear back from your point of view is either silence (you note that speech can be taxed at different rates?) or a logical argument unsupported by case law. Google isn't hard to use to find Supreme Court precedent if you'd like to support your point of view with actual cites to analogous legal decisions.

-Gene

RomanDad
04-26-2009, 2:29 PM
You assume its a scarcity argument - it is not. It is an interference argument. The argument goes that broadcasters would step all over each other if their speech wasn't licensed. Too bad that has very little bearing in reality. The government licenses the use of common property for speech.


You assume that a license isn't a manner restriction. A parade or gathering permit or a permit to use the park for such is a manner restriction. If the license is non discriminatory it survives intermediate scrutiny and probably strict scrutiny as well (you'll note the OH Supreme Court falling to intermediate scrutiny when the regulations were about equivalent alternative means to carry). If anyone who isn't otherwise prohibited can get the license, how does it regulate who can carry?

Why do you ignore that the right to assemble can and often does require a license? It's a fundamental right that can be and often is licensed.

I've cited case law after case law to you about licenses of fundamental rights and what I hear back from your point of view is either silence (you note that speech can be taxed at different rates?) or a logical argument unsupported by case law. Google isn't hard to use to find Supreme Court precedent if you'd like to support your point of view with actual cites to analogous legal decisions.

-Gene

The easier argument (and one that I pray will end this) is Strip clubs.

ROUTINELY protected as first amendment freedoms of expression, they can be licensed, regulated, and in fact subject to SERIOUS zoning regulations. If you don't believe me, try to open one near a School or Church, or even in a light-commercial "strip mall" (no pun intended).... Nope.... Theres a reason you have to drive to the Heavy Commercial/Light Industrial zoned part of town in most cities to pay the girls to express their first amendment rights.... And thats because thats where the licensing municipalities RELUCTANTLY allow them. And the Courts say that regulation is JUST FINE, even though it interferes with a first amendment protected activity and in fact has a significant, provable financial burden on the club operators.

hoffmang
04-26-2009, 2:41 PM
The easier argument (and one that I pray will end this) is Strip clubs.


Thanks for that RomanDad. I will say that everyone of the right people I talk to thinks we will end up on the broader rights side of strip clubs or adult video stores.

Just remember that you can't open a store that sells books, videos, and magazines (that show sex) too close to any school and remember how circumscribed the law already allows speech to be.

-Gene

obeygiant
04-26-2009, 3:30 PM
The easier argument (and one that I pray will end this) is Strip clubs.

ROUTINELY protected as first amendment freedoms of expression, they can be licensed, regulated, and in fact subject to SERIOUS zoning regulations. If you don't believe me, try to open one near a School or Church, or even in a light-commercial "strip mall" (no pun intended).... Nope.... Theres a reason you have to drive to the Heavy Commercial/Light Industrial zoned part of town in most cities to pay the girls to express their first amendment rights.... And thats because thats where the licensing municipalities RELUCTANTLY allow them. And the Courts say that regulation is JUST FINE, even though it interferes with a first amendment protected activity and in fact has a significant, provable financial burden on the club operators.

Nice job RomanDad!

RomanDad
04-26-2009, 3:35 PM
Nice job RomanDad!

Thanks... I helped write Pico Rivera's adult use ordinance... And it was upheld by the 9th Circuit COA.

Liberty1
04-26-2009, 4:07 PM
In the interest of a correct record, according to opencarry.org 11 states allow open carry without license.

http://www.opencarry.org/opencarry.html

John Pierce (founder of OCDO) likes to say it is 27 open carry states when one combines the gold star (no OC license on foot or in vehicle) and anamalous states (no license when on foot).

yellowfin
04-26-2009, 4:09 PM
Strip clubs? Why must we continue to play the excusable villain? Exactly what about living as Americans were intended to live and defending my life, wife, family, and property puts me on the level of smut?

CSDGuy
04-26-2009, 4:12 PM
Strip clubs? Why must we continue to play the excusable villain? Exactly what about living as Americans were intended to live and defending my life, wife, family, and property puts me on the level of smut?
The statement RomanDad is making (I think) is about regulation of a protected right, not necessarily the content thereof.

hoffmang
04-26-2009, 4:22 PM
Strip clubs? Why must we continue to play the excusable villain? Exactly what about living as Americans were intended to live and defending my life, wife, family, and property puts me on the level of smut?

The first amendment is absolute except when it offends some morals...

-Gene

Liberty1
04-26-2009, 4:24 PM
Where I can understand the time place manner restrictions on 1st A. use of the streets, parks, gov. buildings and the regulations on travel (vehicle codes) is that one's use and travel directly conflicts with someone else's equal right to use that space at the same time (hence the rules of the road or permits needed for use of streets/parks/fairgrounds or laws governing vehicle accidents where I find one party at fault for a VC violation).

The right to carry where ever I go for self defense with a loaded and peacefully holstered or slung arm doesn't impede another's equal right to do the same in ANY way until I reach the threat of brandishing or actually unlawfully discharge that firearm or swing that knife or baton.

RomanDad
04-26-2009, 6:43 PM
Strip clubs? Why must we continue to play the excusable villain? Exactly what about living as Americans were intended to live and defending my life, wife, family, and property puts me on the level of smut?

The other side feels the same way about your guns.... And their opinion is no more valid than yours.



One mans rights are another man's smut (or weapon of destruction)....

RomanDad
04-26-2009, 7:01 PM
The right to carry where ever I go for self defense with a loaded and peacefully holstered or slung arm doesn't impede another's equal right to do the same in ANY way until I reach the threat of brandishing or actually unlawfully discharge that firearm or swing that knife or baton.

Thats not necessarily true. You may not interfere with my right to DEFEND myself, but you may interfere with my right to be in a public park and ENJOY myself.

I myself get VERY distracted by STRANGERS carrying guns. If I dont know you, and dont know your intentions or capabilities with your gun, I will assume you are an idiot, and wont enjoy myself until you leave.

Just yesterday I had the great displeasure of having an unknown guy walk into a gun store I was patronizing, with a double barrel shotgun, breach closed, resting on his shoulder. As soon as he walked through the door, he swung the barrel forward into firing position, SWEEPED THE ENTIRE ROOM (I looked RIGHT DOWN THE PIPE) and I was pretty sure we were getting robbed.


Turns out he wasnt a robber....


JUST A COMPLETE ****ING DUMBASS.

So yeah, I dont assume you and your gun are harmless.... I assume you are a complete moron or worse.... Which is why I prefer concealed carry for modern day exercise of the right to public self defense- Out of sight, out of mind.

Yes... I feel the same way with cars on the freeway. If you are driving next to me, no offense, I assume you are a complete idiot until you prove otherwise or drive out of my life.... FWIW, I am probably muttering obscenities about you as well....

Theseus
04-26-2009, 7:08 PM
Thats not necessarily true. You may not interfere with my right to DEFEND myself, but you may interfere with my right to be in a public park and ENJOY myself.

Too bad your illusion of a "right to ENJOY" yourself doesn't exist.

You have no right to enjoy yourself in the park. You have a right to be there and perhaps the right to defense, but no right to enjoy yourself.

Liberty1
04-26-2009, 7:09 PM
Just yesterday I had the great displeasure of having an unknown guy walk into a gun store I was patronizing with a double barrel shotgun, breach closed, resting on his shoulder. As soon as he walked through the door, he swung the barrel forward into firing position, SWEEPED THE ENTIRE ROOM (I looked RIGHT DOWN THE PIPE) and I was pretty sure we were getting robbed.


Turns out he wasnt a robber....




417(a)(2) PC is a crime and not peaceful OC. Otherwise mere discomfort does not a Right invalidate but then I'm talking philosophy and logic which seems devoid form what some expect of the courts. The 2nd A should not be compared to other rights. It is on a different plain for my above stated reasons IMO.



Certain types of individuals at my kids park cause me great discomfort too. There is nothing I can do about it unless they break the law. If I see too many of them yes I choose to leave.


and just yesterday I was out in public and saw large numbers of hard working law abiding individuals who were not carrying arms, unable to protect themselves, their families and their country. I was greatly distressed that such laws were enacted due to others mere illogical discomfort...:p

RomanDad
04-26-2009, 7:17 PM
Too bad your illusion of a "right to ENJOY" yourself doesn't exist.

You have no right to enjoy yourself in the park. You have a right to be there and perhaps the right to defense, but no right to enjoy yourself.

Public parks exist for the PUBLIC USE AND ENJOYMENT. That's the only reason they are chartered.

417(a)(2) PC is a crime and not peaceful OC. Otherwise mere discomfort does not a Right invalidate but then I'm talking philosophy and logic which seems devoid form what some expect of the courts. The 2nd A should not be compared to other rights. It is on a different plain for my above stated reasons IMO.



Certain types of individuals at my kids park cause me great discomfort too. There is nothing I can do about it unless they break the law. If I see too many of them yes I choose to leave.

Listen guys. We always have to be careful and respectful of others about how we exercise our RIGHTS. We shouldn't give in to UNREASONABLE regulations, but the CHIP ON THE SHOULDER, "MY RIGHTS are absolute and yours are irrelevant" is a dangerous and LOSING attitude (and its just plain RUDE.)

This idea that "Im going to carry my gun any way I like and screw you if you dont like it" is selfish and counterproductive.

Theseus
04-26-2009, 7:27 PM
I am not saying my right is absolute and theirs irrelevant. . . I am simply saying that I have a right to defend myself as do you.

I will respect your RIGHTS, but only if you respect mine.

Just because a park is there for "public use and enjoyment" doesn't mean you are guaranteed enjoyment any more than the existence of a police force means you are guaranteed to be safe from crime.

I will continue to OC when this case is over (provided it goes my way). If I could conceal I might think about it, but I can't, so I don't.

Liberty1
04-26-2009, 7:29 PM
This idea that "Im going to carry my gun any way I like and screw you if you dont like it" is selfish and counterproductive.

Any way I like is not what we are talking about. Concealed carry is not going to be a right sadly but to short change peaceful OC, or its deterrent effect, when 27 states allow it in some form without licensing (including licensing a total of 44 states have Open Carry) with no visible negative effect or to call it rude, selfish and counterproductive is divisive.

I'm more them willing to begrudgingly realize what the reality may be but I will not stop advocating for as much freedom as possible and I hate to see us give in so early in the game without making that argument for maximum peaceful carry rights that are more then in line with the national picture, especially in regards to OC laws and lack there of. I do think OC state jurisprudence is on my side and on that point even Eugene Voloch seems to agree (as much as I disagree with him on other issues such as AW bans).

Would I be happy with CA becoming a licensed OC/CC carry state like GA, PA, WA, IN, MN, TN etc...? Yes. Content? No, not until we're Vermont. Texas? only as a stepping stone...

nobody_special
04-26-2009, 7:36 PM
You assume its a scarcity argument - it is not. It is an interference argument. The argument goes that broadcasters would step all over each other if their speech wasn't licensed.
I fail to see the distinction.
You assume that a license isn't a manner restriction.
The PC12050 license does not regulate the manner of carry, as it allows both LOC and CC. That's not an assumption, that's a fact.

A parade or gathering permit or a permit to use the park for such is a manner restriction.

Yes, and again a court would laugh at a statute that required such a permit for an individual activity. Such permits are allowed only after passing intermediate scrutiny, and when the statute does not directly suppress the 1st amendment activity. The Alameda statute, as applied to bearing arms for self-defense, would not stand such scrutiny because the law directly suppresses all 2nd amendment activity in those places. No other enumerated right is restricted to the home in this way, so that it cannot be exercised in public without a permit.

If the license is non discriminatory it survives intermediate scrutiny and probably strict scrutiny as well (you'll note the OH Supreme Court falling to intermediate scrutiny when the regulations were about equivalent alternative means to carry). If anyone who isn't otherwise prohibited can get the license, how does it regulate who can carry?

The law regulates who can carry by dividing people into two classes: those who have permits (and may carry) and those who do not have permits. Only the former may carry. The ease of obtaining a permit does not change the effect of the law.

Also, only those who can afford the time and money for a license can carry. And you're assuming that any non-discriminatory licensing scheme would survive intermediate scrutiny; that isn't true.
Why do you ignore that the right to assemble can and often does require a license? It's a fundamental right that can be and often is licensed.
I'm not aware of any jurisdiction that absolutely requires a license in order to exercise the right to assemble in any form, and I doubt the courts would allow such a travesty. The licenses you keep bringing up are invariably time/place/manner restrictions which are subject to intermediate scrutiny, and serve the purpose of regulating conflicting interests in the use of public property. Parades or large public gatherings disrupt traffic or deny the use of public facilities to other people. The bearing of arms for self-defense in public does not occupy a public resource, and the Alameda statute is not a regulation on the manner of carry, it is a ban.
I've cited case law after case law to you about licenses of fundamental rights and what I hear back from your point of view is either silence (you note that speech can be taxed at different rates?) or a logical argument unsupported by case law. Google isn't hard to use to find Supreme Court precedent if you'd like to support your point of view with actual cites to analogous legal decisions.
Gene, you're flat-out wrong here. I've quoted two SCOTUS cases, Hauge v. CIO and NBC v. United States, and I've examined others. You keep repeating the same arguments about permits and taxes, ignoring the fact that such permits and taxes in general aren't being applied directly to the right in question.

I missed your earlier post on Leathers v. Medlock. Let me also quote this part of the description: "the Court held 7-2 that without the intent or effect of suppressing expression, the First Amendment allows differential taxation... Specifically, the Court held that the GRA was a generally applicable sales tax...." It smacks of doublespeak, I admit.

You use these arguments in support of a law which directly suppresses the exercise of an enumerated right. The Alameda ordinance is not a time/space/manner restriction, it is a complete ban. The fact that PC12050 permits are an allowed exception supports my point, because (1) the legislature can repeal PC12050 at any time, and (2) PC12050 actually removes regulation of the manner of carry.

As far as the strip club argument goes, I grant the point, but with the reservation that there are also several exceptions to the 2nd amendment... for example the NFA. I'm far from convinced that the strip club argument necessarily leads to a conclusion that unlicensed open carry is not constitutionally protected.

Roadrunner
04-26-2009, 7:42 PM
Here's a thought about rights that I think everyone should consider. Let's take the 1st amendment for example. We know that the first amendment covers freedom of speech and freedom of religion, but how many of us would be annoyed if someone set up a pulpit and PA system in the park next to us and started preaching Hellfire and Damnation with the volume cranked all the way up? I think the second amendment is just like that. Our right to bear arms should not infringe on someone else's right to enjoy life. Unfortunately, alot of people have been fed the disinformation of the antigun groups, and annoying or flat out scaring someone while we exercise our rights does nothing to advance our cause.

hoffmang
04-26-2009, 7:45 PM
The PC12050 license does not regulate the manner of carry, as it allows both LOC and CC. That's not an assumption, that's a fact.


I guess you need to read the law again:

12050. (a) (1) (A) The sheriff of a county, upon proof that the
person applying is of good moral character, that good cause exists
for the issuance, and that the person applying satisfies any one of
the conditions specified in subparagraph (D) and has completed a
course of training as described in subparagraph (E), may issue to
that person a license to carry a pistol, revolver, or other firearm
capable of being concealed upon the person in either one of the
following formats:
(i) A license to carry concealed a pistol, revolver, or other
firearm capable of being concealed upon the person.
(ii) Where the population of the county is less than 200,000
persons according to the most recent federal decennial census, a
license to carry loaded and exposed in that county a pistol,
revolver, or other firearm capable of being concealed upon the
person.


Alameda knows or should have known that its a county with more than 200,000 people and therefor a 12050 license is for concealed carry.

You have your personal bias which is unsupported by the likely jurisprudence. I'm sorry that you're going to have your hopes dashed, but I'm telling you what the likely outcomes will be in California.

Ignore me at the peril of the right to bear arms.

-Gene

nobody_special
04-26-2009, 7:56 PM
We know that the first amendment covers freedom of speech and freedom of religion, but how many of us would be annoyed if someone set up a pulpit and PA system in the park next to us and started preaching Hellfire and Damnation with the volume cranked all the way up? I think the second amendment is just like that. Our right to bear arms should not infringe on someone else's right to enjoy life.

There are two fatal problems with your argument.

First, you have no right to enjoy life. The DoI talks of the rights to life, liberty, and the pursuit of happiness -- which is different from "happiness."

Second, noise ordinances are just another time/place/manner restriction, and there's nothing wrong with that. They must be limited so as to avoid unnecessary suppression of speech.

obeygiant
04-26-2009, 7:58 PM
As far as the strip club argument goes, I grant the point,

+1 for honesty.

nobody_special
04-26-2009, 8:00 PM
Alameda knows or should have known that its a county with more than 200,000 people and therefor a 12050 license is for concealed carry.
Gene, assume for a moment that someone has a PC12050 license. What law would they be breaking if they carried a loaded, unconcealed weapon at the Alameda fairgrounds? (Hint: look at the exceptions in PC12031.)

CSDGuy
04-26-2009, 8:09 PM
Is a CCW License valid as an exemption to Loaded Carry if it's not being utilized for the purpose of Carrying Concealed? I mean, sure I have a Class C Driver's License, but it's not valid for the purpose of driving a Class B truck...

???

nick
04-26-2009, 8:13 PM
There are two fatal problems with your argument.

First, you have no right to enjoy life. The DoI talks of the rights to life, liberty, and the pursuit of happiness -- which is different from "happiness."

Second, noise ordinances are just another time/place/manner restriction, and there's nothing wrong with that. They must be limited so as to avoid unnecessary suppression of speech.

And how many guys with PA preaching Hellfire and Damnation have you seen? I've seen quite a few, and they're not removed. They're annoying, to say the least, but las it's their right to be there and preach Hellfire and Damnation. It's also rude, but it's still their right to be rude.

Roadrunner
04-26-2009, 8:13 PM
There are two fatal problems with your argument.

First, you have no right to enjoy life. The DoI talks of the rights to life, liberty, and the pursuit of happiness -- which is different from "happiness."

Second, noise ordinances are just another time/place/manner restriction, and there's nothing wrong with that. They must be limited so as to avoid unnecessary suppression of speech.

Okay, and when people freak out and become even more antigun because you didn't care about the negative reaction you caused in the park, then what? We get all high and mighty about how the right to self defense is infringed on in California, and we pound the podium and demand our right outside of our house, but how do you propose to change things when we are making enemies of our neighbors?

Maybe we should place a warning label on Calguns that reads something like "No change in law should be attempted at home. All laws changed were done by trained professionals".

USAFTS
04-26-2009, 8:15 PM
.... I assume you are a complete moron or worse.... Which is why I prefer concealed carry for modern day exercise of the right to public self defense- Out of sight, out of mind.

RomanDad -

Your comment is exactly correct but not from an arrogant or vindictive standpoint. I think it is a responsible and sadly necessary attitude when it comes to always being aware of your surroundings and having the tactical advantage in a bad situation. As much as I trust my training, my skills and my mental state...It is necessary for me NOT to trust yours unless or until I know you and have reason to feel comfortable with my back to you.

It is nothing personal. It's survival.

This is likely the same reason that many LEO's have a problem with CCW, or any kind of civilian carry.

nobody_special
04-26-2009, 8:27 PM
Is a CCW License valid as an exemption to Loaded Carry if it's not being utilized for the purpose of Carrying Concealed?
Yes, AFAICT. Quoting PC 12031:

(a) (1) A person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm...
[...]
(b) Subdivision (a) shall not apply to any of the following:
[...]
(6) The carrying of pistols, revolvers, or other firearms capable of being concealed upon the person by persons who are authorized to
carry those weapons pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4.

Mike Dicta
04-26-2009, 8:30 PM
This will all be settled in two weeks, I understand.

CSDGuy
04-26-2009, 8:32 PM
Yes.
How so? I understand 12031 contains an exemption for persons licensed under 12050, but is a CCW valid when you're open carrying? I ask this because 12050 has an Open Carry License specifically... and one for Concealed Carry and the CCW one says nothing about Open Carry. That might lead me to believe that the CCW License is not valid when OC and therefore invalid for 12031 during OC activty...

(Just playing a specific role...;))

nobody_special
04-26-2009, 8:34 PM
Okay, and when people freak out and become even more antigun because you didn't care about the negative reaction you caused in the park, then what? We get all high and mighty about how the right to self defense is infringed on in California, and we pound the podium and demand our right outside of our house, but how do you propose to change things when we are making enemies of our neighbors?

I'm not necessarily advocating open carry in day-to-day activity, nor am I deriding it. I do think it's important to have a legal option for carrying at a moment's notice without a permission slip from the government.

Of course, there are people who OC in both California and other states without incident.

RomanDad
04-26-2009, 8:36 PM
This will all be settled in two weeks, I understand.

Youre one of my favorite football coaches, and least liked legal concepts.

USAFTS
04-26-2009, 8:37 PM
Okay, and when people freak out and become even more antigun because you didn't care about the negative reaction you caused in the park, then what? We get all high and mighty about how the right to self defense is infringed on in California, and we pound the podium and demand our right outside of our house, but how do you propose to change things when we are making enemies of our neighbors?

I truly believe that "Shall Issue Concealed Carry" is the answer to this question. As RomanDad said, "Out of sight - Out of mind". The whole purpose of concealed carry is "Concealment". If the public is aware we have a firearm, we are carrying incorrectly. If we carry correctly "in the park", the people have no reason to freak out and become even more anti-gun and when, God forbid, we are forced to use our firearm in the protection of a stranger in a park, I bet they will probably be forever thankful and maybe even a little less anti-gun.

As far as being "High and mighty" about how California infringes on our rights. We need to bang the podium. I am confident that when the 2nd Amendment was written, it did not mean "Shall not be infringed" (unless you leave the house or Unless it makes someone else uncomfortable).

Sorry, didn't mean to rant. I am new here and mean no ill will.

nobody_special
04-26-2009, 8:49 PM
How so? I understand 12031 contains an exemption for persons licensed under 12050, but is a CCW valid when you're open carrying?

AFAIK, a CCW license is valid until it expires or is revoked. I see nothing that limits the exemption in 12031(b)(6).

I ask this because 12050 has an Open Carry License specifically... and one for Concealed Carry and the CCW one says nothing about Open Carry. That might lead me to believe that the CCW License is not valid when OC and therefore invalid for 12031 during OC activty...

The 12050 LOC permit is more restrictive than the 12050 CCW permit. I'm not sure if any LOC permits have ever been issued. Clearly, CCW permit holders can carry loaded. The state does not ban unconcealed carry. So again, what law is broken by someone with a 12050 CCW license if they are openly carrying a loaded gun on Alameda county land?

Thus my conclusion that the Alameda ordinance is a ban and not a manner restriction.

hoffmang
04-26-2009, 8:57 PM
Gene, assume for a moment that someone has a PC12050 license. What law would they be breaking if they carried a loaded, unconcealed weapon at the Alameda fairgrounds? (Hint: look at the exceptions in PC12031.)

This is not at all settled law. An interpretation that makes surplussage of 12050. (a) (1) (A) (ii) is likely not valid. You *might* be correct that a 12050 license is a minimum to not violating 12031, however none of that matters for the point of my original post about Nordyke.

One who obtains a permit can carry in Alameda parks. Your position that a non discriminatory license is a violation of the Second Amendment isn't supported by the actual case law about other fundamental rights.

I wish you were right that licensing abridges a right. However, I'm telling you that the courts are not going to agree with you as long as the license is non discretionary and takes indigence into consideration. The Alameda carry on county property ban has an exception for licensed carry. That's it, and I suspect it's why this panel ruled the way it did.

-Gene

nobody_special
04-26-2009, 9:13 PM
This is not at all settled law. An interpretation that makes surplussage of 12050. (a) (1) (A) (ii) is likely not valid. You *might* be correct that a 12050 license is a minimum to not violating 12031, however none of that matters for the point of my original post about Nordyke.

This interpretation does not make 12050(a)(1)(A)(ii) surplussage. Think of it this way: one license is for OC, the other allows both OC and CC. Both licenses are exempt from 12031(a). The law enables the sheriff to allow LOC rather than concealed carry.

Of course a 12050 license precludes a 12031 violation... there are a few 12050 licenses in this state, and I do believe those people load their weapons, right? I seem to recall a member having his 12050 permit revoked because he was open carrying a while back...

The Alameda carry on county property ban has an exception for licensed carry. That's it, and I suspect it's why this panel ruled the way it did.
You really think so? My take was that they simply resorted to the "sensitive places" exception to the 2nd amendment, and refused to rule that Heller applies outside of the home.

I think this is a potentially viable strategy somewhere down the road. I'm sorry you think otherwise.

hoffmang
04-26-2009, 9:22 PM
You really think so? My take was that they simply resorted to the "sensitive places" exception to the 2nd amendment, and refused to rule that Heller applies outside of the home.

I think this is a potentially viable strategy somewhere down the road. I'm sorry you think otherwise.

When Texas can ban open carry while allowing non discretionary CCW, you have a very, very hard row to hoe.

I suggest someone challenge the ban on open carry in Texas before people think that we should be in California courts trying to get a broad right to carry without a license.

Maybe it's not obvious to you, but I doubt seriously we'll be able to end handgun registration or HSC cards in California. I'm not saying I like it. I'm saying that we can't easily beat it here. Maybe if someone beats those issues somewhere else, we can re-import it, but I don't hold a lot of hope there.

Note however that I am being quite precise about what I'm saying we can't beat. There are a surprising number of California laws that will not survive the coming onslaught.

-Gene

RomanDad
04-26-2009, 9:30 PM
I KNOW Im going to regret this post in the morning.... (Walk Away RD... Walk away..... These arguments matter elsewhere....)



Wait.... Im following my own advice..... Im walking away from this one. Who's with me?

Roadrunner
04-26-2009, 10:00 PM
I'm not necessarily advocating open carry in day-to-day activity, nor am I deriding it. I do think it's important to have a legal option for carrying at a moment's notice without a permission slip from the government.

Of course, there are people who OC in both California and other states without incident.

I truly believe that "Shall Issue Concealed Carry" is the answer to this question. As RomanDad said, "Out of sight - Out of mind". The whole purpose of concealed carry is "Concealment". If the public is aware we have a firearm, we are carrying incorrectly. If we carry correctly "in the park", the people have no reason to freak out and become even more anti-gun and when, God forbid, we are forced to use our firearm in the protection of a stranger in a park, I bet they will probably be forever thankful and maybe even a little less anti-gun.

As far as being "High and mighty" about how California infringes on our rights. We need to bang the podium. I am confident that when the 2nd Amendment was written, it did not mean "Shall not be infringed" (unless you leave the house or Unless it makes someone else uncomfortable).

Sorry, didn't mean to rant. I am new here and mean no ill will.

Both of your points are well made. But, we have to understand that until such time as another persons life is in danger, those who have been indoctrinated into believing that GUNS not PEOPLE are inherently dangerous will not view a gun as a welcomed sight. I believe that discretion IS the better part of valor. Since I have a whole pocket full of cliches, I will also add that you catch more flies with honey than with vinegar, so while open carry maybe the next best way to carry, it may not be prudent.

When I focused on our demands for our rights, my point was to make sure that we respect others. That being said, it's 2200 and time for "The Unit".

Liberty1
04-26-2009, 10:09 PM
I KNOW Im going to regret this post in the morning.... (Walk Away RD... Walk away..... These arguments matter elsewhere....)



Wait.... Im following my own advice..... Im walking away from this one. Who's with me?

You'll be back:p. Seriously, I've enjoyed reading and participating in this thread very much in particular. :thumbsup: Sleep tight and Carry On!

yellowfin
04-26-2009, 10:39 PM
The other side feels the same way about your guns.... And their opinion is no more valid than yours.



One mans rights are another man's smut (or weapon of destruction).... I wasn't so much saying that I dislike strip clubs...I...I...will refuse to make any incriminating statements that my wife might read later...suffice it to say I lived right around the block from a very good one for 2 years :p Even if I did object to strip clubs, it still is not my place or anyone's to deny another person theirs. That much courtesy to another person is due them by me--their choice is not subject to my preference as a matter of principle.

As a matter of LAW, however, THEIR imposition in my choice is off the table. They're not supposed to even be able to try. If they are to tell me that they are not subject to my choice, then why would I be to theirs? And before you go there, NO, they are NOT the majority. They are the squeaky wheel at very most.

nick
04-26-2009, 11:03 PM
I've been wading through these arguments and trying to come out the other side with some sense of whether the courts will actually support our carry rights. Again, it seems to me that if the people in the courts want to support them, they will. Otherwise, we won't have carry rights.

That said, I believe a state license to carry will probably be considered constitutional by the courts. Consider the radio spectrum argument, which allows for a licensing due to the scarcity of the resource. Here, the government and the courts considered reality (the resource is scarce) and so decided to allow regulation of speech where that limited resource is concerned.

There are no scarcity arguments to be made for the carrying of arms, but there is a public safety argument to be made. Simply put, someone who is untrained in the use of arms or who is otherwise unreliable is potentially a menace if allowed to go about in public with a firearm. And so, because of the (perceived) reality that an untrained user of an arm represents an unacceptable risk to society, the requirement for a license could very well be upheld by the courts.

Now, I don't actually think that untrained users of arms represent such a large threat that the infringement of a right through licensing is supportable. But I'm not the one sitting on the courts. It's the fears and prejudices embodied in people who have little familiarity with firearms who will make this decision. And they, I fear, will think that the obvious answer (training is better than no training, and a license is required to ensure training) is acceptable where the rights of an individual intersect with the rights of the general public.

What I can't see is how the courts will uphold California's current arbitrary and capricious licensing scheme. I think 14th amendment equal protection and 2A right to arms for self defense will both demand shall-issue licenses, provided that the core training requirements have been met by the user.

Of course, those training requirements can't be too onerous. If they are, all we'll need is a sympathetic client (say, someone handicapped) to lower the bar until virtually the entire population is capable of meeting the training requirements.

After that, the whole thing becomes an argument of what is a sensitive area and so what places in society can the government prevent me from bearing my arms, even with my license.

Since I am not a lawyer, I'm sure I'm missing a boatload of things here. Yet I also know that the courts are capable of arriving at any outcome that they want. I hope what they want is to support, at a minimum, shall-issue licenses. Otherwise, I think I'll never get to cross my front doorstep with a loaded firearm. At least, not in the state of California.

Here I thought the judges' job was to interpret laws, not concern themselves with creating public policy. I know I know, it hasn't been so in practice for a long time, if ever.

USAFTS
04-26-2009, 11:05 PM
...Since I have a whole pocket full of cliches, I will also add that you catch more flies with honey than with vinegar, so while open carry maybe the next best way to carry, it may not be prudent.

When I focused on our demands for our rights, my point was to make sure that we respect others. That being said, it's 2200 and time for "The Unit".

10-4 on every word my friend. BUT...sometimes vinegar is all that's available. In my case, open carry is my only viable means of self defense while driving home from work after a graveyard shift, through one of our higher crime areas. I agree that open-carry on a daily basis is not necessarily a prudent decision unless one has the time and resources available to deal with a possible and unfortunately bogus arrest and the associated legal fees...not to mention a near guaranteed denial of a future ccw.

Now...it's time to push play on the DVR, as I like to record "The Unit" and play it back with no commercials.

Have a great night. :)

DDT
04-27-2009, 12:56 AM
I seem to recall a member having his 12050 permit revoked because he was open carrying a while back...

That was an abuse of the "discretion" clause. It is irrelevant in this case because Gene's argument presupposes a fair non-discretionary permitting process.

7x57
04-27-2009, 1:30 PM
When Texas can ban open carry while allowing non discretionary CCW, you have a very, very hard row to hoe.


On that, I'd really like to see that struck down, whether that's likely or not. :(


I suggest someone challenge the ban on open carry in Texas before people think that we should be in California courts trying to get a broad right to carry without a license.


Well, yeah, that's logical. In TX, it's conceivable that with just the right governor one could get help from the state to have it struck down instead of changed.


Maybe it's not obvious to you, but I doubt seriously we'll be able to end handgun registration or HSC cards in California. I'm not saying I like it. I'm saying that we can't easily beat it here. Maybe if someone beats those issues somewhere else, we can re-import it, but I don't hold a lot of hope there.

Note however that I am being quite precise about what I'm saying we can't beat. There are a surprising number of California laws that will not survive the coming onslaught.


Hmm. Then I still may someday want to move--registration is entirely odious and amounts to treating gun owners like criminals. I find it intolerable and unacceptable, and might still move just because of that.

Nobody ever pushed registration that didn't hope someday to use the list to decide which doors to kick in.

7x57

yellowfin
04-27-2009, 1:38 PM
When Texas can ban open carry while allowing non discretionary CCW, you have a very, very hard row to hoe.

I suggest someone challenge the ban on open carry in Texas before people think that we should be in California courts trying to get a broad right to carry without a license.
There's an open carry bill in the Texas legislature right now. Would you prefer that or a lawsuit?

hoffmang
04-27-2009, 1:42 PM
There's an open carry bill in the Texas legislature right now. Would you prefer that or a lawsuit?

As to the likelihood of prevailing on the law, I'd prefer TX to change the law. As to testing the law (and quite possibly losing - even in Texas) I don't want the law to change and would prefer a court challenge.

Restrictions on the manner of carrying are going to be intermediate scrutiny which allows restrictions that don't materially burden the exercise of the underlying right like registration (just like voting) and requiring concealment (like banning sound trucks.)

-Gene

bulgron
04-27-2009, 1:45 PM
There's an open carry bill in the Texas legislature right now. Would you prefer that or a lawsuit?

Honestly, I'd prefer a successful lawsuit due to the enduring nature of stare decisis. However, a lawsuit of that nature is unlikely to be successful based on the Texas State Constitution:

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

So their constitution allows for regulating how arms are worn, but some form of the wearing of arms would seem to be required. Texas has, for whatever reason, decided that arms must be worn concealed.

The Second Amendment has no such clause, "but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime," so a lawsuit requiring LOC might potentially be successful under the 2A, although I'm guessing there are better places than Texas to bring that lawsuit. (Like, for example, California.)

ilbob
04-27-2009, 2:24 PM
So their constitution allows for regulating how arms are worn, but some form of the wearing of arms would seem to be required. Texas has, for whatever reason, decided that arms must be worn concealed.

The Second Amendment has no such clause, "but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime," so a lawsuit requiring LOC might potentially be successful under the 2A, although I'm guessing there are better places than Texas to bring that lawsuit. (Like, for example, California.)

IIRC, only handguns have to be carried concealed (with a license) in TX, and there is no license required to carry long guns at all.

hoffmang
04-27-2009, 3:36 PM
The Second Amendment has no such clause, "but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime," so a lawsuit requiring LOC might potentially be successful under the 2A, although I'm guessing there are better places than Texas to bring that lawsuit. (Like, for example, California.)

Uhm, name me one good reason about the courts or public opinion that would make California a better place to bring this than Texas.

This is the point that I don't think people understand or take seriously.

-Gene

bulgron
04-27-2009, 4:02 PM
Uhm, name me one good reason about the courts or public opinion that would make California a better place to bring this than Texas.

This is the point that I don't think people understand or take seriously.

-Gene

My initial thought was that it's easier to get standing in California than in Texas. California is at least supposed to have a permit system that allows carry of one form or another, so you don't have to actually break the law in order to achieve a denial of your rights. Just apply for the permit and get denied. In Texas, as far as I know, there is no path by which a citizen might legally open carry a handgun, so in order to get standing you have to break the law.

And since Texas has shall-issue CCW, someone who willfully breaks the law against open carry there isn't going to be looked at too favorably by the courts. At least there is some legal path by which you can carry. If I was a judge, I'd be wondering why you didn't just get the shall-issue permit and carry the state-mandated way.

Now, Texas does have a problem (I've read) with exuberant prosecution for concealed weapons that print, so maybe there's a path to standing there. But, again, that steps you through a criminal trial in order to get to the constitutional question.

Also, I'm guessing that Texas in general would be less obstinate about defending bad gun laws than California. In other words, I'm guessing that Texas will fold if they think they have a bad case, which makes it harder to get that oh-so-important court decision. In California, we can generally expect the anti's to fight tooth and nail all court battles that we bring against them.

All of that said, I agree that it's harder to actually win in California.

I don't know, maybe there's a better venue than California -- which I only offered up as an example. Possibly Illinois is that venue.

bulgron
04-27-2009, 4:10 PM
.... what I keep hoping someone will do is sue in federal court over the general prohibition against LOC in national parks. It seems like the easiest case to win, since people who are wandering in the wilderness far away from 911 are much more in need of self-reliance than others. Also, it's really hard to argue, I think, that a couple hundred square miles of forest is a "sensitive place."

What I can't figure out, though, is how someone could get standing to bring that question to the courts, without willingly subjecting yourself to a criminal trial.

Also, there's the whole question of CCW in the national parks that's still playing out. If CCW is allowed in the NPs, then LOC is a lot harder to argue for in the courts, I think. On the other hand, if there's one place I DON'T want to CCW, it's while lugging a 50lbs pack up some trail. I can't quite seem to imagine a comfortable way to have ready access to a concealed firearm while on the trail.

yellowfin
04-27-2009, 6:40 PM
I suppose a good place to sue for LOC would be one where open carry is protected and there are a lot of national parks. Pennsylvania is a good example. In Philly a handful of the historic sites are considered national parks, and in the course of traveling around the city one could easily be carrying in proximity to one in the course of daily business.

wash
04-27-2009, 7:40 PM
I just read that the 5'th circuit has stated that the Second Amendment is a right of private citizens (http://en.wikipedia.org/wiki/United_States_v._Emerson). I'm not sure if that is fully incorporating the 2'nd, but it sounds like it.

That caveat "but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime" is interesting when you factor in incorporation.

bulgron
04-27-2009, 8:35 PM
That caveat "but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime" is interesting when you factor in incorporation.

Actually, what's really interesting about that is it limits the legislature's ability to regulate the wearing of arms to the realm of crime prevention. And not, for example, for public safety. So unless a man is a criminal, or is of criminal intent, it seems like he ought to be able to wear his arms openly and without a license in Texas.

All assuming a smart enough set of lawyers to advance the right court cases in Texas state court, of course.

GuyW
04-27-2009, 9:35 PM
Public parks exist for the PUBLIC USE AND ENJOYMENT. That's the only reason they are chartered.





ha ha - that's the same finding governments make when they dedicate open space lands, where any physical use or entrance by tax-paying citizens is prohibited.

it's a meaningless phrase misused by government to do whatever it wants, just like the phrase "health and safety" (where there is typically no articulatible concrete health issue or safety issue).
.