PDA

View Full Version : So what would a CCW challenge lawsuit look like? A: not what you'd think...


1JimMarch
04-30-2009, 1:47 PM
I'm going to assume you know that Nordyke struck both Hickman and Fresno Rifle. That can and should be seen as an invitation to challenge the CCW rules.

If you need to catch up, at least read Hickman:

http://laws.findlaw.com/9th/9455836.html

OK. So where do we go from here?

Back to the words of Heller, that's where, as clues for what to do next.

Heller was dead clear on a civil right to carry. No disconnect between "keep" and "bear" was created, and they said flat-out we have both rights.

Was it said in "dicta"? Maybe, but if so it's the most powerful type of "dicta" imaginable. Better yet, for a judge to say otherwise he/she would have to create a brand new disconnect between the "keep" and "bear" parts of the 2A.

But Heller MAY have also said that CCW itself isn't necessarily a right derived from the 2A - or at least, that can be gleaned from it as the court's own clerk(s?) did.

In the syllabus we find in item 2:

Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues.

However, the syllabus isn't written by the Supreme Court. See also United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 - the syllabus is written by the court's clerks as an aid but isn't valid case law at all.

Within the body of Heller we find:

Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons.

However the Aymette case is disparaged by the court elsewhere at length.

But for the moment, let's take a worst-case view: we don't have a right to CCW, but we do have a right to "street carry" in some form as that's the safe bet.

What DID the court positively say about carry ("bear arms")?

It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s armsbearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia.

The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 11 (STEVENS, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country . . . .”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18–23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what JUSTICE GINSBURG’s opinion in Muscarello said.

Justice Ginsburg said in Muscarello:

It is uncontested that §924(c)(1) applies when the defendant bears
a firearm, i.e., carries the weapon on or about his person “for
the purpose of being armed and ready for offensive or defensive
action in case of a conflict.” Black’s Law Dictionary 214 (6th ed.
1990) (defining the phrase “carry arms or weapons”); see ante, at
5. The Court holds that, in addition, “carries a firearm,” in the
context of §924(c)(1), means personally transporting, possessing,
or keeping a firearm in a vehicle, anyplace in a vehicle.

Without doubt, “carries” is a word of many meanings, definable to
mean or include carting about in a vehicle. But that encompassing
definition is not a ubiquitously necessary one. Nor, in my
judgment, is it a proper construction of “carries” as the term
appears in §924(c)(1). In line with Bailey and the principle of
lenity the Court has long followed, I would confine “carries a
firearm,” for §924(c)(1) purposes, to the undoubted meaning of
that expression in the relevant context. I would read the words to
indicate not merely keeping arms on one’s premises or in one’s
vehicle, but bearing them in such manner as to be ready for use as
a weapon.

OK. So we have our definition of "bear arms". But now let's go back to footnote 9 which I marked in boldface in the Heller quote above:

9 See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v.
Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155
(1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting
similar provision with “common defence” purpose); State v.
Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga.
243, 250–251 (1846) (construing Second Amendment); State v. Chandler,
5 La. Ann. 489, 489–490 (1850) (same).

This, boys and girls, is the most important piece of Heller on CCW, and very likely what the guy writing the syllabus was referring to.

ALL of these cases say the same thing: a state can ban CCW and not get sideways with the 2A SO LONG AS they also allow open carry.

All contain bits like this very clear example from Nunn:

A law which merely inhibits the wearing of certain weapons in a [I]concealed manner is valid. But so far as it cuts off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, renders the right itself useless--it is in conflict with the Constitution, and void. [Emphasis in original]

While not mentioned, the 2003 decision in Klein (Ohio Supreme Court) said the same thing.

So where does that leave us? I see three options:

1) Sue for loaded open carry in Federal court. The Heller decision disparaged unloaded guns (now quasi-legal to carry with massive harassment) as incompatible with the self defense mission behind the 2A. In this scenario, we get loaded carry, do massive marches round and round the capitol all strapped up, annoy them into reforms just as happened with Ohio.

2) Go back to my plan challenging the discriminatory portion of the CCW rules as racist, with a minority plaintiff. The steps involved go like so:

a) You have to prove that the law was passed with racist intent in the first place. With PC12050-54, that's easy: a California appelate court already ruled to that effect in 1972 (People v. Rappard) and threw out a portion of the original 1924 statute limiting carry rights for green-card holders. Check out the Rappard case where the same law as contains the CCW system was described as racist:

http://www.ninehundred.net/~equalccw/rappard.txt (as far as I know that's the only copy available to non-lawyers online)

b) You have to prove the law is having a racist effect - done:

http://www.ninehundred.net/~equalccw/CCWDATA2003.html

c) You have to have an affected minority plaintiff. I couldn't find one willing to go up against a sheriff before I gave up in 2005. Black is best, Hispanic would work too, various sorts of Asian maybe - of those Filipino would be best I suspect. There's a 1924 SF Examiner article in our possession which lists the need for a CCW permit program "controlling Chinese gangs and Latino vendettas", icing on the cake for proving racist intent (although Rappard is really all you need).

This three-part recipe is described in detail in Arlington Heights v. Metropolitan Housing, 1977 USSC. It was used successfully in another later USSC case, Hunter v. Underwood.

3) Sue for shall-issue CCW directly, challenging the discretionary aspect. This now has a strong chance with Hickman tossed out but it's not surefire. As a backup somebody might explain to the judge that "look, we know if we get loaded open carry we'll then annoy the state into reforming CCW - can't we just skip all that drama and fix the CCW system?" I doubt it'll work but it might be worth trying if a minority plaintiff can't be found.

In this latter type of suit, we could offer the judge a choice between giving us loaded open carry, or CCW with the discretionary bit stripped out.

However, there's merit to doing separate suits against the loaded open carry ban and the discretionary portion of CCW. The idea is, if you lose one you still have the other. Lose open carry and we end up like Texas. Lose CCW and we end up like Ohio in the year prior to that state's CCW reforms. Both are pretty good places to be.

I may live in Tucson now but I assure you, if we get to the point of doing open-carry rallies, I'LL BE THERE!!! Be a long trip on a bike but no way in hell I'd miss at least the ones going on in LA/SoCal.

avdrummerboy
04-30-2009, 1:49 PM
Wait till you hear most of the opinions on here about marches.

mblat
04-30-2009, 2:02 PM
Wait till you hear most of the opinions on here about marches.

Doesn't apply here - "majority opinion about marches" considering situation as it is TODAY. IF we get legal OC then I see no arguments against it what so ever.

DDT
04-30-2009, 2:04 PM
Wait till you hear most of the opinions on here about marches.

The people discouraging open carry are doing so regarding unloaded open carry, which Jim acknowledges has it's drawbacks in CA:

The Heller decision disparaged unloaded guns (now quasi-legal to carry with massive harassment)

Plus the discouragement is primarily aimed at individuals rather than group efforts. These are both a far cry from "Ohio-style" events mentioned in the OP.

DDT
04-30-2009, 2:10 PM
I think the best approach is to go after Shall issue directly.

If you go directly after shall issue the courts will have to recognize the right to "bear" as covered by Heller. You mention that Heller explicitly permits CCW prohibitions. This is true but AFAIK only in light of alternatives to bear arms. Well, in CA we have no alternative so if this comes to a judge s/he cannot rule against us on the basis that we have UOC rights in CA. Heller is pretty clear that unloaded/disabled guns are not sufficiently useful. Again, a judge cannot rule that the discretionary CCW is legal because we have an alternative, we don't.

Now, if we do go after loaded open carry first (and I agree it's an easier case) then when we do attack discretionary issue CCW there is an alternative for the judge to rely on in affirming the laws constitutionality. In a worst case scenario attacking CCW first, a judge decides that CA MUST allow open carry loaded but that the existing CCW laws stand. So, either we win a direct challenge of unloaded open carry and get only loaded open carry or we lose a CCW challenge and still end up with loaded open carry but with the chance to win so much more.

Untamed1972
04-30-2009, 2:20 PM
Although my personal belief is CCW is the best option for most people in most cases. I personally don't want to have to regularly attract attention to myself when carrying. Knowing how CA is going to fight everything tooth and nail I think going for LOC is likely the best route. Because if you get federal backing for LOC and the state can't do anything about it they will likely cave on CCW because the state perhaps with public pressure) will quickly see CCW as more desireable to having everyone walking around in open carry.

But that's just how I see it.

oaklander
04-30-2009, 2:31 PM
A poorly executed suit can screw things up beyond recognition at this point.

Let's make sure everything we do is totally coordinated with (1) the NRA, (2) the CRPA, (3) the Right People, and (4) the CGF.

1JimMarch
04-30-2009, 2:32 PM
For the record: I can see merit to unloaded open carry protests but by individuals it would be VERY dangerous - cops are likely to lie and say you were loaded. If you're going to do that, a hidden camera in the hands of an unidentified helper is a MUST.

In groups, basically the same deal. Everybody has to check each other first, recorded with a camera that doesn't stop rolling until 5-0 shows up and the incident concludes. And the cameraman needs to be unarmed, concealed camera.

That's a lot of work for minimal effort. Yeah, you might get to bust a few cops if they lie about your loaded status, and you can get unloaded carry confirmed in the court.

Great. So what? Granted, busting a lying cop here and there has it's merits...but it's no long-term benefit to RKBA unless you nail a buttload. More cops than not will try and lie about your loaded state if they think they can get away with it.

Suing for loaded open carry has more merit - THEN go nuts with the protest marches, and even solo is a lot less risky (although some cops WILL try and say your jacket flapped over it or something).

---

What everybody has missed so far is that a CCW challenge can be "supercharged" with a minority plaintiff and the Arlington Heights gameplan.

Untamed1972
04-30-2009, 2:44 PM
I think DDT makes a good point about going for CCW and perhaps at worst ending up with LOC. But I can see if you attack the CCW a judge could/likely just take the easy route and say "Well SCOTUS said CCW could be regulated, so I will just strike the LOC law. There 2A rights restored."

But even if that were to happen, I think there are so many ways the CCW could still be attacked though, simply because permit is good statewide but not issued with same criteria statewide, there is an equal protection issue at stake that needs to be addressed. So even though SCOTUS says it can be regulated, it must be done in an equal manner. My concern if you force CCW right off the state could so restrict the manner, type of gun, and places one could carry that it might make it nearly worthless.

But since 2A would protect your LOC more widely, I think if LOC became legal enough "soccer moms" would freak that the state would see that CCW really is the better, civilized option since they must allow carry in some form, and if you restrict the CCW to much then people will just LOC in the restricted places anyway.

I dont see CA coming to those realization thru reason, I see them finally giving in to something they will see as the lesser of 2 "evils" if you will.

1JimMarch
04-30-2009, 3:42 PM
But I can see if you attack the CCW a judge could/likely just take the easy route and say "Well SCOTUS said CCW could be regulated, so I will just strike the LOC law. There 2A rights restored."

Which is exactly what happened in Ohio, at that state's Supreme Court.

But even if that were to happen, I think there are so many ways the CCW could still be attacked though, simply because permit is good statewide but not issued with same criteria statewide, there is an equal protection issue at stake that needs to be addressed.

Sure. And as I've said: once you claim equal protection coverage, your argument gets a shot of nitrous oxide if you bring racial discrimination into the mix.

Post-Nordyke it's not 100% necessary - but it'll still help.

AngelDecoys
04-30-2009, 3:48 PM
Was it said in "dicta"? Maybe, but if so it's the most powerful type of "dicta" imaginable.

Nice post. I've been reading these with interest.

BTW - 'dicta' has been hashed out here already.
http://www.calguns.net/calgunforum/showthread.php?t=176639&highlight=dicta

Cypren
04-30-2009, 3:49 PM
But since 2A would protect your LOC more widely, I think if LOC became legal enough "soccer moms" would freak that the state would see that CCW really is the better, civilized option since they must allow carry in some form, and if you restrict the CCW to much then people will just LOC in the restricted places anyway.

This is really the key to the whole effort. Society has shifted in its viewpoints to where carrying a holstered gun provokes about the same reaction that carrying a drawn one would have caused fifty years ago. As a result, the discomfort caused by LOC will work strongly to our advantage in persuading legislators to give us shall-issue CCW, even if it isn't accepted by the courts as a "right".

Personally, CCW is my goal in this whole effort. Because of the discomfort factor, LOC is highly limiting in a social context. Moreover, from a personal defense standpoint, the greatest advantage that non-uniformed personnel have in a firefight is that they do not present an obvious threat. If I'm going to be in the middle of an armed robbery or mass shooting, I would far rather that the perp not have identified me as a danger before he starts shooting, shifting the advantage of surprise from his court to mine. If I have to carry exposed, I'm just likely to be the first person shot; a visible gun is only a deterrent if the aggressor thinks you can draw and fire before he can take you out.

1JimMarch
04-30-2009, 4:04 PM
One more point on this:

But I can see if you attack the CCW a judge could/likely just take the easy route and say "Well SCOTUS said CCW could be regulated, so I will just strike the LOC law. There 2A rights restored."

This leaves the problem of what to do with the current CCW system?

Also, something BIG I left out.

Economic discrimination is almost as powerful as racial. In other words, at least one of our CCW plaintiffs should be a security guard who stands to gain economically from an upgrade from loaded open carry in uniform to plainclothes CCW.

AEC1
04-30-2009, 4:06 PM
How would a military member with out of state residance go about getting a CA CCW? I would be happy if CA would just honor my FL CCW. But they wont and since I am not a CA resident I cant even apply...

CSDGuy
04-30-2009, 4:14 PM
Your PCS orders... might suffice for that. But you'd have to convince the SD County Sheriff first.

AEC1
04-30-2009, 4:16 PM
I dont think the FL drivers license will help that...

Untamed1972
04-30-2009, 4:22 PM
Sure. And as I've said: once you claim equal protection coverage, your argument gets a shot of nitrous oxide if you bring racial discrimination into the mix.

Post-Nordyke it's not 100% necessary - but it'll still help.

Just a personal gripe here......but it sure would be nice if this country could start to see that it IS POSSIBLE to discriminate against white males too!

But I do understand that adding that component in would help. It would also help white males if some court precident could be set my a white male winning some kind of discrimination suit.

So even if a judge defaulted to LOC, I still think the current CCW system could be attacked because of lack of equal protection for granting of a statewide permit. It would be like having different issue requirements for a drivers license depending on the county you live in and the requirements changing everytime there is a personnel change at your local DMV office. even if the state doesn't go "shall issue", the requirements to qualify need to be defined in the PC and equally applied statewide.

Python2
04-30-2009, 4:30 PM
I may live in Tucson now but I assure you, if we get to the point of doing open-carry rallies, I'LL BE THERE!!! Be a long trip on a bike but no way in hell I'd miss at least the ones going on in LA/SoCal.

You amazes Jim:) Swing by my place and I will ride with you in my Harley:) Been a long time. And why do you think a Filipino you suspect is a good one?

PatriotnMore
04-30-2009, 4:31 PM
A poorly executed suit can screw things up beyond recognition at this point.

Let's make sure everything we do is totally coordinated with (1) the NRA, (2) the CRPA, (3) the Right People, and (4) the CGF.


I agree. There should not be willy nilly laws suits all over the place, this is an opportunity for bad decisions to be made law. All challenges should be well thought out within the legal community, and challenged by the most competent attorney(s).

DDT
04-30-2009, 4:32 PM
I think the first CCW suit needs to be brought up on the "bear" component of 2A. As I said, if this fails we get open carry. We could then use Ohio-sytyle rallies to pressure the Legislature. Simultaneously a suit could be launched attacking the current CCW program as being discriminatory. There is no need to bring up discrimination in the first case as the current system is an across the board restriction on "bearing" arms. So, we can either appeal after getting open carry on that basis that the CCW, as written, is discriminatory OR a new suit could be filed if the complaint amendment is refused, or deemed a better strategy.

I don't think that an initial attack on regaining our rights to "Bear" at all through a CCW suit would negate a later (or amended complaint on appeal) suit attacking the discriminatory nature of our current CCW program.

I, like some others here, believe that if we had had Open Carry in CA and gun owners made a stink about it the legislature would rather we carry concealed than open and would make laws to create that environment a la Texas once they lose a "bearing" suit of any consequence.

DDT
04-30-2009, 4:33 PM
A poorly executed suit can screw things up beyond recognition at this point.

Let's make sure everything we do is totally coordinated with (1) the NRA, (2) the CRPA, (3) the Right People, and (4) the CGF.

You are absolutely right of course. The problem is that SOMEONE is going to either file the suit or use it as a defense. Unless one or more of these groups gets in front of the parade and starts marching it may be too late.

HunterJim
04-30-2009, 4:56 PM
I will be pleased to have loaded open carry. My Gunsite training was from an open carry position, and I have carried so in Arizona and South Africa. Also it would be a great opportunity to show off some way cool leather!

jim

mblat
04-30-2009, 4:57 PM
In California climate I would almost prefer OC....

GaryV
04-30-2009, 5:19 PM
Personally, I think amending CCW first is the way to go. Yes, LOC marches and such MAY pressure the legislature into shall-issue CCW, and it may not. If it doesn't, then all you have is LOC. Now, that might be okay for some, but a lot of people won't be able to take advantage of it a good portion of the time. What if you have to wear a jacket and tie to work, for example? It could be hard to carry without being accused of concealing. What if your boss is seriously anti? While having LOC too would be nice, CCW is a much better option if you only get one.

1JimMarch
04-30-2009, 5:25 PM
You amazes Jim Swing by my place and I will ride with you in my Harley Been a long time.

I pilot a modified Buell S3. 1250 ceramic Axtell barrels, 10.5:1 Wiseco forged race pistons, 2004 Buell heads with oversize valves, port job and adapter to the old tube frame, 42mm Mikuni carb, KT Engineering race pipe. Can you keep up? :)

And why do you think a Filipino you suspect is a good one?

More discrimination, esp. across the last 30ish years. Plus "Filipino" is to some extent similar to "Latino" and faces some of the discrimination issues aimed at Hispanics, including anti-Catholic sentiment.

Also, the level of "gun culture" in the Phillipines is much higher than either Mexico or China, which means we SHOULD be seeing a respectable rate of CCW application from the Filipino community. Instead we see hardly any Filipino permitholders - I think a statistical case for their discrimination would be easy to make.

In contrast, any other Asian immigrant group would be expected to have near-zero firearms interest in the first generation. Not so with Filipinos. Their only rival among "asians" of any sort would be maybe Pakistanis...google the term "Swat valley" and "guns" :D.

Hmmm...now that I think about it, Sikhs should be applying for CCW damn near universally. A lot of 'em strap in AZ, that's for damnsure. So a statistical case could be made there...self defense is built into their religion and they have NO track record of abusing it in the US. On the contrary...when the temple in...Fremont, wasn't it, had a squabble, they used their fists :) instead of the knives they were ALL packin...

The original discriminatory intent was against Chinese and Latinos. Anti-Chinese discrimination is now very low, although not quite gone.

1JimMarch
04-30-2009, 5:26 PM
Just a personal gripe here......but it sure would be nice if this country could start to see that it IS POSSIBLE to discriminate against white males too!


Man, you ain't kiddin. Go study the whole subject of "rational basis" versus "strict scrutiny" in the courts. It's obscene.

1JimMarch
04-30-2009, 5:28 PM
If any California Sikhs want to be plaintiffs, I could probably get a statement from the temple leaders in Tucson or Phoenix as to how many AZ Sikhs hold CCW permits. That would help make a discrimination case in Cali...

1JimMarch
04-30-2009, 5:32 PM
Yes, LOC marches and such MAY pressure the legislature into shall-issue CCW, and it may not.

Heh. My bet is, they fold up like a wet "sham-wow" thingie held to the face of a beat-up hooker.

Seriously, we will freakin' ENJOY bugging the ever-loving hell out of those clowns. There'll be a heavily armed contingent anywhere the lefties show up. We'll have our own float at the Gay Pride parade in SF, wearing nuthin' but the hardware :D. They'll cave. Oh, will they ever!

Sgt Raven
04-30-2009, 5:44 PM
A poorly executed suit can screw things up beyond recognition at this point.

Let's make sure everything we do is totally coordinated with (1) the NRA, (2) the CRPA, (3) the Right People, and (4) the CGF.


If we listened to the NRA we wouldn't have Heller from SCOTUS. :eek: :rolleyes:

SgtBulldog
04-30-2009, 6:10 PM
I'm not an expert on this stuff, so I won't comment on the best road to go. But I do certainly want to welcome Jim back to the discussion. You've been really missed the last few years, and just when it was getting exciting!

GaryV
04-30-2009, 6:17 PM
There'll be a heavily armed contingent anywhere the lefties show up. We'll have our own float at the Gay Pride parade in SF, wearing nuthin' but the hardware :D. They'll cave. Oh, will they ever!

That's assuming they allow you to. Remember, there's now Nordyke to contend with. I would imagine that, given the 9th circuit's take on sensitive places, they could severely limit LOC at events such as a parade, or even an LOC march. Although you'd have strong First Amendment grounds to stand on, you could still lose given the same logic that they used in Nordyke, that the law is for the purpose of crime control, not suppressing free speech.

CaptainGlock
04-30-2009, 6:55 PM
Heh. My bet is, they fold up like a wet "sham-wow" thingie held to the face of a beat-up hooker.

Seriously, we will freakin' ENJOY bugging the ever-loving hell out of those clowns. There'll be a heavily armed contingent anywhere the lefties show up. We'll have our own float at the Gay Pride parade in SF, wearing nuthin' but the hardware :D. They'll cave. Oh, will they ever!

You might suggest that float idea to the Pink Pistols, a gay, pro-2nd Amendment organization. (And,no, I'm not a member--but I certainly believe the Second Amendment is a "Big Tent!")

nobody_special
05-01-2009, 1:17 AM
That's assuming they allow you to. Remember, there's now Nordyke to contend with. I would imagine that, given the 9th circuit's take on sensitive places, they could severely limit LOC at events such as a parade, or even an LOC march. Although you'd have strong First Amendment grounds to stand on, you could still lose given the same logic that they used in Nordyke, that the law is for the purpose of crime control, not suppressing free speech.
Yes, you might lose on 1st amendment grounds after Nordyke, though I'm curious if a protest might be given more consideration or protection than commercial activity?

Also I'm concerned about the possibility of running afoul of the anti-militia statute PC11460(a). While a simple parade would not violate the statute, a "riot" or any "violent disruption of school activities" would, and I imagine an unfriendly local government could arrange for such an "accident"... :TFH:

I firmly believe that the Ohio model (force LOC, and use it to obtain CC) is the best way to go.

nicki
05-01-2009, 2:50 AM
When the Ohio Supreme court ruled on the "Feely Case" it was a challenge to the ban on concealed carry.

At the time, then Governor Taft, a RINO, had been stalling a CCW bill for 8 years.

We have a CCW system in place, all the court would have to do is replace "May issue" with "Shall Issue".

Perhaps a blended 2nd and 14th amendment suit. Or the suits could be split so we get both open and loaded carry.

Nicki

GaryV
05-01-2009, 7:59 AM
Yes, you might lose on 1st amendment grounds after Nordyke, though I'm curious if a protest might be given more consideration or protection than commercial activity?



It might, but then it might not. The Nordykes argued a 1st amendment right, which was speech, not commercial activity, and the court ruled that when the law was enacted for the purpose of a legitimate government function, such as crime control, it could infringe even on fundamental rights as long as that was not its primary purpose. I think that's a bad premise, but it's supported by a lot of case law. It seems pretty clear that even a political protest would be subject to those restrictions. You could protest (so your 1st amendment rights are still intact, somewhat), but under Nordyke they could ban the carrying of guns at the march.

The problem I have with the LOC-first approach is that it assumes pretty heavily that the other side is just going to roll over and take it; that they won't put up a fight even though they have plenty of legal firepower of their own to at least put up a protracted resistance. The history of gun control doesn't support this assumption at all. Maybe they will just give in, though there's no reason to believe they will. But one of the surest ways to lose at anything is to underestimate your opponent. What you could end up with, at least until and unless Nordyke's definition of sensitive places is overturned, is LOC only, with severe restrictions on where carry is allowed.

Plus, the LOC-first approach relies too heavily on the Ohio model. California isn't Ohio. The political landscape is different, and the legal tools with which the other side can resist are different. In California you have a stronger, more determined enemy with a better legal situation. The shall-issue first approach follows more closely the tried-and-true method of strategically using incremental legal precedent rather than civil resistance (which has a poor track record on gun issues, despite Ohio). If you get LOC, SCOTUS has made it pretty clear that they could then ban or restrict CCW any way they want. And as I said, if you only get one, CCW is better than LOC, because it allows for carry in a lot of situations where LOC might not.

socal2310
05-01-2009, 8:42 AM
And as I said, if you only get one, CCW is better than LOC, because it allows for carry in a lot of situations where LOC might not.

This is the linchpin of everything. Businesses have the right to refuse service to anyone. While this right is severely restricted where discrimination on the basis of skin color or political or religious beliefs are concerned it is nigh well unassailable where firearm rights are concerned. If they don't know you are carrying, they can't discriminate on a case by case basis, they have to restrict carry universally.

Once they put up a sign, we can go after them with cards stating our refusal to patronize businesses who compel us to disarm. With open carry, they don't have to post a firearm policy. They can just tell you to leave.

Ryan

Publius
05-01-2009, 9:58 AM
However, the syllabus isn't written by the Supreme Court. See also United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 - the syllabus is written by the court's clerks as an aid but isn't valid case law at all.

I don't think that bit of the syllabus was based on the sentence about Aymette that you quoted. I think it was based on the following bit of the Court's opinion:

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Kid Stanislaus
05-01-2009, 10:36 AM
A poorly executed suit can screw things up beyond recognition at this point.

Let's make sure everything we do is totally coordinated with (1) the NRA, (2) the CRPA, (3) the Right People, and (4) the CGF.



Right you are, it'd take only one bozo to squirrel things up pretty badly and I'm hope'n some anti does not take it upon himself to do so.

Mulay El Raisuli
05-01-2009, 11:08 AM
You are absolutely right of course. The problem is that SOMEONE is going to either file the suit or use it as a defense. Unless one or more of these groups gets in front of the parade and starts marching it may be too late.


That's quite true. We have already seen this happen (People vs. Yarborough). So, while there might be advantage in ceding the PRK courts to the other side, there's danger as well in that tactic.

As for what to push for first, I think the approach used in Ohio is best. Yes, Ohio is different, but the fact remains that it is the only precedent we have. Also, while the laws there do differ, politics is politics wherever you go. So, I would push for the tactic that has a proven success over one that is based on theory. For no matter how good the theory, its still just theory.

The Raisuli

bwiese
05-01-2009, 11:24 AM
If we listened to the NRA we wouldn't have Heller from SCOTUS. :eek: :rolleyes:

The NRA's prime worry - justifiably - was about the Supremes' status pre-Roberts/pre-Alito.

Remember we won 5-4.

7x57
05-01-2009, 11:27 AM
The NRA's prime worry - justifiably - was about the Supremes' status pre-Roberts/pre-Alito.

Remember we won 5-4.

Yah. Someday I'd like to know all the inside story about the NRA's initial opposition and change of mind. And, for that matter, the SAF's logic in bringing the suit with the court's composition at the time.

7x57

nicki
05-01-2009, 12:01 PM
Yah. Someday I'd like to know all the inside story about the NRA's initial opposition and change of mind. And, for that matter, the SAF's logic in bringing the suit with the court's composition at the time.

7x57


Alan Gottlieb was at a Golden State Second Amendment Council meeting a few years back and that question was asked.

Alan said at the time all the Federal courts acted like the second amendment did not exist.

Many Americans at the time actually believed that the second amendment was a individual right and that the courts would protect that right.

So the reasoning was, win or lose, we are going to gain.

If the Supreme court ruled that there was no individual right, gun owners would get a dose of reality. It would wake up a political giant.

Let's look at the LBGT community and how they reacted to a "bad court" ruling.

In the 1980's the Supreme Court upheld "Sodomy Laws". The Gay community responded by getting much more politically active on the state and local level.

By the time the "Lawrence case" hit, they had made significant gains in getting rights in many states.

Nicki

Sgt Raven
05-01-2009, 12:10 PM
The NRA's prime worry - justifiably - was about the Supremes' status pre-Roberts/pre-Alito.

Remember we won 5-4.

Remember the NRA doesn't agree with Don Kilmer all the time too. So the 'right people' can disagree on policy. ;)

bwiese
05-01-2009, 12:19 PM
Remember the NRA doesn't agree with Don Kilmer all the time too. So the 'right people' can disagree on policy. ;)

That was old - you'll notice how they supported Nordyke.

1911su16b870
05-01-2009, 1:26 PM
1JimMarch, I've enjoyed your contributions to this thread, but have difficulty with your first one...

...snip...cops are likely to lie and say you were loaded...snip...bust a few cops if they lie about your loaded status...busting a lying cop here and there has it's merits...snip... More cops than not will try and lie about your loaded state if they think they can get away with it...snip...(although some cops WILL try and say your jacket flapped over it or something)...

Are you saying police officers can lie? :)

The police officers I know would not risk their career and livelyhood telling un-truths.

7x57
05-01-2009, 1:36 PM
Alan Gottlieb was at a Golden State Second Amendment Council meeting a few years back and that question was asked.


That supports an observation of mine, that often disagreements between the NRA and other gun rights groups often come down to a difference in mindset. The NRA seems to me to play a more conservative game than many others. Basically, more risk-averse.

That isn't a criticism, since they may be playing closer to the game-theory ideal of minimizing your maximum loss against expert opposition, but of course it can lead to missed opportunities. In this case, Alan's description of their strategy seems fairly hazardous in the case of a loss.

Thankfully, this will remain forever speculation since in fact they won. Even if the NRA didn't want to roll the dice, they and all of us (except the professional naysayer cadre who goes around insisting that Heller is really a loss for us) are certainly happy that they came up seven.

7x57

CCWFacts
05-01-2009, 1:48 PM
Yah. Someday I'd like to know all the inside story about the NRA's initial opposition and change of mind. And, for that matter, the SAF's logic in bringing the suit with the court's composition at the time.

Well, the NRA must have been thinking (reasonably) that it would be a close shave, and before the appointments of Roberts and Alito, it would be doomed. When Parker started, I guess it was a gamble what would happen. A high-risk gamble, which is why the NRA didn't like it. But a couple of factors:


We did get Roberts and Alito, making the gamble more reasonable
And, here's the real reason: sooner or later, there would be another 2A case before the Supreme Court. It would be another crim. defendant with a public defender, another Miller. Ok, we can either take the best shot we have with a great civil case, or we can wait for some awful criminal case (drug dealer with an MG) to come up. We had nothing to lose (legally) because the courts already had deleted the 2A. So, as risky as it may be to go with the case, it's less risky than doing nothing.


That's my interpretation.

7x57
05-01-2009, 1:57 PM
And, here's the real reason: sooner or later, there would be another 2A case before the Supreme Court. It would be another crim. defendant with a public defender, another Miller. Ok, we can either take the best shot we have with a great civil case, or we can wait for some awful criminal case (drug dealer with an MG) to come up. We had nothing to lose (legally) because the courts already had deleted the 2A. So, as risky as it may be to go with the case, it's less risky than doing nothing.

That's my interpretation.

I'm aware of that argument. The strategic alternatives being weighed were the following: is it more or less risky to take a great case to a questionable court now or wait for a better court and risk a bad case getting there first? In fact, no one can answer that with any certainty: "all the important decisions are really just matters of probability." You have to guess whether the probability of a bad precedent from a bad court even in a great case against the probability of the court giving cert to a bad case.

All quantities involved are arbitrary matters of human judgment and cannot be estimated better than informed guesswork. So in a strict sense we don't know which was more conservative in the game theory sense, but in an informal sense it is more "conservative" to guess that the court will continue to deny cert to bad cases as it always has and wait instead of guessing that it might give cert to a bad case and pressing the "spend money to create an ideal case" button. Faced with unknowable options and risks, people usually term the "do nothing" option more conservative than the "take action" option.

I'm sure I don't need to say this, but just in case it isn't obvious to the NRA-haters: the NRA's "do nothing" option is only nothing in terms of this lawsuit--it really means "continue fighting legislatively, preserving a gun culture, pressing the expansion of the franchise, and generally laying the cultural groundwork necessary for an enduring defense of the right. Perhaps that was right and SAF just got lucky, perhaps it was wrong and SAF seized the initiative. But it isn't *obvious* which is correct, and reasonable people can disagree without making one of them a traitor or a do-nothing.

Keep in mind that it is a universal law that large established organizations are institutionally more conservative than smaller ones. This will never change. We should *expect* the NRA to be more conservative. That's OK, and in any case it is the absolute price of having an 800lb gorilla in our corner in the first place. Besides, the NRA moved pretty fast on exploiting the initial breakthrough right alongside the SAF. They're big by 2A advocacy standards but small fry by legislative lobby standards. Nothing I said should change the fact that when it comes to lobbying congress, the NRA *is* the fast-moving agile little guy. All the spin aimed at painting the NRA as a sinister arm of the firearms industry is a big fat lie. The real money going to anti-gun efforts is much more than the NRA can spend, and that doesn't even count the gargantuan power of the trial lawyers who would love to sacrifice the beating hearts of a few gun manufacturers as a step to getting their hands on the big money lawsuits against companies like GE, GM (if they continue to exist as an actual private company) and so on.

7x57

1JimMarch
05-01-2009, 2:29 PM
The police officers I know would not risk their career and livelyhood telling un-truths.

Then you have no clue as to the depths of hatred of the 2nd Amendment present in some police departments in California.

DDT
05-01-2009, 3:44 PM
Then you have no clue as to the depths of hatred of the 2nd Amendment present in some police departments in California.

It would be most helpful if you included attribution when you quote someone.

GaryV
05-01-2009, 4:12 PM
As for what to push for first, I think the approach used in Ohio is best. Yes, Ohio is different, but the fact remains that it is the only precedent we have. Also, while the laws there do differ, politics is politics wherever you go. So, I would push for the tactic that has a proven success over one that is based on theory. For no matter how good the theory, its still just theory.

You have to remember though that Ohio is mostly just a theory too, because it was decided at the state level. So it serves as absolutely irrelevant legal precedent in California. The court case itself would still have to revolve around some of the same legal arguments as the case for CCW would.

And once you have LOC, there's absolutely no guarantee that you can leverage it to get CCW. The legal and political situation is very different between the two states. There's no reason to believe what worked politically in Ohio would have a chance at all in California. Because of Nordyke the politicians could probably outlaw most of the types of demonstrations that put pressure on the government in Ohio, and there's probably far less public support for our side in California (on a percentage of the population basis) than in Ohio.

The bottom line is, once you have LOC you have no legal grounds to demand CCW. You have to depend solely on political pressure at that point. But Nordyke gives the antis far stronger tools to suppress such political efforts in California than they had in Ohio.

And being stuck with only LOC would be a pretty weak victory. As socal 2310 pointed out, you can then easily be discriminated against by any business that is anti. Plus, if your boss or company is anti (or is pressured into acting so by their insurance company), you would be disarmed at work (and potentially to and from work, unless you can also get a "parking lot" law like Florida passed - but which has been hung up in court). Also Nordyke opens the door for severe restrictions on LOC that could force those who choose to carry to become a small marginalized group with a diminishing political voice. Between the ease of discrimination, and laws about public places where groups of people gather, LOC could effectively become worthless outside your home for most Californians.

CCWFacts
05-01-2009, 5:12 PM
And once you have LOC, there's absolutely no guarantee that you can leverage it to get CCW.

There's no guarantee, but a lot of us would be able to live with it. You know what, I would in fact LOC every day, as a routine thing, right here in LA, if I knew I could do it legally everywhere I go in my daily affairs (ie, no worries about school zones or weird vehicle transport requirements). Not many people will even notice an openly-carried small Glock in a black holster. I would prefer to conceal, but if that's off the table, then so be it.

And being stuck with only LOC would be a pretty weak victory.

I do agree, it would be a bummer to be "stuck" at that point, because many people would not be as comfortable with LOC as I would be. However, even if it doesn't press Sacramento to fix the situation, it could pressure some local sheriffs and CoPs to issue permits to avoid getting so many MWG calls.

As socal 2310 pointed out, you can then easily be discriminated against by any business that is anti. Plus, if your boss or company is anti (or is pressured into acting so by their insurance company), you would be disarmed at work (and potentially to and from work, unless you can also get a "parking lot" law like Florida passed - but which has been hung up in court). Also Nordyke opens the door for severe restrictions on LOC that could force those who choose to carry to become a small marginalized group with a diminishing political voice. Between the ease of discrimination, and laws about public places where groups of people gather, LOC could effectively become worthless outside your home for most Californians.

I agree with these points. However, I'll still take LOC as a victory. All the more incentive for me to patronize gun-friendly businesses and for me to have my own business where I set the rules, and for me to make a compelling case to my local politicians (city council, sheriff, CoP) that I should have a CCW, because I'm going to be carrying anyway.

Maestro Pistolero
05-01-2009, 5:22 PM
I think california may well be face with a choice between A) open loaded carry, B) concealed loaded carry, or C) both. Given that option A would be so distasteful to many of our liberal friends, I think they may elect to go with B. Which suits me just fine.

10 years ago, when I had a CCW in CA, I was told there were only bout 5,000 licenses in the whole state. I found that to be incredible at the time. I don't know how many there are now, but I bet they are going to quadruple very quickly if CCW licensing reform takes place.

GaryV
05-01-2009, 5:47 PM
I agree with these points. However, I'll still take LOC as a victory. All the more incentive for me to patronize gun-friendly businesses and for me to have my own business where I set the rules, and for me to make a compelling case to my local politicians (city council, sheriff, CoP) that I should have a CCW, because I'm going to be carrying anyway.

I'd actually be concerned that it wouldn't be a victory, but a loss in the long run.

In states that have gone to shall-issue CCW, the numbers of people carrying have been steadily increasing, and the cultural mindset has been swinging more and more to our side as people see that all the paranoid misinformation about the consequences are false, and as more cases of effective self-defense make the news.

But if LOC is all you get, and then the antis get restrictive laws on carry in public places ala Alameda County, the public stays mostly anti, with corresponding discrimination in a large percentage of businesses, and most people aren't allowed to carry at, to, or from work, then carry will be restricted to the few, who like you, aren't overly burdened by it.

Certainly for some, LOC would be about as good as CCW. But for the vast majority of Californians it wouldn't, so the numbers of armed citizens wouldn't likely increase much as time went on. That's not a good recipe for changing public perceptions in our favor. While LOC puts it out there in people's faces, if it remains uncommon, it won't change most people's views.

The other advantage of shall-issue CCW is the potential for reciprocity. As it stands right now, if you got LOC, you might have to get non-resident permits from half a dozen states or more in order to carry outside California. Plus, you'd have to change your carry style when you traveled to most other states. With CCW, there's at least the potential for reciprocity.

I'm not saying that LOC is a bad idea, or that getting it isn't something to try for. But there are some very distinct advantages to Shall-issue CCW over LOC (for example, you still wouldn't be able to LOC in a school zone since that's a federal law too, but a CCW exempts you automatically, and vehicle restrictions could get very weird indeed), and it seems an unnecessary risk to put LOC first, with the potential of losing the chance at shall-issue CCW.

GuyW
05-01-2009, 6:44 PM
If you go directly after shall issue the courts will have to recognize the right to "bear" as covered by Heller. You mention that Heller explicitly permits CCW prohibitions. This is true...

Heller also covers "in a pocket" as bearing arms...

.

GuyW
05-01-2009, 6:54 PM
Economic discrimination is almost as powerful as racial. In other words, at least one of our CCW plaintiffs should be a security guard who stands to gain economically from an upgrade from loaded open carry in uniform to plainclothes CCW.

THAT will bring the police unions out in force...
.

7x57
05-01-2009, 7:01 PM
I do agree, it would be a bummer to be "stuck" at that point, because many people would not be as comfortable with LOC as I would be. However, even if it doesn't press Sacramento to fix the situation, it could pressure some local sheriffs and CoPs to issue permits to avoid getting so many MWG calls.

I'm glad you think it would be a bummer to be stuck there. But why then does it not carry more weight (and I'm really talking about the whole OC-first crowd, not necessarily you personally) that certain people with track records (mumble mumble hoffmang mumble) think they can get shall-issue and then OC (i.e. LOC) but are *not* at all confident of getting shall-issue after OC?

I want both, and both benefit people who only do one or the other. OC makes it even harder to harass CCers for accidental exposure, and probably the other way around as well too (less obvious, but it probably helps if OCers can get CC permits just to ensure that they can't be harassed for a piece of clothing falling, or allegedly falling, across their piece). I will take them in whichever order is best for the long-term strategy.

And I won't insist that *my* pet scheme is best just 'cuz it is mine, when the people with good track records say otherwise. We have great volunteer leaders and also pay great lawyers, we need to listen to what they say. So far, the people whose judgment I trust the most have said they can get OC after CC but quite possibly not the other way around. Why do we still have to argue the point?

Once again, I'm using your post as an example, so if my hurried typing seems curt, it isn't aimed at you personally at all.

7x57

hoffmang
05-01-2009, 8:05 PM
A side but important point.

SAF did not have any more involvement in Heller than the NRA did. Both filed Amicus briefs. Heller was backed directly by no gun rights organization and was financed out of Gura's and cohorts time and Bob Levy's personal finances.

-Gene

Liberty1
05-01-2009, 8:20 PM
More cops than not will try and lie about your loaded state if they think they can get away with it.

Just to be fair to my bros in blue and tan...

californiaopencarry.org (http://californiaopencarry.org) has documented every known UOC police encounter and no such lying has been found. Even though there have been some false arrests when no violation of law occurred due to officer's ignorance of the application 12031/12025pc and some 4th A. violations, there has been no evidence of what you suggest.

Still your insistence on witnesses and recording devices is wise advice. :thumbsup:

1JimMarch
05-01-2009, 9:45 PM
Quoting Liberty1:

californiaopencarry.org has documented every known UOC police encounter and no such lying has been found.

I think the sample is biased for two reasons: many of these are more rural, or at least away from the more hardcore grabber areas. Try it in Oakland, Los Angeles, San Francisco...

Second, a lot of these happen with a fair number of witnesses around. That helps block such "testilying".

N6ATF
05-01-2009, 10:20 PM
Testilying! (http://caopencarry.blogspot.com/2009/04/incident-report-from-4-07-09.html)

CSDGuy
05-01-2009, 10:27 PM
From what I've read about that encounter, they're not lying about the encounter. They've left a lot of details out. The stuff that showed up in that PRA response did happen.

DDT
05-01-2009, 10:45 PM
Another very important issue where LOC is much less desirable to CCW is that the GFSZ in CA has an exemption for CCW but not for LOC. If we end up with LOC we will be forbidden from entering the 1000' magic circle around all CA public and private K-12 schools. With CCW we are cool up to the doors of the school (or maybe the parking lot depending on this years legislative session.)

Mulay El Raisuli
05-02-2009, 8:56 AM
You have to remember though that Ohio is mostly just a theory too, because it was decided at the state level. So it serves as absolutely irrelevant legal precedent in California. The court case itself would still have to revolve around some of the same legal arguments as the case for CCW would.



I already know that Ohio precedent has no value in PRK courts. That wasn't what I was talking about. What I was talking about was going with what we have now & using it as a leverage to compel our legislature to pass Shall Issue. Basically, what CCWFacts said.



And once you have LOC, there's absolutely no guarantee that you can leverage it to get CCW. The legal and political situation is very different between the two states. There's no reason to believe what worked politically in Ohio would have a chance at all in California. Because of Nordyke the politicians could probably outlaw most of the types of demonstrations that put pressure on the government in Ohio, and there's probably far less public support for our side in California (on a percentage of the population basis) than in Ohio.



I agree that there are differences between Ohio & the PRK. However, outlawing demonstrations isn't a reasonable possibility. They might be able to prevent us from being strapped while doing so, but preventing them entirely? Not a chance.
As for how much support we have out there, we have more than you think. The polls are showing that we have a LOT of support from The People. True, with our corrupt & gerrymandered legislature, the antis do have the floor at the moment. But, that starts to change next year. And even with that, the support for CCW in general is quite strong. Far too many of the (other) Right People want CCW to stay. Given that it will stay, & given that HICKMAN is gone now, & given that the 'separate but equal' standard won't stand to the judicial scrutiny that HELLER now demands, I have no worries that a fair standard of CCW will come our way even if LOC is the only Constitutionally-mandated Right of Carry. Is this "guaranteed"? No. But given that nothing is certain in life, I'd still go with what is likely. Unless & until someone offers more than 'it could happen' as a reason to fold the winning hand we have now.



The bottom line is, once you have LOC you have no legal grounds to demand CCW. You have to depend solely on political pressure at that point. But Nordyke gives the antis far stronger tools to suppress such political efforts in California than they had in Ohio.



"Demand" doesn't, & won't, apply even if we delay LOC. HELLER pointed out that restrictions there are & will remain permissible. I don't see how NORDYKE gives the antis the tools you speak of. Can you explain?
In any event, what restrictions there might be on carrying aren't just subject to review by the courts of the PRK. We do have incorporation now. That means the Federal courts will be examining the rules. Can a standard imposed by one state withstand judicial scrutiny when the other 49 states don't have that standard? Example: 626.9 CPC. None of the other states have anything like this. Do you really think the PRK can convince a Federal court (even under a 'rational' standard of review, which isn't the case when a Constitutionally protected Right is the subject of review) that what works in 49 states can't work here? Even NORDYKE limited itself to actually being ON the property.
Which brings to my mind the matter of Theseus. While he's stuck in a PRK court right now, I don't see why an attack in Federal court couldn't be mounted on this basis now. But then, IANAL. Still, a way to make LOC more meaningful than it is is in our hands. If not RIGHT NOW, at least very soon. Why should we delay?



And being stuck with only LOC would be a pretty weak victory. As socal 2310 pointed out, you can then easily be discriminated against by any business that is anti. Plus, if your boss or company is anti (or is pressured into acting so by their insurance company), you would be disarmed at work (and potentially to and from work, unless you can also get a "parking lot" law like Florida passed - but which has been hung up in court). Also Nordyke opens the door for severe restrictions on LOC that could force those who choose to carry to become a small marginalized group with a diminishing political voice. Between the ease of discrimination, and laws about public places where groups of people gather, LOC could effectively become worthless outside your home for most Californians.



IIRC, the FL parking lot matter preceded HELLER. IOW, a different standard applies now.
I think you read far more into NORDYKE than is justified. But yes, there will be some restrictions we won't like. At first. But, given the legal reality that we are talking about a Constitutionally protected Right, the PRK would have to make the case that those restrictions fairly & properly infringe on that Right. Given that those restrictions don't apply in any other state (as noted above) & that those restrictions aren't even applied to any other Rights here in the PRK, I don't see them having much of a chance of doing that.

Basically then, we have a winning hand right now. Something that can start saving lives right now. Something that allows us to push (and push hard) in court right now. Instead, the plan is to go with what is acknowledged to be a less-winning hand in the hopes that, in a few years, we'll have something we like a lot better. I understand that I'm not one of the Right People & that sharing strategy with the whole world might not be a the best way to go. But (using a military analogy, because everyone seems to like them) I don't see the value in docking the battleship we have & sending in a mere destroyer instead.

And the question must be asked: How many people will die in the few years this approach will take? As opposed to the lives that we can start saving now?

The Raisuli

Mulay El Raisuli
05-02-2009, 8:59 AM
From what I've read about that encounter, they're not lying about the encounter. They've left a lot of details out. The stuff that showed up in that PRA response did happen.


IMHO, a lie by omission is no different than a lie by commission & that the cops are still lyin' dawgs.

But that might just be me.

The Raisuli

Untamed1972
05-02-2009, 9:32 AM
I'm just thinking the since Heller left the door open for gov't control of CCW, it'll be a tougher sell to demand CCW solely on constitutional grounds.

What I see is getting LOC via constituional challenge and getting CCW by means of equal protection challenge. At least an even, statewide standard of CCW, whether that goes full "shall issue" or not is another issue.

But my feeling is that if the state if forced to accept LOC on 2A protection grounds, they will likely roll on shall issue because it will be seen as a more desireable alternative for "civilized society".

Perhaps to force the states hand all LOC'ers could create a ruccus by walking around with loaded long guns to make the point that legally concealed guns are much less offending and the intention of a law-abiding citizen is self-defense, not to attract attention or cause offense, but we will given no other choice.

Can you imagine every LEA in the state getting swamped with MWG calls on the same day, or for an entire week, because everyone is going grocery shopping with a loaded AR slung on their shoulder.

Our defense "If we must have our weapons for defense openly displayed, then we will choose to carry the best weapon for the job. But if you (the state) would go shall issue like most other states, then we'd prefer to carry something smaller and less attention worthy."

Untamed1972
05-02-2009, 9:35 AM
IMHO, a lie by omission is no different than a lie by commission & that the cops are still lyin' dawgs.

But that might just be me.

The Raisuli

Yep....ask any background investigator when applying for a LEO job what happens during your background check if they find you've intentionally omitted something.

SVT_Fox
05-02-2009, 10:16 AM
ill bring a video camera, just let me know when and where! I want to be on record at this point too!

GaryV
05-02-2009, 10:18 AM
But my feeling is that if the state if forced to accept LOC on 2A protection grounds, they will likely roll on shall issue because it will be seen as a more desireable alternative for "civilized society".

The problem is that this line of logic requires that the other side 1) give up and accept the inevitable, and 2) that they look at gun issues from the same common-sense view as you. But any historical examination of the issue shows that neither is at all likely to be true. Instead, they're likely to see this as a temporary setback, and do everything they can to limit LOC while figuring out how they can roll back our right even further.

Can you imagine every LEA in the state getting swamped with MWG calls on the same day, or for an entire week, because everyone is going grocery shopping with a loaded AR slung on their shoulder.

Our defense "If we must have our weapons for defense openly displayed, then we will choose to carry the best weapon for the job. But if you (the state) would go shall issue like most other states, then we'd prefer to carry something smaller and less attention worthy."

And this is exactly the kind of thing I don't think they will allow to happen. Yes, I think it would be easy to get LOC on constitutional grounds. But I seriously doubt that it would be unlimited LOC, to the extent that such provocative displays would be banned. Nordyke (until it is reviewed by SCOTUS, or some other case dealing with sensitive areas is) will allow them to ban all LOC in public areas where people congregate. And I'm sure they'd pass laws about what types of weapons could be carried where (such as only holstered handguns in incorporated areas or on the premises of businesses not related to guns).

I'm also confident that such laws would hold up to judicial scrutiny, since handguns are by far the most common self-defense gun, and such limits wouldn't prevent you from reasonably exercising your right to bear arms in self-defense. All they have to do is cite the disruption carrying a loaded AR into Wholefoods causes (which is actually your stated intent) as the reason for such restrictions, and the same reasoning that allowed the Alameda County law to override the Nordykes' right to Free Speech would allow them to place limits on LOC.

That's the problem I have with the Ohio approach in California. People think they'll be able to stir up all kinds of public hysteria. But with Nordyke the California antis have some strong tools to prevent it that Ohio didn't. And forcing them to use them could end up causing LOC to be so limited that it would be virtually worthless to most people.

Don't get me wrong, I think we should have CCW AND LOC. But getting both is going to be very difficult, because once you get one, you lose your constitutional basis for demanding the other. That's something that simply mustn't be ignored.

hoffmang
05-02-2009, 10:25 AM
I'm just thinking the since Heller left the door open for gov't control of CCW, it'll be a tougher sell to demand CCW solely on constitutional grounds.


There is a right to carry/bear. States can choose one of three schemes that will pass constitutional muster:
1. Shall issue CCW, no LOC.
2. May or no issue CCW, LOC. (May will be hard for states.)
3. Shall issue CCW, LOC.

What states can not do is:
4. May issue and no LOC.

Our risk is that California ends in 2. I'm confident we can get to 1. I have a plan to potentially get us to 3. 4. is a flat ban on the carrying of functional firearms for self defense and functional firearms for defense is what Heller was about. All we have to do is establish the carry right out of Heller.

12031 is a flat ban on carry for self defense whose only exception is a license. The state can keep that ban if and only if licenses are fair and widely available.

-Gene

nick
05-02-2009, 10:31 AM
Another very important issue where LOC is much less desirable to CCW is that the GFSZ in CA has an exemption for CCW but not for LOC. If we end up with LOC we will be forbidden from entering the 1000' magic circle around all CA public and private K-12 schools. With CCW we are cool up to the doors of the school (or maybe the parking lot depending on this years legislative session.)

Well, that law needs to be challenged. The federal law was challeneged and found unconctitutional once, the current one just hasn't been challenged yet, and neither was the CA law.I don't think it'll be an overly hard challenge.

It'll have to be challenged from a place like CA though, for most sane states just grant their citizens the exemption fromthat federal law.

GaryV
05-02-2009, 11:07 AM
Well, that law needs to be challenged. The federal law was challeneged and found unconctitutional once, the current one just hasn't been challenged yet, and neither was the CA law.I don't think it'll be an overly hard challenge.

It'll have to be challenged from a place like CA though, for most sane states just grant their citizens the exemption from that federal law.

This is another area where I think people might be overly confident. Yes, the federal law was overturned once, on the grounds that it has nothing to do with interstate commerce (which is the authority under which congress claimed it could pass it). But the first time around congress didn't include a statement that it did affect interstate commerce in their findings. The second time around, they made a big deal in their findings about how it did affect interstate commerce.

Now, common sense would say that just because congress came back and said that the court was wrong, it wouldn't change anything. But courts have a nasty habit of taking the government's side on stuff they put in these stupid "findings" (this is the same kind of thing that allowed Alameda county's law to override constitutional rights). Courts rarely ever question these "findings", as if they were facts, even though there is no requirement for the least bit of evidence in their support. Two federal appeals courts have already upheld the new version of the law (although indications from the 9th circuit and SCOTUS admittedly are that it may still be unconstitutional). So overturning the federal law is a good possibility, but not guaranteed.

The problem is that the challenge to the federal law is entirely worthless against the California law. The federal law was challenged on the basis that it infringes on states' rights. But that means that states DO have the right to pass such laws. While there are other grounds on which to challenge the California law, they're not as solid as the challenge to the federal law, and overturning it is therefore even less certain.

Untamed1972
05-02-2009, 12:04 PM
There is a right to carry/bear. States can choose one of three schemes that will pass constitutional muster:
1. Shall issue CCW, no LOC.
2. May or no issue CCW, LOC. (May will be hard for states.)
3. Shall issue CCW, LOC.

What states can not do is:
4. May issue and no LOC.

Our risk is that California ends in 2. I'm confident we can get to 1. I have a plan to potentially get us to 3. 4. is a flat ban on the carrying of functional firearms for self defense and functional firearms for defense is what Heller was about. All we have to do is establish the carry right out of Heller.

12031 is a flat ban on carry for self defense whose only exception is a license. The state can keep that ban if and only if licenses are fair and widely available.

-Gene

Well I certainly defer to your experience and judgement on these deeper legal issues Gene, and am whole heartedly in favor of both LOC and shall issue CCW. That is the ideal situation for all involved, and I look forward to seeing how it all plays out. But we dont have long cuz the world it posta end in 2012 anyway! At least we can blame the nd of the world on the Democrats!!! LOL

Untamed1972
05-02-2009, 12:32 PM
I actually had one thought on why CA cold opt for shall issue CCW and no LOC.

If CA if forced to accept loaded carry of some kind, knowing how much CA like to license, control and register everything, they could look at it like this "Either we allow unlicensed LOC and have no idea/control on who is doing it, or we go shall issue CCW with no LOC that way we can know who is carrying."

Kind of a way for them to register not only handguns, but handgun carriers too.

Not saying I like that line of thinking....but I can see them going that route.

nick
05-02-2009, 12:45 PM
This is another area where I think people might be overly confident. Yes, the federal law was overturned once, on the grounds that it has nothing to do with interstate commerce (which is the authority under which congress claimed it could pass it). But the first time around congress didn't include a statement that it did affect interstate commerce in their findings. The second time around, they made a big deal in their findings about how it did affect interstate commerce.

Now, common sense would say that just because congress came back and said that the court was wrong, it wouldn't change anything. But courts have a nasty habit of taking the government's side on stuff they put in these stupid "findings" (this is the same kind of thing that allowed Alameda county's law to override constitutional rights). Courts rarely ever question these "findings", as if they were facts, even though there is no requirement for the least bit of evidence in their support. Two federal appeals courts have already upheld the new version of the law (although indications from the 9th circuit and SCOTUS admittedly are that it may still be unconstitutional). So overturning the federal law is a good possibility, but not guaranteed.

The problem is that the challenge to the federal law is entirely worthless against the California law. The federal law was challenged on the basis that it infringes on states' rights. But that means that states DO have the right to pass such laws. While there are other grounds on which to challenge the California law, they're not as solid as the challenge to the federal law, and overturning it is therefore even less certain.

Of course, nothing is guaranteed. That being said, I wouldn't call such successful challenge worthless. If it removes the federal "safe school zone" law, the CA law is actually milder, as it only affects handguns. Besides, the rules of the game might've changed now that the right to bear arms is recognized as an individual, and not a collective, right. Hopefully, the standards of scrutiny required when restricting such a right have changed, as well. We'll see how that goes, of course.

GaryV
05-02-2009, 1:13 PM
Of course, nothing is guaranteed. That being said, I wouldn't call such successful challenge worthless. If it removes the federal "safe school zone" law, the CA law is actually milder, as it only affects handguns. Besides, the rules of the game might've changed now that the right to bear arms is recognized as an individual, and not a collective, right. Hopefully, the standards of scrutiny required when restricting such a right have changed, as well. We'll see how that goes, of course.

Yes, I agree that the California law is only milder, although it could still be bad enough when combined with other regulation.

As far as standards of scrutiny, there's an easy way around it, as the 9th circuit pointed out in Nordyke: as long as the stated purpose of the law is to fulfill a legitimate government function (such as crime prevention), and not primarily to infringe on the right, even protected individual rights such as free speech can be infringed. Essentially all they have to do is claim that not only are schools themselves sensitive areas, but so are the areas around them to X number of feet. If they get a court to swallow that and we lose.

I will admit that I think there's a good chance of defeating it though. It's just that it's a complicating factor to the question of LOC or CCW first. If you get stuck with LOC only, school zone laws and other restrictions added in response to the change could make LOC a lot less useful.

CSDGuy
05-02-2009, 1:25 PM
With a valid CCW that is unrestricted, unless you're an employee or a student at a school, you can carry on school grounds. If you're discovered, they can ask you to leave. If you don't, that's trespassing. If you're an employee or a student they can discipline you for not following school rules...

CCWFacts
05-02-2009, 1:26 PM
I'm not saying that LOC is a bad idea, or that getting it isn't something to try for. But there are some very distinct advantages to Shall-issue CCW over LOC (for example, you still wouldn't be able to LOC in a school zone since that's a federal law too, but a CCW exempts you automatically, and vehicle restrictions could get very weird indeed),

Oh I agree, I'm about 1000x more interested in CCW than LOC.

And the Federal GFSZ thing is a big problem. I would say there is no LOC as long as we have to worry about school zones. I can hardly walk down the street in any direction from my house without hitting a school zone.

In fact I hope the Fed. GFSZ law is one the Federal laws to get challenged post-Heller. It's really awful.

Aegis
05-02-2009, 1:41 PM
There is a right to carry/bear. States can choose one of three schemes that will pass constitutional muster:
1. Shall issue CCW, no LOC.
2. May or no issue CCW, LOC. (May will be hard for states.)
3. Shall issue CCW, LOC.

What states can not do is:
4. May issue and no LOC.

Our risk is that California ends in 2. I'm confident we can get to 1. I have a plan to potentially get us to 3. 4. is a flat ban on the carrying of functional firearms for self defense and functional firearms for defense is what Heller was about. All we have to do is establish the carry right out of Heller.

12031 is a flat ban on carry for self defense whose only exception is a license. The state can keep that ban if and only if licenses are fair and widely available.

-Gene

I am fine with 1-3 just as long as I can defend myself and my family outside of my home like most people in this country can.

I hope something is in the works with a good plaintiff. It is only a matter of time until a scumbag gets arrested for carrying a loaded weapon and his attorney screws things up. It seems that the legal minds at CGN or NRA would be better to bring a challenge than a person with a criminal background and an attorney with no clue about how to bring a successful challenge.

1JimMarch
05-02-2009, 2:33 PM
One BIG difference between Cali and Ohio is that in Cali, there's now an obvious and "admitted" system for CCW "for some folks".

Heller said that states could regulate CCW - but there's also Federal standards against "arbitrary or capricious" application of a law that should kick in in our favor.

Heller also said that states could eliminate CCW, so long as LOC was allowed. But to ditch the CCW system, the state legislature would have to screw over somewhere between 35,000 and 40,000 people at once. Which doesn't sound so bad, except that's one hell of a WEALTHY block of people and many are also politically connected. More or less nothing the Dems could do would dump a bunch of cash into GOP coffers.

So there's a decent chance they won't do that.

Now, contrary to what most people think, Ohio also had a may-issue CCW system! It wasn't based on any law on the books, rather sheriffs were handing out low-rent deputy status to their buddies. But the court in the Klein decision didn't need to address that, and the legislature never wanted to admit that was going on.

I've seen a California CCW application in which the applicant listed "previous CCWs" with his Ohio "special deputy status". And it was a successful app in Cali - I can't recall offhand which county...

GaryV
05-02-2009, 3:02 PM
I agree that there are differences between Ohio & the PRK. However, outlawing demonstrations isn't a reasonable possibility. They might be able to prevent us from being strapped while doing so, but preventing them entirely? Not a chance.

Far too many of the (other) Right People want CCW to stay. Given that it will stay, & given that HICKMAN is gone now, & given that the 'separate but equal' standard won't stand to the judicial scrutiny that HELLER now demands, I have no worries that a fair standard of CCW will come our way even if LOC is the only Constitutionally-mandated Right of Carry. Is this "guaranteed"? No. But given that nothing is certain in life, I'd still go with what is likely. Unless & until someone offers more than 'it could happen' as a reason to fold the winning hand we have now.

You're right, they can't outlaw demonstrations. But they can probably (and undoubtedly will try to) prevent LOC at demonstrations. And that makes the Ohio example irrelevant, because you then lose the power of LOC to compel anything if you can't use it to make them uncomfortable. Yes, you might get a chance to educate a few people, but mostly the protests will be seen by most as so much noise that they can easily tune out.

Hickman being dead is irrelevant once you have LOC. As all the case law cited in Heller makes clear, as long as one avenue of carry is legal, you have no 2nd Amendment grounds on which to challenge restrictions on another. So Hickman's demise doesn't make discretionary issue of CCW any weaker, as long as you get LOC. Your individual right is protected under LOC, and discretionary CCW is legal. Heller supports this. If you get LOC first, Heller only hurts you on CCW, and doesn't offer any help at all.

It's not just that it could happen, it's that, unless the antis just suddenly stop caring, or seriously drop the ball, sticking us with LOC only and then chipping away at it with "reasonable" restrictions could be a very effective strategy for marginalizing our efforts. A successful strategy doesn't just rely on a thorough understanding of your own strengths and options, but on understanding those of your opponent as well. Going after LOC first, while maybe even easier than getting shall-issue CCW, gives them a stronger hand than going after CCW first.

"Demand" doesn't, & won't, apply even if we delay LOC. HELLER pointed out that restrictions there are & will remain permissible. I don't see how NORDYKE gives the antis the tools you speak of. Can you explain?
In any event, what restrictions there might be on carrying aren't just subject to review by the courts of the PRK. We do have incorporation now. That means the Federal courts will be examining the rules. Can a standard imposed by one state withstand judicial scrutiny when the other 49 states don't have that standard? Example: 626.9 CPC. None of the other states have anything like this. Do you really think the PRK can convince a Federal court (even under a 'rational' standard of review, which isn't the case when a Constitutionally protected Right is the subject of review) that what works in 49 states can't work here? Even NORDYKE limited itself to actually being ON the property.

Yes, demand will apply under Heller, if CCW is pursued first. Since Californians don't have LOC, and UOC doesn't meet Heller's standards for self-defense, the fact that Heller may allow some restriction doesn't change the fact that right now there are no legal options in California. That gives standing to demand non-discretionary CCW.

As for Nordyke, the main tool antis in California now have is that they can reasonably expect that laws prohibiting LOC in any public place where people congregate will be upheld. If a law like this passes at the state level, it won't even matter if you live in a gun friendly county. That would prevent any of the in-your-face LOC protests that people seem to think would compel shall-issue CCW. And LOC could be limited in ways I've mentioned elsewhere, like only holstered handguns in incorporated areas, or on non-gun-related business premises. These would also probably be upheld, because the most common type of firearm carried for self-defense would still be legal. Plus, there are the huge issues with carrying at work or anywhere else on others' private property.

As for inequalities, there's no problem there. That's the whole point of states' rights (which is the very argument against the federal school zone law). And you're actually wrong: other states DO have school zone laws. They're just different than California's. Florida is again a good example: FS 790.115. It not only covers possession on school property and school buses, but at bus stops and all school activities, even not on school grounds. It also covers "display" (which is very vaguely defined and could basically be whatever the DA wants) in all these areas, plus within 1000 feet a school. So I don't see that challenging these laws on the grounds that California's laws are unique is going to fly.

IIRC, the FL parking lot matter preceded HELLER. IOW, a different standard applies now.
But yes, there will be some restrictions we won't like. At first. But, given the legal reality that we are talking about a Constitutionally protected Right, the PRK would have to make the case that those restrictions fairly & properly infringe on that Right. Given that those restrictions don't apply in any other state (as noted above) & that those restrictions aren't even applied to any other Rights here in the PRK, I don't see them having much of a chance of doing that.

Heller is irrelevant to the parking lot law, since the law deals with the actions of private property owners on their own property. The problem is that many employers will probably prohibit open carry. So what do you do if you're an employee at one of these businesses or agencies? Can you leave you gun locked in the trunk of your car? Can your employer prohibit this? The answer to the last question is YES, they can. Which means, if you can't find public or other alternate parking, you could be effectively prohibited from carrying to and from work, as well as while there. Add this to the "sensitive areas" language of Nordyke and you have a situation where a large portion of the population, maybe even a majority, will be severely restricted in when they can carry.

As to justifying infringement by the state, I've already spoken to that, but to summarize: 1) if the infringement is an "unintentional" consequence of a law designed to exercise a legitimate government function, infringement is held to a lower standard of review; 2) if the infringement allows for the right to still be exercised in an effective way (the right includes a purpose - such as self-defense), it is legal; 3) differences between states are allowed, especially since California restrictions are not as unique as you appear to believe. Most states have restrictions on carry which fit in quite well with the "sensitive areas" standard of Nordyke. Many prohibit carry (even CCW) at organized sporting events, for example. You'd a have a very difficult time showing that easily predictable restrictions on LOC, if it were legalized, would be out of step with what other states already do, especially since most states have CCW instead of LOC.

Basically then, we have a winning hand right now. Something that can start saving lives right now. Something that allows us to push (and push hard) in court right now. Instead, the plan is to go with what is acknowledged to be a less-winning hand in the hopes that, in a few years, we'll have something we like a lot better. I understand that I'm not one of the Right People & that sharing strategy with the whole world might not be a the best way to go. But (using a military analogy, because everyone seems to like them) I don't see the value in docking the battleship we have & sending in a mere destroyer instead.

And the question must be asked: How many people will die in the few years this approach will take? As opposed to the lives that we can start saving now?

The Raisuli

I disagree. It's hardly universally acknowledged that going for shall-issue CCW first is a "less-winning hand". All arguments that can be made in court for LOC apply equally to shall-issue CCW. I would argue that shall-issue is probably the easier battle to win, for a number of reasons. Even if you're right though, and LOC is the easier win, that's not the only point here. The other MAJOR issue is that we don't want to win the battle while losing the war. And the risk of that is greater with LOC-first, because it then strengthens the opposition's hand to curtail carry in most instances.

And I don't see the point of your statement about people dying. There's no reason why shall-issue CCW would take any longer in court than LOC. But even if it did, how many more people would die in the long run if we got LOC only, and it got whittled away to the point where most people couldn't carry most of the time anyway?

I'm not one of the Right People either, but I've spent a lot of time watching how these things work. To me it just seems that the better big-picture strategy is to go for shall-issue CCW first. Yes, that may mean losing on LOC, but then California would be like the majority of states that allow carry. And for a lot of reasons I've stated already in other posts, I think it would be a much better situation than having only LOC, which is a distinct possibility. Either way, thanks for the debate. even if we're not the ones who will make these decisions, it's still interesting to speculate on what will happen.

1JimMarch
05-02-2009, 3:36 PM
As all the case law cited in Heller makes clear, as long as one avenue of carry is legal, you have no 2nd Amendment grounds on which to challenge restrictions on another. So Hickman's demise doesn't make discretionary issue of CCW any weaker, as long as you get LOC.

WAIT. I have to agree that shall-issue isn't a slam-dunk, but court support for may-issue isn't at all a slam-dunk either!!!

The court cases Heller cited were all about bans on concealed carry. Discretionary carry is a different matter, and is subject to a huge body of case law banning "arbitrary or capricious" administrative authority.

THAT body of Federal case law is now very much in play. Could the courts try and ignore it? Yeah. But only with serious risk of being overturned.

Permits are issued on a "discretionary" basis all the time by local government offices, esp. in areas like zoning and construction permits. But if a land developer was able to show only a FRACTION of the favoritism in the process that we can document in CCW, he'd be laughing all the way to the courthouse.

Upshot: you're ignoring a vast body of case law that's now been brought into play!

CCWFacts
05-02-2009, 3:43 PM
I've seen a California CCW application in which the applicant listed "previous CCWs" with his Ohio "special deputy status". And it was a successful app in Cali - I can't recall offhand which county...

"Special deputy status" was used in many states as an unofficial CCW system. I've seen a "special deputy" card from Arizona from years ago, back when they were no issue. I think there were also similar systems like special PI status (heard about something like this in Illinois). Obviously there is very little info out there about such systems. You can't call up Illinois and ask, "how do really rich people carry guns there?"

I do know for a fact that the founder of Front Sight had a special deputy status in Arizona that allowed him to carry on airplanes and in his state of residence in California. It came out in the local press and was yanked. Now that most of the US is shall-issue, the "special deputy" thing is probably not used as much but I've heard enough reports of the rich and well-connected getting them so they can carry in all 50 states and possibly on airplanes.

That, on top of the other unofficial CCW system did operate widely and still operates to some extent in California, of "we don't arrest certain people on this charge."

It seems like it's culturally / socially impossible to have a true no-issue system where powerful people really cannot carry guns. By "cannot carry" I mean "face risks of going to prison if they do it."

GaryV
05-02-2009, 4:24 PM
WAIT. I have to agree that shall-issue isn't a slam-dunk, but court support for may-issue isn't at all a slam-dunk either!!!

The court cases Heller cited were all about bans on concealed carry. Discretionary carry is a different matter, and is subject to a huge body of case law banning "arbitrary or capricious" administrative authority.

THAT body of Federal case law is now very much in play. Could the courts try and ignore it? Yeah. But only with serious risk of being overturned.

Permits are issued on a "discretionary" basis all the time by local government offices, esp. in areas like zoning and construction permits. But if a land developer was able to show only a FRACTION of the favoritism in the process that we can document in CCW, he'd be laughing all the way to the courthouse.

Upshot: you're ignoring a vast body of case law that's now been brought into play!

You're correct, I didn't address this (mostly cause I was already pushing the length limit and had to cut stuff out). My point was that discretionary issue is not, in and of itself, unconstitutional or illegal, as long as LOC is allowed. So getting it thrown out through judicial action becomes very complicated.

The specifics of the situation in California are more complex. The blatant favoritism is a strong tool in our box. But as someone pointed out in the Nordyke thread, the state could simply rectify this by coming up with a standardized set of "good cause" criteria (which could be every bit as difficult to overcome) that would make all that case law irrelevant. Plus, since discretion is at the county level, those challenges might be restricted to individual sheriffs' actions, not against the state law itself. This is especially true since some sheriffs have been fair about the process.

The point is that challenging may-issue CCW in court is a complicated process that isn't anywhere near as simple as a lot of people think, especially once LOC is legal. Heller becomes irrelevant at that point, and any decision against the state could be relatively easily "fixed" by legislative action that addresses blatant abuses. And since you can't argue from an "infringed constitutional rights" position if you already have LOC, the case would probably be decided by state, not federal, courts. At the very least, it would be a long and difficult fight.

GaryV
05-02-2009, 4:27 PM
It seems like it's culturally / socially impossible to have a true no-issue system where powerful people really cannot carry guns. By "cannot carry" I mean "face risks of going to prison if they do it."

It's pretty much culturally impossible to have a system where powerful people face the risk of prison for almost anything except offending other, more powerful people

hoffmang
05-02-2009, 4:44 PM
The point is that challenging may-issue CCW in court is a complicated process that isn't anywhere near as simple as a lot of people think, especially once LOC is legal.

However, when LOC isn't legal, challenging may-issue CCW is relatively easy.

-Gene

7x57
05-02-2009, 5:29 PM
However, when LOC isn't legal, challenging may-issue CCW is relatively easy.


I hope everyone is listening to this, because Gene is making in pieces an argument I heard him make more fully at the post-Nordyke dinner, and it's important. This is the original argument for going for shall-issue before OC, my arguments are just an attempt to understand and report Gene's arguments.

ETA: That doesn't mean it isn't my argument--I can only argue what I understand and agree with. I just wanted to point out that if you find me arguing differently from Gene, it may well be a case of "this is new and good--but what is new is not good, and what is good is not new." :rolleyes:

7x57

Untamed1972
05-02-2009, 7:28 PM
Couple of questions Gene and the other great legal minds of CFG:

1) On the Texas model of carry, ie shall issue CCW with no LOC. Does that not constitute the state requiring a license to exercise a fundemental right, if CCW is your only option for carry, but you must first obtain a license? To have uninfringed 2A rights must there not be at least one free, unlicensed option available to a citizen?

2) Getting a little off topic, but can handgun registration in CA now be challenged on 2A grounds under my comment above about having to register/license with the state to exercise your RKBA?

3) School zones - can't the fact that the school zone laws allow exception for CCW holders, even in shall issue states, negate the validity of extending the school zone past the boundaries of school property? Why is it any more safe for a CCW holder to have a gun in the school zone or even on school grounds then anyone else who is not carrying a gun for the purpose of illegal activity? Which if someone intends on engaging in illegal activity at or near a school, they're gonna do it anyway regardless of the school zone law.

I wish the law makers would stop making laws that prohibit everyone from doing something and just perhaps add sentence enhancements to existing laws for people who do illegal things at schools for example.

hoffmang
05-02-2009, 8:53 PM
1) On the Texas model of carry, ie shall issue CCW with no LOC. Does that not constitute the state requiring a license to exercise a fundemental right, if CCW is your only option for carry, but you must first obtain a license? To have uninfringed 2A rights must there not be at least one free, unlicensed option available to a citizen?
The state can also require licenses to speak or assemble. Just try opening an adult book store without a license in many municipalities or holding a march.

2) Getting a little off topic, but can handgun registration in CA now be challenged on 2A grounds under my comment above about having to register/license with the state to exercise your RKBA?
No.

3) School zones - can't the fact that the school zone laws allow exception for CCW holders, even in shall issue states, negate the validity of extending the school zone past the boundaries of school property? Why is it any more safe for a CCW holder to have a gun in the school zone or even on school grounds then anyone else who is not carrying a gun for the purpose of illegal activity? Which if someone intends on engaging in illegal activity at or near a school, they're gonna do it anyway regardless of the school zone law.
There may be an equal protection argument, but it will hinge on whether states can choose to deny LOC while allowing shall issue CCW. You have a very hard row to hoe to get courts to agree that states are not free to choose the manner of the right to bear as long as the end manner is an actual right to bear.

-Gene

Librarian
05-02-2009, 11:15 PM
I wish the law makers would stop making laws that prohibit everyone from doing something and just perhaps add sentence enhancements to existing laws for people who do illegal things at schools for example.That would make more sense, but then we'd have to stop plea-bargaining away a lot of the charges -- and re-prioritize which crimes get prison and which get fines and probation, 'cause building more prison space isn't happening anytime soon. (Gotta spend those billions on prison healthcare (http://www.sacbee.com/capitolandcalifornia/story/1615188.html) ...)

Maestro Pistolero
05-03-2009, 12:56 AM
There may be an equal protection argument, but it will hinge on whether states can choose to deny LOC while allowing shall issue CCW. You have a very hard row to hoe to get courts to agree that states are not free to choose the manner of the right to bear as long as the end manner is an actual right to bear.

Don't get me wrong, I think we should have CCW AND LOC. But getting both is going to be very difficult, because once you get one, you lose your constitutional basis for demanding the other.


I'm not sure about that. I'm trying to imagine any other protected right that you must keep hidden from public view. If you have a right to carry at all, it would seem that LOC would have to be protected.

I have doubts and concerns that shall-issue CCW could, or should totally take the place of LOC. It's not hard to imagine a scenario where, If your shirt or jacket blows open you're suddenly risking a felony.

More importantly, it takes a fundamental right and make the exersize of it dependent on your choice of wardrobe. It opens up a big grey area of questions like "Is my over shirt or jacket too thin? How much can my gun 'print' on my outer garment and still be considered concealed? Really skinny people may have a hard time complying with mandated concealment of a full size gun. It would make for very messy enforcement criteria, at best.

The truth is, almost all of us who have a choice here in Nevada, choose concealed carry for all the obvious reasons. I expect it would be the same in California.

But, another long term issue is that open carry does increase overall public awareness of the right and, eventually would, to some extent, re-socialize the public to see firearms ownership in a different light. Part of the political battle we face is that it has simply fallen out of fashion to wear a sidearm, so much so, that many people can't even believe that it's actually legal!

If people were exposed every day to armed honest Joe's and Jane's going about their normal business, their view would have to shift, eventually. All most people know about folks carrying guns is literally what they see in movies and TV. It's either a criminal, a terrorist, a soldier, or a cop. Most people have this completely skewed view of what it means to conduct normal day to day activity, only with a certain tool attached to your belt.

My opinion is that although CCW is preferable and more palatable to the general public, and should be provided for, that we should never again allow it to become a criminal act to be seen exercising a fundamental civil right to self defense.

Mulay El Raisuli
05-03-2009, 5:57 AM
Hickman being dead is irrelevant once you have LOC. As all the case law cited in Heller makes clear, as long as one avenue of carry is legal, you have no 2nd Amendment grounds on which to challenge restrictions on another. So Hickman's demise doesn't make discretionary issue of CCW any weaker, as long as you get LOC. Your individual right is protected under LOC, and discretionary CCW is legal. Heller supports this. If you get LOC first, Heller only hurts you on CCW, and doesn't offer any help at all.



I don't see it as being all that clear. Also, as mentioned elsewhere, any type of CCW still requires the permission of The State, & that is supported by Heller. The beauty of what Heller has given us is that its a way of carrying that does not require permission.





As for Nordyke, the main tool antis in California now have is that they can reasonably expect that laws prohibiting LOC in any public place where people congregate will be upheld. If a law like this passes at the state level, it won't even matter if you live in a gun friendly county. That would prevent any of the in-your-face LOC protests that people seem to think would compel shall-issue CCW. And LOC could be limited in ways I've mentioned elsewhere, like only holstered handguns in incorporated areas, or on non-gun-related business premises. These would also probably be upheld, because the most common type of firearm carried for self-defense would still be legal. Plus, there are the huge issues with carrying at work or anywhere else on others' private property.



I don't see any of that in Nordyke. Also, if the restrictions you see actually do fly, then we won't have the protections that we got in Heller. Simply because we won't be allowed to carry where & when a gun might be needed. Which is why even if your vision is better than mine, I don't see SCOTUS allowing them to stay.



As for inequalities, there's no problem there. That's the whole point of states' rights (which is the very argument against the federal school zone law). And you're actually wrong: other states DO have school zone laws. They're just different than California's. Florida is again a good example: FS 790.115. It not only covers possession on school property and school buses, but at bus stops and all school activities, even not on school grounds. It also covers "display" (which is very vaguely defined and could basically be whatever the DA wants) in all these areas, plus within 1000 feet a school. So I don't see that challenging these laws on the grounds that California's laws are unique is going to fly.



Two examples is better than I thought was the case. But, that's still ONLY two examples. And, while I understand all the dislike of the Commerce Clause, this is one area where we should be pushing for the CC all the way. The 2A is a Federal law. Saving the PRK isn't the only goal here. Getting a sensible standard EVERYWHERE is (or should be) the goal. I travel. So do a lot of people. I shouldn't have to worry or wonder about what stupid laws apply if I should travel to Iowa (for example).



Heller is irrelevant to the parking lot law, since the law deals with the actions of private property owners on their own property.



Not quite. There are limits on what restrictions employers can place on Constitutionally protected activities. Under Heller, there's a different standard to apply now. True, it might not work, but I wouldn't rule it out yet.



As to justifying infringement by the state, I've already spoken to that, but to summarize: 1) if the infringement is an "unintentional" consequence of a law designed to exercise a legitimate government function, infringement is held to a lower standard of review; 2) if the infringement allows for the right to still be exercised in an effective way (the right includes a purpose - such as self-defense), it is legal; 3) differences between states are allowed, especially since California restrictions are not as unique as you appear to believe. Most states have restrictions on carry which fit in quite well with the "sensitive areas" standard of Nordyke. Many prohibit carry (even CCW) at organized sporting events, for example. You'd a have a very difficult time showing that easily predictable restrictions on LOC, if it were legalized, would be out of step with what other states already do, especially since most states have CCW instead of LOC.



At 1), you're wrong. It isn't that the standard is lower, its that we could fail even under the higher standard of review. Maybe, perhaps. I don't see it happening though. Also, the intent is to disarm. That's not an "unintended consequence."
It is at 2), that the restrictions fail. If guns are banned, then the Right can't be exercised, can it?
As for 3), "differences" aren't allowed for any other Constitutionally protected Right. We shouldn't allow that for this one either.


I disagree. It's hardly universally acknowledged that going for shall-issue CCW first is a "less-winning hand". All arguments that can be made in court for LOC apply equally to shall-issue CCW. I would argue that shall-issue is probably the easier battle to win, for a number of reasons. Even if you're right though, and LOC is the easier win, that's not the only point here. The other MAJOR issue is that we don't want to win the battle while losing the war. And the risk of that is greater with LOC-first, because it then strengthens the opposition's hand to curtail carry in most instances.



The people pushing so very hard for CCW first have said that its the less winning hand. I accept that as true. Which is why I disagree with you on CCW being the easier to win.



And I don't see the point of your statement about people dying. There's no reason why shall-issue CCW would take any longer in court than LOC. But even if it did, how many more people would die in the long run if we got LOC only, and it got whittled away to the point where most people couldn't carry most of the time anyway?



Since CCW-first is the weaker hand, its just about dead-bang certain to take longer. LOC, being the stronger hand, & being basically here NOW, could start saving lives NOW. Again, I don't see the restrictions you fear & I don't see them lasting very long. The Right People would have to be very incompetent to allow silly little rules to stand against a Constitutionally protected Right (which is keeping & bearing is now). So, I don't see The Right being
whittled away.


I'm not one of the Right People either, but I've spent a lot of time watching how these things work. To me it just seems that the better big-picture strategy is to go for shall-issue CCW first. Yes, that may mean losing on LOC, but then California would be like the majority of states that allow carry. And for a lot of reasons I've stated already in other posts, I think it would be a much better situation than having only LOC, which is a distinct possibility. Either way, thanks for the debate. even if we're not the ones who will make these decisions, it's still interesting to speculate on what will happen.



Let me return the compliment. You clearly think about this & so you require a greater level of thought from me.
But, I don't see LOC-only as a possibility. While LOC-first might prevent a "demand" for CCW, CCW is & would remain as a political question. As would the restrictions that Alameda Co. seems to favor. I remain convinced that we have far more support from The People than you think. Even 7X57 has expressed surprise at just how much support we have. I understand that desire to fight in the courts, but it would be foolish (IMHO) to ignore the political aspect of this fight. We can increase the support from The People with LOC. Even more than we can from CCW. Lets say that you're completely right & that the courts would allow the restrictions you see in Nordyke. If we get The People fully on our side, would the county even pass them?

Again, it isn't that I push LOC because I think that "SOMETHING MUST BE DONE!" as 7X57 keeps mis-characterizing me. I push THIS (LOC) because THIS will give us the political support we need (and should have anyway) AND will save lives soonest.

The Raisuli

Mulay El Raisuli
05-03-2009, 6:14 AM
The state can also require licenses to speak or assemble. Just try opening an adult book store without a license in many municipalities or holding a march.

-Gene



Here you are completely wrong. You DON'T need a license to assemble or to speak. You need a license to interfere with traffic (as for a parade), but you can hold an assembly w/o a license anywhere that doesn't so interfere. IOW, it isn't exercising a Right that requires a license, its the blocking of public right-of-ways that requires a license. Also, I can stand on a soapbox anywhere & say (almost) what I want. W/O a permit, w/o fear of arrest. If I say things that are obscene or the like, that can be stopped. But expressing an opinion on a political subject (IE, exercising a Constitutionally-protected Right)? Even w/o a license? The cops can do nothing.

It appears that you don't have a problem with We The People having to get permission with exercising our Right to keep & bear. I find this troubling.

The Raisuli

11Z50
05-03-2009, 6:15 AM
One more point on this:



This leaves the problem of what to do with the current CCW system?

Also, something BIG I left out.

Economic discrimination is almost as powerful as racial. In other words, at least one of our CCW plaintiffs should be a security guard who stands to gain economically from an upgrade from loaded open carry in uniform to plainclothes CCW.

In California there is a grey area as far as security guards and CCW. BSIS requires that armed "security" be uniformed. Private Investigators may provide plainclothes armed security if they have a BSIS firearms qualification and a local-issued CCW. This means that those PI's who live in a non-issue county cannot compete for armed plainclothes protection work with retired LEO's who have a agency issued retired carry permit. I've always thought this was very unfair. You are right, this situation creates a "special class" of people with whom others may not compete for jobs.

Untamed1972
05-03-2009, 8:46 AM
I have doubts and concerns that shall-issue CCW could, or should totally take the place of LOC. It's not hard to imagine a scenario where, If your shirt or jacket blows open you're suddenly risking a felony.

More importantly, it takes a fundamental right and make the exersize of it dependent on your choice of wardrobe. It opens up a big grey area of questions like "Is my over shirt or jacket too thin? How much can my gun 'print' on my outer garment and still be considered concealed? Really skinny people may have a hard time complying with mandated concealment of a full size gun. It would make for very messy enforcement criteria, at best.[/U]

I was thinkng along those lines regarding wardrobe and being able to dress appropriately for the weather even. I know this is the land of sunshine and all, but it does get cold here in SoCal, not to mention the northern and mountain areas state. When it's cold one should not have to be expected to go to great lengths to make sure their sidearm stays in full view. Or if it's raining I really wouldn't want to have to leave my sidearm hanging out in the rain. So conversely I also should not have to choose between providing for my self defense and being able to dress appropriately for the weather.

jnojr
05-03-2009, 9:31 AM
If we listened to the NRA we wouldn't have Heller from SCOTUS. :eek: :rolleyes:

True dat.

GaryV
05-03-2009, 9:40 AM
However, when LOC isn't legal, challenging may-issue CCW is relatively easy.

-Gene

Yes, which is my point exactly. Nordyke allows Heller to be used in the fight as a positive, as long as you don't already have LOC. But once LOC is legal, Heller works against CCW, and all bets are off.

GaryV
05-03-2009, 9:55 AM
I'm not sure about that. I'm trying to imagine any other protected right that you must keep hidden from public view. If you have a right to carry at all, it would seem that LOC would have to be protected.

I have doubts and concerns that shall-issue CCW could, or should totally take the place of LOC. It's not hard to imagine a scenario where, If your shirt or jacket blows open you're suddenly risking a felony.

You'd have to argue a 1st Amendment right to speech to make this argument. The purpose for the 2nd Amendment right to carry is defense, not deterrence, so concealed carry takes care of it. You have no constitutional right to carry in clear view as opposed to concealed.

Your second point, about accidental exposure, is very valid, and is a big problem in states like Texas and Florida. It's one of those things where it's open to the interpretation of the responding officer and the DA. Get good ones and it's no big deal; get bad ones and hold on for an unpleasant ride. Having carried extensively in such states, the idea is to dress around your gun. Make sure it's secure and that your clothes don't set you up for accidents. I now automatically run my hand over my shirt/jacket, where it covers my gun, every time I stand up, stretch, or bend over. It's almost an unconscious thing now. But I agree that this is one big reason for wanting to have legal LOC as well.

nicki
05-03-2009, 10:41 AM
If we get back LOC, we will get CCW provided enough of us LOC.

It will be public pressure that will get the sheriffs to start issuing CCW permits.

We still had "equal protection" issues with the CCW permit system before "Heller" came along and those issues did not go away.

Getting bascially "unrestricted open carry" will motivate alot of sheriffs to start issuing CCW permits.

I could see some sheriffs getting involved in a public campaign begging people to come down and get their "CCW Permit" in some parts of the state.

Once we have open carry, the media in some parts of the state will probably "flip on the ccw issue".

In the Court of Public Opinion, most of the sheeple would probably prefer that given a choice between open or concealed carry, they would prefer we conceal carry.

Nicki

hoffmang
05-03-2009, 10:58 AM
I'm not sure about that. I'm trying to imagine any other protected right that you must keep hidden from public view. If you have a right to carry at all, it would seem that LOC would have to be protected.

Try selling a book or magazine with naked female breasts on the cover in public and see if you really have a right to speak unfettered by regulation.


Here you are completely wrong. You DON'T need a license to assemble or to speak. You need a license to interfere with traffic (as for a parade), but you can hold an assembly w/o a license anywhere that doesn't so interfere. IOW, it isn't exercising a Right that requires a license, its the blocking of public right-of-ways that requires a license. Also, I can stand on a soapbox anywhere & say (almost) what I want. W/O a permit, w/o fear of arrest. If I say things that are obscene or the like, that can be stopped. But expressing an opinion on a political subject (IE, exercising a Constitutionally-protected Right)? Even w/o a license? The cops can do nothing.

As long as that opinion isn't "take a look at this hot threesome" with visual aids. You duck my point about the first amendment at your analysis' error.

Try holding a political rally at a park in many municipal areas without a permit. No traffic involved...

You guys can ignore me when I tell you what the law is where it isn't what you want it to be. That just means that your theory based on a misreading of the state of the law will be ignored by the courts and lead to a loss for the RKBA.

-Gene

Maestro Pistolero
05-03-2009, 11:42 AM
I was thinkng along those lines regarding wardrobe and being able to dress appropriately for the weather even. I know this is the land of sunshine and all, but it does get cold here in SoCal, not to mention the northern and mountain areas state. When it's cold one should not have to be expected to go to great lengths to make sure their sidearm stays in full view. Or if it's raining I really wouldn't want to have to leave my sidearm hanging out in the rain. So conversely I also should not have to choose between providing for my self defense and being able to dress appropriately for the weather.

Exactly . . . the flip side of the points I was making. When we begin discussing things in these terms, the restrictions begin to seem all the more ridiculous.

GaryV
05-03-2009, 11:58 AM
The beauty of what Heller has given us is that its a way of carrying that does not require permission. I don't see any of that in Nordyke. Also, if the restrictions you see actually do fly, then we won't have the protections that we got in Heller. Simply because we won't be allowed to carry where & when a gun might be needed.

First, if you have LOC, Hickman's demise is irrelevant, because it was decided on 2nd Amendment terms. But Heller makes it pretty clear that the 2nd Amendment only requires that some form of carry has to be legal. Once one is, you have no 2nd Amendment grounds to challenge restrictions on other forms of carry. So if you get LOC, any case brought on CCW could again be thrown out of federal court on the grounds that the 2nd Amendment no longer applies. Essentially, you create the same kind of problem for CCW that Hickman did, once you have LOC.

In Nordyke the 9th circuit made it pretty clear that they interpreted Heller to mean that restrictions could be placed on firearms anywhere on "municipal property" where groups of people gathered. That would allow restrictions that could severely restrict where you could carry. Remember, the "sensitive areas" language comes straight from Heller, so SCOTUS has already said that you don't have a right to carry everywhere you might feel you need to.

But, that's still ONLY two examples. The 2A is a Federal law. Saving the PRK isn't the only goal here. Getting a sensible standard EVERYWHERE is (or should be) the goal. I travel. So do a lot of people. I shouldn't have to worry or wonder about what stupid laws apply if I should travel to Iowa (for example).

I only listed one other example (Florida) for brevity, because Florida is often seen as a gun-friendly state, and I spend a lot of time there, so I know the gun laws very well. But there are others. I agree with you in principle here. Things SHOULD be different, from a practical and moral perspective. But the courts don't recognize the "shall not be infringed" part of the 2nd Amendment to mean what it clearly does. They allow "reasonable restrictions" on ALL our constitutional rights. So as long as a state allows you to exercise your rights to a minimum standard set by the courts, they are free to restrict them. And the restrictions can differ from state to state. As long as they all allow the minimum exercise of the right, some can be more permissive while others are more restrictive. I agree, I don't think it's right, in the moral sense of the word, but good luck arguing that in court. Until and unless we get a federal CCW/LOC law (yes, I know that should just be the 2nd Amendment, but the courts don't see it that way), there is no federal preemption of these stupid restrictions.

Not quite. There are limits on what restrictions employers can place on Constitutionally protected activities. Under Heller, there's a different standard to apply now. True, it might not work, but I wouldn't rule it out yet.

I think you'll find that Heller isn't going to change this much, if at all. An employer will simply have to say that it's for safety reasons. There's pretty strong case law on the inapplicability of constitutional challenges to private party actions, and given the timidness of courts, even the present SCOTUS, on gun issues, I don't see employers being forced to allow ANY carry, let alone LOC.

At 1), you're wrong. It isn't that the standard is lower, its that we could fail even under the higher standard of review. It is at 2), that the restrictions fail. If guns are banned, then the Right can't be exercised, can it? As for 3), "differences" aren't allowed for any other Constitutionally protected Right. We shouldn't allow that for this one either.

1) I'll give you that. If the law expressly forbids carry, rather than simply making it impossible by consequence, then it still has to meet a higher standard. But 2) is where you're still wrong, and why we could still easily fail under strict scrutiny. Heller allows for "reasonable restrictions" and allows bans in "sensitive areas", so SCOTUS has already recognized in a general sense that you are not free to exercise the right in a lot of places where we would reasonably believe you should. And Nordyke sets a standard that includes any public property where groups of people gather. You're also still wrong on 3), as I pointed out above. All that states are required to do is allow exercise of a right at a minimum level set by the courts. After that, they can be as different from each other as they please. They do it all the time, with lots of rights. Just because one state allows more freedom than required by SCOTUS, that doesn't give anyone grounds to challenge the laws in states that don't.

The people pushing so very hard for CCW first have said that its the less winning hand. I accept that as true. Which is why I disagree with you on CCW being the easier to win.

I agree that it's the less winning hand IF you go for LOC first, but the arguments for shall-issue CCW are more clear-cut than for LOC. They both start with the Heller assertion that some form of carry that allows for reasonable self-defense must be legal. Once that is established, then you have to argue for one or the other. The argument for LOC is that UOC doesn't meet the Heller standard, which it clearly doesn't. But the state could counter that it does have CCW. You'd then have to present all the evidence that the current CCW law doesn't stand up to scrutiny.

The arguments for CCW are exactly the same, just presented in a different order. You start by showing how the present CCW law is invalid, then when the state counters with UOC, you show that it doesn't stand up to Heller. Either way, you still have all the same arguments to deal with, so I fail to see how LOC is easier to win. I would think that CCW is easier, since the most complex point, the messed-up CCW system as it is now, is the whole focus of the case. Also, it's harder for the state to argue that CCW would be disruptive or problematic, since it already exists. They'd just have to stop being selective about issuing permits. Since LOC doesn't exist yet, the state could bring all kinds of BS hyperbole about the "problems" with it (like people carrying loaded ARs into a bank).

Since CCW-first is the weaker hand, its just about dead-bang certain to take longer. LOC, being the stronger hand, & being basically here NOW, could start saving lives NOW. Again, I don't see the restrictions you fear & I don't see them lasting very long. The Right People would have to be very incompetent to allow silly little rules to stand against a Constitutionally protected Right (which is keeping & bearing is now). So, I don't see The Right being
whittled away.

As to being whittled away, I've explained before how that could easily be done. And many of the restrictions would stand, because even SCOTUS recognizes "reasonable restrictions" as valid. I also think I pretty well showed above that LOC wouldn't be any easier (and therefore no faster) than shall-issue CCW, and may in fact be harder and slower.





Let me return the compliment. You clearly think about this & so you require a greater level of thought from me.
But, I don't see LOC-only as a possibility. While LOC-first might prevent a "demand" for CCW, CCW is & would remain as a political question. As would the restrictions that Alameda Co. seems to favor. I remain convinced that we have far more support from The People than you think. Even 7X57 has expressed surprise at just how much support we have. I understand that desire to fight in the courts, but it would be foolish (IMHO) to ignore the political aspect of this fight. We can increase the support from The People with LOC. Even more than we can from CCW. Lets say that you're completely right & that the courts would allow the restrictions you see in Nordyke. If we get The People fully on our side, would the county even pass them?

Again, it isn't that I push LOC because I think that "SOMETHING MUST BE DONE!" as 7X57 keeps mis-characterizing me. I push THIS (LOC) because THIS will give us the political support we need (and should have anyway) AND will save lives soonest.

The Raisuli

I definitely respect the fact that you believe your view is the right way to approach things. And I have to agree that it may actually be the better strategy. I just don't see it the same way. But it is good to be forced to critically analyze our positions, so I appreciate the dialogue.

I think the political side is important, and I mentioned that early on. What I've seen in Florida (and I mean South Florida, which is similar in a lot of ways to California) is that shall-issue CCW has actually done a very good job of changing the political landscape. Since no one knows who carries and who doesn't, they get to know each other before they judge them on gun politics. When they later find out that someone they know carries (usually because they've become curious due to a self-defense story in the local news), they are then more accepting of the idea. CCW is also not seen as being as "paranoid" as OC (not that I think either is, but that's a big criticism from the other side), so it is easier for the undecided to accept as "reasonable".

Lets hope that either way, we end up with both.

GaryV
05-03-2009, 12:03 PM
Here you are completely wrong. You DON'T need a license to assemble or to speak. You need a license to interfere with traffic (as for a parade), but you can hold an assembly w/o a license anywhere that doesn't so interfere. IOW, it isn't exercising a Right that requires a license, its the blocking of public right-of-ways that requires a license. Also, I can stand on a soapbox anywhere & say (almost) what I want. W/O a permit, w/o fear of arrest. If I say things that are obscene or the like, that can be stopped. But expressing an opinion on a political subject (IE, exercising a Constitutionally-protected Right)? Even w/o a license? The cops can do nothing.

It appears that you don't have a problem with We The People having to get permission with exercising our Right to keep & bear. I find this troubling.

The Raisuli

I think what we're going to see on this is that the courts will rule that a CCW license is not "permission", as long as it's Shall-Issue. Since they've already recognized that restrictions are legitimate on such individuals as convicted felons and the mentally ill, they'll probably rule that the license is simply a way of enforcing these legitimate restrictions.

I'm not saying this is Right, but I can see this as exactly the type of compromise that the courts will find "reasonable".

Can'thavenuthingood
05-03-2009, 1:01 PM
[quote=1JimMarch;2402604]I pilot a modified Buell S3. 1250 ceramic Axtell barrels, 10.5:1 Wiseco forged race pistons, 2004 Buell heads with oversize valves, port job and adapter to the old tube frame, 42mm Mikuni carb, KT Engineering race pipe. Can you keep up? :)

I was wondering if you had 'upgraded' from the worn out critter you were rolling around on. I hadn't really seen hide nor hair of you since Diebold, though I wasn't looking hard. Seems you were more out there mixing it up or in my sphere of reading in the High Road days.

Yeah, I think I can keep up.

Okay back to it.
I think Shall Issue ought be the attack, especially in California with high density population. A CCW is less of an initial target and promotes public safety due to not knowing who is carrying and who is weakest or strongest. Criminal walks softly and may think more if consequences may be immediate and severe.

Vick

Liberty1
05-03-2009, 1:37 PM
You have no constitutional right to carry in clear view as opposed to concealed.

And once I put some "speech" on my grips ("Defend the 2nd! or a political symbol) my sidearm is the extension of my 1st A?

GaryV
05-03-2009, 2:31 PM
And once I put some "speech" on my grips ("Defend the 2nd! or a political symbol) my sidearm is the extension of my 1st A?

:rolleyes: You could always try to argue that!

JDay
05-03-2009, 2:46 PM
Here you are completely wrong. You DON'T need a license to assemble or to speak. You need a license to interfere with traffic (as for a parade), but you can hold an assembly w/o a license anywhere that doesn't so interfere. IOW, it isn't exercising a Right that requires a license, its the blocking of public right-of-ways that requires a license. Also, I can stand on a soapbox anywhere & say (almost) what I want. W/O a permit, w/o fear of arrest. If I say things that are obscene or the like, that can be stopped. But expressing an opinion on a political subject (IE, exercising a Constitutionally-protected Right)? Even w/o a license? The cops can do nothing.

It appears that you don't have a problem with We The People having to get permission with exercising our Right to keep & bear. I find this troubling.

The Raisuli

Do any other rights end at the street/sidewalk? Ever hear of Free Speech Zones (http://en.wikipedia.org/wiki/Free_speech_zones)? It sickens me that people find this acceptable.

JDay
05-03-2009, 2:50 PM
If we get back LOC, we will get CCW provided enough of us LOC.

It will be public pressure that will get the sheriffs to start issuing CCW permits.

We still had "equal protection" issues with the CCW permit system before "Heller" came along and those issues did not go away.

Getting bascially "unrestricted open carry" will motivate alot of sheriffs to start issuing CCW permits.

I could see some sheriffs getting involved in a public campaign begging people to come down and get their "CCW Permit" in some parts of the state.

Once we have open carry, the media in some parts of the state will probably "flip on the ccw issue".

In the Court of Public Opinion, most of the sheeple would probably prefer that given a choice between open or concealed carry, they would prefer we conceal carry.

Nicki

I have a big problem with the requirement that we get a license to carry concealed. Nowhere in the Second Amendment does it say that I only have a right to bear arms that are not concealed.

GaryV
05-03-2009, 3:12 PM
I have a big problem with the requirement that we get a license to carry concealed. Nowhere in the Second Amendment does it say that I only have a right to bear arms that are not concealed.

You're right, it doesn't. But then the 1st Amendment doesn't say your right to free speech is limited to non-sexually oriented speech either, or that your freedom of religion doesn't extend to polygamy, or etc., etc. This is what the courts call "reasonable restrictions", and they've consistently held that all enumerated constitutional rights are subject to them. And restrictions on concealed carry have been upheld many, many times as "reasonable".

I don't think that will ever go away. What I think will eventually happen, as I said before, is that the courts will rule that such licenses are reasonable enforcement tools to screen for prohibited persons, just like NICS checks. As long as they are shall-issue, do not carry an unreasonable processing fee, and are processed in a reasonable amount of time (with instant background checks, they should be as fast a drivers license), it will be extremely difficult to argue that such licenses are overly burdensome on the free exercise of the right.

1JimMarch
05-03-2009, 4:41 PM
Quoting Maestro Pistolero:
I'm trying to imagine any other protected right that you must keep hidden from public view.

Man, you don't even have the slightest hint of a dirty mind, do you?

'Cuz I can think of one...actually a whole bunch...I could toss in terms like "bondage" and "orgy" but you get the idea by NOW...

:jump:

:censored:

Not saying we're in the same (ahem) "ballpark" (groan) but there IS sure as hell precedent...:43:

Ahem. Yeah. OK. On to better things...

Part of what everybody is missing is "what are the courts for?"

They're not there to alter the legislature's intent. They're supposed to ONLY strip out those pieces of law that aren't constitutional. They're not there to decide whether or not we get LOC vs. shall-issue CCW.

All they can do is judge whether or not a given plan the legislature concocts is OK. If they DO need to change the law due to a constitutional problem, they're supposed to make the FEWEST changes possible.

If there's a "bad spot" in a law, they don't toss the whole thing, they strip out just the junk.

This has actually happened once already with the California CCW process. People v. Rappard 1972:

http://www.ninehundred.net/~equalccw/rappard.txt

The portion of the CCW system that discriminated against green-card holders was junked leaving everything else behind. (Of course, some sheriffs never got the word and to this day have "citizen only" policies...)

IF this process gets applied to CCW again, it'll be the discretionary element that gets trashed. At that point we have shall-issue.

And we'll have it as a separate court case and legal discussion from LOC.

Now, the legislature can then turn around and try and screw us. But they risk screwing over almost 40,000 rich and politically connected folks, which should make 'em think twice.

nicki
05-03-2009, 9:51 PM
Jim,

Many of us are going to be at the NRA convention. The convention doesn't run 24/7.

Would you be open to setting up a quick workshop with a Q and A if there was enough interest from the members of this board?

Anyone who has any interest in CCW reform and is going to the convention anyway probably would have interest in what you would have to say.

Who knows, we might come away with a working CCW group.

The Michigan Coalition of Responsible Gun Owners started with only 8 people and grew into a 50,000 person organization.

Nicki

Mulay El Raisuli
05-04-2009, 7:51 AM
Try selling a book or magazine with naked female breasts on the cover in public and see if you really have a right to speak unfettered by regulation.



The problem here is that I never expressed the thought that we have any Right unfettered by regulation.



As long as that opinion isn't "take a look at this hot threesome" with visual aids. You duck my point about the first amendment at your analysis' error.



As pointed out above, I'm not "ducking" anything. But, I did fail to take your example seriously. The laws covering porn are many & I don't quite see the relationship to the 2A. Still, "hot threesomes" & the like can be promoted on a street corner. I have seen this myself. There are some regulations covering this, but (again) I never said that there weren't or shouldn't be some regulations governing this activity.




Try holding a political rally at a park in many municipal areas without a permit. No traffic involved...



Of course there's traffic. Foot traffic. So (again) the permit isn't to allow me to speak, its to permit me to interfere with the right to enjoy/use a public area.




You guys can ignore me when I tell you what the law is where it isn't what you want it to be. That just means that your theory based on a misreading of the state of the law will be ignored by the courts and lead to a loss for the RKBA.

-Gene



Or, you can (and have) misread what I'm saying. In any event, I already know that the law isn't quite where it should be. That (also) isn't my point. My point is that the law can be pushed into what it should be if the right effort is made to do so. Our disagreement is based on what is there & where we should push first.

I think we should play our strongest hand first & build from that. As I see it, that gives us lives saved quickest. The strongest hand is LOC. You acknowledge that this is so. Would there be restrictions? Of course. Still, starting from a place of strength would allow us to remove these restrictions in time. In less time (IMHO) than starting with a weaker hand.

And it isn't just in the courts that we would have a stronger hand. We do all that we do (presumably) for We The People. Well, The People are more for us than you think. Pushing for a method that allows Walter & Winnifred Whitebread to make themselves safer NOW only strengthens our hand in the court of public opinion. Which makes it easier for us to win the battles that we can't fight (or can't win) in the judicial courts. Example, CCW allows carry within 1,000 ft of a school. Now. There's nothing at all to prevent the PRK from altering that in the future though, is there? But, if we get Walter & Winnifred on our side, there'll be no push for that. And, even if we can't get the courts to strike the 1,000 ft limitation for LOC (something I see as very unlikely), Walter & Winnifred can (and I believe would) push to have that silly restriction removed.

Instead, you'd like to push a weaker hand first. I just disagree.

The Raisuli

Mulay El Raisuli
05-04-2009, 8:50 AM
First, if you have LOC, Hickman's demise is irrelevant, because it was decided on 2nd Amendment terms.



First, being worried about message length, I'm going to cut some of what you wrote. I think I'm still leaving the essence of your thoughts. Please correct me if I don't.

Again, I realize that getting LOC first undercuts a court challenge to shall-issue, in that we won't be able to force the issue. At least as far as the 2A goes. But, there are other ways to challenge may-issue in court. Arbitrariness can always be challenged on the basic of unfairness. My thought is that getting We The People on our side. IOW, get We The People to resist the urge on the part of our masters to keep may-issue.



In Nordyke the 9th circuit made it pretty clear that they interpreted Heller to mean that restrictions could be placed on firearms anywhere on "municipal property" where groups of people gathered.



Yes, they did. But keep in mind that they regarded Heller's "primary" thrust as being defense in the home (emphasis mine). Given that false thought, I don't see that surviving SCOTUS review.




But the courts don't recognize the "shall not be infringed" part of the 2nd Amendment to mean what it clearly does.



I agree that this is case now. But, I think we can force this issue now that we have Heller. From there, we build on our victories to the point we can force rational standards.



I think you'll find that Heller isn't going to change this much, if at all. An employer will simply have to say that it's for safety reasons. There's pretty strong case law on the inapplicability of constitutional challenges to private party actions, and given the timidness of courts, even the present SCOTUS, on gun issues, I don't see employers being forced to allow ANY carry, let alone LOC.



If I understand the issue, it isn't 'carry' so much as 'keep in the trunk of the car.' A issue I think we can force through the courts.



1) I'll give you that. If the law expressly forbids carry, rather than simply making it impossible by consequence, then it still has to meet a higher standard. But 2) is where you're still wrong, and why we could still easily fail under strict scrutiny. Heller allows for "reasonable restrictions" and allows bans in "sensitive areas", so SCOTUS has already recognized in a general sense that you are not free to exercise the right in a lot of places where we would reasonably believe you should. And Nordyke sets a standard that includes any public property where groups of people gather. You're also still wrong on 3), as I pointed out above. All that states are required to do is allow exercise of a right at a minimum level set by the courts. After that, they can be as different from each other as they please. They do it all the time, with lots of rights. Just because one state allows more freedom than required by SCOTUS, that doesn't give anyone grounds to challenge the laws in states that don't.



It is in the area of 'what's the minimal standard?' that we must fight. IOW, we can raise that minimum standard quickest if we use our strongest tools first.



I agree that it's the less winning hand IF you go for LOC first, but the arguments for shall-issue CCW are more clear-cut than for LOC.



No, those pushing for shall-issue first acknowledge that it is a weaker hand than pushing for LOC first. They hope that it is a better strategy. In that a win on the weaker hand makes a win all that much easier for the stronger hand. The problem being that they could lose on the issue of CCW & so still have to fight the LOC fight later. They could also give us no LOC at all. The argument that we can push for one or the other applies this way too.



The arguments for CCW are exactly the same, just presented in a different order.




Not quite. Heller basically gives us LOC right now. That's why its the stronger hand.



As to being whittled away, I've explained before how that could easily be done. And many of the restrictions would stand, because even SCOTUS recognizes "reasonable restrictions" as valid. I also think I pretty well showed above that LOC wouldn't be any easier (and therefore no faster) than shall-issue CCW, and may in fact be harder and slower.



But keep in mind that all those restrictions can be applied to CCW as well. ESP since CCW is always going to be a 'mother may I?' thing from the very start. But, a Right that can be exercised w/o permission has, IMHO, a better chance of withstanding those infringements.

Example: I have the Right to walk around w/o a permit. The presumption is that the govt cannot tell me where I can & cannot go unless & until it SHOWS why I can't go here or there (see, Kolender vs Lawson). The burden is on the state. But, if I need a permit for an activity, simply by needing a permit, the govt can impose restrictions right from the very start. The burden is on me. So, given that the 9th Circuit started from a false thought, & given that I already have the right to walk around, I can see that we could push the Right to walk around armed as an even stronger tool to strike down things 626.9 CPC.



I definitely respect the fact that you believe your view is the right way to approach things. And I have to agree that it may actually be the better strategy. I just don't see it the same way. But it is good to be forced to critically analyze our positions, so I appreciate the dialogue.



You certainly inspire greater levels of thinking on my part, so I do also. My thoughts just above are a result of this.



I think the political side is important, and I mentioned that early on. What I've seen in Florida (and I mean South Florida, which is similar in a lot of ways to California) is that shall-issue CCW has actually done a very good job of changing the political landscape. Since no one knows who carries and who doesn't, they get to know each other before they judge them on gun politics. When they later find out that someone they know carries (usually because they've become curious due to a self-defense story in the local news), they are then more accepting of the idea. CCW is also not seen as being as "paranoid" as OC (not that I think either is, but that's a big criticism from the other side), so it is easier for the undecided to accept as "reasonable".



Think of how much quicker that would go if/when even greater numbers of people are seen to be carrying though.



Lets hope that either way, we end up with both.



AMEN brother!!!!

The Raisuli

Mulay El Raisuli
05-04-2009, 9:04 AM
I think what we're going to see on this is that the courts will rule that a CCW license is not "permission", as long as it's Shall-Issue. Since they've already recognized that restrictions are legitimate on such individuals as convicted felons and the mentally ill, they'll probably rule that the license is simply a way of enforcing these legitimate restrictions.

I'm not saying this is Right, but I can see this as exactly the type of compromise that the courts will find "reasonable".



And that's another reason why we should go for LOC first. Make it impossible for this to become the standard. No matter how "required" the issuance of a permit is, its still a permission slip from the govt to do something. What the FFs gave us (more properly, what they acknowledged was ours in the first place), was the Right to the means of defense against robbers & an out-of-control govt WITHOUT the permission of anybody. Given that permits will always be required for CCW, any effort that can give us one way to carry w/o the other should always be directed to what gives us the exercise of the Right with the fewest restrictions. That is, the one that does NOT require permission. The push for shall-issue first fails on this point.

Also, while preventing felons & nutjobs from carrying is a noble goal, prior restraint is not the way to go. Aside from the Constitutional issues, it just doesn't work.

The Raisuli

Mulay El Raisuli
05-04-2009, 9:06 AM
Do any other rights end at the street/sidewalk? Ever hear of Free Speech Zones (http://en.wikipedia.org/wiki/Free_speech_zones)? It sickens me that people find this acceptable.



I'm with you 1000%!

The Raisuli

ilbob
05-04-2009, 10:13 AM
"Special deputy status" was used in many states as an unofficial CCW system. I've seen a "special deputy" card from Arizona from years ago, back when they were no issue. I think there were also similar systems like special PI status (heard about something like this in Illinois). Obviously there is very little info out there about such systems. You can't call up Illinois and ask, "how do really rich people carry guns there?"
I live in Illinois. I can tell you there is no special PI status that allows rich people to carry. Never was. People claimed there was, and some claim it still goes on,, but it was all based on a misunderstanding of Illinois law, and a bunch of BS some amateur lawyers speculated about.

There was a LOT of special deputy and auxiliary police stuff going on until the late 70s and early 80s, but the state put a halt to it a long time ago.

It was once very common in Chicago for police to ignore people carrying illegally if they had a FOID card and were not causing trouble. That has also changed.

It is still common in Chicago for those with some clout to carry with the blessing of the powers that be, but without anything in the way of legal sanction. You hear now and then of some staffer found with a loaded gun in his car who police picked up and then released with his gun because he is somehow clout heavy. Not as bad as in the 60s when lots of people had get out of jail free cards.

ilbob
05-04-2009, 10:18 AM
"Special deputy status" was used in many states as an unofficial CCW system. I've seen a "special deputy" card from Arizona from years ago, back when they were no issue. I think there were also similar systems like special PI status (heard about something like this in Illinois). Obviously there is very little info out there about such systems. You can't call up Illinois and ask, "how do really rich people carry guns there?"
I live in Illinois. I can tell you there is no special PI status that allows rich people to carry. Never was. People claimed there was, but it was all based on a misunderstanding of Illinois law, and a bunch of BS some amateur lawyers speculated about.

There was a LOT of special deputy and auxiliary police stuff going on until the late 70s and early 80s, but the state put a halt to it a long time ago.

It was once very common in Chicago for police to ignore people carrying illegally if they had a FOID card and were not causing trouble. That has also changed.

It is still common in Chicago for those with some clout to carry with the blessing of the powers that be, but without anything in the way of legal sanction. You hear now and then of some staffer found with a loaded gun in his car who police picked up and then released with his gun because he is somehow clout heavy. Not as bad as in the 60s when lots of people had get out of jail free cards.

ilbob
05-04-2009, 10:24 AM
Try holding a political rally at a park in many municipal areas without a permit. No traffic involved
Most places you can pretty much do as you please along those lines as long as you don't create a hassle for the rest of us.

A couple of people walking around peacefully holding signs in the park won't likely trigger any response. A couple of hundred belligerent protesters will.

hoffmang
05-04-2009, 1:10 PM
Most places you can pretty much do as you please along those lines as long as you don't create a hassle for the rest of us.

A couple of people walking around peacefully holding signs in the park won't likely trigger any response. A couple of hundred belligerent protesters will.

You'd think that, but you'd be wrong if more than about 50 show up: http://www.nps.gov/nama/planyourvisit/permits.htm

-Gene

Liberty1
05-04-2009, 1:29 PM
About 4 years ago during the pro-illegal alien protest 10,000 marched in East LA County - Bell Gardens, Huntingtion Park, Maywood, Bell, South Gate area - without any permit clogging streets and side walks (not the downtown LA rally with 500,000).

I know some of the PD down there and NO licenses issued, the police facilitated the route, and did not confront them to avoid riots. So if you have the numbers you "don't need no stink'en permit".

Is there now an equal application of the law argument in those cities for other marchers?

1JimMarch
05-04-2009, 1:31 PM
I live in Illinois. I can tell you there is no special PI status that allows rich people to carry.

Rich, no.

Politically connected? Hell YES. By law, city councilmen and other politicians get a sort of subset of police powers that allows legal carry.

It's the most obscene form of "elite carry" in the nation. The same Chicago city aldermen I believe they're called, who disarm everybody else, have carry rights.

DDT
05-04-2009, 1:37 PM
Rich, no.

Politically connected? Hell YES. By law, city councilmen and other politicians get a sort of subset of police powers that allows legal carry.

It's the most obscene form of "elite carry" in the nation. The same Chicago city aldermen I believe they're called, who disarm everybody else, have carry rights.

That's one of the few problems we DON'T have in the California CCW system. Which means City Politicians have to talk to the CoP to get their permits which opens up a claim for arbitrary and capricious issue.

yellowfin
05-04-2009, 1:37 PM
You can avoid the regulation of protests of 50+ people by having the same people post on message boards, Facebook, etc., write letters to the editor of a local newspaper, perform a play or dance a dance, post videos to YouTube, ad infinitum to get the point across. The great thing about speech is that there are so many forms of it which can achieve the same effect (or different, as could be intended) through different avenues. I suspect this is why there is more latitude given to regulation thereof because it is perhaps the most prolific form of exercised liberty there is; its abundance is scarcely diminished.

Thus perhaps the perfect counter to any assertion of "reasonable regulation" of right to carry is that it is a right whose expression is not so easily substituted. Given the purpose of self defense there aren't any equally effective alternatives to concealed or open carry: one or the other or both--that's the three options. Nothing from another category replaces that to the same effect without substantial loss. It looks encouraging that we now have Dean v. US establishing that in order for having a firearm present to be a crime there must be some criminal activity going on to make it so.

GuyW
05-04-2009, 1:54 PM
It seems to me that almost everyone who compares / contrasts the 2nd Am with the 1st, including the Courts (if we let them)...totally ignores 3 words of the Constitution, as though such don't exist.

...Shall Not Be Infringed...

Every other enumerated right that is regulated / emasculated does not have the protection of these 3 words. If logic were any guide, whatever the standard(s) for evaluating whether law A violates a right, the 2nd would have a more difficult, higher standard for stopping government regulation.

We must insist that all Courts have to engage, "....Shall Not Be Infringed...", because they currently rule as though those words don't exist....including the Heller decision...
.

nicki
05-04-2009, 2:07 PM
Quote:
Originally Posted by hoffmang
There is a right to carry/bear. States can choose one of three schemes that will pass constitutional muster:
1. Shall issue CCW, no LOC.
2. May or no issue CCW, LOC. (May will be hard for states.)
3. Shall issue CCW, LOC.

What states can not do is:
4. May issue and no LOC.

Our risk is that California ends in 2. I'm confident we can get to 1. I have a plan to potentially get us to 3. 4. is a flat ban on the carrying of functional firearms for self defense and functional firearms for defense is what Heller was about. All we have to do is establish the carry right out of Heller.

12031 is a flat ban on carry for self defense whose only exception is a license. The state can keep that ban if and only if licenses are fair and widely available.

-Gene


Right now if we just got the current CCW system to "shall issue", it is still a restrictive system.

The fees are not cheap, close to 200 dollars, another 200 if the sheriff wants a psych test. Add to that your training costs, I figure the sheriffs would jump to the 16 hour requirement for training, and the cost to get a CCW permit would be at least 500 plus.

What if the application fees were raised. As the fees are raised, the number of applicants would drop.

Sheriffs could play games with the "Objective standards", they could drag on actually issuing the permits, etc, etc.

Alameda county plays alot of games and if you can get a permit, you can only have one gun on the permit.

Loaded open carry with few restrictions would limit this type of garbage.

Nicki

ilbob
05-04-2009, 2:21 PM
Rich, no.

Politically connected? Hell YES. By law, city councilmen and other politicians get a sort of subset of police powers that allows legal carry.

It's the most obscene form of "elite carry" in the nation. The same Chicago city aldermen I believe they're called, who disarm everybody else, have carry rights.

This is sort of true. They do not get the right to carry by virtue of their office alone.

65 ILCS 5/3.1‑15‑25) (from Ch. 24, par. 3.1‑15‑25)
Sec. 3.1‑15‑25. Conservators of the peace; service of warrants.
(a) After receiving a certificate attesting to the successful completion of a training course administered by the Illinois Law Enforcement Training Standards Board, the mayor, aldermen, president, trustees, marshal, deputy marshals, and policemen in municipalities shall be conservators of the peace.

They have to go take the class first. To get into the class, the municipality has to send them and pay for it.

Also note that there is a new rule that makes it very hard for these kind of guys to qualify to take the class at all.

Section 1720.80 Conservator of the Peace Training Course
a) Any person designated as a conservator of the peace under Section 3.1-15-25 of the Illinois Municipal Code [65 ILCS 5/3.1-15-25] or Section 4-7 of the Park District Code [70 ILCS 1205/4-7] must comply with the standards for basic law enforcement officers training as set out in the Police Training Act [50 ILCS 705] and Subpart A of this Part before exercising any police authority.
b) The standards for academy entrance, certification and decertification applicable to law enforcement officers shall be the same for conservators of the peace.
c) Any annual training required of law enforcement officers by State or federal law will be required of conservators of the peace.
d) The time limitations described in Section 1720.20(f) shall not apply to mayors, aldermen, presidents, trustees or park district board members.
(Source: Added at 32 Ill. Reg. 14749, effective August 28, 2008)

There is some kind of legal mumbo-jumbo, but what it amounts to is that if you want to be a conservator of the peace because they have full power of arrest, you have to take a 400 hour class.

ilbob
05-04-2009, 2:49 PM
You'd think that, but you'd be wrong if more than about 50 show up: http://www.nps.gov/nama/planyourvisit/permits.htm

-Gene

Note I said a couple. that would be less than 50.

To me it seems reasonable to require advance notice of large groups of people who might be coming to a public area.

Just the sanitation needs alone might require some preplanning. :)

N6ATF
05-04-2009, 5:04 PM
About 4 years ago during the pro-illegal alien protest 10,000 marched in East LA County - Bell Gardens, Huntingtion Park, Maywood, Bell, South Gate area - without any permit clogging streets and side walks (not the downtown LA rally with 500,000).

I know some of the PD down there and NO licenses issued, the police facilitated the route, and did not confront them to avoid riots. So if you have the numbers you "don't need no stink'en permit".

Is there now an equal application of the law argument in those cities for other marchers?

In a more ideal world, where criminal invaders and their ilk aren't cut light-years of slack where law-abiding citizens and legal residents get none...

GaryV
05-04-2009, 5:26 PM
First, being worried about message length, I'm going to cut some of what you wrote. I think I'm still leaving the essence of your thoughts. Please correct me if I don't.

Again, I realize that getting LOC first undercuts a court challenge to shall-issue, in that we won't be able to force the issue. At least as far as the 2A goes. But, there are other ways to challenge may-issue in court. Arbitrariness can always be challenged on the basic of unfairness. My thought is that getting We The People on our side. IOW, get We The People to resist the urge on the part of our masters to keep may-issue.

No problem with the editing. Besides, we both know our previous points, and anyone masochistic enough to follow along probably does as well.

The reason I think the demise of Hickman being moot after LOC is important is that we need the CCW issue in federal court, not state court. Without the 2nd Amendment argument, that's going to be tough. Since CCWs are given out by individual county officials, not at the state level, a challenge to it based on unfairness is going to be heard in state court, not federal. If that were enough to win, this could have been done years ago, even with Hickman in place. By taking away the 2nd Amendment challenge, LOC puts us back to pre-Nordyke on CCW.

Yes, they did. But keep in mind that they regarded Heller's "primary" thrust as being defense in the home (emphasis mine). Given that false thought, I don't see that surviving SCOTUS review.

I agree that there's a good chance that this might be overturned on SCOTUS review. I would at least hope that they would see the disconnect between what they decided in Heller and the 9th circuit's standard. Hopefully that will be appealed, and it'll go our way. We'll have to wait and see.

I agree that this is case now. But, I think we can force this issue now that we have Heller. From there, we build on our victories to the point we can force rational standards.

This is where I'm not as optimistic as you on what SCOTUS will do. Even in Heller they made it clear that they accept "reasonable restrictions" on the right, so we can forget about ever having them accept that "shall not be infringed" means what it says. They even explicitly mentioned NFA weapons, although if we go by the standard in Miller, the NFA should largely be ruled unconstitutional now that we have the individual right ruling in Heller. There is simply a point when even the most ethical justices will be too uncomfortable to follow the clear meaning of the amendment.

If I understand the issue, it isn't 'carry' so much as 'keep in the trunk of the car.' A issue I think we can force through the courts.

Yes, it is about "keep in the trunk", but it's doing so on private property against the wishes of the property owner. That's a huge problem for forcing this through the courts, because there is very weak protection for constitutional rights in these kinds of settings. I seriously doubt you'll ever get a federal court to rule that private parties can be forced to respect the constitutional rights of others who voluntarily come onto their property.

It is in the area of 'what's the minimal standard?' that we must fight. IOW, we can raise that minimum standard quickest if we use our strongest tools first.

Yes, I agree absolutely. But I think that in THIS fight (which is a totally different one from the right to carry), LOC is the much weaker tool. It will be much easier for the antis to come up with restrictions on LOC that sound "reasonable" to the average person (and to judges who are anti or even undecided) than against CCW. Since CCW already exists, saying that it would cause panic or problems for LE, or whatever, won't fly, because it's already been shown, in California, to not be the case. But LOC is totally untested in the state, and there have already been problems (though wrongfully so) with UOC. My previous example of the loaded AR in a bank scene is exactly the kind of thing that will just scream "reasonable restriction" to anyone even remotely inclined to ignore the most absolute meaning of "shall not be infringed". The power of LOC to make people uncomfortable will work against us on this point.

No, those pushing for shall-issue first acknowledge that it is a weaker hand than pushing for LOC first. They hope that it is a better strategy. In that a win on the weaker hand makes a win all that much easier for the stronger hand. The problem being that they could lose on the issue of CCW & so still have to fight the LOC fight later. They could also give us no LOC at all. The argument that we can push for one or the other applies this way too.

What some people say, no matter what their stand on the question, is not evidence of anything. My point still stands unchallenged: no matter which mode of carry we push for, we still have to win exactly the same three arguments. 1) Heller gives us the right to carry. 2) UOC does not meet the standard in Heller. 3)May-issue also does not stand up to Heller because it's capriciously applied. If you lose on any one of these 3 points, you don't get either form of carry. If you win on all 3 points, you automatically get shall-issue CCW. But to get LOC, you have to go one step further and deal with the "loaded AR in the bank" arguments. So, no matter what those others think, LOC is not an easier win.

Not quite. Heller basically gives us LOC right now. That's why its the stronger hand.

No, Heller gives us a right to carry (implicitly at least), but does not favor LOC over CCW.

But keep in mind that all those restrictions can be applied to CCW as well. ESP since CCW is always going to be a 'mother may I?' thing from the very start. But, a Right that can be exercised w/o permission has, IMHO, a better chance of withstanding those infringements.

Yes they could, but it would be a harder argument to make since California already has CCW, which is currently exempt from restrictions like school zones and Alameda County property. And no problems have been shown to exist with this situation. However, since LOC would be new uncharted territory, it's open to all the scare tactics that are usually brought against us by the other side. But I definitely agree, neither form of carry is immune. In most states with shall-issue CCW there already are some ridiculous restrictions. Because of my work I frequently have to leave my gun in the trunk of my car in Florida, and I'm not happy about it. But if a gun is concealed, it's much harder to argue that it would be a problem in most settings where the real problem is basically public perception (AR in bank again). I can CCW in any bank, mall, or school zone.

You certainly inspire greater levels of thinking on my part, so I do also. My thoughts just above are a result of this.

I'm glad we can keep this civil and intellectual. Thank you. It's great to give the old brain a workout and blow out some of the cobwebs once in awhile.

Think of how much quicker that would go if/when even greater numbers of people are seen to be carrying though.

Maybe. Maybe not. Guns make the uninitiated uncomfortable. A lot of people, even those not anti, get turned off if they see someone as too "paranoid". I would compare it to getting people to accept anything they have an instinctual discomfort about. Let's say acceptance of gay marriage. Would people be more likely to accept it if they found out several of their best friends, whom they respect, are gay and would like to be able to marry, or would it work better if they were forced to attend the Gay Pride Parade? Sometimes the "in your face" approach doesn't work.

That's just my intuition here. I could be wrong. I haven't spent any significant time in a state where LOC is the preferred or only method of legal carry, so I can't really speak to its effectiveness in making converts. I admit that I could be wrong on this.

AMEN brother!!!!

Just found that worth repeating.

CCWFacts
05-04-2009, 5:48 PM
I live in Illinois. I can tell you there is no special PI status that allows rich people to carry. Never was. People claimed there was, and some claim it still goes on,, but it was all based on a misunderstanding of Illinois law, and a bunch of BS some amateur lawyers speculated about.

There was a LOT of special deputy and auxiliary police stuff going on until the late 70s and early 80s, but the state put a halt to it a long time ago.

It was once very common in Chicago for police to ignore people carrying illegally if they had a FOID card and were not causing trouble. That has also changed.

It is still common in Chicago for those with some clout to carry with the blessing of the powers that be, but without anything in the way of legal sanction. You hear now and then of some staffer found with a loaded gun in his car who police picked up and then released with his gun because he is somehow clout heavy. Not as bad as in the 60s when lots of people had get out of jail free cards.

Thanks for the update on that. I had heard about this special PI status thing but it sounds like an "urban legend" perhaps.

No surprise at all about the special deputy / auxiliary police thing that used to go on there. I think that was common in many no-issue locations.

A lot of these things are declining in use as they gain more visibility and cause more embarrassment.

Of course the "I'm a VIP so leave me alone" thing goes on.

And now I think some rich people are getting LEO status in some location outside their residence which lets them carry in all 50 states. No details on that; "rich" doesn't apply to me unfortunately.

ilbob
05-05-2009, 6:39 AM
And now I think some rich people are getting LEO status in some location outside their residence which lets them carry in all 50 states. No details on that; "rich" doesn't apply to me unfortunately.

I don't know about other states but it is highly unlikely in Illinois.

Mulay El Raisuli
05-05-2009, 7:11 AM
The reason I think the demise of Hickman being moot after LOC is important is that we need the CCW issue in federal court, not state court. Without the 2nd Amendment argument, that's going to be tough. Since CCWs are given out by individual county officials, not at the state level, a challenge to it based on unfairness is going to be heard in state court, not federal. If that were enough to win, this could have been done years ago, even with Hickman in place. By taking away the 2nd Amendment challenge, LOC puts us back to pre-Nordyke on CCW.



It isn't that I disagree with you, its that I'm OK with this being the case. More on this in my reply to Nikki's post.



This is where I'm not as optimistic as you on what SCOTUS will do. Even in Heller they made it clear that they accept "reasonable restrictions" on the right, so we can forget about ever having them accept that "shall not be infringed" means what it says. They even explicitly mentioned NFA weapons, although if we go by the standard in Miller, the NFA should largely be ruled unconstitutional now that we have the individual right ruling in Heller. There is simply a point when even the most ethical justices will be too uncomfortable to follow the clear meaning of the amendment.



True, this is always a danger. But, I see the danger as being greater for CCW than LOC. Simply because CCW is, & always will be, a matter of getting permission fro the govt in the first place.



Yes, it is about "keep in the trunk", but it's doing so on private property against the wishes of the property owner. That's a huge problem for forcing this through the courts, because there is very weak protection for constitutional rights in these kinds of settings. I seriously doubt you'll ever get a federal court to rule that private parties can be forced to respect the constitutional rights of others who voluntarily come onto their property.



The difference here being that you are (at least somewhat) required to be at work. There are different standards for 'the public' being on your property & your employees being on your property. Is that enough? I wish I knew for sure. So, you could easily be right.




Yes, I agree absolutely. But I think that in THIS fight (which is a totally different one from the right to carry), LOC is the much weaker tool. It will be much easier for the antis to come up with restrictions on LOC that sound "reasonable" to the average person (and to judges who are anti or even undecided) than against CCW. Since CCW already exists, saying that it would cause panic or problems for LE, or whatever, won't fly, because it's already been shown, in California, to not be the case. But LOC is totally untested in the state, and there have already been problems (though wrongfully so) with UOC. My previous example of the loaded AR in a bank scene is exactly the kind of thing that will just scream "reasonable restriction" to anyone even remotely inclined to ignore the most absolute meaning of "shall not be infringed". The power of LOC to make people uncomfortable will work against us on this point.



This is kind of funny. Those pushing hardest for shall-issue haven't used this. They're still saying that pushing for LOC is still the strongest hand. Legally.

Still, there are a couple of things to be considered. The fight wouldn't just be in state court. This is a Federal law. That means a loss in state court isn't necessarily a bad thing. Gene's idea of just passing on state court & going right to Federal court has a lot of merit. Along with that, while mostly untested in this state, there are other states where it has been done. W/O problems. While a PRK judge might ignore that evidence, I don't see a Federal one doing so. Also, we do have some experience in this state. Our UOC events. Like the one on PB last year. No one knew that the guns were unloaded. Was there mass panic in the crowds?

True, there were cops around to reassure, but that wasn't the case when the group I was in went down the street for pizza. That wasn't the case when I went into the 7-11 for coffee.



What some people say, no matter what their stand on the question, is not evidence of anything. My point still stands unchallenged: no matter which mode of carry we push for, we still have to win exactly the same three arguments. 1) Heller gives us the right to carry. 2) UOC does not meet the standard in Heller. 3)May-issue also does not stand up to Heller because it's capriciously applied. If you lose on any one of these 3 points, you don't get either form of carry. If you win on all 3 points, you automatically get shall-issue CCW. But to get LOC, you have to go one step further and deal with the "loaded AR in the bank" arguments. So, no matter what those others think, LOC is not an easier win.



But we don't have to win on those arguments, since we win (have won) on the first. Heller gives us the Right to carry.



No, Heller gives us a right to carry (implicitly at least), but does not favor LOC over CCW.



Actually, it does. Heller does allow, explicitly, restrictions on CCW. It does not do so in regards LOC.




Yes they could, but it would be a harder argument to make since California already has CCW, which is currently exempt from restrictions like school zones and Alameda County property. And no problems have been shown to exist with this situation. However, since LOC would be new uncharted territory, it's open to all the scare tactics that are usually brought against us by the other side. But I definitely agree, neither form of carry is immune. In most states with shall-issue CCW there already are some ridiculous restrictions. Because of my work I frequently have to leave my gun in the trunk of my car in Florida, and I'm not happy about it. But if a gun is concealed, it's much harder to argue that it would be a problem in most settings where the real problem is basically public perception (AR in bank again). I can CCW in any bank, mall, or school zone.



That's all true now. We can change all of this with a proper attack based on what we do have with Heller.



I'm glad we can keep this civil and intellectual. Thank you. It's great to give the old brain a workout and blow out some of the cobwebs once in awhile.



Its bad enough when people on different sides of the aisle get uncivil. Its ridiculous when two people who agree do so. My thanks to you as well.




Maybe. Maybe not. Guns make the uninitiated uncomfortable. A lot of people, even those not anti, get turned off if they see someone as too "paranoid". I would compare it to getting people to accept anything they have an instinctual discomfort about. Let's say acceptance of gay marriage. Would people be more likely to accept it if they found out several of their best friends, whom they respect, are gay and would like to be able to marry, or would it work better if they were forced to attend the Gay Pride Parade? Sometimes the "in your face" approach doesn't work.



I don't see it quite that stark. LOC doesn't quite compare to a parade. Certainly not the Gay Pride parade. Again, the UOC event in PB went very smoothly. Then there is the examples of those who individually UOC. Yes, the cops do get called on occasion. But in general, people do seem to accept the idea.




That's just my intuition here. I could be wrong. I haven't spent any significant time in a state where LOC is the preferred or only method of legal carry, so I can't really speak to its effectiveness in making converts. I admit that I could be wrong on this.



I don't either. Still, what I've experienced leads me to think that we can gain converts, & more of them quicker, than CCW will give us.

Which isn't my main concern anymore. But that's for my reply to Nikki.

The Raisuli

Mulay El Raisuli
05-05-2009, 8:10 AM
Right now if we just got the current CCW system to "shall issue", it is still a restrictive system.

The fees are not cheap, close to 200 dollars, another 200 if the sheriff wants a psych test. Add to that your training costs, I figure the sheriffs would jump to the 16 hour requirement for training, and the cost to get a CCW permit would be at least 500 plus.

What if the application fees were raised. As the fees are raised, the number of applicants would drop.

Sheriffs could play games with the "Objective standards", they could drag on actually issuing the permits, etc, etc.

Alameda county plays alot of games and if you can get a permit, you can only have one gun on the permit.

Loaded open carry with few restrictions would limit this type of garbage.

Nicki


You're completely correct. And this is where I see the current push by the Right People as failing. They say that if we get one (CCW or LOC) we won't have the ability to force the other in court. I think that's right. The problem is that they're confident of getting (and pushing hard for) CCW to be the minimum Constitutional standard.

I have a problem with this. At present, $200 rates as a LOT of money to me. It does for a lot of people. Add in the $200 for a psych check (which I don't see as only a "maybe" requirement). Then add in the time off work to comply with all the various requirements. It could (and no doubt will) come to a pretty penny at the end of the process. Further, this aren't one-time expenses. How often We The People would have to jump through the hoops has yet to be determined, but jump through more than once is a dead-bang certainty. But that's just the practical problems with CCW being the minimum Constitutional standard.

My BIG problem is that the Right People seem to have no problem at all with tossing other Rights we have in order to get us CCW. Right now, I don't need the permission of the govt to worship, assemble, to travel, etc. Here I am, expressing political thoughts, & I don't even have to use my real name. Because anonymity enjoys Constitutional protection also.

I could set up a church, meeting in my back yard, & there's no requirement that I have govt permission to do so. I also don't have to give them my name (although being my own back yard, they might be able to guess).

I could travel from one end of the country to another & there's no requirement that I ask permission to do so, or even give the govt (or anyone else) my name or my reasons for doing so. I can just go.

But, when it comes to what is (about damn time too) acknowledged to be an individual Right, I'm supposed to willingly go along with the doing away of all the other good things the Constitution brings us in favor of getting a permission slip from the govt to exercise this Right.

I just don't see it. The only flaw in Heller is that it was ambiguous enough for the 9th Circuit to 'see' "in the home" as being the primary point. It wasn't. And as soon as we get that straightened out, we'll have LOC as a Constitutional Right & recognized as such. A Right that I can then freely exercise w/o a permission slip. W/O having to jump through hoops. W/O even having to give the govt my name. In short, a Right that can be exercised in the same manner as all my other Constitutional Rights.

As with all my other Constitutional Rights, there will be some restrictions, but coming hat in hand seeking permission won't be one of them.

While I don't have a perfectly clean record, I think its clean enough to withstand whatever a DA might bring up at trial. IOW, I'm thinking that I might do as a defendant on a 12025 charge. OTOH, I know of someone else who has a squeaky clean record & would make a wonderful defendant in such a case. In any event, I'm thinking that I or my friend could present a clear-cut case for getting Heller clarified. That is, not a gang-banger, no other issues in play (no school zone issues, no drugs, not in a place that could even remotely be called "sensitive," etc), just a simple case of a citizen exercising his 2A Rights.

Then, in the pre-trial stage, file Motions for dismissal on the basis that Heller's primary point was it recognized an individual Right & that "to bear" means to "carry around."

I'm also thinking that the issue is simple enough that even a Public Defender could win. If I'm wrong, its only a misdemeanor. And there's all the post-conviction appeals that are available. But, if I'm right, we could have LOC recognized as a Constitutionally protected Right by Christmas.

I'm leaning VERY heavily in this direction. Anyone care to share their thoughts?

The Raisuli

nicki
05-05-2009, 11:18 AM
At this time, don't do LOC.

We have UOC cases in the pipeline already. Assuming those are successful, LOC case is the next step.

Nicki

wildhawker
05-05-2009, 11:59 AM
While I don't have a perfectly clean record, I think its clean enough to withstand whatever a DA might bring up at trial. IOW, I'm thinking that I might do as a defendant on a 12025 charge. OTOH, I know of someone else who has a squeaky clean record & would make a wonderful defendant in such a case. In any event, I'm thinking that I or my friend could present a clear-cut case for getting Heller clarified. That is, not a gang-banger, no other issues in play (no school zone issues, no drugs, not in a place that could even remotely be called "sensitive," etc), just a simple case of a citizen exercising his 2A Rights...

I'm also thinking that the issue is simple enough that even a Public Defender could win. If I'm wrong, its only a misdemeanor. And there's all the post-conviction appeals that are available. But, if I'm right, we could have LOC recognized as a Constitutionally protected Right by Christmas.

I'm leaning VERY heavily in this direction. Anyone care to share their thoughts?

The Raisuli

Why do some feel so very compelled to use the criminal justice system as the vehicle for change? Rarely has it been successful, and more often than nought is detrimental to the outcome such a person seeks. That you would consider executing such an action, then only to have a public defender represent your (our) interests, is insufferably arrogant.

Since Nordyke, I've seen far too many here eager to "lay down their life" for the cause and feed their martyr psychosis.

We've only had a Right to Keep and Bear in California for 15 days, yet some of you expect that decades of bad law and precedent be undone in a moment's time. If nothing else, I implore every Calgunner to practice patience. There are many ways to assist and support RKBA without injuring the cause as you, Mulay, seem intent on doing.

9mmlaw
05-05-2009, 1:42 PM
The Raisuli :

"Right now, I don't need the permission of the govt to . . . to travel, etc."

Have you tried to fly lately. Air travel is not constitutionally protected.

"I could travel from one end of the country to another & there's no requirement that I ask permission to do so, or even give the govt (or anyone else) my name . . ."

Again, air travel demands a ticket and id in your name.

"But, if I'm right, we could have LOC recognized as a Constitutionally protected Right by Christmas."

Do you have any idea how slowly the court system works, apparently not. You could file something today and it will not be resolved by Christmas.

hoffmang
05-05-2009, 2:01 PM
A CCW suit would look like this:
http://www.calguns.net/calgunforum/showthread.php?t=180923

-Gene

DDT
05-05-2009, 2:32 PM
I was just coming here to post that same thing....

vrand
05-05-2009, 2:47 PM
A CCW suit would look like this:
http://www.calguns.net/calgunforum/showthread.php?t=180923

-Gene

And its a beauty :thumbsup:

nick
05-05-2009, 8:29 PM
A CCW suit would look like this:
http://www.calguns.net/calgunforum/showthread.php?t=180923

-Gene

You people! I only make so much money, you know! Fine, fine, another donation for the "good cause", pun intended... :D

GaryV
05-05-2009, 8:51 PM
It isn't that I disagree with you, its that I'm OK with this being the case. More on this in my reply to Nikki's post.

Yes, I get this. I know you believe that we'll be able to get shall-issue through legislative action after we get LOC, by using LOC to compel it. I'm not anywhere near as optimistic, for all the reasons I've previously stated.

True, this is always a danger. But, I see the danger as being greater for CCW than LOC. Simply because CCW is, & always will be, a matter of getting permission fro the govt in the first place.

Right now there is a very restricted ability for some to have LOC licenses as well. What makes you think that the state wouldn't just require a license for LOC, even if it was forced to allow it? They could easily argue that LOC should require more qualifications, like weapon-retention training, than CCW, and therefore justifies a permit/license requirement.

The difference here being that you are (at least somewhat) required to be at work. There are different standards for 'the public' being on your property & your employees being on your property. Is that enough? I wish I knew for sure. So, you could easily be right.

You're not required to work for any particular employer, or even to work at all. So if you don't like an employer's policies, you're free to quit. No law compels you to stay. You'll never win this one on constitutional grounds.

This is kind of funny. Those pushing hardest for shall-issue haven't used this. They're still saying that pushing for LOC is still the strongest hand. Legally.

Still, there are a couple of things to be considered. The fight wouldn't just be in state court. This is a Federal law. That means a loss in state court isn't necessarily a bad thing. Gene's idea of just passing on state court & going right to Federal court has a lot of merit. Along with that, while mostly untested in this state, there are other states where it has been done. W/O problems. While a PRK judge might ignore that evidence, I don't see a Federal one doing so. Also, we do have some experience in this state. Our UOC events. Like the one on PB last year. No one knew that the guns were unloaded. Was there mass panic in the crowds?

True, there were cops around to reassure, but that wasn't the case when the group I was in went down the street for pizza. That wasn't the case when I went into the 7-11 for coffee.

I don't doubt that some people, even those advocating for CCW-first, believe this. And I acknowledge that UOC mostly has been relatively free of issues. But there are lots of very realistic scenarios that can be easily imagined that haven't been tested yet, that would probably make for strong arguments against LOC in court (my by-now old and tired "AR in a bank", for example). Whereas with CCW, there's no issue, because no one knows you're carrying.

But we don't have to win on those arguments, since we win (have won) on the first. Heller gives us the Right to carry.

Heller doesn't specify a mode of carry, it only establishes a right. You make too much of the comment in it about CCW. All that Heller makes clear is that one mode of carry needs to be legal. So if you go in and argue that you should have LOC because of Heller, the state will simply say that you already have UOC. If you're not prepared to argue that UOC doesn't meet the standards in Heller, you'll lose, because the court will say UOC is good enough. If you do win on UOC, the state will counter that there is a legal process for obtaining a CCW permit. Again, if you are not prepared to argue that the current CCW system is insufficient to satisfy Heller, then you'll lose, because the court will rule that it is. The court is not going to do your work for you and tear down the state's claims that the current systems are adequate if you don't make any effort to show them they aren't. Since nowhere in Heller does it say that you specifically have a right to LOC, or to any unregulated mode of carry, all these arguments have to be won in order to prevail. And you could still end up with a permit-required system, whether it's CCW or LOC.

Actually, it does. Heller does allow, explicitly, restrictions on CCW. It does not do so in regards LOC.

It doesn't disallow restrictions on LOC either. As I said, you make too much of the comment in Heller about CCW. It wasn't specific to CCW, it was a general statement of SCOTUS's view that the 2nd Amendment did not guarantee an unrestricted right. CCW was just one on a list of examples, which they clearly stated was not exhaustive. Therefore any court is still free to decide that LOC can be restricted or even banned, as long as another option for carry is available.

That's all true now. We can change all of this with a proper attack based on what we do have with Heller.

I hope you're right, but I have serious doubts. SCOTUS explicitly allowed "reasonable restrictions" in Heller, and our definition of "reasonable" will very likely be different than that of a lot of judges. This is precisely why the Nordykes lost their case, even though the 9th circuit incorporated the 2nd Amendment based on Heller.

All of this is a bit moot now though, since it looks like the first suit has officially been filed. Since it's a CCW suit, I hope I'm right. But I still respect your point of view, and as we both agree, the ultimate goal is to have both. Let's all keep our fingers crossed.

7x57
05-05-2009, 8:57 PM
All of this is a bit moot now though, since it looks like the first suit has officially been filed. Since it's a CCW suit, I hope I'm right. But I still respect your point of view, and as we both agree, the ultimate goal is to have both. Let's all keep our fingers crossed.

As Julius Caesar said, "the die is cast." Our money is now officially on the "CCW first" horse. May it win us both.

7x57

Mulay El Raisuli
05-06-2009, 7:24 AM
Right now there is a very restricted ability for some to have LOC licenses as well. What makes you think that the state wouldn't just require a license for LOC, even if it was forced to allow it? They could easily argue that LOC should require more qualifications, like weapon-retention training, than CCW, and therefore justifies a permit/license requirement.



The counter to this is that by mentioning restrictions for CCW, SCOTUS was making clear that restrictions for that were the only restrictions allowable. That it is the fact the the gun would be concealed is all that makes such restrictions allowable. Or such is my reading of Heller. That being the case, & since licenses can't be imposed for other Constitutional Rights, I don't see licenses for LOC flying.




You're not required to work for any particular employer, or even to work at all. So if you don't like an employer's policies, you're free to quit. No law compels you to stay. You'll never win this one on constitutional grounds.



It isn't quite that simple, which is why labor law is the way it is. Still, I agree that you are most likely correct.




All of this is a bit moot now though, since it looks like the first suit has officially been filed. Since it's a CCW suit, I hope I'm right. But I still respect your point of view, and as we both agree, the ultimate goal is to have both. Let's all keep our fingers crossed.



As you say, alea iacta est. That being the case, most of this thread indeed moot. My fingers, toes, feet, legs, arms & even my eyes, are crossed.

The Raisuli

ilbob
05-06-2009, 7:36 AM
let us hope the two new lawsuits keep the amateurs out of the game for a while.

Mulay El Raisuli
05-06-2009, 7:42 AM
Why do some feel so very compelled to use the criminal justice system as the vehicle for change? Rarely has it been successful, and more often than nought is detrimental to the outcome such a person seeks. That you would consider executing such an action, then only to have a public defender represent your (our) interests, is insufferably arrogant.



The value is in the speed that things get done. Criminal cases move through the system MUCH faster than any civil case.



Since Nordyke, I've seen far too many here eager to "lay down their life" for the cause and feed their martyr psychosis.



It isn't (again) a "martyr" thing at all. I'm not advocating that "SOMETHING MUST BE DONE, CONSEQUENCES BE DAMNED" at all. I'm advocating that a specific approach (one that IMHO, better protects the Right) be done. I'm told that others better suited for this approach are doing so. While I hope that the "CCW suit" succeeds in getting us both, & while I wish those pushing it all the luck in the world, I keeping my fingers crossed for the other approach as well.




We've only had a Right to Keep and Bear in California for 15 days, yet some of you expect that decades of bad law and precedent be undone in a moment's time. If nothing else, I implore every Calgunner to practice patience. There are many ways to assist and support RKBA without injuring the cause as you, Mulay, seem intent on doing.



If I saw it as me damaging our cause, I would look at it differently. But, making the minimal standard of RKBA coming on bended knee to ask permission to exercise the Right isn't quite MY cause.

As for patience, I keep seeing here that some are unhappy with the 10 day wait we have now. How happy are we all going to be when we have to wait maybe 6 months for the permit to come through?

In any event, I'll exercise some patience & keep my fingers crossed.

The Raisuli

Mulay El Raisuli
05-06-2009, 8:01 AM
Have you tried to fly lately. Air travel is not constitutionally protected.



No fooling?! Really?! Maybe that's why I didn't say that it is. The word I used was "travel" which doesn't necessarily mean "flying." My point was that what is Constitutionally protected, travel, does NOT require me to present any form of ID, etc. Just as I don't have to do so in all the other examples of Constitutionally protected activities that I mentioned.



Again, air travel demands a ticket and id in your name.




Again. No fooling?! Really?! Maybe that's why I didn't say that it is. The word I used was "travel" which doesn't necessarily mean "flying." My point was that what is Constitutionally protected, travel, does NOT require me to present any form of ID, etc. Just as I don't have to do so in all the other examples of Constitutionally protected activities that I mentioned.




Do you have any idea how slowly the court system works, apparently not. You could file something today and it will not be resolved by Christmas.



As it happens, I do have an idea how fast the court system works. In a criminal case, a pre-trial motion for dismissal on Constitutional grounds gets heard in the Appellate Panel of the Superior Court in mere days. Taking it up at the mid-level appellate courts can be done in mere weeks. Not much longer to get the matter before the PRK Supreme Court. "By Christmas" is an entirely reasonable timeline.

Now, I am also aware of how long it takes to get a civil case moved through the system. That's my problem with the no doubt carefully crafted civil suit just filed. It could take years to succeed & still not give us ALL what we need. That's why my thinking was to use a criminal case. Because it won't take years. Still, now that it is filed, I will join the rest & wait & hope that it gives ALL of us what we need.

The Raisuli