PDA

View Full Version : CA Legislature and Open Carry Post-incorporation


GrizzlyGuy
10-28-2009, 6:42 AM
I was reading through a bizarre and generally useless (IMHO) thread and found an interesting post by dantodd that was neither useless nor bizarre. Thinking the thread might rightly be on its way to purgedom, I clipboarded his post into MS Word so I could reflect on it post-purge. Here is an excerpt:

=============
As for why CGF has asked people to not open carry at this time. It is a purely political decision. There is a possibility that extensive open carry activities could prompt the California legislature to change the current laws in ways that would be bad not only NOW but also after we have the Second Amendment incorporated.

How could the California legislature screw us over regarding open carry post-incorporation? Many 2A scholars, including those fighting for incorporation believe it may be possible for the state to choose between open carry and concealed carry. If the legislature were to do something NOW to prohibit open carry we may not have grounds to win a challenge against it later. However; if we already have a right to bear arms concealed it would be much more difficult to get the legislature to try and write a law that would legally limit the manner so narrowly as to prevent open carry.
=============

Can somebody please elaborate on this? Here is my current understanding (could be wrong):

1) Heller determined that RKBA is an individual right for the purpose of self-defense in the home. It said nothing about self-defense elsewhere.

2) If incorporation comes as expected via McDonald, Heller would apply to the states. We would then have a recognized right to RKBA for self defense in the home.

3) California law already allows for robust self-defense in the home. Our firearms can be both loaded and concealed. If you combine together various PC sections, we actually have a pretty strong "castle doctrine" allowing us to use those firearms in self-defense, up to and including deadly force.

Questions:

a) Why then would Heller + McDonald affect carry outside the home, whether it be UOC, LOC or CCW? Or in other words, I don't understand why dantodd believes we would "have a right to bear arms concealed" outside the home. We have no such right now, only some permissive and limited aspects of state law (not in the state constitution) that allows for it.

b) If Heller + McDonald doesn't affect carry outside the home, then why would it make any difference if the legislature passes laws to further restrict carry outside the home, whether before or after McDonald, regardless of the provisions they implement or the language they use?

c) And if they did do that, at any time, wouldn't those more restrictive state laws pass constitutional muster since they wouldn't infringe on the Heller-protected RKBA for self defense in the home?

dantodd
10-28-2009, 6:50 AM
Heller + McDonald will most likely mean a relatively quick resolution of nd Sykes which is the "Bear" suit currently moving through the courts. Sykes is on hold specifically waiting for Nordyke resolution which is on hold specifically for McDonald resolution.

So, while the stand down timeline that is being discussed is based on McDonald it is not because McDonald will give us the right to CCW or LOC it is because of other cases that are waiting.

It is also possible that Palmer will have some resolution before McDonald and if Palmer (D.C. carry) is resolved in our favor then McDonald make Sykes an even more clear slam dunk.

Librarian
10-28-2009, 6:52 AM
Heller was a start. The 'in the home' language really addresses 'keep' - but the 2nd says 'keep and bear', and the court made it perfectly clear that 'bear' was not exclusively a military/militia notion.

What McDonald may do is squash Chicago-like bans and establish what burden on the right may be made by local laws - since Heller also says that some restrictions are constitutional, but did not choose to identify those or explain how they may be later identified.

Purple K
10-28-2009, 8:16 AM
Does anyone here have more info. on Palmer? It's chances of winning or losing? It's timeline?

GrizzlyGuy
10-28-2009, 8:38 AM
Heller + McDonald will most likely mean a relatively quick resolution of nd Sykes which is the "Bear" suit currently moving through the courts. Sykes is on hold specifically waiting for Nordyke resolution which is on hold specifically for McDonald resolution.

So, while the stand down timeline that is being discussed is based on McDonald it is not because McDonald will give us the right to CCW or LOC it is because of other cases that are waiting.

It is also possible that Palmer will have some resolution before McDonald and if Palmer (D.C. carry) is resolved in our favor then McDonald make Sykes an even more clear slam dunk.

Ahhhhh... Thanks, that clears up a lot for me. It is Sykes that would establish the "right to bear arms concealed" that you mentioned. Sykes is on hold pending Nordyke, and Nordyke is on hold pending McDonald. So it really ends up being a Heller + McDonald + Nordyke + Sykes "grand victorious tour" through the courts.

I'm still not clear on what the legislature could do before these are decided that could change things, since all of these cases are already in the courts. It seems like the legislature's best strategy for cramping our style would be to wait for resolution so that they could weave cramp-our-style legislation in between the eventual constitutional landmines (landmines from their perspective). That would be true even if they were provoked by some kind of UOC-gone-bad situation.

Maybe I'm giving the legislature too much credit for being thoughtful and strategic...

M. D. Van Norman
10-28-2009, 8:55 AM
The Legislature could prohibit open carry, so we could end up like Texas after winning shall-issue concealed carry in court.

KylaGWolf
10-28-2009, 9:02 AM
Yes Sykes will do a lot in helping us get our 2A rights in CA as will Nordyke being agreed to yet again and Palmer and McDonald, and the Pena case will help us get rid of the MORONIC roster here in this state. And I am so having to agree Pena has a point after looking at buying a new gun dealing with a disability how hard it is to do in this state. The rant is at the end :)

UOC has been going on since 2004 although seems that it has now caught the eyes of some of our legislators. There are those that asked those of us that UOC to stand down until Nordyke was decided or until June 2010. There was a group of us here in San Diego that had already stood down even before asked and we honored the request.

Dan it would be nice if Palmer helps us out too at this point I don't care what case does it I just want my 2A rights in this state. I went looking at buying a new gun and the damn roster makes what I want a damn pain in the arse to get. I would have to buy the gun wait out the 10 day wait then send the gun in for the changes that I need to make it usable to me which could take up to four months. All because the way I want my gun is not on the roster so it would not be able to come from the factory that way but is still legal. :banghead: Oh not to mention I have to pay to have the changes made after paying for the gun in the first place which makes buying a gun a very exspensive proposition. Hell as it is I have to pay to have my other handguns safety switched to the other side because while my gun can have a safety on either side it is only sold with it on the left side and I am left handed so have to have it switched to the right. Its amazing other states can have different guns, bigger clips and less restrictions and yet there is no "wild west" mentality that the legislators claim will happen if we in CA can have the same thing.

dantodd
10-28-2009, 9:16 AM
Ahhhhh... Thanks, that clears up a lot for me. It is Sykes that would establish the "right to bear arms concealed" that you mentioned. Sykes is on hold pending Nordyke, and Nordyke is on hold pending McDonald. So it really ends up being a Heller + McDonald + Nordyke + Sykes "grand victorious tour" through the courts.

I'm still not clear on what the legislature could do before these are decided that could change things, since all of these cases are already in the courts. It seems like the legislature's best strategy for cramping our style would be to wait for resolution so that they could weave cramp-our-style legislation in between the eventual constitutional landmines (landmines from their perspective). That would be true even if they were provoked by some kind of UOC-gone-bad situation.

Maybe I'm giving the legislature too much credit for being thoughtful and strategic...

Pretty much. The only aspect of Nordyke that Sykes is waiting on is incorporation, not "sensitive areas" so McDonald would really make it unnecessary to wait for Nordyke even though that is the courts current position.

In short, the court could do as M. D. said and essentially legislate OC away. Even if it wouldn't stand up to a challenge it would likely take years to clear just because it is a muddier area which "might" be legal. There are a couple grounds on which OC prohibition could be challenged successfully, it is best for the folks running the show for us not to share those with us as it would also make the issues clear to the opposition and give them some ability to mitigate the challenge in their initial writing of the code. (Much like the issues seen in AB962 that were not brought up because they made the law easier to challenge)

However; if there is no big push to kill OC now, it will be more difficult for the rabid antis to get the rest of the legislature to pass a law banning OC post-McDonald. This is because it will be much more apparent to the semi-anti legislators that the laws are constitutionally questionable and likely to cost too much to defend.

I would rather give the opposition a little too much credit than too little.

dantodd
10-28-2009, 9:22 AM
Dan it would be nice if Palmer helps us out too at this point I don't care what case does it I just want my 2A rights in this state. I went looking at buying a new gun and the damn roster makes what I want a damn pain in the arse to get.

I'm a lefty too, I am slightly more bothered by the slide release than the safety. That being said, I do agree that it is critical to get these rights back as well which is why Peņa is so high on the CGF list.

I don't know which will get decided first Sykes or Palmer, but whichever goes first the other will die in a landscape with incorporation.

I do think that Sykes is more important than Peņa as a first step. If I get attacked on the street I'd rather have a non-preferred gun on me than my favorite gun in the safe.

nick
10-28-2009, 9:48 AM
Its amazing other states can have different guns, bigger clips and less restrictions and yet there is no "wild west" mentality that the legislators claim will happen if we in CA can have the same thing.

What's wrong with "Wild West" again? The same thing that's wrong with "assault weapons"? You succumbed to antis' rhetoric :p

dantodd
10-28-2009, 9:54 AM
What's wrong with "Wild West" again? The same thing that's wrong with "assault weapons"? You succumbed to antis' rhetoric :p

If I remember the murder rate in the "wild west" was lower than many big cities today.

ETA: http://www.examiner.com/x-3253-Minneapolis-Gun-Rights-Examiner~y2009m2d17-Dispelling-the-myth-of-The-Wild-West
In his book, Frontier Violence: Another Look, author W. Eugene Hollon, provides us with these astonishing facts:

* In Abilene, Ellsworth, Wichita, Dodge City, and Caldwell, for the years from 1870 to 1885, there were only 45 total homicides. This equates to a rate of approximately 1 murder per 100,000 residents per year.
* In Abilene, supposedly one of the wildest of the cow towns, not a single person was killed in 1869 or 1870.

Aegis
10-28-2009, 10:00 AM
I haven't read Heller in a while, but I belive the decision referred to the right to bear arms in the event of confrontation. I understood this to reference bear arms in public, not only in the home.

nick
10-28-2009, 10:08 AM
If I remember the murder rate in the "wild west" was lower than many big cities today.

ETA: http://www.examiner.com/x-3253-Minneapolis-Gun-Rights-Examiner~y2009m2d17-Dispelling-the-myth-of-The-Wild-West
In his book, Frontier Violence: Another Look, author W. Eugene Hollon, provides us with these astonishing facts:

* In Abilene, Ellsworth, Wichita, Dodge City, and Caldwell, for the years from 1870 to 1885, there were only 45 total homicides. This equates to a rate of approximately 1 murder per 100,000 residents per year.
* In Abilene, supposedly one of the wildest of the cow towns, not a single person was killed in 1869 or 1870.

My point exactly.

wildhawker
10-28-2009, 10:11 AM
I haven't read Heller in a while, but I belive the decision referred to the right to bear arms in the event of confrontation. I understood this to reference bear arms in public, not only in the home.

That is not correct. Heller addressed only "keep".

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ...

Aegis
10-28-2009, 11:14 AM
That is not correct. Heller addressed only "keep".

Then what was Scalia referring to when he talks about arms in the event of a confrontation? I don't have Heller in front of me to reference.

dantodd
10-28-2009, 11:19 AM
Then what was Scalia referring to when he talks about arms in the event of a confrontation? I don't have Heller in front of me to reference.

Carrying and Keeping (even when used in the case of confrontation) are distinct concepts at the moment. See People v Overturf for how this came about.


Understand, I believe we will be victorious and retain the right to keep AND bear but it isn't directly addressed in Heller.

ilbob
10-28-2009, 12:26 PM
The Legislature could prohibit open carry, so we could end up like Texas after winning shall-issue concealed carry in court.

I would be willing to bet that the vast majority of people who want to bear arms would find CC preferable to OC, if the choice was one or the other.

IIRC, in TX, there is no prohibition on OC of long arms at all.

7x57
10-28-2009, 12:53 PM
If I remember the murder rate in the "wild west" was lower than many big cities today.


Indeed. I have other references on this topic somewhere.

Possibly even more significant is the demographics of the murders which occured. They were almost entirely mutual combat between young males. That's not a good thing, but it's much better than what we have. If you chose not to put yourself with the wrong drunken crowd, you were very safe. You chose not to engage in mutual combat, and it would be respected.

It *had* to be respected, for reasons that should be clear to gun owners, if not antis and other idiots. Someone once asked Louis L'Amour if the West was really like in movies, with armed gangs terrorizing the townspeople. He said no, it never happened. Half those supposedly inoffensive shopkeepers were Civil War veterans with a loaded rifle at hand. No gang ever terrorized a town full of riflemen. What that means is that even the toughest tough guys had to keep the violence away from the decent folk, if they wanted to remain unventilated.

Corroborating this is that there seems to be very little record of violence against even prostitutes, and pretty much none against "respectable" women. How could there be? First, these people largely still believed in classical ethics. Someone who trespassed the immemorial rule that women are not to be involved in such things probably wouldn't live long enough for the sheriff to come by to arrest him, and the if he looked likely to live that long the sheriff would probably remember he needed to go wax his horse for a few minutes first.

Second, regardless of gallantry, Sam'l Colt made equals of just about anyone who could pull a trigger. With no gun control, that soiled dove or her madam are as likely as anyone else to have a gun nearby (or more, given the hazards of the profession), and once again the sheriff isn't likely to have the slightest interest in hassling a woman who shot a man trespassing the rule of gallantry even if she's not respectable. For similar reasons, the same holds for violence against adolescents, the elderly, the weak, and so on.

My point is that the average murder rate doesn't tell the whole story. In our cities, that murder rate is mostly connected with crime and especially drugs, and those who avoid criminal activity are much safer than the statistics would indicate. The exception is those too poor to avoid the areas in which these crimes happen, and that was not a problem in a society as universally armed as the Old West.

The old, the weak, women, children, all safer in a wild cow town than in our cities. Which one is more anarchic, and which is more just: Deadwood and Tombstone, or DC and Chicago?

The point is not that these were paradises on earth--the point is that what we create and tolerate are very bad indeed.

7x57

cadurand
10-28-2009, 1:08 PM
Every time someone mentions Texas and how they have shall issue concealed carry, but not open carry.. I keep meaning to post a question about that.

If you are carrying concealed in Texas, and somehow part or all of your weapon ends up being visible.. are you in legal trouble?

Almost the opposite of how it is hear now. If any part of the gun is conceled you're likely to get in trouble. At least that is what I've read and understood. Make sure you don't let your shirt cover part of the pistol and all that.

Would the opposite be a concern in Texas?

yellowfin
10-28-2009, 6:11 PM
Yes, Texas is very strict about maintaining concealment. I've never had a problem there but it does make you stay sharp and double cover.

KylaGWolf
10-28-2009, 8:02 PM
I think most states that have CCW have some kind of law that says if the gun shows you can be in trouble but I could be wrong.

press1280
10-29-2009, 2:37 AM
That is not correct. Heller addressed only "keep".

Directly, Heller only addressed keep as well as licensing could not be arbitrary and capricious. In dicta, Heller did address bearing arms, by defining it as carrying weapons in case of a confrontation. It also pointed out many 19th century state cases which voided total carry bans, while upholding concealed weapons bans.
Some media have spun Heller as insisting the 2A ONLY means you can't be denied having a gun in your house.

Cokebottle
10-29-2009, 3:08 AM
No gang ever terrorized a town full of riflemen.
And on that point, you have explained the reasoning of the gun grabbers.

The left had made it it's "job"... certainly since the "Great Society", and as far back as the "New Deal", to maintain control over the masses by keeping them dependent upon the government, however, the government handouts are not enough to truly survive in modern society, so other sources of undocumented income must be sought... drugs and prostitution are a convenient avenue with a never-ending supply of customers.

Removal of defensive weapons from the hands of LACs leaves them dependent upon yet another government agency for protection/restitution, be it the local police, or the National Guard in times of SHTF.

wildhawker
10-29-2009, 8:01 AM
Directly, Heller only addressed keep as well as licensing could not be arbitrary and capricious. In dicta, Heller did address bearing arms, by defining it as carrying weapons in case of a confrontation. It also pointed out many 19th century state cases which voided total carry bans, while upholding concealed weapons bans.
Some media have spun Heller as insisting the 2A ONLY means you can't be denied having a gun in your house.

You are correct, my response was limited in scope.

Standing alone and without followup cases such as Palmer and Sykes, Heller could very well be read in a limited and narrow way wrt keep.

1JimMarch
10-29-2009, 3:12 PM
I take a different view. I think the courts are headed for total legalization of loaded open carry, with no permit, and a permit required if you're going to pack concealed. This is the situation in Arizona, Nevada and an enormous number of other states.

Here's why. Heller contains explicit support for open carry - see ALL of the cases cited at footnote 9. This is also where the Ohio Supreme Court went in the 2003 Klein case. Heller also contains tons of support for the idea of "bearing arms" in SOME form (unstated what type directly in the opinion)...see also the Heller definition of "bearing arms" as defined by Ginsburg in a previous case:

At the time of the founding, as now, to “bear” meant to
“carry.” See Johnson 161; Webster; T. Sheridan, A Com*
plete Dictionary of the English Language (1796); 2 Oxford
English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning
that refers to carrying for a particular purpose—
confrontation. In Muscarello v. United States, 524 U. S.
125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ”

Next, there's a HUGE body of case law nobody wants to talk about yet: the stuff saying you can't make people pay for the exercise of a basic civil right. That's been a consistent stance of the courts for a long time now and has been applied to voting ("poll taxes"), religious speech (the attempts to tax Jehovah's Witnesses' literature struck down) and many more.

That plus the relatively common set of laws with legal unlicensed loaded open carry tells me that's where we're headed. The moment we have incorporation the Texas ban on open carry WILL be challenged within days or hours, and that'll be a good test case for the situation.

Meanwhile, in California, the BEST thing that could happen would be a legislated ban on unloaded open carry between now and incorporation. It would make the issues even clearer when it all goes to federal court.

Pont
10-29-2009, 4:08 PM
Indeed. I have other references on this topic somewhere.

Possibly even more significant is the demographics of the murders which occured. They were almost entirely mutual combat between young males. That's not a good thing, but it's much better than what we have. If you chose not to put yourself with the wrong drunken crowd, you were very safe. You chose not to engage in mutual combat, and it would be respected.

It *had* to be respected, for reasons that should be clear to gun owners, if not antis and other idiots. Someone once asked Louis L'Amour if the West was really like in movies, with armed gangs terrorizing the townspeople. He said no, it never happened. Half those supposedly inoffensive shopkeepers were Civil War veterans with a loaded rifle at hand. No gang ever terrorized a town full of riflemen. What that means is that even the toughest tough guys had to keep the violence away from the decent folk, if they wanted to remain unventilated.

Corroborating this is that there seems to be very little record of violence against even prostitutes, and pretty much none against "respectable" women. How could there be? First, these people largely still believed in classical ethics. Someone who trespassed the immemorial rule that women are not to be involved in such things probably wouldn't live long enough for the sheriff to come by to arrest him, and the if he looked likely to live that long the sheriff would probably remember he needed to go wax his horse for a few minutes first.

Second, regardless of gallantry, Sam'l Colt made equals of just about anyone who could pull a trigger. With no gun control, that soiled dove or her madam are as likely as anyone else to have a gun nearby (or more, given the hazards of the profession), and once again the sheriff isn't likely to have the slightest interest in hassling a woman who shot a man trespassing the rule of gallantry even if she's not respectable. For similar reasons, the same holds for violence against adolescents, the elderly, the weak, and so on.

My point is that the average murder rate doesn't tell the whole story. In our cities, that murder rate is mostly connected with crime and especially drugs, and those who avoid criminal activity are much safer than the statistics would indicate. The exception is those too poor to avoid the areas in which these crimes happen, and that was not a problem in a society as universally armed as the Old West.

The old, the weak, women, children, all safer in a wild cow town than in our cities. Which one is more anarchic, and which is more just: Deadwood and Tombstone, or DC and Chicago?

The point is not that these were paradises on earth--the point is that what we create and tolerate are very bad indeed.

7x57

The very fact that prostitution and drugs were legal probably lowered the crime rate too.

The lack of an FDIC meant if bank robbers were robbing the bank, the whole town would join in boxing them in.

Of course, murders among the ethnic minorities may have been under-reported.

GuyW
10-29-2009, 4:33 PM
Then what was Scalia referring to when he talks about arms in the event of a confrontation? I don't have Heller in front of me to reference.

Here's the page

7x57
10-29-2009, 5:15 PM
The very fact that prostitution and drugs were legal probably lowered the crime rate too.


Fair point.


The lack of an FDIC meant if bank robbers were robbing the bank, the whole town would join in boxing them in.


While your point that they had a selfish motivation for doing so is true, you miss the point that they still understood that the citizen's duty is to uphold the law at every level--even to enforcing it by force. So they also had an ethical system that told them that a man had a moral duty to stop a crime if he could. We have only a remnant of that.

Ethics are a powerful motivator in the long run.


Of course, murders among the ethnic minorities may have been under-reported.

I'm so tired of the modern obsession with putting every issue on a Procrustes' Bed of ideological talking points, but I shall take your point at face value.

I don't quite know what you mean by "underreported"--reported to LE, to the courts, or to the newspaper (if there was one, but even small towns could have some kind of community voice).

One kind of underreporting that appears undeniable in the record is that the Chinese laborers very much dealt with their own problems their way, and generally did not cooperate with American law. There seem to be a lot of cases where no Chinese would testify against another in what Kato <grin> might term "round-eye's court" (gosh, how unfortunate that the Pink Panther never gives us more of Kato's views of French Society). The community took care of its problems.

Was that a good thing? I have no idea. Perhaps they could obtain no justice in American courts, so this was the best system. Or perhaps the Chinese communities were controlled by gang leaders who could extract vengance on any man who went outside the community they controlled, and American justice would have been better but was unavailable. Without knowledge, it could be either, or anything in between. I imagine historians know enough about the communities to make good guesses, but I don't.

Each group is going to have their own situation vis-a-vis American law. But so far as I know none of them were disarmed, not de facto and generally not de jure, so at least some level of self-defense was available. We preferentially disarm the law abiding members of ethnic minorities living in the most dangerous neighborhoods and tell them that it's for their own good, so I doubt that we have any great call to feel superior.

Apropos of nothing, except maybe my comment about disarming those needing it most, one of the saddest news stories I recall reading was of a black politician who called for a special gun free Constitution free zone in the crime-ridden black neighborhoods he represented. The words that came to mind are not suitable for a family forum, nor would they please the cultural guardians of political correctness.

Which is part of why I happen to be quite pleased with Mr. McDonald being the lead plaintiff in our Incorporation case.

7x57

dantodd
10-29-2009, 6:28 PM
Next, there's a HUGE body of case law nobody wants to talk about yet: the stuff saying you can't make people pay for the exercise of a basic civil right. That's been a consistent stance of the courts for a long time now and has been applied to voting ("poll taxes"), religious speech (the attempts to tax Jehovah's Witnesses' literature struck down) and many more.

That plus the relatively common set of laws with legal unlicensed loaded open carry tells me that's where we're headed. The moment we have incorporation the Texas ban on open carry WILL be challenged within days or hours, and that'll be a good test case for the situation.

I believe this is accurate. While Heller did say the state has the right to regulate the manner of carry I do not believe that having to pay for the least common denominator of "carry" will pass constitutional muster. So, unless there is a no fee CCW then I think the legislature will have to allow open carry as an alternative.

Meanwhile, in California, the BEST thing that could happen would be a legislated ban on unloaded open carry between now and incorporation. It would make the issues even clearer when it all goes to federal court.

I have made this argument in the past and have come to realize that a careful reading of the penal code obviates the need to do this. That doesn't mean that I believe a case demanding unlicensed open carry statewide would not win or is not valuable but I do feel that a legislative ban would be more detrimental to the cause and to open carriers in a post-Sykes world. It would be much better for everyone if we let the legislation stand as is and attack the issue directly as one of requiring a permit to exercise a constitutional right.

command_liner
10-29-2009, 8:39 PM
I take a different view. I think the courts are headed for total legalization of loaded open carry, with no permit, and a permit required if you're going to pack concealed. This is the situation in Arizona, Nevada and an enormous number of other states.

Here's why. Heller contains explicit support for open carry - see ALL of the cases cited at footnote 9. This is also where the Ohio Supreme Court went in the 2003 Klein case. Heller also contains tons of support for the idea of "bearing arms" in SOME form (unstated what type directly in the opinion)...see also the Heller definition of "bearing arms" as defined by Ginsburg in a previous case:



Next, there's a HUGE body of case law nobody wants to talk about yet: the stuff saying you can't make people pay for the exercise of a basic civil right. That's been a consistent stance of the courts for a long time now and has been applied to voting ("poll taxes"), religious speech (the attempts to tax Jehovah's Witnesses' literature struck down) and many more.

That plus the relatively common set of laws with legal unlicensed loaded open carry tells me that's where we're headed. The moment we have incorporation the Texas ban on open carry WILL be challenged within days or hours, and that'll be a good test case for the situation.

Meanwhile, in California, the BEST thing that could happen would be a legislated ban on unloaded open carry between now and incorporation. It would make the issues even clearer when it all goes to federal court.

You mention the hugh body of law. Yes, there is law.
But it is not right to say nobody is mentioning it. I have argued
this issue with my local PD, the OC BOS, and my local city council.
The most persuasive argument comes from ... Gura. You might
have heard of the case -- McDonald v. Chicago. It is in front of the
USSC right now, and it is all about guns.

So if "nobody" in legal circles is Gura, Chicago, and the USSC, well
then "nobody" is talking about it.

See page 43, first paragraph.

Consider if Gura wins on the basic incorporation, and then the USSC
affirms Murdock v. Pennsylvania. That will mean we have incorporation
and no fees, all in one decision.

dantodd
10-29-2009, 8:46 PM
You mention the hugh body of law. Yes, there is law.
But it is not right to say nobody is mentioning it. I have argued
this issue with my local PD, the OC BOS, and my local city council.
The most persuasive argument comes from ... Gura. You might
have heard of the case -- McDonald v. Chicago. It is in front of the
USSC right now, and it is all about guns.

So if "nobody" in legal circles is Gura, Chicago, and the USSC, well
then "nobody" is talking about it.

See page 43, first paragraph.

Consider if Gura wins on the basic incorporation, and then the USSC
affirms Murdock v. Pennsylvania. That will mean we have incorporation
and no fees, all in one decision.

You can be confident that a man with Jim's background who's been fighting the fight as long as he has is pretty familiar with Gura and with McDonald. To suggest otherwise exposes ignorance but not Jim's.

1JimMarch
10-29-2009, 11:43 PM
Yes, Gura is discussing it. Damn few others are though :).

Even then, the main thrust in the Chicago case has been to explain that "permits" have been used in that town to totally shut down access. That's a different thing than arguing against CCW permit fees in, say, Texas.

It's the next case in DC that goes even more firmly to the permit processes.