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View Full Version : What do YOU think our chances are with McDonald v. Chicago?


CaliColin
12-18-2009, 2:30 PM
I've been seeing a lot of chickens being counted lately before they've hatched. Seems like the phrase "WHEN incorporation happens" is used more often than "IF". Don't get me wrong, I love the smell of victory as much as the next guy, but let's not forget that Heller won by a slim 5-4. And a few months ago I thought that there was no way AB962 would pass, especially in the hands of the guy who hunted down the Predator with a grenade launcher. Let us not underestimate our foes, nor the stupidity that drives much of their decision making.

Two things are infinite: the universe and human stupidity; and I'm not sure about the universe.

-Albert Einstein

So what do you think.. do we have a 50/50 chance? Is this a slam dunk or what?

press1280
12-18-2009, 2:44 PM
That same majority will be deciding on a gun ban almost identical to that of DC's,and Chicago will have to convince 5 judges that somehow, the 2nd Amendment is not incorporated under the 14th Amendment even though 44 states have a constitutional provision for it, as well as overwhelming popular opinion for the RKBA.
I just don't see it turning out any other way. The only question is how the court handles the other major issue (P or I clause).

dustoff31
12-18-2009, 2:57 PM
I believe they will rule exactly as they did in the Heller case. Yes, owning a gun is a right. But "reasonable restrictions" are allowed.

Which will result in many more court cases to decide what is reasonable and what isn't.

wildhawker
12-18-2009, 3:20 PM
Cali, do note that McDonald has the added benefit of restoring PoI; this sweetens the case for many Justices otherwise-unfriendly to guns.

2A will be incorporated; the questions are due process vs PoI and what level of scrutiny to be applied to 2A cases.

Synergy
12-18-2009, 3:23 PM
PoI? Someone please explain

Chatterbox
12-18-2009, 3:27 PM
PoI? Someone please explain

Priveleges or Immunities clause.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
http://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause

PatriotnMore
12-18-2009, 3:54 PM
I believe they will rule exactly as they did in the Heller case. Yes, owning a gun is a right. But "reasonable restrictions" are allowed.

Which will result in many more court cases to decide what is reasonable and what isn't.

Yes, but how can the 2A be a right when it is constantly being infringed? I have been waiting for that very important statement in the 2A to be addressed at the highest levels, and by the best pro 2A lawyers. It seems the arguments against gun/weapon control are in direct response to those coming up with new ways to infringe upon that right.

Is not the burden upon them to prove these laws/new laws are not an infringement? Why is this not being addressed?

I just don't understand.

hoffmang
12-18-2009, 4:11 PM
So what do you think.. do we have a 50/50 chance? Is this a slam dunk or what? There is a 99% chance that the Second Amendment will apply to California on July 4, 2010. The only real risk is that the Supreme Court doesn't issue the opinion in the last week of June for some reason.

I believe they will rule exactly as they did in the Heller case. Yes, owning a gun is a right. But "reasonable restrictions" are allowed.

That's not what Heller said. Heller said the right to arms will be treated the way the right to speak is. "Rational basis" which is where "reasonable restrictions" would be, is out and either intermediate or strict scrutiny is the correct standard of review depending on how central the regulation is to the right to self defense. See US v. Skoien (http://caselaw.findlaw.com/data2/circs/7th/083770p.pdf) to see what's coming. Skoien is probably going to lose that one, but the government has the burden of proving that the regulation passes muster.

-Gene

Kid Stanislaus
12-18-2009, 4:19 PM
I'm really glad our guy Hoffman is all that confident. As for myself, I'm exercising "Cautious Optimism", and that's really something for a guy who is basically a pessimist!

CaliColin
12-18-2009, 4:23 PM
Cali, do note that McDonald has the added benefit of restoring PoI; this sweetens the case for many Justices otherwise-unfriendly to guns.

2A will be incorporated; the questions are due process vs PoI and what level of scrutiny to be applied to 2A cases.

Stands to reason.. so this isn't JUST about guns in the eyes of the SCOTUS. We benefit from the additional gravity generated by the opportunity for them to tell the states to back off. Warms the heart to think that this big first domino is already leaning in the right direction.

Zhukov
12-18-2009, 4:26 PM
I personally believe that due to the PoI clause, that multiple justices that ruled against us on Heller will rule with us on this. I've read multiple times where more "liberal" scholars support this case because of the PoI related stuff.

They'd rather bite the bullet on the the gun issue to have that bad case law overturned.

Glock22Fan
12-18-2009, 4:32 PM
Stands to reason.. so this isn't JUST about guns in the eyes of the SCOTUS. We benefit from the additional gravity generated by the opportunity for them to tell the states to back off. Warms the heart to think that this big first domino is already leaning in the right direction.

IIRC, they hinted very strongly in Heller that they would love the opportunity to go back and undo more than a century of wrong decisions on the 14th, right back to reviewing (and probably overturning)Slaughterhouse.

They didn't take this case just to confirm that Heller only applies to Washington D.C. They want to make history.

dustoff31
12-18-2009, 4:48 PM
Yes, but how can the 2A be a right when it is constantly being infringed? I have been waiting for that very important statement in the 2A to be addressed at the highest levels, and by the best pro 2A lawyers. It seems the arguments against gun/weapon control are in direct response to those coming up with new ways to infringe upon that right.

Is not the burden upon them to prove these laws/new laws are not an infringement? Why is this not being addressed?
I just don't understand.

This is essentially the point I was trying to make even though, as Gene pointed out I used the wrong words.

I believe that we will get a very favorable ruling. Things will be immensely better. But I don't believe it will be the last time RKBA issues see the inside of a courtroom. I must assume the antis will fight to the death. They will continue to put in place crazy laws which must be batted down in court.

wildhawker
12-18-2009, 5:07 PM
IIRC, they hinted very strongly in Heller that they would love the opportunity to go back and undo more than a century of wrong decisions on the 14th, right back to reviewing (and probably overturning)Slaughterhouse.

They didn't take this case just to confirm that Heller only applies to Washington D.C. They want to make history.

I believe you might be thinking of Thomas' dissent in Saenz v. Roe re 14th.

Rivers
12-18-2009, 5:40 PM
I'm curious as to whether this will be decided by SCOTUS as a "gun/2A" case or if they will paint this case with a much broader legal brush. Will they use "McDonald" to fix bad SCOTUS law from the 1900's? If so, the judges affirming this case could easily include some who ruled in minority against Heller.

ilbob
12-18-2009, 5:42 PM
IMO.

Some of form of incorporation is likely.

The real issue will be in a few years when they decide level of scrutiny. Until then, nothing really changes.

PatriotnMore
12-18-2009, 5:43 PM
I agree. Until the issue of "Shall Not Be Infringed" is resolved we will continue down a path of never ending clever ways to infringe. It is either infringe(ment)(ing) or it is not.

I don't understand how this very important part of the Second Amendment has been danced around since the concept of gun control reared its ugly head, nor why it is being allowed.

This is essentially the point I was trying to make even though, as Gene pointed out I used the wrong words.

I believe that we will get a very favorable ruling. Things will be immensely better. But I don't believe it will be the last time RKBA issues see the inside of a courtroom. I must assume the antis will fight to the death. They will continue to put in place crazy laws which must be batted down in court.

Chatterbox
12-18-2009, 7:24 PM
That's not what Heller said. Heller said the right to arms will be treated the way the right to speak is. "Rational basis" which is where "reasonable restrictions" would be, is out and either intermediate or strict scrutiny is the correct standard of review depending on how central the regulation is to the right to self defense. See US v. Skoien (http://caselaw.findlaw.com/data2/circs/7th/083770p.pdf) to see what's coming. Skoien is probably going to lose that one, but the government has the burden of proving that the regulation passes muster.

-Gene

If we get strict scrutiny....well, it would be something like this:

http://blogs.record-eagle.com/wp-content/uploads/2009/06/heaven-re.jpg

GaryV
12-18-2009, 7:38 PM
I'm as certain as one can be about such things that we will get incorporation, and almost certainly through a resurrected PoI clause. The case really isn't a gun issue at all from a legal point of view, but a question of the fundamental meaning of the PoI. I think it'll be very difficult for any of them to justify an opinion against incorporation.

However, I seriously doubt we'll see a ruling on scrutiny, since there's no need to address it in order to dispose of this case. As they said in Heller, any outright ban would fail any level of scrutiny, and so scrutiny is not at issue. All they need to do is rule for incorporation and the ban automatically falls based on Heller. Scrutiny won't be decided till they get a case where it is the core question.

Chatterbox
12-18-2009, 7:47 PM
However, I seriously doubt we'll see a ruling on scrutiny, since there's no need to address it in order to dispose of this case. As they said in Heller, any outright ban would fail any level of scrutiny, and so scrutiny is not at issue. All they need to do is rule for incorporation and the ban automatically falls based on Heller. Scrutiny won't be decided till they get a case where it is the core question.

I'm guessing Pena vs Cid has a good chance to be that case?

wash
12-18-2009, 10:19 PM
I can only imagine what might happen if McDonald does not win the case. Lots of people will be pissed off and the fallout would last for years.

I know I would call any Justice who votes against incorporation a racist. I would say it loud and say it often. Their legacy would be racism and intellectual dishonesty.

I plan to do that if even one Justice votes against incorporation.

I think I might have one or two Justices to yell about but I'll have incorporation.

Gray Peterson
12-18-2009, 10:29 PM
I'm guessing Pena vs Cid has a good chance to be that case?

Yes, definitely if they rule for strict scrutiny. Remember also that there's three additional regulations that are being challenged besides the registration ban. The Skioen case (As Gene quoted) made it very clear: If firearm possession is for SELF DEFENSE, strict scrutiny applies. If for something else, like hunting, intermediate scrutiny applies. Skoien may lose, but only because he was a moron and didn't argue self defense too.

Mulay El Raisuli
12-19-2009, 7:22 AM
I've been seeing a lot of chickens being counted lately before they've hatched. Seems like the phrase "WHEN incorporation happens" is used more often than "IF". Don't get me wrong, I love the smell of victory as much as the next guy, but let's not forget that Heller won by a slim 5-4. And a few months ago I thought that there was no way AB962 would pass, especially in the hands of the guy who hunted down the Predator with a grenade launcher. Let us not underestimate our foes, nor the stupidity that drives much of their decision making.

Two things are infinite: the universe and human stupidity; and I'm not sure about the universe.

-Albert Einstein

So what do you think.. do we have a 50/50 chance? Is this a slam dunk or what?


There is good cause for optimism. What keeps the Bill of Rights from being Incorporated in its entirety is Slaughterhouse, a horribly racist case from the 1870s. Legal scholars on all sides agree that this was bad law the day it was decided & it ain't gotten any better since. IE, BOTH sides want to see it gone (with the wind?).

It also helps to look at what the opposition has to say. The Brief from the Brady Campaign states that they are neither for or against Mr. McDonald. That's actually a lie, but even they aren't against Incorporation per se. They merely argue that the level of scrutiny should be "Rational Basis," which as Gene points out, just ain't gonna happen. Even though Brady isn't the Defendant, they are obviously in tune with the rest of the gun grabbers & I regard their Brief as indicative of what they will present against us. In other words, no one is really arguing against Incorporation.

As for the type of Incorporation, the odds for P/I are less strong. While Slaughterhouse was & is just plain wrong, using DP Incorporation has a long history. There are Briefs in support of Mr. McDonald that actually argue against P/I and for DP. Still, while lawyers & judges do love established precedent, Slaughterhouse was such a POS that I don't really see SCOTUS passing on this golden opportunity to trash it finally & for good.

Level of scrutiny is where the battle will be fought. Rational Basis is out, but that's all that can be predicted. If the non-Heller Five are intellectually honest, legal logic dictates that we'll have the same level of scrutiny as the we have with the rest of the BoR; STRICT scrutiny. But I only hope for that, as opposed to being willing to bet on that.

As for the timing on when we'll the 'meat on the bones,' I disagree that it will take years. While level of scrutiny isn't, strictly speaking, an issue in McDonald, it would be illogical to decide Incorporation w/o deciding this as well. In addition, it has been brought up. True, that was just in an amicus Brief, but the issue is before them.

As for the "and bear" part of the Right, & the issue of "sensitive places," SCOTUS has to be aware of Pena, Nordyke & all the other cases working their way up the pipeline. Whether this is addressed depends on the value placed on "judicial economy." There is a great deal of confusion regarding just what the Right entails. This is obvious from reading the Opinions from the Circuit Courts, the amicus Briefs, etc. One of the jobs of SCOTUS is to provide clarity to the lower courts so that they don't spin their wheels. There's also the matter of justice in general, a matter not helped by confusion. So, they could address "and bear" & "sensitive" just because it would be logical & useful. But again, I only hope for this, as opposed to being willing to bet on it.

The Raisuli

Mulay El Raisuli
12-19-2009, 7:26 AM
Yes, definitely if they rule for strict scrutiny. Remember also that there's three additional regulations that are being challenged besides the registration ban. The Skioen case (As Gene quoted) made it very clear: If firearm possession is for SELF DEFENSE, strict scrutiny applies. If for something else, like hunting, intermediate scrutiny applies. Skoien may lose, but only because he was a moron and didn't argue self defense too.


Its not all that bad. Remember, even with intermediate scrutiny, he still won.

The Raisuli

bodger
12-19-2009, 8:07 AM
IMO.

Some of form of incorporation is likely.

The real issue will be in a few years when they decide level of scrutiny. Until then, nothing really changes.



So, incorporation doesn't really cause much immediate change our rights or freedoms when it happens?

GaryV
12-19-2009, 9:21 AM
So, incorporation doesn't really cause much immediate change our rights or freedoms when it happens?

No, all it does is give us a big stick with which to go after gun laws. We'll still have to go after each one of those laws individually. Except for the ban being challenged in McDonald itself, no law will be automatically overturned by the decision.

Liberty1
12-19-2009, 10:49 AM
With a majority of the national (congress) and state governments (attorney generals) asking for incorporation against state/local law and the Brady bunch going "neutral" (back pedaling) in their briefs, and the health of the Heller 5 holding out God willing, I think we'll see incorporation.

We've waiting a long time for this injustice to be corrected. Millions have been without an effective fundamental right to mere self defense tool possession for well over a hundred years. Blood is on the hands of many racists and feel good statists.

also check out chicagoguncase.com if you haven't seen it.

CCWFacts
12-19-2009, 12:09 PM
I feel very confident that this will win. I won't list all the factors which everyone else has already listed here.

However, it's bad to count chickens in the egg stage, and it's generally very bad to celebrate victory too early.

hoffmang
12-19-2009, 2:23 PM
There is some hope that we exceed 5-4 due to the chance to overturn Slaughterhouse. That's much of the strategic reason to go there.

I expect that either Palmer v. DC or Sykes v. McGinness will be the next SCOTUS firearms case. Scrutiny and "bear" will be squarely present in them. I'm somewhat optimistic that Peņa will not have to go beyond the 9th Circuit.

-Gene

yellowfin
12-19-2009, 3:12 PM
Which do you think would be better for NY. Gene, between Sykes and Palmer?

yellowfin
12-19-2009, 3:23 PM
I'm wondering if it makes a difference that Sykes deals with not being able to get a permit versus Palmer dealing with restricted permits; most problem states are a Sykes scenario whereas NYC (and various cities like Buffalo and Rochester) is like Palmer. Over the long run it shouldn't matter but I'm wondering what the short term difference is for how many intermediate steps it will take and thus translate into how many years, so I can accurately tell people what to expect.

hoffmang
12-19-2009, 5:36 PM
Though Sykes is a little more on point, I don't expect it to matter which one becomes binding. The key issue is that you're going to have a right to carry and once you do, then each state is going to have to treat any permitting they choose to do like it's a parade permit.

-Gene

Kid Stanislaus
12-19-2009, 7:09 PM
Though Sykes is a little more on point, I don't expect it to matter which one becomes binding. The key issue is that you're going to have a right to carry and once you do, then each state is going to have to treat any permitting they choose to do like it's a parade permit.

-Gene

Gene, you've got me chomp'n at the bit!!

BigDogatPlay
12-19-2009, 9:05 PM
The court can not logically rule in favor of the City of Chicago without at least one of the Heller 5 doing a complete about face on their decision of less than a year ago.

Just as others have noted I am cautiously optimistic that the tally might be a bit broader than 5-4. I'd wager at least one of the three remaining opinions against Heller would jump at the opportunity to join a broadbased ruling that moots the race based legacy of Slaughter-House.

Now the only question in my mind.... does Mr. Justice Thomas write for the majority to really drive a stake in it?

RomanDad
12-19-2009, 9:12 PM
I believe they will rule exactly as they did in the Heller case. Yes, owning a gun is a right. But "reasonable restrictions" are allowed.

Which will result in many more court cases to decide what is reasonable and what isn't.

Yep.

Window_Seat
12-19-2009, 10:20 PM
Though Sykes is a little more on point, I don't expect it to matter which one becomes binding. The key issue is that you're going to have a right to carry and once you do, then each state is going to have to treat any permitting they choose to do like it's a parade permit.

-Gene

This is a great thing, but the one question I'm going to have now and in the future is will the right become a protected right, or will it be discouraged and punished when it's possible?

I can venture to predict that our politicians, certain Sheriffs, CLEOs, Judges, etc. will do what it takes to completely circumvent the law when it begins to turn in our favor, and many will blatantly violate it, and they will be protected until large amounts of $$ are spent to legally take them out. Should we focus on those who are "above it" after our cases become successful? Let's also not forget that HI is as anti, if not more, and it will likely be more challenging for them to get things implemented. When the 9th rules on Nordyke, they will be just as much involved, no?

Erik.

hoffmang
12-19-2009, 10:34 PM
There will be quite a bit of follow on litigation. What I'm getting at though is that not all of the follow on litigation will have to go to SCOTUS to win. For example, after we prevail in Sykes, if HI drags its feet, it may have to be sued separately. That hypothetical case will be pretty easy though as Sykes/Palmer will be binding precedent.

Also, winning these cases has a normative effect on public opinion. Most people are rationally ignorant of what is or isn't constitutional at the detailed level we hash it out here. When they read in the morning paper that X law was ruled unconstitutional by SCOTUS or later the 9th Circuit, it tends to shift public opinion in favor of the right. If you look at the polls on "should all handguns be banned" before Heller and after Heller you'll see a large and discontinuous change for the better in the public polling.

-Gene

wash
12-20-2009, 7:09 AM
I'm no expert but I would be surprised if more than one or two gun cases make it to SCOTUS before we're going after NFA. Everything else will get settled in a lower court and as long as the decisions go pro gun SCOTUS will decline to hear the anti's appeal.

Judges don't like their rulings overturned so once SCOTUS draws a line in the sand (possibly by just declining to hear an appeal), judges in lower courts will get the message.

hvengel
12-20-2009, 8:59 AM
There is good cause for optimism. What keeps the Bill of Rights from being Incorporated in its entirety is Slaughterhouse, a horribly racist case from the 1870s. Legal scholars on all sides agree that this was bad law the day it was decided & it ain't gotten any better since. IE, BOTH sides want to see it gone (with the wind?).

It also helps to look at what the opposition has to say. The Brief from the Brady Campaign states that they are neither for or against Mr. McDonald. That's actually a lie, but even they aren't against Incorporation per se. They merely argue that the level of scrutiny should be "Rational Basis," which as Gene points out, just ain't gonna happen. Even though Brady isn't the Defendant, they are obviously in tune with the rest of the gun grabbers & I regard their Brief as indicative of what they will present against us. In other words, no one is really arguing against Incorporation.

As for the type of Incorporation, the odds for P/I are less strong. While Slaughterhouse was & is just plain wrong, using DP Incorporation has a long history. There are Briefs in support of Mr. McDonald that actually argue against P/I and for DP. Still, while lawyers & judges do love established precedent, Slaughterhouse was such a POS that I don't really see SCOTUS passing on this golden opportunity to trash it finally & for good.

...

The Raisuli

Also keep in mind that this is likely the last time the the court will have a case that will allow them to reconsider Slaughterhouse and as others have pointed out the liberals want it over turned. So there is a significant probability that several of the liberal justices will join the conservative majority if they decide to overturn Slaughterhouse.

CDFingers
12-20-2009, 9:34 AM
I cannot conceive of any conditions under which the 14th does not incorporate the bill of rights AGAINST the states. I think that lawyers will end up making still more money as laws in every state get challenged.

Lawyers are like stock brokers in that they always make money no matter what happens with your money, guns, or beer.

CDFingers

wildhawker
12-20-2009, 10:40 AM
I don't mind attorneys like Kilmer (who's worked for a decade on Nordyke, largely at his own expense) and Gura (who's yet to be compensated for his work on Heller) making money for getting us civil rights, do you?

ETA: If the citizens of cities and states don't wish to pay for civil rights violations they should elect representatives who would not violate our civil rights. Eventually this cause/effect relationship will create more savvy city councils, boards of supervisors, trustees and legislatures. As has been said before, freedom isn't free.

http://www.stripersonline.com/fish_photos/data/500/Contract_Change_Order.jpg

I cannot conceive of any conditions under which the 14th does not incorporate the bill of rights AGAINST the states. I think that lawyers will end up making still more money as laws in every state get challenged.

Lawyers are like stock brokers in that they always make money no matter what happens with your money, guns, or beer.

CDFingers

Purple K
12-20-2009, 10:54 AM
I cannot conceive of any conditions under which the 14th does not incorporate the bill of rights AGAINST the states. I think that lawyers will end up making still more money as laws in every state get challenged.

Lawyers are like stock brokers in that they always make money no matter what happens with your money, guns, or beer.

CDFingers

There are good and bad in any profession. It's unfortunate that a few bad/greedy lawyers cast a dark cloud over the entire profession. The team that's been working on Nordyke and other 2A issues with Calguns and SAF has been producing results that make me think the money has been well spent.

ilbob
12-22-2009, 3:38 PM
Though Sykes is a little more on point, I don't expect it to matter which one becomes binding. The key issue is that you're going to have a right to carry and once you do, then each state is going to have to treat any permitting they choose to do like it's a parade permit.

-Gene
So NYC will start to require fingerprints and training for parade permits? Only one parade a month? No parades with more than 10 participants?

dustoff31
12-22-2009, 5:55 PM
Judges don't like their rulings overturned...

Generally speaking, you're right. Based on their record however, it seems that the 9th circut doesn't have that concern.

USAFTS
12-22-2009, 9:01 PM
...The key issue is that you're going to have a right to carry and once you do, then each state is going to have to treat any permitting they choose to do like it's a parade permit.

-Gene

CAN YOU IMAGINE THAT? I am 42 years old. I really hope to walk down the street with a viable means of self and family protection, legally concealed ON MY PERSON...before I die. I just want to exercise my right. That's all.

USAFTS
12-22-2009, 9:10 PM
So NYC will start to require fingerprints and training for parade permits? Only one parade a month? No parades with more than 10 participants?

Damn, that's funny and not funny at the same time. :cool:

USAFTS
12-22-2009, 9:30 PM
Gene -

Looking, for a moment, beyond the aluminum material that makes up my hat... :TFH:

If our Constitution was experiencing a hostile takeover by our own elected leadership, can you see an area that could be used by the administration to circumvent any good that would come from incorporation, such as EPA?

Are there other organizations or laws that could be used to nullify or at least greatly limit a newly re-energized 2nd Amendment?

OK...The hat is back off. :)

hoffmang
12-22-2009, 10:45 PM
If our Constitution was experiencing a hostile takeover by our own elected leadership, can you see an area that could be used by the administration to circumvent any good that would come from incorporation, such as EPA?


The Federal government is already bound by Heller. The executive branch can try lots of things - succeeding is a very different matter however. For now, the key is that we need the Heller 5 to stay on the court until we can get quite a few more cases under our collective belts.

-Gene

gravedigger
12-23-2009, 12:06 AM
CAN YOU IMAGINE THAT? I am 42 years old. I really hope to walk down the street with a viable means of self and family protection, legally concealed ON MY PERSON...before I die. I just want to exercise my right. That's all.

I'm with you, except that I hope for LOC (Loaded Open Carry) as the minimum standard. I prefer CARRY CARRY actually. Differentiating between "open" and "concealed" presents it's own problems. If you conceal carry and reach for the can of beans on the top shelf of a grocery store and expose your "concealed" weapon, are you in trouble? If you open carry, and a sudden rain storm causes you to don a trench coat to keep dry, are you now in trouble for concealing it?

I think that if you can be trusted to CARRY a weapon, it should not matter whether it is open or concealed at any given time. I see too many situations where legally carrying one way will get you into trouble when, in the normal course of events, you inadvertently switch to the other way either momentarily, or by necessity (covering an open carry weapon in a rain storm to prevent rust, or exposing a conceal carry weapon as you try on a new sport coat at Men's Fashion Depot, etc.)

Lets work for CARRY CARRY and drop the "open OR concealed" restriction.

USAFTS
12-23-2009, 12:16 AM
I'm with you, except that I hope for LOC (Loaded Open Carry) as the minimum standard. I prefer CARRY CARRY actually. Differentiating between "open" and "concealed" presents it's own problems. If you conceal carry and reach for the can of beans on the top shelf of a grocery store and expose your "concealed" weapon, are you in trouble? If you open carry, and a sudden rain storm causes you to don a trench coat to keep dry, are you now in trouble for concealing it?

I think that if you can be trusted to CARRY a weapon, it should not matter whether it is open or concealed at any given time. I see too many situations where legally carrying one way will get you into trouble when, in the normal course of events, you inadvertently switch to the other way either momentarily, or by necessity (covering an open carry weapon in a rain storm to prevent rust, or exposing a conceal carry weapon as you try on a new sport coat at Men's Fashion Depot, etc.)

Lets work for CARRY CARRY and drop the "open OR concealed" restriction.

I agree and disagree with your comments. Carry-carry would be nice but it's likely wishful thinking. I prefer concealed for various reasons...mainly tactical. Personally, when pros and cons are weighed, I would carry concealed even if LOC was OK.

USAFTS
12-23-2009, 12:24 AM
The Federal government is already bound by Heller. The executive branch can try lots of things - succeeding is a very different matter however. For now, the key is that we need the Heller 5 to stay on the court until we can get quite a few more cases under our collective belts.

-Gene

Gene- I tend to be a pessimistic-realist so "cautious optimism" is usually difficult for me to achieve. I have read several of your posts tonight and I am finally cautiously optimistic for the first time in quite awhile...at least as far as 2A is concerned. I really hope we get a few wins. Thanks for taking the time to keep us up-to-date and encouraged. This board is truly lucky to have your knowlege and patience to benefit from.

press1280
12-23-2009, 3:12 AM
I agree and disagree with your comments. Carry-carry would be nice but it's likely wishful thinking. I prefer concealed for various reasons...mainly tactical. Personally, when pros and cons are weighed, I would carry concealed even if LOC was OK.

Problem is our side has conceded the state can regulate the manner in which arms are borne, so they can either allow open carry, or allow concealed carry, or allow both(with shall-issue or VT/AK style no permit). They just can't have NO carry or may-issue for both CC and OC.
It may make sense not differentiating between OC and CC, just like the scenario of reaching for the top shelf and "brandishing" your firearm and losing your carry rights.

Midian
12-23-2009, 5:12 AM
There is a 99% chance that the Second Amendment will apply to California on July 4, 2010.
-Gene

Does that mean that the California Mommy Laws would be dissolved? Or would the State still have the power to say "well, that's all very nice, Supreme Court, but this is how we roll in California."

GaryV
12-23-2009, 6:50 AM
Does that mean that the California Mommy Laws would be dissolved? Or would the State still have the power to say "well, that's all very nice, Supreme Court, but this is how we roll in California."

What it means is that someone would then be able to sue the state in federal court over these laws and have the federal courts rule on them, rather than simply throw the suits out of court because the 2A doesn't apply.

No law in California will automatically be void if (WHEN) we get incorporation - we'll simply get the tool we need to challenge state gun laws in federal court. Right now you can't (successfully at least), because the states are not currently required to abide by the 2A.

Peaceful John
12-23-2009, 8:56 AM
That's not what Heller said. Heller said the right to arms will be treated the way the right to speak is. "Rational basis" which is where "reasonable restrictions" would be, is out and either intermediate or strict scrutiny is the correct standard of review depending on how central the regulation is to the right to self defense. -Gene

Thanks, Gene. Over the past 18 months I'd forgotten how much of a win Heller was.

USAFTS
12-23-2009, 9:42 AM
Problem is our side has conceded the state can regulate the manner in which arms are borne, so they can either allow open carry, or allow concealed carry, or allow both(with shall-issue or VT/AK style no permit). They just can't have NO carry or may-issue for both CC and OC.
It may make sense not differentiating between OC and CC, just like the scenario of reaching for the top shelf and "brandishing" your firearm and losing your carry rights.

Well, either way would be better than what we have now. As far as "brandishing" by reaching for the beans... It is not brandishing and responsible concealed carry comes with determining your method of carry as well as your style of dress based upon your activity. Early in a new-carry era, the public will likely notice the occational concealed handgun and "panic" out of ignorant fear...but it is not brandishing. After a period of time, hopefully the public will become more educated and less threatened at the sight of a holstered handgun.....or not. ;)

timdps
12-23-2009, 9:42 AM
Just as others have noted I am cautiously optimistic that the tally might be a bit broader than 5-4. I'd wager at least one of the three remaining opinions against Heller would jump at the opportunity to join a broadbased ruling that moots the race based legacy of Slaughter-House.


So our new Justice Sotomayor will have to choose between racism and gun rights. I like it...

Tim

Nevermore
12-23-2009, 11:07 AM
So our new Justice Sotomayor will have to choose between racism and gun rights. I like it...

Tim

Heh, that's an interesting way of putting it.

hvengel
12-23-2009, 1:58 PM
Well, either way would be better than what we have now. As far as "brandishing" by reaching for the beans... It is not brandishing and responsible concealed carry comes with determining your method of carry as well as your style of dress based upon your activity. Early in a new-carry era, the public will likely notice the occational concealed handgun and "panic" out of ignorant fear...but it is not brandishing. After a period of time, hopefully the public will become more educated and less threatened at the sight of a holstered handgun.....or not. ;)

I don't think it is reasonable to say that "the public will likely notice the occational concealed handgun and "panic"" since this is not what has been experienced in other states. Others have pointed out that during open carry events the vast majority of the public is either indifferent or expresses support for the carriers. I remember being at a local HAM club meeting a few years back and seeing someone there who was carrying "concealed" but with the gun mostly exposed because his sweater had ridden up over the gun. There were hundreds of people in the meeting and I am sure many of them saw the gun and no one said a word and no one even came close to panicking. It was simply a non-issue and I suspect that the same thing is true for 99% of the public. There is no evidence that the "public will panic" argument is valid so we should stop spreading this FUD since the only ones that benefit from it are the anti's.

Hal

CCWFacts
12-23-2009, 7:51 PM
So our new Justice Sotomayor will have to choose between racism and gun rights.

I expect Justice Sotomayor has no problem with racism.

BigDogatPlay
12-23-2009, 8:38 PM
I expect Justice Sotomayor has no problem with racism.

^^^ This ^^^

I'd probably faint dead away if she voted to overturn the century plus old, overtly racist, precedents that "gun control" is built upon.

USAFTS
12-23-2009, 9:11 PM
I don't think it is reasonable to say that "the public will likely notice the occational concealed handgun and "panic"" since this is not what has been experienced in other states. Others have pointed out that during open carry events the vast majority of the public is either indifferent or expresses support for the carriers. I remember being at a local HAM club meeting a few years back and seeing someone there who was carrying "concealed" but with the gun mostly exposed because his sweater had ridden up over the gun. There were hundreds of people in the meeting and I am sure many of them saw the gun and no one said a word and no one even came close to panicking. It was simply a non-issue and I suspect that the same thing is true for 99% of the public. There is no evidence that the "public will panic" argument is valid so we should stop spreading this FUD since the only ones that benefit from it are the anti's.

Hal

hvengel,

I'm sorry. I fully agree with you. My wording was unclear. I used the word "occational" meaning that occationally a member of the public may panic at the sight of a CCW. I say this because I have experienced this in the past. I agree that more often than not it would be a non-issue or perhaps draw some extra glances. I automatically assume that the person must be either an off-duty LEO or a CCW holder. Sorry for the confusion. Definately don't want to see FUD spread either.

press1280
12-24-2009, 2:30 AM
hvengel,

I'm sorry. I fully agree with you. My wording was unclear. I used the word "occational" meaning that occationally a member of the public may panic at the sight of a CCW. I say this because I have experienced this in the past. I agree that more often than not it would be a non-issue or perhaps draw some extra glances. I automatically assume that the person must be either an off-duty LEO or a CCW holder. Sorry for the confusion. Definately don't want to see FUD spread either.

I agree a shirt riding up and exposing a firearm isn't brandishing, however, remember how courts can interpret the laws. It should not be an issue even in states like FL and TX, which do not allow open carry period, but I wouldn't put it past a NJ or MD (after they've been forced by McDonald or other case to issue permits) to try any means necessary to try to scare people into NOT trying for a permit. Contrary to all the crime stats as well as the successfull shall-issue wave across the country, these states are stuck in 1960's gun control mentality and won't change overnight. There's also the catch-all "disturbing the peace" used against OCers, which can be used by anti-gun states to dissuade people from carrying.

Midian
12-24-2009, 5:54 AM
What it means is that someone would then be able to sue the state in federal court over these laws and have the federal courts rule on them, rather than simply throw the suits out of court because the 2A doesn't apply.

No law in California will automatically be void if (WHEN) we get incorporation - we'll simply get the tool we need to challenge state gun laws in federal court. Right now you can't (successfully at least), because the states are not currently required to abide by the 2A.


Excellent. Thanks for boiling that down for me. The esteemed Mr. Hoffman appears quite confident, so I say steady as she goes.

After the Christmas and other financial bleeding stops (I've taken quite a skewering in the last thirty days, I can tell you) I really should pump some bread into the Calguns fund.

hoffmang
12-24-2009, 11:33 AM
I'd probably faint dead away if she voted to overturn the century plus old, overtly racist, precedents that "gun control" is built upon.

I realize this is a long shot, but she may want to continue the current administration's avoidance tactic and "prove" that her appointment wasn't anti-gun. She's going to lose if she wants to keep the 2A from being incorporated, so voting for incorporation (and even saying separately that she doesn't like the 2A or something) costs her little and may help they guy who appointed her politically.

It's a long shot, but stranger things have happened.

-Gene

USAFTS
12-24-2009, 12:42 PM
I agree a shirt riding up and exposing a firearm isn't brandishing, however, remember how courts can interpret the laws. It should not be an issue even in states like FL and TX, which do not allow open carry period, but I wouldn't put it past a NJ or MD (after they've been forced by McDonald or other case to issue permits) to try any means necessary to try to scare people into NOT trying for a permit. Contrary to all the crime stats as well as the successfull shall-issue wave across the country, these states are stuck in 1960's gun control mentality and won't change overnight. There's also the catch-all "disturbing the peace" used against OCers, which can be used by anti-gun states to dissuade people from carrying.

True. I imagine brandishing laws may vary from stste to state but I pretty sure here in CA the weapon must be:

1. Drawn or exhibited in the immediate presence of someone else;
2. Drawn or exhibited in a rude, angry, or threatening manner;
OR
2. Unlawfully used in a fight or quarrel;

AND
3. Used (in self-defense/[or] in defense of someone else).

As far as "Disturbing the peace"... I am pretty sure the LEO can and has used that as PC for arrest but unless he proves the above, it seems to me that the door will be open for a lawsuit against the LEO/LEA.

Ideas?

GaryV
12-24-2009, 12:54 PM
Brandishing isn't the law you'd have to worry about if you accidentally expose your weapon. If CC is legal but OC is not, what you're most likely to be charged with is illegal OC.

GrizzlyGuy
12-24-2009, 2:39 PM
^^^ This ^^^

I'd probably faint dead away if she voted to overturn the century plus old, overtly racist, precedents that "gun control" is built upon.

I'll bet you a box of .22 LR that Sotomayor is in the majority, in favor of overturning Cruikshank, Presser and Miller (and maybe the Slaughter-House cases), and incorporating 2A via 14A P or I.

There will be no way for us to know her motivation either way, but I think she'll do it on principle and not because of politics. Her past 2A ruling is N/A in my mind, because she wasn't on SCOTUS and was bound by their precedents (including all those cases that need to be be overturned). P or I incorporation wasn't available to her and she may have thought due process incorporation to be inappropriate or messy.

Now that she is on the court that gets to break old rules and make new ones (an attribute especially alluring to a progressive like her), she will be on the winning side and on the right side of history.

2009_gunner
12-24-2009, 10:00 PM
I'll bet an imaginary box of .22lr that she votes against allowing Chicago residents to have handguns. I think she's using the incorporation argument as a copout in this video, and truly wants to disarm all citizens.

http://www.youtube.com/watch?v=vipMCbUk1A4

GrizzlyGuy
12-27-2009, 6:06 PM
I'll bet an imaginary box of .22lr that she votes against allowing Chicago residents to have handguns. I think she's using the incorporation argument as a copout in this video, and truly wants to disarm all citizens.

How about we bet a $50 CGF donation instead of real or imaginary boxes of .22LR? I've got 4000+ rounds of non-imaginary 22 LR on hand anyway, so we might as well do something useful and real with our money. :)

Window_Seat
12-27-2009, 8:10 PM
Can anyone of them vote to OT Cruikshank, Presser and Miller (and maybe the Slaughter-House cases), but vote to not incorporate?

My $100.00 says that Gene is right, and we win. :cool:

Erik.

hoffmang
12-27-2009, 9:44 PM
Can anyone of them vote to OT Cruikshank, Presser and Miller (and maybe the Slaughter-House cases), but vote to not incorporate?


SCOTUS can only overturn a case that is germane to the decision so no.

-Gene