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View Full Version : Made a bet last night re: the roster and discretionary issue CCW


Maestro Pistolero
12-29-2009, 10:24 AM
I bet an expensive dinner for four at our favorite restaurant that the 'roster' and discretionary issue will be gone in less than five years.

The person whom I bet actually hopes to lose, but is very doubtful. He's a retired Police Lt from San Diego, who just sold a thriving gun and duty gear shop to retire here in Nevada. Am I going to get my dinner?

bulgron
12-29-2009, 10:28 AM
I bet an expensive dinner for four at our favorite restaurant that the 'roster' and discretionary issue will be gone in less than five years.

The person whom I bet actually hopes to lose, but is very doubtful. He's a retired Police Lt from San Diego, who just sold a thriving gun and duty gear shop to retire here in Nevada. Am I going to get my dinner?

Yes.

Bon Appetit!

:D

mtptwo
12-29-2009, 10:41 AM
Five years? It should be much shorter than that. I would have gone for two years.

loather
12-29-2009, 10:51 AM
With all the legal battles coming down the pipe, I'd say this is a shoe-in. Once incorporation hits, it's game on.

spddrcr
12-29-2009, 11:33 PM
has hollywood taught you guys nothing? we will all be dead in 2012!!!!:eek::TFH:

hoffmang
12-29-2009, 11:52 PM
You'll be eating well. I suggest ordering a bottle of Chateau Montelena to go with the crow you'll be serving your pal.

-Gene

nicki
12-30-2009, 2:51 AM
You did give your friend odds, right?:43:

Nicki

bulgron
12-30-2009, 7:43 AM
Five years? It should be much shorter than that. I would have gone for two years.

Two years seems too aggressive to me. It seems like it'll be closer to three. My crystal ball looks like this:

1. Incorporation, summer 2010.
2. Initial Sykes answer from the circuit judge, Fall, 2010.
3. Response to appeal to 9th circuit, (3 judge panel), Fall 2011
4. Response to appeal to en-banc 9th circuit, Fall 2012
5. Response to SCOTUS appeal, Summer 2013.

Also, I predict we win 1, 2 and 5, but lose 3. If we lose 3, then 4 doesn't happen and the timeline pulls back to 2012, unless the 9th pulls a Nordyke on us. In any case, Sykes should be settled 2.5 - 3.5 years from now.

Note that I'm assuming the other side fights as hard as possible, and both the other side and the court drags their feet on these cases.

Others with a clearer crystal ball than mine might have a more accurate prediction than me.

ocspeedracer
12-30-2009, 8:02 AM
Let's hope!

cadurand
12-30-2009, 8:29 AM
I bet an expensive dinner for four at our favorite restaurant that the 'roster' and discretionary issue will be gone in less than five years.

The person whom I bet actually hopes to lose, but is very doubtful. He's a retired Police Lt from San Diego, who just sold a thriving gun and duty gear shop to retire here in Nevada. Am I going to get my dinner?How long, if ever, did your cop friend think shall-issue CCW would take?

Crazed_SS
12-30-2009, 8:34 AM
I bet an expensive dinner for four at our favorite restaurant that the 'roster' and discretionary issue will be gone in less than five years.

The person whom I bet actually hopes to lose, but is very doubtful. He's a retired Police Lt from San Diego, who just sold a thriving gun and duty gear shop to retire here in Nevada. Am I going to get my dinner?

My sources say no /8 Ball

ilbob
12-30-2009, 9:31 AM
I bet an expensive dinner for four at our favorite restaurant that the 'roster' and discretionary issue will be gone in less than five years.

The person whom I bet actually hopes to lose, but is very doubtful. He's a retired Police Lt from San Diego, who just sold a thriving gun and duty gear shop to retire here in Nevada. Am I going to get my dinner?

I would say you have a chance at it within that time frame. I also think that even with good court rulings there is still a good chance that shall issue could be held up for a long time, or even thwarted.

gn3hz3ku1*
12-30-2009, 9:48 AM
You'll be eating well. I suggest ordering a bottle of Chateau Montelena to go with the crow you'll be serving your pal.

-Gene

i sure hope you're right.. however gene... you haven't been wrong yet!! woooo hoooooo

ccw here i come!

Maestro Pistolero
12-30-2009, 9:56 AM
How long, if ever, did your cop friend think shall-issue CCW would take?

Regarding roster and shall issue, his prediction was never.

gn3hz3ku1*
12-30-2009, 9:57 AM
Regarding roster and shall issue, his prediction was never.

people used to say never to Ar15 too... thank god they were wrong and thank god for bill and gene and the calguns gang

CAL.BAR
12-30-2009, 10:15 AM
I too wish you the best, but legally I don't see how. At present there are absolutely NO state or federal cases which even remotely indicate that 2A mandates shall issue for CCW. Incorporation only allows for fed laws to apply to the states, but there is NO fed law which advocates mandatory CCW.

The CA "safety" list I think we have some traction on only b/c the fools in WA DC used the CA list and it got shot down. However, CCW is another thing entirely. I think if you had stopped short at the CA safety list you'd have won, but adding mandatory CCW issuance makes your bet a loser.

I am still waiting for any (other) legal scholar to explain to me the argument which strings together state or federal law which would make a wining argument for shall issue for CCW. It's just not in the cards.

Maestro Pistolero
12-30-2009, 10:31 AM
I too wish you the best, but legally I don't see how. At present there are absolutely NO state or federal cases which even remotely indicate that 2A mandates shall issue for CCW. Incorporation only allows for fed laws to apply to the states, but there is NO fed law which advocates mandatory CCW.

*Except perhaps the Second Amendment itself. While it may not specifically refer to concealed carry, 'bear' does mean carry, according to the the SCOTUS. And if there's one thing an anti-gunner can tolerate less than the knowledge that citizens are carrying weapons, it's to actually have to SEE one. Today, social norms and actual practice dictates the most 'bearing' must be done concealed. That means a license in most states. Once 2A is restored and fully applied to the states, whatever the legal mechanism, the states will face a choice of whether to allow concealed carry, open loaded carry, or both.

The CA "safety" list I think we have some traction on only b/c the fools in WA DC used the CA list and it got shot down. However, CCW is another thing entirely. I think if you had stopped short at the CA safety list you'd have won, but adding mandatory CCW issuance makes your bet a loser.


The phrase I used was "discretionary issue will be gone". That's approximately the language being used in the case that is being pursued. A small but legally significant distinction.

The "safety" list cannot possibly include all the weapons protected by the Second Amendment. In fact, the only gun in our history that is specifically named as being protected, Dick Heller's revolver, cannot make the list under the current criteria. Additionally, the Heller case specifically excluded from bans any weapon "in common use for lawful purposes such as self defense" (my paraphrasing). The demise of the "Safe Roster" only awaits application of the Second Amendment to the state via one or both clauses of the Fourteenth Amendment, and a properly executed lawsuit against the state of California.

I am still waiting for any (other) legal scholar to explain to me the argument which strings together state or federal law which would make a wining argument for shall issue for CCW. It's just not in the cards.

*See Above. Perhaps you would like to buy my dinner on a subsequent evening? :D

wildhawker
12-30-2009, 11:19 AM
I too wish you the best, but legally I don't see how. At present there are absolutely NO state or federal cases which even remotely indicate that 2A mandates shall issue for CCW. Incorporation only allows for fed laws to apply to the states, but there is NO fed law which advocates mandatory CCW.

The CA "safety" list I think we have some traction on only b/c the fools in WA DC used the CA list and it got shot down. However, CCW is another thing entirely. I think if you had stopped short at the CA safety list you'd have won, but adding mandatory CCW issuance makes your bet a loser.

I am still waiting for any (other) legal scholar to explain to me the argument which strings together state or federal law which would make a wining argument for shall issue for CCW. It's just not in the cards.

If my memory serves me I believe you have consistently been skeptical of the efforts underway to remove the discretionary "good cause" requirement for carry permits.

You asked for an explanation as to the legal basis for such an outcome, and I'll offer these in return.

Sykes
1. Motion for Summary Judgment (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/018-1%20MSJ.pdf)
2. Memorandum of Points and Authorities in support of the MSJ (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/019-Sykes-v-McGinness-MSJ-P+A-2009-08-6.pdf)
3. Statement of Undisputed Facts (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/020%20SUF.pdf)
4. Exhibit A (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/018-2%20EX-A.pdf) - Sacramento County Carry Policy
5. Exhibit B (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/018-3%20EX-B.pdf) - Yolo County Carry Policy
6. Exhibit C (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/018-4%20EX-C.pdf) - American Student's Blackstone
7. Exhibit D (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/018-5%20EX-D.pdf) - RKBA initiative analysis 2001
8. Exhibit E (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/018-6%20EX-E.pdf) - RKBA initiative analysis 1999
9. Decl. of Sykes (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/021%20DECL%20-%20SYKES.pdf)
10. Decl. of Witham (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/024%20DECL%20-%20WITHAM.pdf)
11. Decl. of Richards (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/023%20DECL%20-%20RICHARDS.pdf)
12. Decl. of Gottlieb (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/025%20DECL%20-%20GOTTLIEB.pdf)
13. Decl. of Hoffman (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/022%20DECL%20-%20HOFFMAN.pdf)

Palmer:
1 Main Document (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.0.pdf) 1 page
2 Memorandum in Support (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.1.pdf) 22 pages
3 Text of Proposed Order (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.2.pdf) 2 pages
4 Statement of Facts (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.3.pdf) 7 pages
5 Declaration of Tom G. Palmer (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.4.pdf) 2 pages
6 Declaration of George Lyon (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.5.pdf) 2 pages
7 Declaration of Edward Raymond (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.6.pdf) 2 pages
8 Declaration of Amy McVey (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.7.pdf) 2 pages
9 Declaration of Alan Gottlieb (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.8.pdf) 2 pages
10 Exhibit A (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.9.pdf) 3 pages
11 Exhibit B (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.10.pdf) 2 pages
12 Exhibit C (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.11.pdf) 3 pages
13 Exhibit D (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.12.pdf) 6 pages

I suggest you read each of the respective Memorandums in Support to commence your review.

curtisfong
12-30-2009, 11:54 AM
I am still waiting for any (other) legal scholar to explain to me the argument which strings together state or federal law which would make a wining argument for shall issue for CCW. It's just not in the cards.

Incorporation means "bear". "Bear" means LOC or CCW. CA gets a choice. LOC or CCW. Guess which one it will chose?

wildhawker
12-30-2009, 12:08 PM
Incorporation means "bear". "Bear" means LOC or CCW. CA gets a choice. LOC or CCW. Guess which one it will chose?

Incorporation does not equal "Bear", but it does allow 2nd Amendment challenges to continue (see above). Keep in mind that Palmer was filed in the D.C. district court.

snobord99
12-30-2009, 2:53 PM
"Bear" means LOC or CCW.

Can you please point to the case that supports this proposition? I'm not that schooled on constitutional law (not my area of interest), but I'd love to see which case, or set of cases, supports this proposition. In other words, what case(s) say that "bear" must mean LOC or CCW and that UOC is insufficient?

IrishPirate
12-30-2009, 2:55 PM
Am I going to get my dinner?

i sure as hell hope so!!!

wildhawker
12-30-2009, 2:57 PM
Sno, Heller did not protect the right to paperweights. Either LOC or CCW, as the States may legislate.

hoffmang
12-30-2009, 3:01 PM
I too wish you the best, but legally I don't see how. At present there are absolutely NO state or federal cases which even remotely indicate that 2A mandates shall issue for CCW.

You couldn't be further from the truth. There are quite a few State Supreme Court cases that say that if one mode of carry is banned, the other must be generally available:

Andrews v. State, 50 Tenn. 165 (1871)
Aymette v. State, 21 Tenn. 154 (1840)
City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971)
In re Application of McIntyre, 552 A.2d 500 (Del. Super. 1988)
In re Brickey, 70 P. 609 (Idaho 1902)
Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990)
Nunn v. State, 1 Ga. 243 (1846)
State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988)
State v. Kerner, 107 S.E. 222 (N.C. 1921)
State v. Rosenthal, 55 A. 610 (Vt. 1903)
State v. Chandler, 5La. Ann. 489 (1850)
State v. Reid, 1 Ala. 612, 616-17 (1840)

Both Sykes and Palmer are going to clarify that. Sykes is on hold due to McDonald, but Palmer needs no incorporation and will be heard January 22, 2010 in D.C..

-Gene

IrishPirate
12-30-2009, 3:03 PM
In other words, what case(s) say that "bear" must mean LOC or CCW and that UOC is insufficient?

not sure of the cases, but from a layman's perspective "bear" would only make sense if it refered to a loaded gun. You're not bearing something if it can't do what it's intended to do in that state. an unloaded gun can't do anything but be a club, so you're not bearing arms, you're bearing a club. This is pretty much the point that pro 2A lawyers are trying to make. a gun is useless if it's not ready to be used, and if we have to right to keep and bear arms, they should, as common sense suggests, be loaded.

personally i think that we need to find a way to work closer with anti gun agencies and help them get gun toting criminals off the streets. If the directors of the NRA, CGF, and other pro 2A organizations could sit down with the people in charge of the Brady campaign and other anti movements and explain to them the we have the same mission....get the guns out of the hands of criminals and keep law abiding citizens safe...they might be more willing to listen to us when it comes to making laws. of course, i'm sure it's not US that's holding up that meeting!!!!!

hoffmang
12-30-2009, 3:04 PM
In other words, what case(s) say that "bear" must mean LOC or CCW and that UOC is insufficient?

Quite a few of the state supreme court cases I cite above (and which were cited in Heller itself) make clear that there is a difference between a firearm that is ready to use in self defense and one that is not. Remember also that the right in Heller is to carry functional firearms in the home. That the right is not solely restricted to the home is up next. It wasn't an issue in Heller, though carrying a loaded firearm in the home was.

-Gene

yellowfin
12-30-2009, 3:23 PM
Palmer is at what point on the ladder, Gene? Can its decision be considered binding federal law short of SCOTUS?

snobord99
12-30-2009, 3:28 PM
Palmer is at what point on the ladder, Gene? Can its decision be considered binding federal law short of SCOTUS?

I'm not Gene, but I can tell you no, it won't be binding. It may, however, be a good place to look for persuasion.

hoffmang
12-30-2009, 3:37 PM
I'm not Gene, but I can tell you no, it won't be binding. It may, however, be a good place to look for persuasion.

Palmer is in the DC Federal District Court.

It will not be very persuasive until it is appealed to the Federal District Court of Appeals and decided either way. The nice thing about DC is that if we lose, we'll appeal to SCOTUS, and if we win, I'm confident DC is dumb enough to appeal. I have good confidence that SCOTUS will take a carry case from Gura.

The best thing about Palmer is that it is a vehicle to put the 9th Circuit on the spot about creating a circuit split. We may previal on Sykes in the 9th Circuit Court of Appeals because the 9th doesn't want to create a split.

-Gene

snobord99
12-30-2009, 3:42 PM
It will not be very persuasive until it is appealed to the Federal District Court of Appeals and decided either way.

-Gene

"Good" not "great." ;)

I only say good since I don't know of many, if any, cases that deal with this as a federal question. If it is a case of first impression, the opinion by the district court could still prove useful to draw from and a good argument on what federal law supports.

GuyW
12-30-2009, 3:48 PM
Can you please point to the case that supports this proposition? I'm not that schooled on constitutional law (not my area of interest), but I'd love to see which case, or set of cases, supports this proposition. In other words, what case(s) say that "bear" must mean LOC or CCW and that UOC is insufficient?

See attachment

.

BigJim_610
12-30-2009, 3:56 PM
How long, if ever, did your cop friend think shall-issue CCW would take?

And I am 54, sorry but nothing has changed and dumb laws keep getting dumber

snobord99
12-30-2009, 3:59 PM
See attachment

.

Hmm. So you read "bear means LOC or CCW and UOC is insufficient" into that sentence huh? Interesting.

GuyW
12-30-2009, 4:03 PM
Hmm. So you read "bear means LOC or CCW and UOC is insufficient" into that sentence huh? Interesting.

As EVERY UOC opponent has said, what good is an unloaded gun in a confrontation??

.

snobord99
12-30-2009, 4:15 PM
As EVERY UOC opponent has said, what good is an unloaded gun in a confrontation??

.

Which is fair and which I have nothing against. But even then, "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation" by itself could hardly be read to mean "bear means LOC or CCW and UOC is insufficient." Cite that in conjunction with somewhere that says unloaded gun = non-functional, then yes, that would be a proper assertion.

If you want to be a smart *** with a cite, at least be smart about it and cite correctly.

monaghan
12-30-2009, 4:21 PM
Can someone please recap what INCORPORATION means in relationship to CCW. I am lost. Thanks.

2009_gunner
12-30-2009, 4:34 PM
Can someone please recap what INCORPORATION means in relationship to CCW. I am lost. Thanks.

My layman's take:

When a state is forced to comply with one of the 10 Bill of Rights, that right is "incorporated" in the state. That is all that "incorporation" means - forcing a state to recognize a basic right (could be free speech or any other of the 10). Currently, California is not required to acknowledge or respect the 2nd Amendment.

There are 2 parts to the 2nd Amendment. (1) The right to keep arms, and (2) the right to bear arms (CCW or LOC)

Once the 2nd Amendment is incorporated in the McDonald v Chicago case, we will have the same rights in California (or maybe Nordyke will need to be completed first?).

In any case, Californians will get the 2nd Amendment incorporated and then we can sue for our right to bear arms (CCW or LOC) through the Sykes v McGinness lawsuit.

snobord99
12-30-2009, 4:39 PM
Can someone please recap what INCORPORATION means in relationship to CCW. I am lost. Thanks.

I'll give this a shot.

Currently, the Second Amendment is not incorporated to the states. What this means is that the states could treat it as if it didn't exist, at least on a state level. CA, for a large part, is doing that. CA's CCW laws basically says that the sheriff of the county gets to decide who they want to give a permit to. It doesn't look like the state's in any rush to change this practice.

Assuming that the federal government says the Second Amendment means that you have the right to a CCW, it would mean nothing to CA if the Second Amendment isn't incorporated since the state wouldn't be bound to follow the Second since, as I mentioned, it essentially doesn't exist to the state. If incorporated, then the state has to provide the minimum liberty guaranteed by the Second which, in the case of a CCW, would presumably be to give everyone a CCW who wants it and is not otherwise disqualified.

pullnshoot25
12-30-2009, 5:09 PM
You'll be eating well. I suggest ordering a bottle of Chateau Montelena to go with the crow you'll be serving your pal.

-Gene

^THIS IS FULL OF WIN.

It will happen, rest assured.

GuyW
12-30-2009, 6:49 PM
If you want to be a smart *** with a cite, at least be smart about it and cite correctly.

Ha ha! Actually I stole that attachment....it was marked up by RomanDad, one of your fellow attorneys...

.

snobord99
12-30-2009, 7:31 PM
Ha ha! Actually I stole that attachment....it was marked up by RomanDad, one of your fellow attorneys...

.

LOL. Then what I said applies to him/her as well. ;)

yellowfin
12-30-2009, 9:20 PM
Want a legal opinion that says UOC is insufficient? Read the Heller case. Guns have to be functional for their purpose, and loaded is definitely part of that. Once incorporation is achieved, another key component of functionality for the core purpose of self defense is for it to be where you are when you need it. If disassembled and locked isn't good, then left at home isn't either.

wildhawker
12-30-2009, 9:48 PM
I'm sure you have the best of intentions at the core of these comments but this approach is politically naive at best.

The anti-gun philosophy has little to do with crime or safety; frankly, neither does mine. I advocate for the liberty to affect our own outcomes and defend our families, friends and selves from those who would do harm to the same.

The future of the Republic is not something to negotiate over. Let them cast their lot, as we will do also.


personally i think that we need to find a way to work closer with anti gun agencies and help them get gun toting criminals off the streets. If the directors of the NRA, CGF, and other pro 2A organizations could sit down with the people in charge of the Brady campaign and other anti movements and explain to them the we have the same mission....get the guns out of the hands of criminals and keep law abiding citizens safe...they might be more willing to listen to us when it comes to making laws. of course, i'm sure it's not US that's holding up that meeting!!!!!

hoffmang
12-30-2009, 9:56 PM
Hmm. So you read "bear means LOC or CCW and UOC is insufficient" into that sentence huh? Interesting.

Heller cites Andrews v. State (http://www.guncite.com/court/state/50tn165.html), 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871). That case includes the following:


The keeping of arms is protected, but that right is not infringed by this law. The citizen may keep arms in his house, may carry them about his own premises, may buy and carry them home, may take them to have them repaired. This is not carrying them in the sense of the statute. Of a porter carrying a box of pistols in his wheelbarrow or on his shoulder, we would not say he carries arms; of a man carrying the separated parts of a pistol in a basket or bundle, we would not say he carries a pistol. The statute is to have a reasonable construction. "Carry arms" is a military command. To carry arms, or to bear arms, is something different from merely supporting the weight, or removing from place to place.

and

In a word, as we have said, the statute amounts to a prohibition to keep and use such weapon [a revolver] for any and all purposes. It therefore, in this respect, violates the constitutional right to keep arms, and the incidental right to use them in the ordinary mode of using such arms and is inoperative.
Carrying an unloaded firearm is not the "ordinary mode of using such arms" and is "merely supporting the weight, or removing from place to place."

-Gene

snobord99
12-30-2009, 10:17 PM
Heller cites Andrews v. State (http://www.guncite.com/court/state/50tn165.html), 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871). That case includes the following:

and

Carrying an unloaded firearm is not the "ordinary mode of using such arms" and is "merely supporting the weight, or removing from place to place."

-Gene

Oh, no. That comment you quoted was meant strictly for the cite (s)he posted. I'm not saying I think that cases establish that unloaded could be considered functional. I'm just saying that the quote picked didn't say that.

hoffmang
12-30-2009, 11:13 PM
Oh, no. That comment you quoted was meant strictly for the cite (s)he posted. I'm not saying I think that cases establish that unloaded could be considered functional. I'm just saying that the quote picked didn't say that.

Cool. I just want to make sure folks understand that there is a lot of jurisprudence at a persuasive level that states that the right to carry can be regulated in ways the right to keep may not, but that the right to carry requires a functional right to carry in some manner. I don't think I have to state that California has no functional right to carry.

-Gene

GuyW
01-15-2010, 2:36 PM
Which is fair and which I have nothing against. But even then, "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation" by itself could hardly be read to mean "bear means LOC or CCW and UOC is insufficient." Cite that in conjunction with somewhere that says unloaded gun = non-functional, then yes, that would be a proper assertion.

If you want to be a smart *** with a cite, at least be smart about it and cite correctly.

....cut to SD federal court case where the Judge accepts all of this....

Maestro Pistolero
01-16-2010, 12:04 AM
Is it really possible that the court will apply the 2nd to the states by whatever path, P or I, or DP, yet avoid completely the question of whether bear means a right to carry outside of the home, for anyone not prohibited? How many times are they going to be willing to peck away at this issue before drawing the bright line?

wildhawker
01-16-2010, 12:22 AM
Is it really possible that the court will apply the 2nd to the states by whatever path, P or I, or DP, yet avoid completely the question of whether bear means a right to carry outside of the home, for anyone not prohibited? How many times are they going to be willing to peck away at this issue before drawing the bright line?

"Bear" is not a question before the court. While "bear" may be discussed in dicta in McDonald, we'll have to wait for Palmer/Sykes.

Full Clip
01-16-2010, 12:33 AM
Incorporation means "bear". "Bear" means LOC or CCW. CA gets a choice. LOC or CCW. Guess which one it will chose?

I'll guess CCW, so the Libs in this state don't have the "bear" seeing evil firearms on occasion.

hoffmang
01-16-2010, 12:52 AM
Is it really possible that the court will apply the 2nd to the states by whatever path, P or I, or DP, yet avoid completely the question of whether bear means a right to carry outside of the home, for anyone not prohibited? How many times are they going to be willing to peck away at this issue before drawing the bright line?

It is not only possible, it is almost guaranteed. The Supreme Court does not address many issues that are not in front of it. Bear/carry is not an issue in McDonald.

You persist in thinking something different will happen absent any evidence for that wish.

-Gene

Maestro Pistolero
01-16-2010, 1:51 AM
You persist in thinking something different will happen absent any evidence for that wish.

I persist?

Gray Peterson
01-16-2010, 7:01 AM
What's interesting here is I made a similar bet. I gave him the lowdown on the Peruta case, and he basically said "California can tell the federal government to F-off" and "California will secede from the union before it lets it's people carry". I pretty much told him that last time a state did that, we burned the state of South Carolina in a wide swath on the way to Atlanta.

hoffmang
01-16-2010, 10:18 AM
I persist?

Yes. For at least a year you've taken the position that a McDonald supreme court decision was going to lay out scrutiny for Carry. It is highly unlikely not to.

-Gene

Maestro Pistolero
01-16-2010, 10:36 AM
Quote:
You persist in thinking something different will happen absent any evidence for that wish.
I persist?

I understand the court will only rule on the issue before it. I am not suggesting that any bread crumbs that are laid with regard to scrutiny would not be confined to dicta. But the court is well aware of the questions, confusion, and controversy that incorporation will raise. In the same way that Scalia offered guidance in Heller that was well beyond the scope of the case, this court, in my opinion, will offer some glimmer of the future in dicta.

To that extent, I guess I do persist.

7x57
01-16-2010, 11:36 AM
It is highly unlikely not to.


Double negatives aren't not tricky to get right. :D

7x57

7x57
01-16-2010, 11:39 AM
I pretty much told him that last time a state did that, we burned the state of South Carolina in a wide swath on the way to Atlanta.

I think a modern March To The Sea is not an outcome of any of the possible endgames. However, if I'm wrong, It would be my pleasure to submit a detailed march route. While the details are a state secret, I can assure you that it passes through Sacramento. Twice. :43:

7x57, who has a little list

snobord99
01-16-2010, 12:24 PM
I understand the court will only rule on the issue before it. I am not suggesting that any bread crumbs that are laid with regard to scrutiny would not be confined to dicta. But the court is well aware of the questions, confusion, and controversy that incorporation will raise. In the same way that Scalia offered guidance in Heller that was well beyond the scope of the case, this court, in my opinion, will offer some glimmer of the future in dicta.

To that extent, I guess I do persist.

The problem seems to be that you can't seem to separate the issues. A lot of people here are talking like they think McDonald is a 2nd Amendment issue that happens to involve the 14th. It's not. It's a 14th Amendment issue that happens to involve the 2nd. There is close to zero reason for them to talk about what the 2nd means because, at the end of the day, the issue is what the 14th means.

wildhawker
01-16-2010, 12:34 PM
The problem seems to be that you can't seem to separate the issues. A lot of people here are talking like they think McDonald is a 2nd Amendment issue that happens to involve the 14th. It's not. It's a 14th Amendment issue that happens to involve the 2nd. There is close to zero reason for them to talk about what the 2nd means because, at the end of the day, the issue is what the 14th means.

Thank you for posting this summary; I suggest anyone confused as to the nature of McDonald read this, then read it again.

2A will be incorporated as against the states one way or another, and that's about the extent to which it will be addressed in this case (Heller was the real 2A case).

The real question is *how*, and if this Court will elect to overturn SH et al and revive PoI.

7x57
01-16-2010, 1:21 PM
A lot of people here are talking like they think McDonald is a 2nd Amendment issue that happens to involve the 14th. It's not. It's a 14th Amendment issue that happens to involve the 2nd.

That is not simply accurate, but masterful enough to be a model of concision. When I achieve precision, it is rarely accompanied by brevity.

7x57

Maestro Pistolero
01-16-2010, 1:55 PM
What's with all the personalization? "you persist", "you can't seem to separate the issues." WTF?

I separate the issues as well as most. Because I discuss one aspect does not make me oblivious to the rest.

It's about whether the 14th applies the 2nd to the states, through either, or both clauses. The case requires defining anew, and possibly restoring of the 14th which was eviscerated in Slaughterhouse It therefore has much broader implications than a purely 2A question. (right to a Grand Jury, etc., etc,) And it has the potential to up-end the selective incorporation doctrine that became the work-around since Slaughterhouse.

Speaking of separating issues, this thread has ventured off topic, and for my part, I followed along.

hoffmang
01-16-2010, 2:06 PM
What's with all the personalization? "you persist", "you can't seem to separate the issues." WTF?

I separate the issues as well as most. Because I discuss one aspect does not make me oblivious to the rest.


I have to doubly apologize. I confused you with a similar screen name and I was wrong. Either way I didn't mean to personalize beyond thinking I'd had the same interchange with you when I had confused you with someone who has a similar screen name.

My bad.

-Gene

Maestro Pistolero
01-16-2010, 2:11 PM
Apology graciously accepted. Thanks for all you do.

radioman
01-16-2010, 9:24 PM
ccw would be full faith and credit of the 14th, which is why we can drive state to state, perhaps the feds should be the ones to give ccw permits.

Maestro Pistolero
01-16-2010, 10:15 PM
ccw would be full faith and credit of the 14th, which is why we can drive state to state,
One would think so, but actually the states merely agreed to honor out of state drivers licences, the full faith and credit clause never had to be deployed for drivers licenses. Full faith and credit may indeed offer legal protection for interstate driving, but in this case, the states actually played nice with each other.
perhaps the feds should be the ones to give ccw permits.This has been discussed a lot. The consensus that CCW rights will be much stronger if constructed at the individual state level. If only the feds grant them, then it only takes a shift at the federal level to take them all away. Think of the strength of a web of rope versus a single piece of rope.

RomanDad
01-17-2010, 5:18 PM
My ears are ringing....

Roadrunner
01-17-2010, 5:32 PM
I really want to get in on this because the questions keep flying through my head about this everytime I read something about CCW. For instance, lets say for a moment that incorporation occurs, and strict scrutiny is applied to the second amendment. Let's also consider that the courts say no guns for violent bad guys. Let's also consider that background checks are considered constitutional. Is it possible, that requiring a person to purchase a permit to exercise their right is unconstitutional and the fee gets scrapped? In other words, the permit remains as a matter of authorities knowing that a person is not a prohibited person, but the fee gets scrapped because it's unconstitutional to require a person to spend money to exercise their constitutionally protected right?

hoffmang
01-17-2010, 9:03 PM
Is it possible, that requiring a person to purchase a permit to exercise their right is unconstitutional and the fee gets scrapped?

The National Mall requires permits to assemble: http://www.nps.gov/nama/planyourvisit/permits.htm

Congress shall make no law respecting ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Permits done correctly are actually pretty common for the exercise of constitutional rights.

-Gene

Roadrunner
01-17-2010, 9:57 PM
The National Mall requires permits to assemble: http://www.nps.gov/nama/planyourvisit/permits.htm



Permits done correctly are actually pretty common for the exercise of constitutional rights.

-Gene

So, then, we will assume that permits are valid, but will it be unconstitutional to charge a fee? And if a fee is valid, is there any way of knowing what's considered reasonable?

cbn620
01-17-2010, 10:23 PM
And I am 54, sorry but nothing has changed and dumb laws keep getting dumber

No offense my good man, but I'm a 20-something and boy howdy has a lot changed in my tiny lifetime. When I was in kindergarten I had a family member who owned a gun shop where some pretty hefty gear was sold legally. By the time I was in late grade school most of that stuff was non-existent in shops, and then as soon as a couple of years ago it started showing up again with the OLL movement.

In my county, as a little kid I imagine CCWs were at least as prevalent as they are now if not more so. There was a period, again, up until a few years ago, though, where they were not. With a new sheriff who has been influenced by this new wave of opinion on gun control, with a pinch of that old time respect for the 2A, comes almost shall issue CCW permits in my county from what I understand. Margaret Mims has said she will issue here for self defense as "good cause," which to me spells de facto shall issue.

I might be overly optimistic about the future, but what has occurred up to this point, much of which we have CGF to thank for, is well documented and understood. Whether that marks a positive trend for the future is not an objective fact, but is backed a logical and rationally cohesive argument. In other words, though it is not yet a done deal, it is by no means crazy talk to say we have some very good things to look forward to.

hoffmang
01-17-2010, 11:59 PM
So, then, we will assume that permits are valid, but will it be unconstitutional to charge a fee? And if a fee is valid, is there any way of knowing what's considered reasonable?

You'll note that, if you read the link, the assembly permit for the National mall is $50. The general rule is that the fee has to be pretty directly tied to the underlying costs of issuing the permit. I expect that over time we'll be able to limit the CCW fees to numbers that look like Utah or Florida. There are also going to have to be exceptions for those who can't afford the fees to get the license.

There have been cases challenging fees or costs for permits that truck into rights areas. For example, if the state can show that it takes e.g. 2 hours to process then they can probably charge $20 or something ex hard costs.

-Gene

wildhawker
01-18-2010, 12:42 AM
I'm less concerned with what we'll see for the permit fee, itself, than the regional differences for any training or other requirements.

If, say, a full 16 hours of training, range qualification, background and psych eval are required by Sheriff Munks (picking on him here), and if the permit fees are waived for households with AGI of <$45,000 annually (for example) it would seem the State must create a program by which to compensate local issuing agencies for costs incurred by low-income applicants. With the many flavors of permit processes throughout CA, I can see this being an interesting mess to sort (sue?) through.

However, some departments might find a "turnkey" approach to permitting in their county to be a revenue generator- this might create some competition among PDs/Sheriffs for applicants. In Alameda County, for example, even 1% of its population of ~1.5MM @ approx. $400/permit = $6MM initially and $3MM/2 years for renewals.

All this said, I think it's reasonable to expect CA DOJ to take over permits within 2 legislative cycles from a Sykes win at CA9.

You'll note that, if you read the link, the assembly permit for the National mall is $50. The general rule is that the fee has to be pretty directly tied to the underlying costs of issuing the permit. I expect that over time we'll be able to limit the CCW fees to numbers that look like Utah or Florida. There are also going to have to be exceptions for those who can't afford the fees to get the license.

There have been cases challenging fees or costs for permits that truck into rights areas. For example, if the state can show that it takes e.g. 2 hours to process then they can probably charge $20 or something ex hard costs.

-Gene

okimreloaded
01-18-2010, 12:57 AM
My layman's take:

When a state is forced to comply with one of the 10 Bill of Rights, that right is "incorporated" in the state. That is all that "incorporation" means - forcing a state to recognize a basic right (could be free speech or any other of the 10). Currently, California is not required to acknowledge or respect the 2nd Amendment.

There are 2 parts to the 2nd Amendment. (1) The right to keep arms, and (2) the right to bear arms (CCW or LOC)

Once the 2nd Amendment is incorporated in the McDonald v Chicago case, we will have the same rights in California (or maybe Nordyke will need to be completed first?).

In any case, Californians will get the 2nd Amendment incorporated and then we can sue for our right to bear arms (CCW or LOC) through the Sykes v McGinness lawsuit.


the reason these aren't already automatically incorporated I believe is because of a racist ruling known as cruikshank. The case about incorporation is asking that the supreme court overturn cruikshank and reinstate automatic incorporation. This has resulted in liberal types getting involved and supporting it.

artherd
01-18-2010, 3:46 AM
I hope you are hungry - you will eat well.