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hoffmang
01-14-2010, 7:14 PM
AB 1363 ended a post incorporation ability to loaded open carry with a carry permit in California. Apparently the driver was people who had LOC permits carrying openly in urban counties.


ARGUMENTS IN SUPPORT : According to the author's office,
"Section 12050 of the California Penal Code allows the
sheriff of the county or a chief of police to issue a
concealed weapons permit (also known as a CCW permit) to
applicants they deem acceptable according to prescriptions
by law. If approved, the applicant can carry a concealed
and loaded gun. This section also allows both sheriff's
and police chiefs in a county with a population of less
than 200,000 to allow an applicant to carry a loaded and
exposed weapon, but only in that county with a population
of less than 200,000.

"Some of these people that have been authorized to carry a
loaded and exposed weapon have been going to other
counties, with a population of over 200,000, with the
loaded and exposed weapon, which is a violation of their
CCW authorization. Currently in law, Section 12031 of the
California Penal Code, which is the law making it illegal
to carry a loaded firearm in public, provides for an
exception to an individual who has a CCW permit. However,
the exception does not appropriately address the two
different CCW authorizations. By making a simple language
change to the exception, Section 12031 will properly
address the two different CCW authorizations and provide a
penalty for individuals who abuse their CCW privileges."



It has come to my attention that AB1363 chaptered 10/11/2009 changes this.

Original text for 12031(b)(6)
The carrying of pistols, revolvers, or other firearms capable
of being concealed upon the person by persons who are
authorized to carry those weapons pursuant to Article 3
(commencing with Section 12050) of Chapter 1 of Title 2 of Part 4.

New text:
The carrying of handguns by persons as authorized pursuant to
Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of
Part 4.

Therefore a CCW is no longer an exemption to 12031.


When I had read the bill last year, I allowed the analysis to sway me from thinking through the impact of the textual changes. Before this change, any person who had in their possession a license to carry concealed under 12050 could carry open or concealed. Now they have to carry concealed.

Imprudent open carry has cost everyone the right to loaded open carry post incorporation. At least it was a loaded open carry in Southern California if I remember the correct LAPD incident that brought this legislation forward.

Post incorporation we'll have to wait a bit and go to a plan B we've had laying around to get rid of 12031 proper. 12031 (e) will remain in the crosshairs..

-Gene

Stargazer
01-14-2010, 7:21 PM
Gene, thank you for connecting the dots. I sincerely hope that this is the example the UOC community needs to realize it's better to wait until after incorporation.

wildhawker
01-14-2010, 7:25 PM
Gene, thank you for connecting the dots. I sincerely hope that this is the example the UOC community needs to realize it's better to wait until after incorporation.

At this point it's really moot wrt LOC. The risk from UOC is now limited to UOC being banned, which would impact those living within school zones.

hoffmang
01-14-2010, 7:32 PM
At this point it's really moot wrt LOC. The risk from UOC is now limited to UOC being banned, which would impact those living within school zones.

There is also a risk that the law will change to not allow someone to possess an unlocked unloaded firearm and the ammunition for it at the same time.

-Gene

nick
01-14-2010, 7:40 PM
Question. Does this change affect openly carrying a loaded handgun while hunting or fishing?

Liberty1
01-14-2010, 7:46 PM
the driver was people who had LOC permits carrying openly in urban counties.
-Gene

Never heard of that LOC with 12050 license incident. I'm some what relieved that it wasn't fully UOC initiated.

Got more info...?

SteveH
01-14-2010, 7:48 PM
The cops are actively seeking "a legislative solution" to what they see as confrontational & politically motivated UOC folks. Ive heard a Sgt and Captain both mention legislation in the last couple weeks.

hoffmang
01-14-2010, 7:55 PM
Question. Does this change affect openly carrying a loaded handgun while hunting or fishing?

No.

-Gene

8-Ball
01-14-2010, 7:58 PM
Ultimately, don't the potential locations for confrontation need to decided?:

18 The Supreme Court’s decision in Heller made it clear–for the first time–that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.”
128 S. Ct. at 2797. (http://opencarry.mywowbb.com/attachment.php?id=9605)

oaklander
01-14-2010, 7:59 PM
Great, OC scores another "win."

<sarcasm>
Darwin effect (http://www.calguns.net/calgunforum/showpost.php?p=3642054&postcount=254) might be our only hope.
</end sarcasm>

hoffmang
01-14-2010, 8:04 PM
Ultimately, don't the potential locations for confrontation need to decided?:

The 19th and early 20th century state supreme court cases make it pretty clear that a state can ban one mode of carry as long as the other mode of carry is available for self defense. The Peruta motion ruling in the other thread spells that out quite well.

-Gene

AndrewMendez
01-14-2010, 8:24 PM
Gene,
This sucks, thanks for the update. I have been waiting for this for months. *sigh*

Gray Peterson
01-14-2010, 8:28 PM
Another score for UOC! :rolleyes:

CitaDeL
01-14-2010, 9:04 PM
Another score for UOC! :rolleyes:

Lonnie- unless I am misreading this, it was LOC with a LTC concealed that scored this, not UOC advocates running wild.

ChuckBooty
01-14-2010, 9:29 PM
Let me make sure I understand this. Because of this ruling, the LOC option will be off the table post incorporation. This doesn't change the fact that, post incorporation, the state will be forced to allow ONE method of carry for personal defense. So this means that they will be forced to allow CCW for personal defense? Personally I'd rather CCW anyways. WAYYYY less headache. The LAPD incident made that clear. Speaking of which...what do you mean that the LAPD incident was brought up?

hoffmang
01-14-2010, 9:34 PM
Let me make sure I understand this. Because of this ruling, the LOC option will be off the table post incorporation. This doesn't change the fact that, post incorporation, the state will be forced to allow ONE method of carry for personal defense. So this means that they will be forced to allow CCW for personal defense? Personally I'd rather CCW anyways. WAYYYY less headache. The LAPD incident made that clear. Speaking of which...what do you mean that the LAPD incident was brought up?

Correct. 12050 licenses are likely to be shall issue but is now only concealed as a method of carry. See the recent ruling (http://www.calguns.net/calgunforum/showthread.php?t=259383) in Peruta.

If I recall correctly, in either late 2008 or early 2009, a person with an out of county OC license open carried in LA. That made LAPD ask for this change.

-Gene

CavTrooper
01-14-2010, 9:42 PM
Lonnie- unless I am misreading this, it was LOC with a LTC concealed that scored this, not UOC advocates running wild.

Either LOC or UOC, doesnt matter...

it was OCers that sank LOC for EVERYONE.

trashman
01-14-2010, 9:42 PM
Well - that is a shame.

Thanks for analysis, as usual.

--Neill

Window_Seat
01-14-2010, 9:45 PM
I would personally much rather CCW as well, but I would also prefer that we be able to start a legal effort to get both options because of the hot weather issues. Heat, sweat, other factors could in some cases make it hazardous to CCW certain HGs in extreme heat, and "not carrying" for that reason is not an excuse (IMO of course) for any lawmaker or court. Do we take someone/people to court over this?

Erik.

gunsmith
01-14-2010, 9:47 PM
Gene, thank you for connecting the dots. I sincerely hope that this is the example the UOC community needs to realize it's better to wait until after incorporation.

the UOC community is tired of waiting, I know, I am among them...only I do not UOC, just tired of waiting.

hoffmang
01-14-2010, 10:03 PM
As long as no UOCer gets him or herself shot, the only downside to UOC is making the now two primary carry cases harder to win.

LOC of handguns will probably not happen in urban California in anyone's lifetime. Shall issue CCW will.

Kind of sad really.

-Gene

wildhawker
01-14-2010, 10:12 PM
Kind of sad really.

-Gene

Indeed. Where's that Maker's?...

AndrewMendez
01-14-2010, 10:24 PM
As long as no UOCer gets him or herself shot, the only downside to UOC is making the now two primary carry cases harder to win.

LOC of handguns will probably not happen in urban California in anyone's lifetime. Shall issue CCW will.

Kind of sad really.

-Gene

I think my opinion differs from a huge majority here, but I believe that everybody who carries should Open Carry. Sure, you can go with the entire your going to be a target theory, but how about when that same person sees multiple people with a firearm at the bank, will they still want to commit the crime? 2nd, if a mugger decides he wants to sneak up on you, and you have a CCW, a whole lot of good it will do when he knocks you in the back of the head with a pipe, on the other hand, you are LOC'ing will that same mugger think he needs to find an easier target when he sees your sidearm? If your LOC and the owner of a store walks up to you and says, you need to leave, PERFECT, you leave, you don't want to support someone who doesn't support the 2A in the first place, and your going to come back here and post for all to read.
Lastly, if you have your firearm tucked nicely in your 501 Levi's how quickly can you draw, chamber a round and fire? Do you have pants that are a little tighter, will your shirt or jacket get in the way? Will something snag?
I would prefer everyone, who is not a criminal and mentally stable and capable of carrying a firearm, to do so.

hoffmang
01-14-2010, 10:28 PM
I think my opinion differs from a huge majority here, but I believe that everybody who carries should Open Carry.

Your opinion could be correct but it now runs up against the operative reality that you may never be able to open carry a loaded firearm in California.

As between UOC and loaded CCW, I think loaded wins for self defense simply on a speed of drawing and pulling the trigger basis.

-Gene

DedEye
01-14-2010, 10:32 PM
I think my opinion differs from a huge majority here, but I believe that everybody who carries should Open Carry. Sure, you can go with the entire your going to be a target theory, but how about when that same person sees multiple people with a firearm at the bank, will they still want to commit the crime?

Even in Shall Issue states, the percent of the population who actually get CCW permits is typically 2-4%, and the majority do not carry daily. Sure, you can add a percent or two for OCers, but how many people do you honestly expect to OC?

2nd, if a mugger decides he wants to sneak up on you, and you have a CCW, a whole lot of good it will do when he knocks you in the back of the head with a pipe, on the other hand, you are LOC'ing will that same mugger think he needs to find an easier target when he sees your sidearm?

This is retarded. If he is sneaking up on you to hit you with a pipe, it mayn't matter if you're armed or not. Sure, the mythical pipe hitting mother****er in question may choose not to attack you if he sees you're armed, but he may make that same determine based on your height and physical condition as well.

If your LOC and the owner of a store walks up to you and says, you need to leave, PERFECT, you leave, you don't want to support someone who doesn't support the 2A in the first place, and your going to come back here and post for all to read.

And if you're in a state like California and a large percentage of stores request you leave if you're OCing (making the assumption to bolster my argument that most stores would give a **** and ask you to leave; I don't actually think the percentage would be that high)? Not everyone is willing to lose access to stores they like because of ideological differences with the proprietors.

Lastly, if you have your firearm tucked nicely in your 501 Levi's how quickly can you draw, chamber a round and fire? Do you have pants that are a little tighter, will your shirt or jacket get in the way? Will something snag?
I would prefer everyone, who is not a criminal and mentally stable and capable of carrying a firearm, to do so.

This is also retarded. Who carries without a round in the chamber?

Practice your draw and presentation more if you're worried about your clothes.

pullnshoot25
01-14-2010, 10:33 PM
What's with you guys making stabs at UOC? Criminey, these guys had licenses.

pullnshoot25
01-14-2010, 10:34 PM
Anyone in Utah without a CCW permit carries without a round in the chamber.

wildhawker
01-14-2010, 10:36 PM
Votes:

4/21/09
Assm. Public Safety Comm.
7-0
Ayes: Furutani, Gilmore, Hagman, Hill, Ma, Skinner, Solorio

5/18/09
Assembly Floor
77-0
Ayes: Adams, Ammiano, Anderson, Arambula, Audra Strickland, Bass, Beall, Bill Berryhill, Blakeslee, Block, Blumenfield, Bonnie Lowenthal, Brownley, Buchanan, Caballero, Carter, Charles Calderon, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore, Duvall, Emmerson, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries, John A. Perez, Jones, Knight, Krekorian, Lieu, Logue, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, Portantino, Ruskin, Salas, Silva, Skinner, Smyth, Solorio, Swanson, Tom Berryhill, Torlakson, Torres, Torrico, Tran, V. Manuel Perez, Villines, Yamada

6/16/09
Sen Public Safety Commitee
6-0
Ayes: Benoit, Cedillo, Hancock, Huff, Leno, Steinberg
Ab: Wright

9/01/09
Senate Floor
24-14
Ayes: Alquist, Calderon, Cedillo, Corbett, Ducheny, Florez, Hancock, Huff, Kehoe, Leno, Liu, Lowenthal, Maldonado, Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian, Steinberg, Wiggins, Wolk, Wright, Yee
Noes: Aanestad, Ashburn, Benoit, Cogdill, Correa, Cox, Denham, Dutton, Harman, Hollingsworth, Runner, Strickland, Walters, Wyland
Ab: DeSaulnier, Oropeza

Comment excerpts from the analysis:

Author's Statement

According to the author, "Because of this oversight
and unclear language, there has been confusion. We want to
clarify the law to fulfill the legislative intent of these
sections."

3)History of Concealed Weapons License Statute : Since at least
1953 when the current Penal Code Section 12050 was first
enacted, sheriffs and police chiefs have been authorized to
issue licenses to carry concealed weapons (board of police
commissioners and city and town marshal were once given such
authority as well, but were eliminated in 1969). The existing
limitation to issue such licenses to "a resident of the
county" was added in 1969. In 1997, the section was amended
to permit a sheriff to issue a CCW license to any county
resident, and further provided that a city police chief may
issue a CCW license only to city residents. This amendment
limited the authority of a chief or other head of a municipal
police department of any city to issue a CCW license to an
applicant who is a resident of that city.

4)Clarification as to the Applicability and Locality : This bill
clarifies that the position that sheriffs or chiefs of police
may issue "a license to carry loaded and exposed in that
county" means "only that county." A review of relevant case
law finds no legal opinions on the interpretation of this
language. The language was added in the 1997 amendment to
this section. A review of the legislative analyses finds that
the language was intended to only permit the law enforcement
officials to permit the authorization in the county of
issuance. Additionally, the sheriff and chiefs of police only
have jurisdiction over the municipalities and counties in
which they are elected.

5)Argument in Support : According to the Los Angeles County
Sheriff's Department , "Last year, members of my Department's
Field Operations Support Services Unit (in consultation with
the Los Angeles County District Attorney's Office) discovered
an inconsistency in current law as it pertains to the
concealed weapons permit laws.

"Section 12050 of the California Penal Code allows the sheriff
of the county or a chief of police to issue a concealed
weapons permit (also known as a CCW permit) to applicant they
deem acceptable according to prescriptions by law. If
approved, the applicant can carry a concealed and loaded gun.
This section also allows both sheriffs and police chiefs in a
county with a population of less than 200,000 to allow an
applicant to carry a loaded and exposed weapon, but only in
that county with a population of less than 200,000.

"Some of these people that have been authorized to carry a
loaded and exposed weapon have been going to other counties,
with a population of more than 2000,000, with the loaded and
exposed weapon, which is a violation of their CCW
authorization. Currently in law, Section 1031 of the
California Penal Code, which is the law making it illegal to
carry a loaded firearm in public, provides an exception for an
individual who has a CCW permit. However, the exception does
not appropriately address the two different CCW
authorizations. By making a simple language change to the
exception, Section 1031 will properly address the two
different CCW authorizations and provide a penalty for
individuals who abuse their CCW privileges.

"Additionally, by making the amendment to CCW Section 12050, it
will clarify that an individual can only exercise their
ability to carry a firearm open and loaded, only in the county
in which it was authorized."

6)Prior Legislation : SB 146 (Johnson), Statutes of 1997,
Chapter 408, provided that a sheriff may issue a CCW license
to any county resident, and further provided that a city
police chief may issue a CCW license only to city residents.

REGISTERED SUPPORT / OPPOSITION :

Support

Los Angeles County Sheriff's Department (Sponsor)
California Chapters of the Brady Campaign
Legal Community Against Violence

Opposition

None

According to the author's office, "Section 12050 of the California
Penal Code allows the sheriff of the county or a chief of police to issue a
concealed weapons permit (also known as a CCW permit) to
applicants they deem acceptable according to prescriptions
by law. If approved, the applicant can carry a concealed
and loaded gun. This section also allows both sheriff's
and police chiefs in a county with a population of less
than 200,000 to allow an applicant to carry a loaded and
exposed weapon, but only in that county with a population
of less than 200,000.

"Some of these people that have been authorized to carry a
loaded and exposed weapon have been going to other
counties, with a population of over 200,000, with the
loaded and exposed weapon, which is a violation of their
CCW authorization. Currently in law, Section 12031 of the
California Penal Code, which is the law making it illegal
to carry a loaded firearm in public, provides for an
exception to an individual who has a CCW permit. However,
the exception does not appropriately address the two
different CCW authorizations. By making a simple language
change to the exception, Section 12031 will properly
address the two different CCW authorizations and provide a
penalty for individuals who abuse their CCW privileges."

Additionally, Penal Code Section 12031 (b)(6) currently provides
that the general prohibition against carrying a loaded firearm
in public does not apply to "The carrying of pistols, revolvers,
or other firearms capable of being concealed upon the person by
persons who are authorized to carry those weapons pursuant to
Article 3 (commencing with Section 12050) of Chapter 1 of Title
2 of Part 4." This has apparently led some to assert that a
license to openly carry a loaded firearm in public is valid
statewide. Therefore, this bill also amends Penal Code Section
12031 to state that the exception to the general prohibition on
carrying a loaded firearm in public applies to the carrying of
handguns as authorized in Section 12050, and the sections
immediately following it. These two amendments, taken together,
should eliminate any ambiguity as to whether a license to openly
carry a loaded handgun is valid outside the county in which it
was issued.

SUPPORT : (Verified 6/29/09)

Los Angeles County Sheriff's Department (source)
California Brady Campaign Chapters
Legal Community Against Violence

OPPOSITION : (Verified 7/10/09)

California Association of Firearms Retailers
California Sportsman's Lobby
Outdoor Sportsmen's Coalition of California
Safari Club International


ARGUMENTS IN OPPOSITION : The California Association of
Firearms Retailers states that, "?after carefully reviewing
the bill and the overall discussion this year in the
Legislature on the Concealed Carry Permits, we believe this
is a piecemeal approach to this issue and that a
comprehensive review of the CCW process is needed. We have
supported such efforts in the Legislature over the years,
including this year's AB 357 which was defeated in the
policy committee. We argued that persons who are not
lawfully prohibited from possessing firearms should be able
to obtain a CCW. It should be their right and not
determined by an issuing agency.

"We do not see a need for this bill. It has been argued
that under current law there is no penalty for violating
the statutes. It seems clear that is not the case since
the issuing authority has the ability to withdraw the
permit from the recipient for any violation of the
provisions of the permit.

"We believe this bill could lead to further limitations in
those permits. We would like to see the Legislature and
the sponsor that opposes CCE reform to work with all the
parties to define a comprehensive CCW process that provides
equal protection to all citizens and does not discriminate
based on the jurisdiction in which the individual resides.
The sponsor, the LA Sheriffs Office, consistently sponsors
legislation in the area to impose its local position on all
jurisdictions. We note on AB 962, the ammunition
registration bill, they want to dictate how other
jurisdictions manage their sales and this bill related to
CCW seems to be attempting to exercise the same control
over CCW permits. We see this as unnecessary bill and a
dangerous attempt to begin the process of limiting lawfully
issued permits to carry concealed (CCW) in the counties or
cities in which they were issued."

DedEye
01-14-2010, 10:47 PM
What's with you guys making stabs at UOC? Criminey, these guys had licenses.

On behalf of everyone else (just me), let me then clearly redefine the subject of our (my) derision: OC in California, loaded or otherwise.

DedEye
01-14-2010, 10:48 PM
Anyone in Utah without a CCW permit carries without a round in the chamber.

True, so do the Israelis. That doesn't make it any less moronic.

CaliforniaCarry
01-14-2010, 10:55 PM
Wow. I had crossed my fingers that this wouldn't happen.

Tonight is bittersweet. The news of Peruta was pleasing, but it's painful to think that LOC in CA may now be screwed forever because of someone's impatience.

Let this be a lesson to the rest of us: we must hang together or we will hang separately.

Let's please not lose anymore rights because of impatience, shall we?

bigstick61
01-14-2010, 10:56 PM
So, after reading wildhawker's post, is this only targeting those with OC licenses, and not holders of all licenses, or what?

AndrewMendez
01-14-2010, 10:57 PM
Even in Shall Issue states, the percent of the population who actually get CCW permits is typically 2-4%, and the majority do not carry daily. Sure, you can add a percent or two for OCers, but how many people do you honestly expect to OC?

My point was that everybody, who can carry does.


This is retarded. If he is sneaking up on you to hit you with a pipe, it mayn't matter if you're armed or not. Sure, the mythical pipe hitting mother****er in question may choose not to attack you if he sees you're armed, but he may make that same determine based on your height and physical condition as well.

Not true at all, Criminals are cowards, if your going to sneak up on someone, and you notice they have a firearm, are they going to risk you hearing them prior to them hitting you? How about if the pipe doesn't knock you out? Then they are done. They will look for an easier target.



And if you're in a state like California and a large percentage of stores request you leave if you're OCing (making the assumption to bolster my argument that most stores would give a **** and ask you to leave; I don't actually think the percentage would be that high)? Not everyone is willing to lose access to stores they like because of ideological differences with the proprietors.

I dont think the percentage will be high at all. One of my goals in life is to make the VAAAAASSSST majority of people ok with the sight of a firearm, and that is the entire principal behind it.


This is also retarded. Who carries without a round in the chamber?

Practice your draw and presentation more if you're worried about your clothes.

Are you honestly telling me that every single time you have practiced drawing, its been flawless? Your shirt has never gotten in the way? Have you practiced well running? Moving around? Avoiding the attack? Add emotion, fear, adrenaline in with that, and fiddling with your weapon inside your pants.

N6ATF
01-14-2010, 11:00 PM
This further proves my point. The fact that law-abiding citizens have guns, period, is all the legislature needs to pass laws against it.

Next up for them to ban: LUCC.

These traitors won't stop until they're in prison or the gas chamber.

torsf
01-14-2010, 11:01 PM
Question. Does this change affect openly carrying a loaded handgun while hunting or fishing?

For the sake of clarify, would I be correct in assuming that loaded open carry of a handgun would still be ok while hiking in a national forest?

hoffmang
01-14-2010, 11:03 PM
So, after reading wildhawker's post, is this only targeting those with OC licenses, and not holders of all licenses, or what?
That was the stated intent, however it is not the actual textual effect.
For the sake of clarify, would I be correct in assuming that loaded open carry of a handgun would still be ok while hiking in a national forest?
You can still loaded open carry in many rural areas. This changed nothing about that analysis.

-Gene

CABilly
01-14-2010, 11:10 PM
I think the fanny pack lobby was greasing palms in the back rooms on this one.

demnogis
01-14-2010, 11:11 PM
I'm not sure how Unloaded Open Carry --for those of us without the Golden Permit™ -- resulted in this change. As the text indicated the LAPD called for it as people with CCW permits who did not have a "concealed only" restriction on their license were Loaded Open Carrying.

So please, stop blaming Unloaded Open Carriers for something only people with the Golden Permits™ were able to do.

bwiese
01-14-2010, 11:15 PM
Votes:

4/21/09 Assm. Public Safety Comm.
7-0
Ayes: Furutani, Gilmore, Hagman, Hill, Ma, Skinner, Solorio

5/18/09
Assembly Floor
77-0
Ayes: Adams, Ammiano, Anderson, Arambula, Audra Strickland, Bass, Beall, Bill Berryhill, Blakeslee, Block, Blumenfield, Bonnie Lowenthal, Brownley, Buchanan, Caballero, Carter, Charles Calderon, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore, Duvall, Emmerson, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries, John A. Perez, Jones, Knight, Krekorian, Lieu, Logue, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, Portantino, Ruskin, Salas, Silva, Skinner, Smyth, Solorio, Swanson, Tom Berryhill, Torlakson, Torres, Torrico, Tran, V. Manuel Perez, Villines, Yamada

6/16/09
Sen Public Safety Commitee
6-0
Ayes: Benoit, Cedillo, Hancock, Huff, Leno, Steinberg
Ab: Wright

9/01/09
Senate Floor
24-14
Ayes: Alquist, Calderon, Cedillo, Corbett, Ducheny, Florez, Hancock, Huff, Kehoe, Leno, Liu, Lowenthal, Maldonado, Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian, Steinberg, Wiggins, Wolk, Wright, Yee
Noes: Aanestad, Ashburn, Benoit, Cogdill, Correa, Cox, Denham, Dutton, Harman, Hollingsworth, Runner, Strickland, Walters, Wyland
Ab: DeSaulnier, Oropeza



Looks like we got voted against by quite a few Republican "friends" that have touted their pro-gun sentiments in the past - including both the Berryhills.

DedEye
01-14-2010, 11:17 PM
My point was that everybody, who can carry does.

My point from that was that I just wouldn't rely on having many OCers around as backup if someone did target you as the sole person around with a firearm.


Not true at all, Criminals are cowards, if your going to sneak up on someone, and you notice they have a firearm, are they going to risk you hearing them prior to them hitting you? How about if the pipe doesn't knock you out? Then they are done. They will look for an easier target.

Maybe, but not something I'd rely on.


I dont think the percentage will be high at all. One of my goals in life is to make the VAAAAASSSST majority of people ok with the sight of a firearm, and that is the entire principal behind it.

Education and acceptance are different goals than self defense, and as mentioned, I don't terribly disagree with you on this point.


Are you honestly telling me that every single time you have practiced drawing, its been flawless? Your shirt has never gotten in the way? Have you practiced well running? Moving around? Avoiding the attack? Add emotion, fear, adrenaline in with that, and fiddling with your weapon inside your pants.

Of course not. My point remains that the element of surprise can be quite beneficial, as some members here have learned from their own gunfights.

Carrying without a round in the chamber, however, is still dumber than sticking your willie in a vacuum cleaner.

bigstick61
01-14-2010, 11:29 PM
Seems to me that it was not the UOC people or the LOC people with CCW permits that killed this for us (for now), but rather people with LOC permits that were county-specific carrying in a manner not authorized for them out of their county. It was people doing things which they weren't supposed to do in the first place that ruined it for everyone else, as opposed to people OCing who did so within the bounds of the law.

As for my preferences, in the majority of cases I greatly prefer open carry, or at least being able to conceal carry without worrying about getting in trouble if such carry becomes open for a little while (Texas style CCW would really suck, IMO). There are times where one really has to be discreet, or where the dress code makes concealed carry necessary, or where inclement whether makes concealed carry more appropriate or practical, but other than that, I think open carry is just easier and more comfortable.

AndrewMendez
01-14-2010, 11:35 PM
My point from that was that I just wouldn't rely on having many OCers around as backup if someone did target you as the sole person around with a firearm.




Maybe, but not something I'd rely on.




Education and acceptance are different goals than self defense, and as mentioned, I don't terribly disagree with you on this point.




Of course not. My point remains that the element of surprise can be quite beneficial, as some members here have learned from their own gunfights.

Carrying without a round in the chamber, however, is still dumber than sticking your willie in a vacuum cleaner.

I think for the most part we are on the same page. i dont think a "HUGE" amount of people will obtain CCW's / LOC when they are available to everyone, buts its nice to thing they would. I also agree with the element of surprise, I have read numerous stories from attempted muggings, bank robberies, to car jackings, and I strongly believe there are advantages and disadvantages to both. Also, if I had a CCW, I would have a round chambered. The only place I dont is at home, for obvious reasons, my go to is pretty well hidden, but Kids frequent my house more then I would like them to.

DedEye
01-14-2010, 11:42 PM
I think for the most part we are on the same page. i dont think a "HUGE" amount of people will obtain CCW's / LOC when they are available to everyone, buts its nice to thing they would. I also agree with the element of surprise, I have read numerous stories from attempted muggings, bank robberies, to car jackings, and I strongly believe there are advantages and disadvantages to both. Also, if I had a CCW, I would have a round chambered. The only place I dont is at home, for obvious reasons, my go to is pretty well hidden, but Kids frequent my house more then I would like them to.

Agreed, it's just a shame now that the strategic/tactical choice between (loaded)OC and CCW is off the table in the future.

nick
01-14-2010, 11:43 PM
Just to be sure we don't lose sight of the real enemy here. It was the CA legislature that passed this.

wildhawker
01-15-2010, 12:03 AM
Just to be sure we don't lose sight of the real enemy here. It was the CA legislature that passed this.

Maybe, but this is a case of friendly fire providing cover for a high-altitude strike.

Liberty1
01-15-2010, 12:13 AM
Does this language change also make the Sacramento CCWs with 1000' school zone restrictions into potential felons if they stray in a zone they "should have reasonably known" (since they live there after all). :mad: as they are now in violation of 12031 (unless they UCC)?

bigstick61
01-15-2010, 12:18 AM
How hard would it be to sneak in a change to this part of the law in a larger bill or if we get concealed carry legislation that looks like it will be passed to get something put in that so that those with CCW can carry open and loaded if it actually does come down to a choice between the two?

GammaRei
01-15-2010, 12:22 AM
Either LOC or UOC, doesnt matter...

it was OCers that sank LOC for EVERYONE.

I agree...


- G

Gray Peterson
01-15-2010, 12:24 AM
The reason I wanted to generally stop what I perceived to be the UOC movement screwing up my ability to LOC with a PC12050 CCW in San Francisco Bay Area. LOC to me IS open carry, and UOC is a very poor substitute, and I latched onto the recent brouhaha over UOC to see that my favorite method of carry (LOC) if I were to visit California has been completely foreclosed to me for the forseeable future. I blamed UOC'ers for this particular situation and it was premature. Mea Culpa.

A bunch of us "In the know", Gene, among others, knew that LOC with CCW was possible and in fact legal.

How did we know for certain? It appears that former Police Chief William Bratton of the LAPD used an PC12050 license (a CCW) to open carry his pistol while he was in uniform. He could not qualify as a police officer under the state's Peace Officer Certification as he was up there in age and couldn't perform the grunt work a 25 year old beat cop could do. It was also the same with Chief Willie Williams.

This meant that there was a legal knowledge and understanding that LOC with a CCW was legal.

However we also knew that either a UOC incident or an LOC with CCW incident would trigger something like this bill.

We (Me, Gene, and others) begged, we pleaded, we dropped hints, sometimes we low profile said something and had to delete it later for fear of the gun banners in the legislature finding out about it.

We (as gun owners) also could do nothing at all against the Legislature passing a bill like this. During the time of Nordyke and definitely post-McDonald, we could have filed a suit in federal court to block the law from taking effect. Because Nordyke was not in effect due to the vacate by the en banc panel, and McDonald has not taken effect from SCOTUS, we had no cognizable claim to file in federal court at all.

In a word, the effective method of open carry (LOC) is essentially, for all intents and purposes, forever lost to any residents and visitors to urban California in any form. We (as gun owners) can't unring the bell.

We also don't know why someone LOC'd with a CCW. No one knows who they are, they are face less, we don't know why they did it, and they slipped away and didn't have to deal with the consequences of what they wrought.

We could have defended against this bill post-McDonald and stopped it from occurring. Now we can't. I am very upset by this fact, as I wanted to, at some point, LOC in the Castro District in San Francisco. To me, all the bickering back and forth about "It shouldn't be licensed" and so on doesn't matter to me. I have a concealed pistol license in multiple states, including WA, where it is required in order to carry loaded in a vehicle. Oregon's CHL exempts you from local ordinances against loaded carry.

Now I've lost that, which makes me very sad.

hoffmang
01-15-2010, 12:25 AM
Does this language change also make the Sacramento CCWs with 1000' school zone restrictions into potential felons if they stray in a zone they "should have reasonably known" (since they live there after all). :mad: as they are now in violation of 12031 (unless they UCC)?

626.9 has different language that will allow a 12050 license holder to be loaded in the zone.

-Gene

bigstick61
01-15-2010, 12:33 AM
I think the "forever lost" comments are exaggerations. I really doubt LOC is forever lost, and I'm a pessimist. It's interesting though how gun owners with different views are so ready to tear each other apart. Seems like that has been the case for a long time, and it certainly benefits no one.

okimreloaded
01-15-2010, 12:37 AM
I see the point of LOC I do not see the point in UOC. its easy to tell if the butt of a gun has a mag in it or not, and given that if you had to use it, you'd have to draw it, put the mag in, rack it and you'd be dead or injured by then. As much as I like the idea of throwing your gun in the face of antis, those people are anti gun because they're scared of guns. They're scared of the object and of the people who own them. It doesn't seem like a wise idea to go around pushing your gun on people. Especially since it does not serve a purpose for self defense that works.

I disagree that they caused this, although who knows if they'll go after UOC in the future because of all of the attention UOC has gotten recently. Just wait till after incorporation to do that stuff. We've been denied our rights for a long time and if we just hold our breath a few more months we have a better leg to stand on.

wildhawker
01-15-2010, 12:40 AM
I think the "forever lost" comments are exaggerations. I really doubt LOC is forever lost, and I'm a pessimist. It's interesting though how gun owners with different views are so ready to tear each other apart. Seems like that has been the case for a long time, and it certainly benefits no one.

Lost, as in "when the legislature decides to add it back".

Legislature, as in the one that went 77-0 in the Assembly for this bill.

hoffmang
01-15-2010, 12:42 AM
I think the "forever lost" comments are exaggerations. I really doubt LOC is forever lost, and I'm a pessimist. It's interesting though how gun owners with different views are so ready to tear each other apart. Seems like that has been the case for a long time, and it certainly benefits no one.

Please read one of the most pro-gun federal court decisions (http://www.archive.org/download/gov.uscourts.casd.308678/gov.uscourts.casd.308678.5.0.pdf) in California since Nordyke and you'll see why I predict strongly that LOC is not happening anytime soon. The core legal reasoning we'll get shall issue concealed permits is that the long history of case law is that states can ban one form as long as the other form is available for practical self defense.

-Gene

obeygiant
01-15-2010, 12:59 AM
A very sad day indeed. I think the next step is to request the public records so we can inform this individual that all gun owners in CA have lost the ability to LOC due to their actions and they are now responsible to fund all of CGF's future litigation.

artherd
01-15-2010, 1:26 AM
We begged, we pleaded, we asked you to trust us. We knew this could happen, and they got it in under the wire because you could not keep your ***** in your pants.

This is a sad day for rights.

gotgunz
01-15-2010, 1:50 AM
Heat, sweat, other factors could in some cases make it hazardous to CCW certain HGs in extreme heat, and "not carrying" for that reason is not an excuse (IMO of course) for any lawmaker or court. Do we take someone/people to court over this?

What? Which cloud of thin air did you pull this one from?

As between UOC and loaded CCW, I think loaded wins for self defense simply on a speed of drawing and pulling the trigger basis.

They can get it out and loaded in 2 seconds no problem. Nothing bad can happen in that short amount of time.
:sarcasm::sarcasm::sarcasm:

So please, stop blaming Unloaded Open Carriers for something only people with the Golden Permits™ were able to do.

Did I get the wrong copy all these years? Mine is on a very flimsy white paper.

626.9 has different language that will allow a 12050 license holder to be loaded in the zone.

Will allow or already does allow? Am I reading this wrong?

We begged, we pleaded, we asked you to trust us. We knew this could happen, and they got it in under the wire because you could not keep your ***** in your pants.

This is a sad day for rights.

But a great day to prove a point to people that refuse to listen to reason while they are walking about beating on their chest.

Merle
01-15-2010, 1:59 AM
The title of the thread is misleading, it made me look for where UOC'rs were to blame for losing the ability to LOC.

It looks like LOC is to blame for the loss of the ability to LOC. The exercise of a legal and fundamental right caused further restrictions to be put into place.

The attacks against the UOC'rs appear unfounded.

In addition, what would have prevented the legislature from enacting the exact same change post-Nordyke? Nothing.

artherd
01-15-2010, 2:55 AM
Read the title again. OC-ers caused this.

This is the 'legislative solution' and thanks to them I will not be able to LOC in my lifetime.

I hold each and everyone of you 'educating the public' responsible.

Now I don't care if you UOC, have at it. You've done enough.

pullnshoot25
01-15-2010, 7:12 AM
I see the point of LOC I do not see the point in UOC. its easy to tell if the butt of a gun has a mag in it or not, and given that if you had to use it, you'd have to draw it, put the mag in, rack it and you'd be dead or injured by then. As much as I like the idea of throwing your gun in the face of antis, those people are anti gun because they're scared of guns. They're scared of the object and of the people who own them. It doesn't seem like a wise idea to go around pushing your gun on people. Especially since it does not serve a purpose for self defense that works.

I disagree that they caused this, although who knows if they'll go after UOC in the future because of all of the attention UOC has gotten recently. Just wait till after incorporation to do that stuff. We've been denied our rights for a long time and if we just hold our breath a few more months we have a better leg to stand on.

No ****, Sherlock.

SIGscout
01-15-2010, 7:37 AM
My point from that was that I just wouldn't rely on having many OCers around as backup if someone did target you as the sole person around with a firearm.

Education and acceptance are different goals than self defense, and as mentioned, I don't terribly disagree with you on this point.

My point remains that the element of surprise can be quite beneficial, as some members here have learned from their own gunfights.

Carrying without a round in the chamber, however, is still dumber than sticking your willie in a vacuum cleaner.

Thankyou Dedeye for that.

The only problem ATM is that all non-permit loc/uoc or whatever is in question until these pending cases are done with.

I see this as a huge opertunity to expand awareness with communication with people who are either on the fence about these issues or against the RKBA. This way we people who are sound of mind can LEAD BY EXAMPLE, discuss with facts and truth, while not creating more problems.

Discuss, train, practice, prepare, and refrain from kicking up dust untill we can see clearly wtf it is that we have on the table. That is what we all need to be doing. Patiently.

Untamed1972
01-15-2010, 7:50 AM
Either LOC or UOC, doesnt matter...

it was OCers that sank LOC for EVERYONE.


No....I think it was gun-hating, constitution hating, control freak PDs and legislators who have no respect for the citizens who pay their salaries that sank it for everyone.

Old Timer
01-15-2010, 7:56 AM
I can't help but think it is somewhat disingenuous to try to blame the UOC community for the legislation. To try to lump LOC and UOC in the same group and blame the whole group is not only unfair, but illogical. In fact, if I were to apply your criteria to all carry, then "it was CARRIErs that sank LOC for EVERYONE." If we do that we have nobody to blame but ourselves. :(

Mulay El Raisuli
01-15-2010, 8:05 AM
Please read one of the most pro-gun federal court decisions (http://www.archive.org/download/gov.uscourts.casd.308678/gov.uscourts.casd.308678.5.0.pdf) in California since Nordyke and you'll see why I predict strongly that LOC is not happening anytime soon. The core legal reasoning we'll get shall issue concealed permits is that the long history of case law is that states can ban one form as long as the other form is available for practical self defense.

-Gene


I'm not seeing that in the decision. What I do see is this:

" I
THE SECOND AMENDMENT

Plaintiff’s opposition claims that the Second Amendment gives him the constitutional right to “bear arms in order to be armed and ready in case of conflict with another person.” That is not the holding of District of Columbia v. Heller, 554 U.S. __; 128 S. Ct. 2783; 171 L.Ed.2d 637 (2008) (see analysis in motion points and authorities.) There are numerous federal and state statutory proscriptions on the carrying of loaded and concealed firearms. If Plaintiff’s position was accurate, gang members and drug dealers could lawfully carry loaded, concealed weapons without restriction. The Heller court emphasized that the right to keep and bear arms is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at
Case 3:09-cv-02371-IEG-BLM Document 5 Filed 12/14/09 Page 1 of 4
2 09-CV-2371 IEG (BLM)
___; 171 L.Ed.2d at 678. And it endorsed regulatory measures that are presumptively lawful. Heller at ___, n. 26; 171 L.Ed.2d at 678, n. 26. Plaintiff cites to no case nationwide which has stuck down concealed weapons regulations since Heller. California law specifically permits Plaintiff to possess a loaded weapon in his residence, including any temporary residence or campsite, which would include his recreational vehicle. Penal Code § 12031(l)."

Note the entirety of this concerns the carrying of concealed weapons.



II

THERE IS NO CONSTITUTIONALLY PROTECTED
INTEREST IN A CONCEALED WEAPONS PERMIT"

And then the court on to say how 12050 gives a sheriff extremely broad discretion in the issuance of CCWs. Which is, again & still, the court limiting itself to concealed weapons.

Now, there may well be decisions that state that carry has to be one or the other (LOC or CCW), but this one surely isn't it.

Add to this the fact that SCOTUS is going to be where this is going to be decided. If they decide that LOC is the Minimum Constitutional Standard, then it doesn't matter what the PRK legislature decides. And when it comes to the PRK legislature, this only proves that their desire is to screw us over regardless of what we do or how nice we play with them.

So, while Artherd is wrong about whom to blame, his comment that there's no real need to stop the UOC events now has a lot to recommend it. Is the CGF OK with us starting up the UOC events again?


The Raisuli

chickenfried
01-15-2010, 8:12 AM
i don't see the point in UOC. But don't agree with the scapegoating.

bodger
01-15-2010, 8:14 AM
Do we have knowledge of what other anti-gun laws are being cooked up in Sac? What other infringements the anti gun lawmakers have in store?

dirtnap
01-15-2010, 8:20 AM
The only people responsible for the loss are the traitors who designed and passed the law. Blaming the LOC and UOC people is backassward.

Bugei
01-15-2010, 8:32 AM
Just to be sure we don't lose sight of the real enemy here. It was the CA legislature that passed this.

Look, a guy with a valid OC permit went to another county. His permit isn't good in that county; he broke the law.

For all I know, the OC carrier was just mistaken as to the limits of his permit or his current location. As we've seen in other threads, if you're within 1,000 feet of a school, there are restrictions in some jurisdictions. 999 feet, you're good: 1,000 and you're in trouble. Where precisely is that county line?

But...the sheriff should have had his guys arrest the guy, charge him and use the existing law. The sheriff saw a problem; existing law covers it.

But noooooooooo......

As usual, anything can be used as an emotional and illogical argument in favor of more legislation, more restrictions on our rights.

I respectfully suggest that they'd have tried this with or without a cause celebre. If they didn't use this rationale....one guy and we need a new law....they'd simply choose another. And they'll try to kill UOC as a legal activity, with or without the UOC guys carrying in public. They'll simply choose a rationale that fits, more or less, and depend on the legislature to accept their argument and the media to back them up.

Wish I had a solution for this, but I do not.

Bugei
01-15-2010, 8:33 AM
No....I think it was gun-hating, constitution hating, control freak PDs and legislators who have no respect for the citizens who pay their salaries that sank it for everyone.

Like the man said.

Kharn
01-15-2010, 8:50 AM
There is also a risk that the law will change to not allow someone to possess an unlocked unloaded firearm and the ammunition for it at the same time.

-GeneHeller allows a loaded, unlocked firearm for purposes of self defense and required DC issue a permit for the same (a permit was not objected to by Heller's legal team). We'll see where McDonald goes.

pMcW
01-15-2010, 8:53 AM
I don't understand the timing issue...

Obligatory disclaimer: I'm not at all interested in UOC, haven't done it, don't advocate it, don't plan to do it, probably wouldn't if the right people said "go ahead," etc.

However, it perplexes me that open carry now could change any long term post-incorporation outcomes. It seems to me that even when we do get incorporation it will mean only that there needs to be some valid way to bear arms.

I expect that people will get just as upset by seeing openly carried guns after incorporation as they do now. Consequently, it seems inevitable to me that legislative solutions would be sought to address the perceived problem. If bans on open carry passed before incorporation would survive the eventual implementation of incorporation, what mechanism would prevent the same or similar laws from being enacted after incorporation?

HUTCH 7.62
01-15-2010, 9:04 AM
Not good, I've been holding out OC'ing for this reason. Oh well maybe next time.

MudCamper
01-15-2010, 9:16 AM
Two points.

"We've lost LOC forever! Waaah!" is a seriously defeatist attitude. (And frankly, I find it pathetic.) How does this help. It does not. The only thing you get out of it is that you can use it in your, "It's all YOUR fault!" argument, which brings me to point two.

STOP the BLAME GAME. First, it's seriously debatable that UOC had anything at all to do with this. But more importantly, it divides us which only helps our enemies.

http://www.paul.net/guns/images/JoinorDie400.png

wildhawker
01-15-2010, 9:30 AM
Now that LOC of handguns is not at stake for the foreseeable future...

Can we move on and put this behind us?

Time to refocus and put the water under the bridge. There's plenty of work to do, and it's not going to get done if we're crying in the rain over something that's done and over with.

It sucks. There will either be a solution, or there won't. I think, maybe, it's time to take a look at staging some UOC/banana holster gatherings. Maybe in San Mateo County. I hear Jamba Juice might be a good place to start.

Theseus
01-15-2010, 9:47 AM
Now that LOC of handguns is not at stake for the foreseeable future...

Can we move on and put this behind us?

Time to refocus and put the water under the bridge. There's plenty of work to do, and it's not going to get done if we're crying in the rain over something that's done and over with.

It sucks. There will either be a solution, or there won't. I think, maybe, it's time to take a look at staging some UOC/banana holster gatherings. Maybe in San Mateo County. I hear Jamba Juice might be a good place to start.

Although I am there with you in spirit, I think that a banana is perhaps not the best, but maybe an inert training gun? It is still legal, communicates, and it won't split and create a horrible mess in a holster.

And to add. . . Although this was an open carrier, it was a licensed open carrier. Now, if the 626.9 expansion had passed I would be in total agreement and apologize for those that didn't heed the warnings, but this isn't the case. It may have the same effect of language, but arguably it could be just as much a result your the foundations hints about "wait until incorporation, a CCW is a loaded OC permit".

But visions of criminals slipping on banana peals chasing after an intended target does make me chuckle a little.

wildhawker
01-15-2010, 9:49 AM
Although I am there with you in spirit, I think that a banana is perhaps not the best, but maybe an inert training gun? It is still legal, communicates, and it won't split and create a horrible mess in a holster.

But visions of criminals slipping on banana peals chasing after an intended target does make me chuckle a little.

Inert training bananas?

http://laughingsquid.com/wp-content/uploads/banana-holster-20080506-124002.jpghttp://i56.photobucket.com/albums/g178/wildhawker/banana-holster-20080506-124002.jpghttp://farm1.static.flickr.com/123/386364932_0043c83be8.jpg?v=0

Theseus
01-15-2010, 9:52 AM
Inert training bananas?

http://laughingsquid.com/wp-content/uploads/banana-holster-20080506-124002.jpg

I didn't think of that!

wildhawker
01-15-2010, 10:04 AM
California citizens' best best to ward off an attack: Banana Phone & Open Carry Holster! Now we can call San Mateo County Sheriffs right before we're bludgeoned to death!! This just *screams* "attack me and I'll call the po-po".

We're just BANANAS over CCWs.

http://www.cellfoam.com/

Banana $10 + CA tax + S&H
Add the holster for $8

Decoligny
01-15-2010, 10:07 AM
I think, maybe, it's time to take a look at staging some UOC/banana holster gatherings. Maybe in San Mateo County. I hear Jamba Juice might be a good place to start.

This would work. "Officer, it's just my cell phone!"

http://cellfoam.com/local%20root/Holster_Blk.gif

http://cellfoam.com/local%20root/Large-Bannas-with-phone.jpg

GrizzlyGuy
01-15-2010, 10:11 AM
Please read one of the most pro-gun federal court decisions (http://www.archive.org/download/gov.uscourts.casd.308678/gov.uscourts.casd.308678.5.0.pdf) in California since Nordyke and you'll see why I predict strongly that LOC is not happening anytime soon. The core legal reasoning we'll get shall issue concealed permits is that the long history of case law is that states can ban one form as long as the other form is available for practical self defense.


However, note that in the Peruta motion ruling, (http://www.calguns.net/calgunforum/showthread.php?t=259383) the court said:

Whenever a state law burdens the right to travel, the court must apply strict scrutiny and ask whether the challenged law is “necessary to further a compelling state interest.”…

They also said that the defendant's (government's) position did not even pass intermediate scrutiny, let alone strict scrutiny.

If CA goes only with shall-issue CCW, and continues to not respect CCW permits from other states, how could that pass strict scrutiny regarding the right to travel? A resident of another state would have no means of exercising their soon-to-be 2A right to "possess and carry weapons in case of confrontation" while visiting CA.

As a minimum, it seems to me that the state would need to either:

1) Do shall-issue CCW and respect any/all CCW permits from any state.

2) Allow LOC for residents of any/all states in addition to (or instead of) shall-issue CCW.

ETA: Given that criminals usually carry (illegally) concealed, and given how difficult it would be for LEO's to verify the validity of any state's CCW license out in the field... wouldn't it be better from a law enforcement ("compelling state interest") standpoint to just go with LOC?

ETA2: I'm a rifle guy. If the state doesn't allow me to LOC it, how can I defend myself? Are they going to require me and others to buy handguns if we want to exercise our soon-to-be 2A rights?

8-Ball
01-15-2010, 10:15 AM
Wouldn't this have been the outcome after incorporation... It seems the second someone LOCed with a CCW it would come up before the legislature anyway...

Untamed1972
01-15-2010, 10:22 AM
However, note that in the Peruta motion ruling, (http://www.calguns.net/calgunforum/showthread.php?t=259383) the court said:



They also said that the defendant's (government's) position did not even pass intermediate scrutiny, let alone strict scrutiny.

If CA goes only with shall-issue CCW, and continues to not respect CCW permits from other states, how could that pass strict scrutiny regarding the right to travel? A resident of another state would have no means of exercising their soon-to-be 2A right to "possess and carry weapons in case of confrontation" while visiting CA.

As a minimum, it seems to me that the state would need to either:

1) Do shall-issue CCW and respect any/all CCW permits from any state.

2) Allow LOC for residents of any/all states in addition to (or instead of) shall-issue CCW.

ETA: Given that criminals usually carry (illegally) concealed, and given how difficult it would be for LEO's to verify the validity of any state's CCW license out in the field... wouldn't it be better from a law enforcement ("compelling state interest") standpoint to just go with LOC?

CA could always offer a "non-resident" permit like UT and NV do. It would be just like CA actually to not honor permits issued by anyone else and require everyone to get a CA permit to carry in CA

Maestro Pistolero
01-15-2010, 10:26 AM
LOC of handguns will probably not happen in urban California in anyone's lifetime. Shall issue CCW will.Gene, isn't there exponentially more historical legal support for LOC than there ever was for CCW? I know we're reeling from a loss, here, but perhaps in your disappointment, there is a little temporary pessimism at play. I trust that the legal minds here will explore all options at the appropriate time.

GrizzlyGuy
01-15-2010, 10:31 AM
CA could always offer a "non-resident" permit like UT and NV do. It would be just like CA actually to not honor permits issued by anyone else and require everyone to get a CA permit to carry in CA

True, but under strict scrutiny regarding the right to travel, could that even pass muster? Think of a retired couple who decides to travel around the country in their RV, perhaps with no specific itinerary in mind. Does the government(s) really expect them to go through each state's licensing procedures in advance?

Kind of hard to freely and simultaneously exercise your right to travel and your soon-to-be RKBA if that will be the case.

inbox485
01-15-2010, 10:33 AM
This whole thread reeks of pure FAIL. It is divisive, unproductive (counter-productive rather), and seeing as it doesn't affect UOC it is rather hard to blame it on UOC activities. It was a LOCer acting outside of the bounds of their license.

Votes:

4/21/09
Assm. Public Safety Comm.
7-0
Ayes: Furutani, Gilmore, Hagman, Hill, Ma, Skinner, Solorio



Sounds like this was a done deal as of the beginning of 2009. What if anything did that have to do with UOC activities?

Read the title again. OC-ers caused this.

This is the 'legislative solution' and thanks to them I will not be able to LOC in my lifetime.

I hold each and everyone of you 'educating the public' responsible.

Now I don't care if you UOC, have at it. You've done enough.

If 12031 were expanded to having ammunition and an unlocked gun or having a loaded magazine even if it was not attached to the gun, then the blame game would make sense. For those two possibilities, I've avoided OC activities with inflammatory potential. Even if one of those two things happened, the scat smearing would be no more productive.

camsoup
01-15-2010, 10:39 AM
Just to clarify things here....Not sure why everyone is all over UOC about this.

This was someone who had a lisence to carry "loaded and exposed" this license was issued by a particular county, and only vaild in that county. So someone took there "magic ticket" out of there county and thought they could carry loaded and exposed anywhere, they were wrong. UOC had nothing to do with it.

You cant really even blame OC, becuase the person had a permit allowing him to do so, only in the county of issue unfortantly.

He made a mistake and should have had his license revoked. And or charged for carry a loaded weapon since his license would not have exempted him from 12031 anywhere but in the county of issue.

Changing the law to clarify the difference between the two permits ended up just being to "sweet" of a deal for them to pass up.

yelohamr
01-15-2010, 10:45 AM
This whole thread reeks of pure FAIL. It is divisive, unproductive (counter-productive rather), and seeing as it doesn't affect UOC it is rather hard to blame it on UOC activities. It was a LOCer acting outside of the bounds of their license.

I agree, but they have to blame someone and UOC is getting more press. Along with that is more notice of how our rights will be violated if we continue to UOC in a LEGAL manner.

dustoff31
01-15-2010, 10:46 AM
Either LOC or UOC, doesnt matter...

it was OCers that sank LOC for EVERYONE.

Yep. I'm surprized at the number of people who can't seem to grasp this concept. Well, not really.

It was OPEN CARRY that did it. Loaded, unloaded, backwards, upside down, whatever type of OPEN CARRY.

Untamed1972
01-15-2010, 10:46 AM
True, but under strict scrutiny regarding the right to travel, could that even pass muster? Think of a retired couple who decides to travel around the country in their RV, perhaps with no specific itinerary in mind. Does the government(s) really expect them to go through each state's licensing procedures in advance?

Kind of hard to freely and simultaneously exercise your right to travel and your soon-to-be RKBA if that will be the case.


Oh....I totally agree with you. It should be treated that same as a drivers license. A visitor with a valid DL from another state can drive here, so if he's got a valid state issued permit to carry it should be honored as well.

But even shall issue states dont have 100% reciprocity either. So that is an area that needs some work.

inbox485
01-15-2010, 10:53 AM
I agree, but they have to blame someone and UOC is getting more press. Along with that is more notice of how our rights will be violated if we continue to UOC in a LEGAL manner.

Their concerns do have some validity. UOC could cause legal issues. I for one think what can be harmed has been harmed already, but that is a separate discussion.

This thread has been about 45% scat smearing, 45% gun owner cannibalism, and 10% tangential chatter.

Kestryll
01-15-2010, 11:18 AM
Just a thought for those asking about UOC/LOC and who did what.

If you are an LEA and you have one incident of a CCW holder LOC'ing in a prohibited place, what are you going to do?

Invest a huge amount of time, political capital and goodwill to change the law State wide?
Or are you going to deal with the individual within the existing law and move on?


Now, You are an LEA and you have spent the last year responding to and dealing with UOC calls and and you have an incident of a CCW holder LOC'ing in a prohibited place, what are you going to do?

NOW would you be more interested in spending the time, capital and effort to change the law?

A single incident rarely even pings the radar but many single incidents culminating in a chargeable one will definitely motivate action.

inbox485
01-15-2010, 11:42 AM
Just a thought for those asking about UOC/LOC and who did what.

If you are an LEA and you have one incident of a CCW holder LOC'ing in a prohibited place, what are you going to do?

Invest a huge amount of time, political capital and goodwill to change the law State wide?
Or are you going to deal with the individual within the existing law and move on?


Now, You are an LEA and you have spent the last year responding to and dealing with UOC calls and and you have an incident of a CCW holder LOC'ing in a prohibited place, what are you going to do?

NOW would you be more interested in spending the time, capital and effort to change the law?

A single incident rarely even pings the radar but many single incidents culminating in a chargeable one will definitely motivate action.

Then why didn't they just ban unlocked guns in public ala 12031? They cited incidences of LOC outside the bounds of their permit. Are you suggesting they would lack the votes if they came out and said that it was in response to UOC (even though it has no real impact on UOC)? Even if they came out and said that they feared a forced shall issue ruling from the courts and wanted to stop LOC before it happened, they wouldn't lack the votes.

I think the legislature figured out the little loop hole a very long time ago, and so far have relied on sheriffs and PD chiefs to revoke any open carriers. Seeing the writing on the wall, they don't want LOC and took the obvious action to kill it before the courts got around to guaranteeing it.

So seeing as the bill was more in response to litigation activity than UOC activity, it appears that we actually have CGF to thank for it. Not to say that CGF should have done anything different, I just find it grossly inappropriate for high level CGF members to be smearing UOCers for a mess that points to CGF far more than UOC.

wildhawker
01-15-2010, 11:59 AM
Inbox, that's as egregious a claim -maybe moreso- as to say that UOC was the sole cause of the bill. Can we all back away from the ledge here?

Untamed1972
01-15-2010, 12:04 PM
I dont see anything "being the cause of this bill". I just see it as the gungrabbing lobby in this state using any and every excuse they can think of limit freedoms as much as they can. This just happened to be a convenient one. If it didn't happen today it might tomorrow or the next, it prolly woulda been brought up eventually.

So put the blame where it belongs......on the gov't that has no respect for it's citizens, blame belongs nowhere else.

grammaton76
01-15-2010, 12:09 PM
Wouldn't this have been the outcome after incorporation... It seems the second someone LOCed with a CCW it would come up before the legislature anyway...

This would have happened if we didn't have a solid 2A at the time. The argument is that had UOC folks held off instead of running events after being asked to stand down (PNS, myself, and most of the San Diego area guys did so upon request), there wouldn't have been the fire behind this bill to get it passed.

The logic train on the pre/post incorporation CCW argument:

1. Our shall-issue CCW's will not happen until we have a solid 2A in California.

2. After we had a solid 2A, we could have prevented this bill from going into effect on a constitutional basis. We would have had a powerful defense against this change, but we wouldn't be able to revoke the change if it had already happened.

3. It already happened before we have the 2A, so we're putting up a fence after the cows have left the pasture.

inbox485
01-15-2010, 12:15 PM
Inbox, that's as egregious a claim -maybe moreso- as to say that UOC was the sole cause of the bill. Can we all back away from the ledge here?

I don't see it as being egregious at all. The legislature has known for a very long time that CCW also granted LOC but that LOC would get the carrier instant revocation. CGF is on the brink of forcing shall issue down the throats of an anti-gun legislature (for which I am quite grateful to be sure). The legislature just issued their backlash. It sucks, but it seems to be more of a backlash to impending shall issue than trying to put UOC in it's place. Taking that stinking pile of you know what and trying to pin it on UOC is out of line.

But yes, I'm all for backing away from the ledge.

Hopi
01-15-2010, 12:16 PM
Then why didn't they just ban unlocked guns in public ala 12031? They cited incidences of LOC outside the bounds of their permit. Are you suggesting they would lack the votes if they came out and said that it was in response to UOC (even though it has no real impact on UOC)? Even if they came out and said that they feared a forced shall issue ruling from the courts and wanted to stop LOC before it happened, they wouldn't lack the votes.

I think the legislature figured out the little loop hole a very long time ago, and so far have relied on sheriffs and PD chiefs to revoke any open carriers. Seeing the writing on the wall, they don't want LOC and took the obvious action to kill it before the courts got around to guaranteeing it.

So seeing as the bill was more in response to litigation activity than UOC activity, it appears that we actually have CGF to thank for it. Not to say that CGF should have done anything different, I just find it grossly inappropriate for high level CGF members to be smearing UOCers for a mess that points to CGF far more than UOC.

Damn that anti-gun shill group and their flock of cannibal sheep. :rolleyes::rolleyes::rolleyes::rolleyes::rolleyes: :rolleyes:

Untamed1972
01-15-2010, 12:21 PM
This would have happened if we didn't have a solid 2A at the time. The argument is that had UOC folks held off instead of running events after being asked to stand down (PNS, myself, and most of the San Diego area guys did so upon request), there wouldn't have been the fire behind this bill to get it passed.

The logic train on the pre/post incorporation CCW argument:

1. Our shall-issue CCW's will not happen until we have a solid 2A in California.

2. After we had a solid 2A, we could have prevented this bill from going into effect on a constitutional basis. We would have had a powerful defense against this change, but we wouldn't be able to revoke the change if it had already happened.

3. It already happened before we have the 2A, so we're putting up a fence after the cows have left the pasture.

I'm still not getting how if it is unconstitutional before incorporation how it's not unconstitutional after incorporation. Wouldn't the law be just as easily challenged on the same grounds regardless of the timing of incorporation?

gotgunz
01-15-2010, 12:25 PM
I still can't see the reasoning why someone with a concealed permit would want to open carry anyways.

mej16489
01-15-2010, 12:36 PM
Great, OC scores another "win."

<sarcasm>
Darwin effect (http://www.calguns.net/calgunforum/showpost.php?p=3642054&postcount=254) might be our only hope.
</end sarcasm>

Everyone please keep in mind that this was cause by Licensed LOCer's who were outside the county in which they were licensed. Presumably noone involved either here at CalGuns, nor at OCDO

But damage is damage.... :mad:

grammaton76
01-15-2010, 12:37 PM
I'm still not getting how if it is unconstitutional before incorporation how it's not unconstitutional after incorporation. Wouldn't the law be just as easily challenged on the same grounds regardless of the timing of incorporation?

The reality is that it is far easier to challenge or remove a proposed bill on constitutional grounds than to have one stricken from the books.

On a side note, I just realized something:

You know those flap holsters which most UOC guys say to avoid, as they could be considered concealed weapons?

...if a weapon within a flap holster were officially considered concealed, then wouldn't that qualify as valid within the meaning of a CCW? It's not LOC if those holsters are considered to be concealed.

On a side note, the last thing we want is to be in a Texas-style situation, where you're guilty of a crime if someone is able to tell you have a gun, even if your permit is valid. I fear that we may be close to that point, if not there already by certain tortured meanings.

Untamed1972
01-15-2010, 12:40 PM
The reality is that it is far easier to challenge or remove a proposed bill on constitutional grounds than to have one stricken from the books.

On a side note, I just realized something:

You know those flap holsters which most UOC guys say to avoid, as they could be considered concealed weapons?

...if a weapon within a flap holster were officially considered concealed, then wouldn't that qualify as valid within the meaning of a CCW? It's not LOC if those holsters are considered to be concealed.

On a side note, the last thing we want is to be in a Texas-style situation, where you're guilty of a crime if someone is able to tell you have a gun, even if your permit is valid. I fear that we may be close to that point, if not there already by certain tortured meanings.


Well it's not like any of should have expected CA to just accept defeat and throw open the doors. Once forced to go shall issue they're going to do everything they can to restrict it right up to the boundaries of the court decision.

mej16489
01-15-2010, 12:41 PM
Looks like we got voted against by quite a few Republican "friends" that have touted their pro-gun sentiments in the past - including both the Berryhills.

Runner too, I'll be having a nice chat with him this weekend...

MudCamper
01-15-2010, 12:42 PM
Just a thought for those asking about UOC/LOC and who did what.

If you are an LEA and you have one incident of a CCW holder LOC'ing in a prohibited place, what are you going to do?

Invest a huge amount of time, political capital and goodwill to change the law State wide?
Or are you going to deal with the individual within the existing law and move on?


Now, You are an LEA and you have spent the last year responding to and dealing with UOC calls and and you have an incident of a CCW holder LOC'ing in a prohibited place, what are you going to do?

NOW would you be more interested in spending the time, capital and effort to change the law?

A single incident rarely even pings the radar but many single incidents culminating in a chargeable one will definitely motivate action.

Nope. I don't buy it. If what you argue were true, then they would have banned UOC, by modifying 12031 to prevent ammo near the gun, or no unlocked guns in public.

And if they'd done that, one of us might have noticed. This bill passed without any of us noticing.

And to reiterate, all the "It's YOUR fault!" is divisive, counter-productive, and quite pathetic.

Untamed1972
01-15-2010, 12:47 PM
Sounds to me too like this could be partly some squabbling between shall-issue CA sheriffs and no issue Sheriffs and chiefs who dont like people from out of the county being able to come and carry in their county where they consider themselves King.

Gray Peterson
01-15-2010, 12:48 PM
However, note that in the Peruta motion ruling, (http://www.calguns.net/calgunforum/showthread.php?t=259383) the court said:



They also said that the defendant's (government's) position did not even pass intermediate scrutiny, let alone strict scrutiny.

If CA goes only with shall-issue CCW, and continues to not respect CCW permits from other states, how could that pass strict scrutiny regarding the right to travel? A resident of another state would have no means of exercising their soon-to-be 2A right to "possess and carry weapons in case of confrontation" while visiting CA.

As a minimum, it seems to me that the state would need to either:

1) Do shall-issue CCW and respect any/all CCW permits from any state.

2) Allow LOC for residents of any/all states in addition to (or instead of) shall-issue CCW.

ETA: Given that criminals usually carry (illegally) concealed, and given how difficult it would be for LEO's to verify the validity of any state's CCW license out in the field... wouldn't it be better from a law enforcement ("compelling state interest") standpoint to just go with LOC?

ETA2: I'm a rifle guy. If the state doesn't allow me to LOC it, how can I defend myself? Are they going to require me and others to buy handguns if we want to exercise our soon-to-be 2A rights?

You ask some VERY interesting questions which I've been dealing with pretty good on my case (information on this is coming up).

First, let's make one thing clear: There's what I believe should be constitutional, and what a court will decide. We had a little back and forth about Alan Gura and OCing in an interview, where someone did not know the difference.

Second, a federal judge is NOT going to order the recognition of out of state licenses and essentially write a statute directly into the Penal Code. They can order a state/county/city to ignore a statutory requirement which violates the constitution of the United States, or do it in a manner which does not violate, but they can't directly write in a "recognition" provision. They can, however, order the state to recognize a carry license if US Congress passes a reciprocity law. That's under a different provision of the US constitution (Article IV).

What can happen, however, is that CA will require one of their own licenses at least at first. What will likely happen is the following:

Peruta/Sykes wins. We have strict scrutiny on right to travel effecting a fundamental right. You have a bunch of "near staters" and crazies like myself who like going to California every year (I'll be in the bay area next week) who would apply for a license from any county sheriff. You'd then have to deal with the effects on the right to travel by those who are in the middle of the country or on the east coast.

I believe that refusing to issue licenses by mail violates strict scrutiny because requiring someone to travel cross country first to get a license I believe violates the right when you can do the training remotely and get the fingerprints done by any LEA would be impermissible burden to the right of travel. One can get a parade permit mailed to them, and they fax in the application, even if across the country. The same should apply to carry.

Kestryll
01-15-2010, 12:56 PM
Nope. I don't buy it. If what you argue were true, then they would have banned UOC, by modifying 12031 to prevent ammo near the gun, or no unlocked guns in public.

And if they'd done that, one of us might have noticed. This bill passed without any of us noticing.

And to reiterate, all the "It's YOUR fault!" is divisive, counter-productive, and quite pathetic.

I'm not saying it's 'THE' cause, things like this rarely have a singular cause.

I do however suspect all the recent drama over UOC brought OC in general much more in to the limelight and not in a good way. Legislators, Judges and LEAs who would not have considered OC in general to be a major issue are now looking at it and considering it.
I'd be willing to bet the vast majority of those outside our field of interest do not know the difference between UOC and LOC and to them it's all 'OC' with different seasonings.

Very rarely does anything good come from having the Legislature actually notice and consider 2A issues.

Untamed1972
01-15-2010, 12:56 PM
You ask some VERY interesting questions which I've been dealing with pretty good on my case (information on this is coming up).

First, let's make one thing clear: There's what I believe should be constitutional, and what a court will decide. We had a little back and forth about Alan Gura and OCing in an interview, where someone did not know the difference.

Second, a federal judge is NOT going to order the recognition of out of state licenses and essentially write a statute directly into the Penal Code. They can order a state/county/city to ignore a statutory requirement which violates the constitution of the United States, or do it in a manner which does not violate, but they can't directly write in a "recognition" provision. They can, however, order the state to recognize a carry license if US Congress passes a reciprocity law. That's under a different provision of the US constitution (Article IV).

What can happen, however, is that CA will require one of their own licenses at least at first. What will likely happen is the following:

Peruta/Sykes wins. We have strict scrutiny on right to travel effecting a fundamental right. You have a bunch of "near staters" and crazies like myself who like going to California every year (I'll be in the bay area next week) who would apply for a license from any county sheriff. You'd then have to deal with the effects on the right to travel by those who are in the middle of the country or on the east coast.

I believe that refusing to issue licenses by mail violates strict scrutiny because requiring someone to travel cross country first to get a license I believe violates the right when you can do the training remotely and get the fingerprints done by any LEA would be impermissible burden to the right of travel. One can get a parade permit mailed to them, and they fax in the application, even if across the country. The same should apply to carry.

NV is currently requiring applicants for non-resident permits to apply in person. Maybe that issue should be challenged right now aye?

inbox485
01-15-2010, 12:57 PM
Nope. I don't buy it. If what you argue were true, then they would have banned UOC, by modifying 12031 to prevent ammo near the gun, or no unlocked guns in public.

And if they'd done that, one of us might have noticed. This bill passed without any of us noticing.

And to reiterate, all the "It's YOUR fault!" is divisive, counter-productive, and quite pathetic.

+1. Cal Guns has and is doing some great stuff. Our tyrannical legislators finally got around to shooting back. Am I mad at CG over it? Of course not. I just take issue with blaming it on UOC when it wasn't aimed at UOC and doesn't even stop UOC.

I wouldn't be surprised if anti-UOC bills were passed. It would suck. The blame would be pretty obvious (not that the ensuing bickering would be any more productive). But this was not an anti-UOC bill. This was a "if you wanna ram something down our throats through the courts, your going to have to fight for every inch" bill.

Gray Peterson
01-15-2010, 1:03 PM
NV is currently requiring applicants for non-resident permits to apply in person. Maybe that issue should be challenged right now aye?

Again, there is what I consider to be constitution, and there is what the federal courts will go for. Remember that the Peruta case distinguished a situation like California from a situation like WV. Nevada allows LOC statewide. California does not.

inbox485
01-15-2010, 1:04 PM
I'm not saying it's 'THE' cause, things like this rarely have a singular cause.

I do however suspect all the recent drama over UOC brought OC in general much more in to the limelight and not in a good way. Legislators, Judges and LEAs who would not have considered OC in general to be a major issue are now looking at it and considering it.

The recent "drama" you mention happened after this was all in motion. It was good as done almost a year ago.

Very rarely does anything good come from having the Legislature actually notice and consider 2A issues.

So how was it that CG thought they could ram shall issue up the butts of the legislature without having them "notice and consider" it?

Untamed1972
01-15-2010, 1:10 PM
Again, there is what I consider to be constitution, and there is what the federal courts will go for. Remember that the Peruta case distinguished a situation like California from a situation like WV. Nevada allows LOC statewide. California does not.


Yes, that is true....NV does allow open carry.


I think though at some point what needs to be looked at is the restrictions that are placed on unlicensed open carry, like the school zone issues even on the federal level and make the distiction that restricted open carry is NOT the same as less restricted licensed CCW.

Kestryll
01-15-2010, 1:10 PM
The recent "drama" you mention happened after this was all in motion. It was good as done almost a year ago.
The recent drama has been going on for some time, not just last week.


So how was it that CG thought they could ram shall issue up the butts of the legislature without having them "notice and consider" it?

By waiting until Heller is Incorporated taking the option of making any real 'decision' out of their hands.
Once the 2nd and the conclusion that it is an individual right becomes the law of California along with our right to defend ourselves THEN we can move forward with a SCOTUS ruling removing most of their ability to 'consider'.

GrizzlyGuy
01-15-2010, 1:45 PM
You ask some VERY interesting questions which I've been dealing with pretty good on my case (information on this is coming up).

First, let's make one thing clear: There's what I believe should be constitutional, and what a court will decide. We had a little back and forth about Alan Gura and OCing in an interview, where someone did not know the difference.

Second, a federal judge is NOT going to order the recognition of out of state licenses and essentially write a statute directly into the Penal Code. They can order a state/county/city to ignore a statutory requirement which violates the constitution of the United States, or do it in a manner which does not violate, but they can't directly write in a "recognition" provision. They can, however, order the state to recognize a carry license if US Congress passes a reciprocity law. That's under a different provision of the US constitution (Article IV).

What can happen, however, is that CA will require one of their own licenses at least at first. What will likely happen is the following:

Peruta/Sykes wins. We have strict scrutiny on right to travel effecting a fundamental right. You have a bunch of "near staters" and crazies like myself who like going to California every year (I'll be in the bay area next week) who would apply for a license from any county sheriff. You'd then have to deal with the effects on the right to travel by those who are in the middle of the country or on the east coast.

I believe that refusing to issue licenses by mail violates strict scrutiny because requiring someone to travel cross country first to get a license I believe violates the right when you can do the training remotely and get the fingerprints done by any LEA would be impermissible burden to the right of travel. One can get a parade permit mailed to them, and they fax in the application, even if across the country. The same should apply to carry.

Yes, I think you and I are seeing the same eventual end-game, post-incorporation and after an as-yet undetermined number of current and future federal court cases get resolved: Congress will need to act to create a shall-issue Federal Firearms Carry License (FFCL). This act of Congress will preempt all state firearms carry licensing and possession laws (e.g.,: 12050 (http://law.onecle.com/california/penal/12050.html) & 12021 (http://law.onecle.com/california/penal/12021.html)). States will only have the 10A-protected option to:

1) Respect the FFCL for loaded concealed carry.
2) Respect the FFCL for loaded open carry.
3) Both of the above.

Unless and until that happens, citizens of the U.S. will not be able to freely and simultaneously exercise their right to travel and their RKBA, both interpreted using strict scrutiny. A citizen of any state must be free to travel armed through or to any other state. Requiring them to apply for a resident license in their state, plus 49 non-resident licenses, is an excessive burden and only the Federal government (Congress) can alleviate it to protect our 2A and 14A rights.

How long will that take to happen? Who knows, probably many years. But I can't think of any other constitutionally sound end-game. :)

Meplat
01-15-2010, 2:21 PM
I think my opinion differs from a huge majority here, but I believe that everybody who carries should Open Carry. Sure, you can go with the entire your going to be a target theory, but how about when that same person sees multiple people with a firearm at the bank,…

This is a little like the argument that you would be safe out on the freeway in a clown car if only everybody would drive clown cars. I doubt enough people have the brass to OC.



Lastly, if you have your firearm tucked nicely in your 501 Levi's how quickly can you draw, chamber a round and fire? Do you have pants that are a little tighter, will your shirt or jacket get in the way? Will something snag?


If you have to carry with an empty chamber you need a different carry gun. The other points are well taken


I would prefer everyone, who is not a criminal and mentally stable and capable of carrying a firearm, to do so.

Some would prefer everyone drive smart cars, but that’s not going to happen either.
:D

Untamed1972
01-15-2010, 2:22 PM
Yes, I think you and I are seeing the same eventual end-game, post-incorporation and after an as-yet undetermined number of current and future federal court cases get resolved: Congress will need to act to create a shall-issue Federal Firearms Carry License (FFCL). This act of Congress will preempt all state firearms carry licensing and possession laws (e.g.,: 12050 (http://law.onecle.com/california/penal/12050.html) & 12021 (http://law.onecle.com/california/penal/12021.html)). States will only have the 10A-protected option to:

1) Respect the FFCL for loaded concealed carry.
2) Respect the FFCL for loaded open carry.
3) Both of the above.

Unless and until that happens, citizens of the U.S. will not be able to freely and simultaneously exercise their right to travel and their RKBA, both interpreted using strict scrutiny. A citizen of any state must be free to travel armed through or to any other state. Requiring them to apply for a resident license in their state, plus 49 non-resident licenses, is an excessive burden and only the Federal government (Congress) can alleviate it to protect our 2A and 14A rights.

How long will that take to happen? Who knows, probably many years. But I can't think of any other constitutionally sound end-game. :)


Or better yet.....a court ruling that says since bearing arms is a fundamental right requiring one to be licensed to exercise that right is illegal so any citizen may carry freely in any state so long as they are not prohibited from posession.

AndrewMendez
01-15-2010, 2:40 PM
This is a little like the argument that you would be safe out on the freeway in a clown car if only everybody would drive clown cars. I doubt enough people have the brass to OC.

I will agree with that, but that is what I hope we have by the time I die. Whats wrong with clown cars?


If you have to carry with an empty chamber you need a different carry gun. The other points are well taken

I was simply going over the "steps" needed to fire, I dont think everybody would have a round chambered.. If I had a CCW I would indeed have a round chambered.



Some would prefer everyone drive smart cars, but that’s not going to happen either.
:D

I want a CCW for criminals and people who drive smart cars. Those crazy sons of B****es, who knows what their next scheme will be!

MudCamper
01-15-2010, 2:45 PM
I'm not saying it's 'THE' cause, things like this rarely have a singular cause.

I do however suspect all the recent drama over UOC brought OC in general much more in to the limelight and not in a good way.

I almost would buy that, but then I look at the dates on the documents, and it just doesn't add up. Yeah, maybe recent UOC media got crossed in the minds of these legislators by the time they actually voted on it, but they wouldn't passed it regardless.

Grakken
01-15-2010, 3:29 PM
I think it is pretty obvious that people like Gene, Bill and a few others are dialed in. Dialed in to the real crap behind the scenes when it come to Cali Law (or more dialed in than most of us). There are so many fake @$$ lawyer types on this board that are very quick to offer their opinion like it IS the golden rule. It makes it hard for people who will admit they know nothing about Law (like me) to decipher the crap from the real advice.

In principle, I have nothing against people who OC, whether it is UOC, LOC, Legal or not You shouldn't need some piece of chit paper to exorcise a natural right (self protection). However if the people we all know pretty much know their business, say, that it would be best if you (OC-ers) lay low for now (because it will be of greater benefit down the road), then why not trust that? Why test it? These guys wouldn't be saying to do (or not do) anything without a good reason.

Now, to blame this on UOC guys is a little unfair to them as it was a LOC guy that messed up. However, you UOC'ers aren't helping anyone by UOC-ing (right now).. What good (to the overall cause) has come from any of the UOC events? Now what bad has come of the same events? I'm just saying, make sure you have a bee keeper suit on (2A incorp) before you go poking the nest (OC-ing). That way we don't get screwed in the middle of the night by politicians who only care about holding onto their power. So they enact these feel good laws that do nothing but bend us over.

Just my 2 cents.

kcbrown
01-15-2010, 3:45 PM
The reality is that it is far easier to challenge or remove a proposed bill on constitutional grounds than to have one stricken from the books.


Maybe, but aren't we talking about challenging/removing a proposed bill in the very same courts that Gene has said have supported bans on various forms of carry as long as one is available?

What in the world makes you think those courts would actually support such a challenge in the face of their past rulings? Sure, it's possible, but how can anyone reasonably believe that it's anything but a longshot?


I'm no legal expert, but it seems to me that the issue of LOC when a permit-based shall-issue CCW system is in place will be decided in the Supreme Court, and quite possibly in a case originating in some other state than California (e.g., Texas).



On a side note, the last thing we want is to be in a Texas-style situation, where you're guilty of a crime if someone is able to tell you have a gun, even if your permit is valid. I fear that we may be close to that point, if not there already by certain tortured meanings.I fully expect that's exactly where we'll be, and that we would have gotten there no matter what at least until the point that the Supreme Court decides to take a case on the issue.

Do you guys really think the CA legislature is going to sit still once 2A incorporation is here? Do you really think they're just going to give up? Please. They're going to use every trick up their sleeve to hamper us as much as possible. You know this is true. And that makes the timing of the law being discussed here quite irrelevant.

The same legal arguments that would be made when challenging a proposed law are the same arguments that would be made when challenging an existing law, but with one crucial difference: when challenging an existing law, you have someone with standing who there is absolutely no doubt at all is being affected by the law, because the fact that he's there in the courtroom is the result of the law being applied to him. You don't have that when challenging a proposed law. Isn't the issue of standing something that carries considerable weight in the courts?

The bottom line is I fail to see how the situation would be any different post-incorporation, regardless of whether this law passed now or was proposed after incorporation.


ETA: Despite the above, I do believe it's prudent to keep your options as open as possible, so I agree that if refraining from OC is prudent then that's what OCers should do (or, perhaps, should have done). My main point is that I fail to see how the passage of the law being discussed here is the earth-shattering thing that is being claimed.

ke6guj
01-15-2010, 4:49 PM
Maybe, but aren't we talking about challenging/removing a proposed bill in the very same courts that Gene has said have supported bans on various forms of carry as long as one is available?

What in the world makes you think those courts would actually support such a challenge in the face of their past rulings? Sure, it's possible, but how can anyone reasonably believe that it's anything but a longshot?I think grammaton's point was more as, once we have incorporation, gun-friendly legislators can tell those that are writing the bills that it is unconstitutional, that the 2nd has been incorporated against the states, and be able to point to Heller, McDonald, Pena, and Sykes. Right now, they can't do that.


Do you guys really think the CA legislature is going to sit still once 2A incorporation is here? Do you really think they're just going to give up? Please. They're going to use every trick up their sleeve to hamper us as much as possible. You know this is true. And that makes the timing of the law being discussed here quite irrelevant.

the hard-core anti-gunners won't, but some of the moderates and fair weather barnners may sit still if they know that the bill that they are working on is unconstitutional.

Glock22Fan
01-15-2010, 4:53 PM
Originally Posted by grammaton76 http://www.calguns.net/calgunforum/images/buttons/viewpost.gif (http://www.calguns.net/calgunforum/showthread.php?p=3645077#post3645077)
The reality is that it is far easier to challenge or remove a proposed bill on constitutional grounds than to have one stricken from the books.


Maybe, but aren't we talking about challenging/removing a proposed bill in the very same courts that Gene has said have supported bans on various forms of carry as long as one is available?


I think you have it backwards, you would not be challenging a proposed bill in the courts, but trying to upset a bill already on the books.

Once you look at it that way around, Grammaton is correct.

camsoup
01-15-2010, 6:33 PM
, gun-friendly legislators can tell those that are writing the bills that it is unconstitutional, that the 2nd has been incorporated against the states, and be able to point to Heller, McDonald, Pena, and Sykes. Right now, they can't do that.

They also could have chosen to not vote for the bill and actually stand up for what they say the believe in.... but they didn't.

I assume because they are more interested in retaining the votes and continuing their political careers has opposed to actually supporting what they believe.

Gray Peterson
01-15-2010, 7:04 PM
Unless and until that happens, citizens of the U.S. will not be able to freely and simultaneously exercise their right to travel and their RKBA, both interpreted using strict scrutiny. A citizen of any state must be free to travel armed through or to any other state. Requiring them to apply for a resident license in their state, plus 49 non-resident licenses, is an excessive burden and only the Federal government (Congress) can alleviate it to protect our 2A and 14A rights.

How long will that take to happen? Who knows, probably many years. But I can't think of any other constitutionally sound end-game. :)

That'll take many years, however there is no need to force someone to apply for the licenses of 49 different states besides your home state and wrack up a bill. The reciprocity agreement systems set up by the states are generally OK constitutionally (though CO, MI, NH, FL, and SC are constitutionally questionable in requiring only resident licenses be recognized.

I have licenses in WA, OR, FL, PA, NH, and CT. I'm working on getting my Utah license. These licenses together will allow me to carry in about....35 states or so.

I'll have to apply via mail to the other places (NY, MD, NJ, MA, RI, HI, etc) but I'll be able to carry all 50 at some point. Just trying to prove the point of "You won't have to get 50 state carry licenses".

navyinrwanda
01-15-2010, 7:12 PM
http://laughingsquid.com/wp-content/uploads/banana-holster-20080506-124002.jpg

But kidding aside, suggesting that a holstered handgun is the same as waving a penis is something I would have never thought someone... would suggest.
Starting to see the connection?

Theseus
01-15-2010, 7:18 PM
Starting to see the connection?

Well, no. A banana is for eating, a gun is a tool commonly used for self-defense (and other uses), and a penis is for reproductive purposes and expelling unneeded bodily fluids. I don't see how any of them are the same.

I don't see how waving your naked penis is anything the same as waving a gun, or how waving a naked penis is anything like a gun sitting idle in a holster.

Just because they are phallic shaped doesn't make it any different. It could just as easily be a bottle of pancake syrup or a cellular phone.

GrizzlyGuy
01-15-2010, 7:23 PM
That'll take many years, however there is no need to force someone to apply for the licenses of 49 different states besides your home state and wrack up a bill. The reciprocity agreement systems set up by the states are generally OK constitutionally (though CO, MI, NH, FL, and SC are constitutionally questionable in requiring only resident licenses be recognized.

I have licenses in WA, OR, FL, PA, NH, and CT. I'm working on getting my Utah license. These licenses together will allow me to carry in about....35 states or so.

I'll have to apply via mail to the other places (NY, MD, NJ, MA, RI, HI, etc) but I'll be able to carry all 50 at some point. Just trying to prove the point of "You won't have to get 50 state carry licenses".

WoW! I'll happily concede the point, you're obviously a man on a mission. Are you any relation to Elwood from The Blues Brothers (http://akas.imdb.com/title/tt0080455/)?:

They're not gonna catch us. We're on a mission from God.

:D

CitaDeL
01-15-2010, 7:30 PM
Cutting through the crap over who is or isnt responsible for this change in wording... I have a

Question:

What difference will this make if 12031 is ultimately ruled unconstitutional?

kcbrown
01-15-2010, 8:21 PM
I think you have it backwards, you would not be challenging a proposed bill in the courts, but trying to upset a bill already on the books.

Once you look at it that way around, Grammaton is correct.

Yes, I realize that. Perhaps I should have said "weren't we" instead of "aren't we".

But my point is the same regardless of the current state of affairs, which is:

If the bill in question hadn't passed prior to incorporation, then we'd be trying to get an injunction against something like the bill that passed. Now that it has passed, we'll be trying to get it overturned. In both cases, however, the court action in question happens post-incorporation.

But the legal arguments in both situations are the same. The courts are the same. The judges are the same. Their opinions are the same. The cases defining precedent are the same. ALMOST EVERYTHING IS THE SAME. The only differences are:


In the case of getting an injunction, you're fighting against legislation that has at best been proposed, so the specific details aren't finalized at all -- you're fighting something nebulous.
In the case of fighting an existing piece of legislation, the legislation in question is specific, nailed down, and you have someone with standing in the courtroom who is there because he's been materially affected by the legislation.

Given those differences, what is the basis of the assertion that you'll easily be able to get an injunction whereas there's no hope of getting the legislation overturned, when all of the legal arguments, precedents, opinions, judges, etc., are the same in both cases?

That's what I don't get.


As to the argument that some legislators would back down in the face of arguments of unconstitutionality, I say bollocks. Legislators don't care about the Constitutionality of the bills they propose and vote on unless they are already opposed to it. One need only look at the sheer volume of unconstitutional legislation that has been overturned in the courts in the past, not to mention that which remains on the books, to see that. Most of it was passed in an environment where there was no pending Supreme Court decision that would affect the Constitutionality of the bill in question -- the bills were Unconstitutional from the start, and they passed anyway.

So again I ask: what's the real difference between the situation as it would have been had the legislation in question been proposed (and, likely, passed) after incorporation versus the current situation, where the legislation in question was passed before incorporation?

nitrofc
01-15-2010, 8:23 PM
We have got to Vote these people out of office.

Period.

bodger
01-15-2010, 8:48 PM
We have got to Vote these people out of office.

Period.


I agree. But it's looking less likely every election. These people and their feel good gun laws seem to appeal to the majority of people who vote in this state.

When bulls**t gun control laws come under the heading of job security for politicians, and you can't change the politicians, it's time to change states.

hoffmang
01-15-2010, 10:16 PM
1. No federal court in the next 10 years is going to overturn a ban on LOC where CCW is shall issue. Read Nunn v. Georgia (http://www.guncite.com/court/state/1ga243.html) which was interpreting an exact analogue of the 2A. Nunn was one of two cases the Heller majority cited about carry laws:

Collier, Chief Justice, says: "The question recurs, does the act "to suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not.

"The Constitution, in declaring that every citizen has the right to bear arms, in defence of himself and the State, has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne.

"We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional. But a law which is merely intended to promote personal security, and to put down lawless aggression and violence, and to this end prohibits the wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the Constitution.

2. Had the exemption to 12031 for anyone licensed pursuant to 12050 survived, then we would have won the right in Federal court to a shall issue 12050 license. When this bill would be proposed post incorporation, and especially post a Sykes/Palmer/Peruta, the legislative analyst would have had paragraphs about constitutional questions. That would have made it politically feasible to stop it.

Now, we're pretty much done on the issue for a very long time. 12031 (but not (e)) with shall issue concealed 12050 licenses are very likely to be upheld by all levels of the Federal courts.

-Gene

mblat
01-15-2010, 10:24 PM
And that sucks, because it makes everybody open to charges in case of accidental gun exposure.

Theseus
01-15-2010, 10:25 PM
1. No federal court in the next 10 years is going to overturn a ban on LOC where CCW is shall issue. Read Nunn v. Georgia (http://www.guncite.com/court/state/1ga243.html) which was interpreting an exact analogue of the 2A. Nunn was one of two cases the Heller majority cited about carry laws:


2. Had the exemption to 12031 for anyone licensed pursuant to 12050 survived, then we would have won the right in Federal court to a shall issue 12050 license. When this bill would be proposed post incorporation, and especially post a Sykes/Palmer/Peruta, the legislative analyst would have had paragraphs about constitutional questions. That would have made it politically feasible to stop it.

Now, we're pretty much done on the issue for a very long time. 12031 (but not (e)) with shall issue concealed 12050 licenses are very likely to be upheld by all levels of the Federal courts.

-Gene

But the point the judge in Ed's case suggested that the only reason that Nunn past muster was because loaded open carry was allowed. This may not be her ruling in the end, but it surely seems to me that there is a small chance.

hoffmang
01-15-2010, 10:30 PM
But the point the judge in Ed's case suggested that the only reason that Nunn past muster was because loaded open carry was allowed. This may not be her ruling in the end, but it surely seems to me that there is a small chance.

Let me say it again. No federal court (especially in the 9th circuit) is going to say that a legislature can't regulate the right to carry as long as the right to carry is not completely destroyed. That's what the Nunn court is saying in 1846 in Georgia. This is not Kansas in 1920 or modern New Jersey - it's a court that respected the right to arms and still said that the correct mode of analysis is that if the regulation does not destroy the right to carry, it's legit.

To posit that there is some right to carry without a permit or training and openly by right, then you gotta find me a gun case that seems to say that. Between Heller, Sykes, and Palmer, almost every carry case from 1789 to present has been cited. Go read them and find me a single court who agrees with the position that the right to carry means unlicensed and open.

Just one.

I'll be waiting.

-Gene

anthonyca
01-15-2010, 10:35 PM
This is such a let down and the first really bad news I can remember since joining calguns.net. Don't get me wrong, there were some terrible things that happened, BWO arrest, Phil Domimguez LAX arrest, and a few more. In those cases we knew it was bad police work and DAs and with a lot of hard work and money our side would prevail. For the first time I feel as if the wind was taken out of our sail and the real kicker is our side was the catelist that made this happen.

1. No federal court in the next 10 years is going to overturn a ban on LOC where CCW is shall issue. Read Nunn v. Georgia (http://www.guncite.com/court/state/1ga243.html) which was interpreting an exact analogue of the 2A. Nunn was one of two cases the Heller majority cited about carry laws:


2. Had the exemption to 12031 for anyone licensed pursuant to 12050 survived, then we would have won the right in Federal court to a shall issue 12050 license. When this bill would be proposed post incorporation, and especially post a Sykes/Palmer/Peruta, the legislative analyst would have had paragraphs about constitutional questions. That would have made it politically feasible to stop it.

Now, we're pretty much done on the issue for a very long time. 12031 (but not (e)) with shall issue concealed 12050 licenses are very likely to be upheld by all levels of the Federal courts.

-Gene

trashman
01-15-2010, 10:36 PM
So again I ask: what's the real difference between the situation as it would have been had the legislation in question been proposed (and, likely, passed) after incorporation versus the current situation, where the legislation in question was passed before incorporation?

Well, for starters, it ensures thet legal latitude for local governments to prohibit LOC for any reason they like -- thereby continuing the patchwork of legalities that already surround OC county-by-county in California.

It opens the door to the well-understood LCAV legislative strategy of local "harrassment and interdiction" of gunnies.

It means that if you LOC in various parts of the CA unincorporated backcountry (like I do when solo backpacking) you better be sure where those boundaries are.

--Neill

Theseus
01-15-2010, 10:40 PM
Let me say it again. No federal court (especially in the 9th circuit) is going to say that a legislature can't regulate the right to carry as long as the right to carry is not completely destroyed. That's what the Nunn court is saying in 1846 in Georgia. This is not Kansas in 1920 or modern New Jersey - it's a court that respected the right to arms and still said that the correct mode of analysis is that if the regulation does not destroy the right to carry, it's legit.

To posit that there is some right to carry without a permit or training and openly by right, then you gotta find me a gun case that seems to say that. Between Heller, Sykes, and Palmer, almost every carry case from 1789 to present has been cited. Go read them and find me a single court who agrees with the position that the right to carry means unlicensed and open.

Just one.

I'll be waiting.

-Gene

I am not going to get into an argument about it. . . I just think that this judge seems somewhat suggestive and gives me a small hope.

It could also simply be that she only used that point to say that Heller didn't automatically declare all CCW requirements constitutional and I am reading more into it that.

trashman
01-15-2010, 10:43 PM
Go read them and find me a single court who agrees with the position that the right to carry means unlicensed and open.

Just one.

I'll be waiting.


Q.E.D.

I'll say it again -- it's a damn shame. Ought to make the hindsight cost-benefit analysis pretty easy, though, right? All the open-carry education of the general populace that has transpired over the last couple of years surely was worth the price of ... open carry....

--Neill

hoffmang
01-15-2010, 10:47 PM
I am not going to get into an argument about it. . . I just think that this judge seems somewhat suggestive and gives me a small hope.

It could also simply be that she only used that point to say that Heller didn't automatically declare all CCW requirements constitutional and I am reading more into it that.

Dude, that judge agreed with the core reasoning of Sykes. The Peruta complaint is a duplicate of Sykes and the legal issue is that the legislature can ban one mode of carry as long as the other is available. Read them side (http://www.hoffmang.com/firearms/sykes/Sykes-v-McGinness-Complaint-2009-05-09.pdf) by side (http://www.archive.org/download/gov.uscourts.casd.308678/gov.uscourts.casd.308678.1.0.pdf).

Your hope does not change stare decisis reality.

-Gene

7x57
01-15-2010, 10:51 PM
The only people responsible for the loss are the traitors who designed and passed the law. Blaming the LOC and UOC people is backassward.

Blame is not a conserved quantity. Indeed, the original cause is the anti-gun legislature. But the proximate cause is someone committing an act which was foolish given the known predilections of the legislature.

That said--this seems to have been someone outside the NRA/Calguns information network, and thus it is primarily random bad luck. The valid point about UOC seems not to be "you did this" but rather "the fact that this could happen is why we asked you not to do it." But even with the stand-down, there were still some dice-rolls and we rolled snake-eyes.

7x57

7x57
01-15-2010, 10:53 PM
I respectfully suggest that they'd have tried this with or without a cause celebre. If they didn't use this rationale....one guy and we need a new law....they'd simply choose another. And they'll try to kill UOC as a legal activity, with or without the UOC guys carrying in public. They'll simply choose a rationale that fits, more or less, and depend on the legislature to accept their argument and the media to back them up.


The legislature as a whole doesn't seem to have been aware of it, and thus likely would not have acted unless it was brought to their attention *in the narrow window of vulnerability* before McDonald.

7x57

GrizzlyGuy
01-15-2010, 10:55 PM
Now, we're pretty much done on the issue for a very long time. 12031 (but not (e)) with shall issue concealed 12050 licenses are very likely to be upheld by all levels of the Federal courts.

What about long guns? 12050 doesn't apply to them, they can't be concealed, and need to be carried loaded to be effective for self-defense. Post-incorporation, couldn't 12031 be challenged to at least allow them to be carried loaded in public places (like the Black Panthers did pre-12031)?

mblat
01-15-2010, 10:57 PM
What about long guns? 12050 doesn't apply to them, they can't be concealed, and need to be carried loaded to be effective for self-defense. Post-incorporation, couldn't 12031 be challenged to at least allow them to be carried loaded in public places (like the Black Panthers did pre-12031)?

Huh... I can see people walking through downtown LA with Remington 870

hoffmang
01-15-2010, 10:57 PM
What about long guns? 12050 doesn't apply to them, they can't be concealed, and need to be carried loaded to be effective for self-defense. Post-incorporation, couldn't 12031 be challenged to at least allow them to be carried loaded in public places (like the Black Panthers did pre-12031)?

I too used to think that, but then I thought some more. The hypothetical court ruling will be that 12031 as applied to long guns is unconstitutional but that it still applies to handguns.

It's a chance, but I see Federal courts going for the narrowest ruling there.

-Gene

7x57
01-15-2010, 10:59 PM
I think, maybe, it's time to take a look at staging some UOC/banana holster gatherings.

To misquote Oliver Cromwell somewhat, "I beseech you in the bowels of Christ to rethink the 'banana holster' terminology." :chris:

7x57

trashman
01-15-2010, 11:09 PM
To misquote Oliver Cromwell somewhat, "I beseech you in the bowels of Christ to rethink the 'banana holster' terminology." :chris:


(OT: As a argumentative Scotsman I absolutely love that you quote this.)

--Neill

2009_gunner
01-15-2010, 11:15 PM
Post Sykes and post 12031(e) removal, would it be possible to carry two guns - one UOC and the other loaded CC?

hoffmang
01-15-2010, 11:18 PM
Post Sykes and post 12031(e) removal, would it be possible to carry two guns - one UOC and the other loaded CC?

Outside of a GFSZ, and assuming no other anti UOC legislation passes, yes.

ETA: You can UOC in a GFSZ with a 12050 license.

-Gene

7x57
01-15-2010, 11:20 PM
(OT: As a argumentative Scotsman I absolutely love that you quote this.)


And as a Scotsman, and therefore presumed expert on such appeals, is it your opinion that if Wildhawker refuses the appeal it is war? :chris:

7x57

Meplat
01-15-2010, 11:32 PM
Well it's not like any of should have expected CA to just accept defeat and throw open the doors. Once forced to go shall issue they're going to do everything they can to restrict it right up to the boundaries of the court decision.

Yes. And GFSZ is going to be much more significant than UOC, seeing as how SCOTUS has already paid lip service to 'sensitive places'.

kcbrown
01-16-2010, 1:33 AM
Let me say it again. No federal court (especially in the 9th circuit) is going to say that a legislature can't regulate the right to carry as long as the right to carry is not completely destroyed. That's what the Nunn court is saying in 1846 in Georgia. This is not Kansas in 1920 or modern New Jersey - it's a court that respected the right to arms and still said that the correct mode of analysis is that if the regulation does not destroy the right to carry, it's legit.


And why in the world would they say differently if the legislation in question were being considered for passage post-incorporation instead of having been passed pre-incorporation?

They wouldn't, right?

So all your hopes were pinned on somehow, via political maneuvering, keeping the legislature from ever passing a law forbidding LOC?

With the legislature the way it is here in California, how can any reasonable person ever think that would have a reasonable chance of success?


I think it's pretty clear that where we are now, with OC being off the table, was/is an inevitability in California unless the Supreme Court decides differently.

We're going to wind up with a system like Texas, where if there's even a hint that you have a gun on you, you're screwed. It has nothing to do with what people do as a result of accident or stupidity. It's because the California legislature is an anti-gun legislature, and that's something that I think can and should be treated as a constant for the foreseeable future.

wildhawker
01-16-2010, 1:40 AM
And as a Scotsman, and therefore presumed expert on such appeals, is it your opinion that if Wildhawker refuses the appeal it is war? :chris:

7x57

Appeals mean nothing to this brave. Wildhawker refuses and makes clear he stands ready to face stubborn Scot in whatever games of war ye shall choose. Except where one must pickup a rock. This brave thinks it might bust his back.

7x57
01-16-2010, 1:53 AM
Wildhawker refuses and makes clear he stands ready to face stubborn Scot in whatever games of war ye shall choose.

So far as I understand Scots games, they involve wearing kilts commando.

7x57

artherd
01-16-2010, 1:55 AM
We could have stopped this in committee post-incorporation if UOC hadn't brought Open Carry to the forefront.

THAT is why we wanted you to wait.

Pity.

artherd
01-16-2010, 2:02 AM
I too used to think that, but then I thought some more. The hypothetical court ruling will be that 12031 as applied to long guns is unconstitutional but that it still applies to handguns.

It's a chance, but I see Federal courts going for the narrowest ruling there.

-Gene

Worse, a challenge this way may cement 12031's constitutionality wrt handguns in a higher court. Again.

You gotta be really careful playing with fire in a refinery...

7x57
01-16-2010, 2:07 AM
I suppose there is simply no use in pointing out that once again we have a case where CGF had excellent reasons for what they said but could not give them. There is a lesson there, but while I could explain it for a certain crowd I can't understand it for them.

:mad:

7x57

kcbrown
01-16-2010, 2:11 AM
We could have stopped this in committee post-incorporation if UOC hadn't brought Open Carry to the forefront.


Why would you have been able to stop it in committee post-incorporation when you weren't able to pre-incorporation?

Why do you believe anyone in the legislature cares at all about the unconstitutionality of a piece of legislation unless they're already opposed to it anyway?

Maybe I'm being overly pessimistic, but it seems to me that you're giving the legislators far too much credit.


Besides, based on what Gene's saying, arguments against the constitutionality of a law prohibiting OC in the face of shall-issue CCW are false. So what leg do you think you'd have to stand on in the legislature post-incorporation that you didn't have when AB 1363 was in committee?



THAT is why we wanted you to wait.

Pity.Indeed, it's quite a shame, and quite a blow. But I see no reason to believe that it wasn't an inevitable one.


ETA: for the record, I was in full agreement with you guys on the wisdom of holding back on UOC. The cost of holding back was nil while the potential benefits, while highly unlikely to be achieved, were significant.

JakiChan
01-16-2010, 2:14 AM
We begged, we pleaded, we asked you to trust us. We knew this could happen, and they got it in under the wire because you could not keep your ***** in your pants.

While I'm not going to challenge the idea that some of the UOC "activism" pressured this change, I will point out that when you ask folks to trust you maybe you shouldn't put a timeline on it. In reading some of the arrest stories linked from the Open Carry FAQ I found plenty of statements from Summer 2008 saying that Incorporation was just 6 months away. I can see how folks could get frustrated that way.

Mulay El Raisuli
01-16-2010, 6:02 AM
So far as I understand Scots games, they involve wearing kilts commando.

7x57


When it involves a kilt, the term is wearing it in the regimental style.


The Raisuli

Mulay El Raisuli
01-16-2010, 6:44 AM
Let me say it again. No federal court (especially in the 9th circuit) is going to say that a legislature can't regulate the right to carry as long as the right to carry is not completely destroyed. That's what the Nunn court is saying in 1846 in Georgia. This is not Kansas in 1920 or modern New Jersey - it's a court that respected the right to arms and still said that the correct mode of analysis is that if the regulation does not destroy the right to carry, it's legit.

To posit that there is some right to carry without a permit or training and openly by right, then you gotta find me a gun case that seems to say that. Between Heller, Sykes, and Palmer, almost every carry case from 1789 to present has been cited. Go read them and find me a single court who agrees with the position that the right to carry means unlicensed and open.

Just one.

I'll be waiting.

-Gene


And now your wait is over. The Nunn court spent some time going over the 'vagueness' of the law in question. Then it spent some time quoting other state's laws & Rulings. Especially because of the emphasis of those cases on the bearing of concealed weapons. "Weapons" because swords, sword canes & various types of knives are discussed as well as guns. In any event, the Nunn court ended with this:

"We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed. Cite as: Nunn v. State, 1 Kelly 243 (Ga. 1846)" (all emphasis mine)

Now, somewhere in here you're seeing 'it must be one or the other.' I'm not seeing that at all. ALL that I can see is a clear-cut Ruling that says prohibitions against concealed carry are fine, but that prohibitions against openly carrying are not. Even in the part that you quoted ("Collier, Chief Justice, says: "The question recurs, does the act "to suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not.") makes clear that the "evil" practice isn't the carrying of guns, but only of carrying them "secretly."

Since the Nunn court doesn't just seem to say that carrying openly is the Right, it DOES say it, I think I have met you your challenge rather completely, I think.

Just one more reason why I think that LOC is the coming Minimum Constitutional Standard. Which, again, poses no threat at all to CCW, for the reasons I have mentioned many times before.


The Raisuli

GrizzlyGuy
01-16-2010, 7:19 AM
Since the Nunn court doesn't just seem to say that carrying openly is the Right, it DOES say it, I think I have met you your challenge rather completely, I think.

Just one more reason why I think that LOC is the coming Minimum Constitutional Standard. Which, again, poses no threat at all to CCW, for the reasons I have mentioned many times before.


I understand what you are saying, but I think you are reading more into that paragraph than was meant. The wording is based on the facts of the particular case. Nunn was convicted for carrying a firearm openly, by a law that was primarily intended to prohibit concealed carry. Had the reverse been true (Nunn convicted for concealed carry by a law prohibiting open carry) the terms in the paragraph you quoted would have been "reversed", and you may have instead concluded that concealed carry is the explicitly protected means of carry.

The text further up in the body of the case indicates that the real issue was that the law forbade both means of carry and not just one of them. This excerpt makes it clear that the means of carry were viewed equally in terms of constitutionality:

And, if the act be consistent with the Constitution, it cannot be incompatible with that instrument for the Legislature by successive enactments to entirely cut off the exercise of the right of the citizens to bear arms. For in principle there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing of such as are exposed; and, if the former be unconstitutional, the latter must be so likewise."

BobB35
01-16-2010, 7:58 AM
I heard about this law and am suprised it passed. Wasn't this put through as unopposed by the NRA and CGF? Kind of late to be complaining now? Thought there was a discussion right here that this was no big deal.

If you look at the NRA members council site it even says AB1363 was defeated for 2009, did something change?

Before blame starts getting thrown around look at who sponsored the law LASO. I know talking bad about LEO's on this site is verboten, but come on these are the people that caused this law to be put in place not some anonymous CCW person from the sticks. This would have passed whether or not people waited. Like everything else it will have to fought in the courts. Get your bogeymen correct. LEO management is the biggest bogeyman in this state and until people start to treat it that way, nothing will progress.

Get the word out, LEO don't have to protect you. It is just a job and you are on your own. There done.

GrizzlyGuy
01-16-2010, 8:37 AM
I heard about this law and am suprised it passed. Wasn't this put through as unopposed by the NRA and CGF?

That does appear to be the case. Here is what I've been able to discern from the legislative analyses and other info:

Assembly Committee on Public Safety - 4/21/2009 (http://www.aroundthecapitol.com/billtrack/analysis.html?aid=25784)

Support

Los Angeles County Sheriff's Department (Sponsor)
California Chapters of the Brady Campaign
Legal Community Against Violence

Opposition

None

Assembly Floor Vote (77-0) - 5/18/09 (http://www.aroundthecapitol.com/billtrack/analysis.html?aid=32343)

ASSEMBLY FLOOR : 77-0, 5/18/09 - See last page for vote


GOA - Watching It After Passed Assembly and Sent to Senate (http://74.125.155.132/search?q=cache:3gLos08g99wJ:www.gunownersca.com/Newsletters/PDFs/20092Q.pdf+AB+1363+california+opposition&cd=10&hl=en&ct=clnk&gl=us&client=firefox-a)

AB 1363 (Davis - D) Firearms.
Summary: This bill would revise the exception
to permit the carrying of handguns by persons
as authorized pursuant to provisions relating to
licenses to carry concealed firearms. Passed the
Assembly and sent to the Senate. - Watch

Senate Public Safety Committee - 6/16/2009 (http://info.sen.ca.gov/pub/09-10/bill/asm/ab_1351-1400/ab_1363_cfa_20090615_162943_sen_comm.html)

Support: California Brady Campaign Chapters; Legal Community
Against Violence

Opposition:None

Senate Public Safety Committee - 6/16/2009 - Different (later?) Analysis (http://info.sen.ca.gov/pub/09-10/bill/asm/ab_1351-1400/ab_1363_cfa_20090710_111410_sen_floor.html)

SUPPORT : (Verified 6/29/09)

Los Angeles County Sheriff's Department (source)
California Brady Campaign Chapters
Legal Community Against Violence

OPPOSITION : (Verified 7/10/09)

California Association of Firearms Retailers
California Sportsman's Lobby
Outdoor Sportsmen's Coalition of California
Safari Club International

Senate Rules Committee (http://www.aroundthecapitol.com/billtrack/analysis.html?aid=32343)

SUPPORT : (Verified 6/29/09)

Los Angeles County Sheriff's Department (source)
California Brady Campaign Chapters
Legal Community Against Violence

OPPOSITION : (Verified 7/10/09)

California Association of Firearms Retailers
California Sportsman's Lobby
Outdoor Sportsmen's Coalition of California
Safari Club International


Note: Timeline (without support/opposition info) is better summarized on left side of this page (http://www.aroundthecapitol.com/Bills/AB_1363/).

hoffmang
01-16-2010, 10:17 AM
1. Pre incorporation there is no way to oppose passage of this bill.

2. The reason we were likely to not see this bill pass after incorporation has to do with the average constitutional IQ of LEAs and legislators. As is evidenced in this thread, not even people close to the issue can read Nunn, much less understand the implication of federal court decisions. Could CGF beat this law in Federal Court - no. Could NRA convince the legislative analyst and legislators that it may be unconstitutional and use that to block the bill - yes. Also, in a post incorporation - and certainly post Sykes world, people are likely to accept LOC with a permit begrudgingly.

Mauley - the section you quote in Nunn says that if a law bans concealed carry while allowing open carry, it's legal. The section I quote from Nunn shows that the Georgia Supreme Court would pretty clearly allow the other direction.

AB-962 passed by one vote and the sponsor had to spend all day claiming up and down that its not unconstitutional under Heller. It's too bad people aren't stepping back to think about the political economy as separate from the legal economy.

-Gene

trashman
01-16-2010, 10:39 AM
And as a Scotsman, and therefore presumed expert on such appeals, is it your opinion that if Wildhawker refuses the appeal it is war? :chris:


Of course. With the Scots it's like the Monty Python sketch (http://www.youtube.com/watch?v=yp_l5ntikaU): refuse the appeal? WAR! Insult me by agreeing to the appeal? WAR!

--Neill

trashman
01-16-2010, 10:44 AM
When it involves a kilt, the term is wearing it in the regimental style.


Er, not exactly. That's what the Scots called it after they were conquered Anglicanized.

Historically wearing a kilt commando-style has to do with my people being too poor cheap to buy undergarments.

--Neill

trashman
01-16-2010, 10:54 AM
AB-962 passed by one vote and the sponsor had to spend all day claiming up and down that its not unconstitutional under Heller. It's too bad people aren't stepping back to think about the political economy as separate from the legal economy.


This is an unfortunate byproduct of the natural authoritarian streak that seems to run from the left to the right of the political spectrum.

What worries me more is the presumption (amongst authoritarian-minded pro-carry folks) that we can use the courts as an unambiguous, cost-free hammer when a law is unconstitutional, or just flat wrong.

The costs of open carry in California aren't purely political -- as you've pointed out before Judges who try these cases can and do read the news.

--Neill

wildhawker
01-16-2010, 11:01 AM
Er, not exactly. That's what the Scots called it after they were handed their ***conquered Anglicanized.

Historically wearing a kilt commando-style has to do with my people being too stubborn poor cheap to buy undergarments.

--Neill

Fixed it for you ;)

trashman
01-16-2010, 11:04 AM
Fixed it for you ;)

I resemble that remark...

--Neill

http://i231.photobucket.com/albums/ee126/northslope/IMG_0145_2kiltwedding.jpg

wildhawker
01-16-2010, 11:05 AM
You are MY HERO!

I'll drink to that, my friend. Of course, all of us from the Isles need not a reason to drink, but when there exists one...

I resemble that remark...

--Neill

http://i231.photobucket.com/albums/ee126/northslope/IMG_0145_2kiltwedding.jpg

trashman
01-16-2010, 11:11 AM
I'll drink to that, my friend. Of course, all of us from the Isles need not a reason to drink, but when there exists one...

Aye :43:

--Neill

N6ATF
01-16-2010, 11:21 AM
While I'm not going to challenge the idea that some of the UOC "activism" pressured this change, I will point out that when you ask folks to trust you maybe you shouldn't put a timeline on it. In reading some of the arrest stories linked from the Open Carry FAQ I found plenty of statements from Summer 2008 saying that Incorporation was just 6 months away. I can see how folks could get frustrated that way.

2 weeks, 6 months, another 6 months, another 6 months, 10 years until law-abiding gun owners' civil rights are fully restored in CA... at the earliest. For some people like the senior gentleman arrested, but not charged with UOC, the actual, not optimistically predicted, timeline will stretch beyond their lifetime.

For some, they are living each day in this hell like it is their last. And nobody on either side should be begrudging them that.

7x57
01-16-2010, 11:31 AM
What worries me more is the presumption (amongst authoritarian-minded pro-carry folks) that we can use the courts as an unambiguous, cost-free hammer when a law is unconstitutional, or just flat wrong.


Fair, but it seems that in CA it is the only avenue open. However, the adults on the CGF board clearly don't see it as cost-free, whatever others may think.

To put it in some perspective, while open carriers may have rigged the dice against us, this was clearly *always* a possibility. CGF was simply trying to minimize the risk without telling the bad guys what the real risk was along with the good.

Gene plays a cagey game--when he had to convince people he pointed out the danger to the rook so he could remain silent about the threat to the queen.

7x57

Mulay El Raisuli
01-16-2010, 11:33 AM
I understand what you are saying, but I think you are reading more into that paragraph than was meant. The wording is based on the facts of the particular case. Nunn was convicted for carrying a firearm openly, by a law that was primarily intended to prohibit concealed carry. Had the reverse been true (Nunn convicted for concealed carry by a law prohibiting open carry) the terms in the paragraph you quoted would have been "reversed", and you may have instead concluded that concealed carry is the explicitly protected means of carry.

Actually, had the reverse been true, I doubt the case would have gone to the court on the first place.

The text further up in the body of the case indicates that the real issue was that the law forbade both means of carry and not just one of them. This excerpt makes it clear that the means of carry were viewed equally in terms of constitutionality:



And, if the act be consistent with the Constitution, it cannot be incompatible with that instrument for the Legislature by successive enactments to entirely cut off the exercise of the right of the citizens to bear arms. For in principle there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing of such as are exposed; and, if the former be unconstitutional, the latter must be so likewise."

Not so fast there. You're forgetting that the quote isn't from the Nunn court, it was the Nunn court quoting Bliss vs. The Commonwealth, (2 Littell's Rep. 90). But the main problem with your quote is that you didn't include the last line:


The conclusion at which the court arrived was, that an act to prevent persons from wearing even concealed weapons is unconstitutional and void (emphasis in the original).

So, it isn't even remotely a case of the Georgia Supreme Court saying that either/or is OK. It that court quoting another court that was saying that to outlaw both means of carry IS ILLEGAL.

In any event, I'm not reading the case narrowly. I read it all. Along with Bliss, the court quoted from State vs. Reid, (1 Ala. Rep. 612). There, the issue was strictly the matter of carrying concealed. This is where the "evil practice" of carrying concealed is mentioned in Nunn. The law there, which "merely intended to promote personal security, and to put down lawless aggression and violence, and to this end prohibits the wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others..." was directed only at carrying concealed, because that manner of carry was regarded as, again, "evil."

The Nunn court also quoted The State vs. Mitchell.--3 Black. Rep. 229, (a case out of Indiana), which statute reads; ""Every person, not being a traveler, who shall wear or carry a dirk, pistol, sword in a cane, or other dangerous weapon, concealed, shall, upon conviction thereof, be fined in any sum not exceeding one hundred dollars."--Laws of Indiana, ed. of 1831, p.192 (emphasis in original). And the Indiana Supreme Court upheld that law also.

So, going by the real words actually used by the Nunn court, & going by the cases they quoted, what I see is the Georgia Supreme Court taking the opportunity to make it clear that LOC (even though they didn't know that particular term) is Constitutionally protected, because Real Men (another term they didn't know) didn't hide their guns. Also, I continue to see nothing in favor of the theory that 'a state can ban one method of carry, but not both.' ALL I see is that LOC is the only method of carry that has any real Constitutional support. Adding to this is the approving way Nunn is referred to in recent Decisions. Yes, some of that is dicta, but the dicta is in favor of the thought I hold (that LOC is the only method of carry Constitutionally protected) & none of it is in favor of the reverse thought.

I conclude that LOC is going to wind up being the Minimum Constitutional Standard & that this will (for the reasons I have mentioned many times before) pose zero danger to CCW.


The Raisuli

Mulay El Raisuli
01-16-2010, 11:40 AM
1. Pre incorporation there is no way to oppose passage of this bill.

2. The reason we were likely to not see this bill pass after incorporation has to do with the average constitutional IQ of LEAs and legislators. As is evidenced in this thread, not even people close to the issue can read Nunn, much less understand the implication of federal court decisions. Could CGF beat this law in Federal Court - no. Could NRA convince the legislative analyst and legislators that it may be unconstitutional and use that to block the bill - yes. Also, in a post incorporation - and certainly post Sykes world, people are likely to accept LOC with a permit begrudgingly.

Mauley - the section you quote in Nunn says that if a law bans concealed carry while allowing open carry, it's legal. The section I quote from Nunn shows that the Georgia Supreme Court would pretty clearly allow the other direction.

AB-962 passed by one vote and the sponsor had to spend all day claiming up and down that its not unconstitutional under Heller. It's too bad people aren't stepping back to think about the political economy as separate from the legal economy.

-Gene


I don't see why we can't use the Federal Courts to strike this down. Why is in my reply to GrizzlyGuy. As is why I think you're wrong about Nunn.


The Raisuli

wildhawker
01-16-2010, 11:45 AM
For some, they are living each day in this hell like it is their last. And nobody on either side should be begrudging them that.

Let's go party because Jesus is coming back soon!

That's been going on for 2,000 years, and so far all anyone can show for it are hangovers and bad tattoos.

Again we see the grossly self-interested motivations of some in the cause (and by that I mean guns, generally, not simply OC).

If the coalition's timelines are false and optimistic, and "they" wish to live "each day in this hell like it is their last", why don't I see many unregistered MGs, suppressors or SBRs around?

I mean, is UOC really "living" life to its fullest, like it was their last day here? Wait, what? No one wants to go to jail? Live free or die, I say! Who's with me!?

:gene:

Mulay El Raisuli
01-16-2010, 11:48 AM
What worries me more is the presumption (amongst authoritarian-minded pro-carry folks) that we can use the courts as an unambiguous, cost-free hammer when a law is unconstitutional, or just flat wrong.


--Neill


Just as our forebears on the Civil Rights fight knew for certain that they weren't going to get anything resembling justice from the legislatures & courts of the Deep South, I also know that the 2A isn't going to in the PRK either. That being reality, why do any of us even bother trying?


And from your other post...

Er, not exactly. That's what the Scots called it after they were conquered Anglicanized.

Historically wearing a kilt commando-style has to do with my people being too poor cheap to buy undergarments.

--Neill



Well, historically speaking, I doubt they used the word "commando" either since that word wasn't around until long after they were "Anglicized." :)


The Raisuli

GrizzlyGuy
01-16-2010, 11:53 AM
I conclude that LOC is going to wind up being the Minimum Constitutional Standard & that this will (for the reasons I have mentioned many times before) pose zero danger to CCW.


OK, but your conclusion is at odds with the conclusions of some pretty experienced folks. Note that Kilmer/Gura didn't even assert what you are saying in their motion for summary judgement in Sykes (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/019-Sykes-v-McGinness-MSJ-P+A-2009-08-6.pdf):

To be sure – Plaintiffs do not claim that there is a constitutional right to carry concealed weapons any more than there is a constitutional right to carry weapons openly. Whatever an individual’s preference, precedent confirms that the right is simply to carry weapons, and that legislatures may choose to specify the manner of doing so. California chooses to ban the open carrying of functional handguns and permit their concealed carry. Accordingly, permits to carry arms may not be denied to ordinary, law-abiding citizens such as Plaintiffs who can demonstrate basic competence with a firearm and who wish to carry a handgun for self-defense.


This post from Gene (http://www.calguns.net/calgunforum/showpost.php?p=3567353&postcount=24) also lists a number of decided cases that also go against your conclusion.

trashman
01-16-2010, 12:02 PM
Just as our forebears on the Civil Rights fight knew for certain that they weren't going to get anything resembling justice from the legislatures & courts of the Deep South, I also know that the 2A isn't going to in the PRK either. That being reality, why do any of us even bother trying?

Well if you're gonna put it that way ;)

I think you're making a dubious comparison; while we all agree the RKBA is a civil right, it's worth remembering that we still have many, many other components of the democratic process at our disposal -- whereas minorities in the South most certainly did not -- and comparing our struggle for RKBA in CA to the culmination of a couple centuries of enslavement (and resultant ingrainment into Southern culture) isn't really fair.

(Think about it: do you think the Deacons for Defense had a fundraising and informational organization in Southern statehouses?...)

Hasn't it only been in the last 30-40 years that we've seen such a precipitous decline in the RKBA in California?

Ultimately we need to preserve the possibility for neutral outcomes at the legislative and legal level where they exist. The argument all along is that the publicity around OC in general hampers that possibility for very little in return.

--Neill

N6ATF
01-16-2010, 12:47 PM
Let's go party because Jesus is coming back soon!

Leave your religious straw men at home.

Death within a decade if you are 70+ years old is a reasonable prediction (http://www.google.com/publicdata?ds=wb-wdi&met=sp_dyn_le00_in&idim=country:USA&q=average+life+expectancy+in+america).

why don't I see many unregistered MGs, suppressors or SBRs around?

Yeah, because that's comparing apples to apples. Legal & cheap vs WTFOMGAREYOUINSANE?

hoffmang
01-16-2010, 12:50 PM
I don't see why we can't use the Federal Courts to strike this down. Why is in my reply to GrizzlyGuy. As is why I think you're wrong about Nunn.


Do you agree that brandishing and discharge laws (construed to have self defense exceptions) are legal? If so, where is the bright line between the legislature's power to keep one from brandishing or discharging but yet not allow open carry when concealed carry is available to all comers? The right is to bear arms for self defense. That legislatures in the past thought it manly to open carry doesn't change the fact that the California legislature is for various reasons (including political power of issuing authorities) going to make you conceal weapons. Some of those compelling reasons include saving police time and money to stop "man with gun" calls, to allow people the right to defend themselves even on private property open to the public, to create "herd immunity" where bad guys can't tell who is carrying and thus must assume most are, etc.

You're not going to get a Federal court to disagree with that line of reasoning as long as CCW is basically available. Training is going to be found unconstitutional only when its way out of line from the other 44 states in costs or time. Permit fees will likely have to have exceptions for the indigent and not otherwise be way out of line with other states. The amount of time for issuance is going to have to be directly related to the actual time it takes to run the background check and issue the license. But with those protections, the states of NY, CA, and TX are going to be able to say that a shall issue concealed license with bans on open carry are not an infringement of your right to bear arms.

To think something else is to be out of touch with the Federal judiciary.

-Gene

7x57
01-16-2010, 1:01 PM
To think something else is to be out of touch with the Federal judiciary.


Which would describe nearly everyone on this thread, and for that matter the country. Including me, of course.

What is interesting is not that but the willingness of some to make predictions anyway.

7x57

wildhawker
01-16-2010, 1:04 PM
The parallel accurately reflects a similarly foolish attitude and behavior.

The point is that your arguments have no basis except in your own created skepticism by which you attack the validity of the strategy and surrounding behavioral advice. Most of the UOC community I see in contemporary video and photographs are not 70 year old men with health issues, so I'm afraid your example is very probably a based upon a statistical anomaly.

Leave your religious straw men at home.

Death within a decade if you are 70+ years old is a reasonable prediction (http://www.google.com/publicdata?ds=wb-wdi&met=sp_dyn_le00_in&idim=country:USA&q=average+life+expectancy+in+america).

Yeah, because that's comparing apples to apples. Legal & cheap vs WTFOMGAREYOUINSANE?

kcbrown
01-16-2010, 3:37 PM
2. The reason we were likely to not see this bill pass after incorporation has to do with the average constitutional IQ of LEAs and legislators. As is evidenced in this thread, not even people close to the issue can read Nunn, much less understand the implication of federal court decisions. Could CGF beat this law in Federal Court - no. Could NRA convince the legislative analyst and legislators that it may be unconstitutional and use that to block the bill - yes.


That's a possibility, of course, but it's still a low probability thing.

The above makes a fundamental mistake: assuming your opponent is an idiot, or assuming you have an advantage that you probably don't have. In this case, the assumption is that the pro-gunners are the only ones who have the ears of the LEAs and legislators. That is almost certainly not the case.

With respect to assuming your opponent is an idiot, the assumption in this case is that the anti-gunners wouldn't be making similar arguments in favor of the constitutionality of the law in question. That's clearly a ludicrous assumption.

ETA: Worse, by your own arguments here, the arguments our side would be making against the constitutionality of the bill would be false. Our opposition would surely call us out on that. Arguing from a position of falsehood is foolish at best.

So, given that, does it not come down to what the legislator really supports?

Finally, as I asked before, why do you believe the legislators and their aides, analysts, etc., care at all about the constitutionality, or lack thereof, of any law being passed? 50+ years of legislative action shows quite the opposite.


So yes, it may have been possible to block the legislation post-incorporation, but it was still very unlikely.




AB-962 passed by one vote and the sponsor had to spend all day claiming up and down that its not unconstitutional under Heller.
Perhaps, but that is almost certainly because passage of the legislation in question was already questionable and therefore its proponents needed as many arguments in favor of it as possible. AB 1363 passed by a wide margin on the senate floor and unanimously everywhere else. Arguments against its constitutionality would almost certainly have gotten us nowhere even if they could have been made.

kcbrown
01-16-2010, 3:39 PM
Do you agree that brandishing and discharge laws (construed to have self defense exceptions) are legal? Discharge laws, certainly. Brandishing laws, possibly, depending on the argument made in their favor. If so, where is the bright line between the legislature's power to keep one from brandishing or discharging but yet not allow open carry when concealed carry is available to all comers? The difference is that the state has a legitimate interest in controlling weapons discharges. Uncontrolled discharging represents a real threat to the actual safety of the public: the bullet's going somewhere, and it (or its fragments, or the fragments of what it hits) could easily wind up in someone.

The state may also have a legitimate interest in keeping one from brandishing, but in an armed population I think the bar for showing that interest would be quite high, because in an armed population, the person at greatest risk is the person brandishing his weapon. I would imagine the state would argue the necessity of controls on brandishing by arguing that the probability of a shooting goes way up when someone brandishes their weapon indiscriminately, and the state has a legitimate interest in that not happening. Brandishing by its nature places others in direct fear of their safety and may cause them to take action under the assumption that their life is at stake.

What is the compelling interest of the state to control how a weapon is carried? Surely for the state to win the constitutional argument, it must have a compelling interest and the law as a whole must pass strict scrutiny?



Some of those compelling reasons include saving police time and money to stop "man with gun" calls, to allow people the right to defend themselves even on private property open to the public, to create "herd immunity" where bad guys can't tell who is carrying and thus must assume most are, etc.
The only argument in the above that may even come close to a legitimate interest in controlling how a weapon is carried is the first: saving police time and money to stop "man with gun" calls. And even that might not pass strict scrutiny, since "man with gun" calls are an artifact of the population having been disarmed for so long. And finally, how does it pass the "compelling interest" requirement since that requirement demands that the goal in question be truly necessary? Saving the police time and money is a convenience, not a necessity.

The rest are legitimate only in the event that concealed carry is taken off the table. They are not arguments in favor of controlling how weapons are carried in the general case, and therefore do not show the compelling interest of the state for that purpose.

Finally, how does taking open carry off the the table entirely in any way meet the "least restrictive means" requirement of strict scrutiny, much less the "narrowly tailored" requirement?



You're not going to get a Federal court to disagree with that line of reasoning as long as CCW is basically available. Training is going to be found unconstitutional only when its way out of line from the other 44 states in costs or time. Permit fees will likely have to have exceptions for the indigent and not otherwise be way out of line with other states. The amount of time for issuance is going to have to be directly related to the actual time it takes to run the background check and issue the license. But with those protections, the states of NY, CA, and TX are going to be able to say that a shall issue concealed license with bans on open carry are not an infringement of your right to bear arms.

To think something else is to be out of touch with the Federal judiciary.
Despite my arguments above, I expect you're right about this. But we'll see.

kcbrown
01-16-2010, 3:48 PM
I think there's an unasked question that demands an answer:

Does stare decisis override strict scrutiny?

The cases Gene cites that support his position on regulation of carry generally appear to predate the strict scrutiny standard in use today.

Since the right to bear arms is a Constitutional right, any laws which would control it must, in theory, pass the strict scrutiny tests. But suppose there is a long case history in support of a given law which would not be there had the strict scrutiny test existed at the time of those historical cases? Such appears to be the case with respect to restrictions on carry.

So which one wins: strict scrutiny or stare decisis?

hoffmang
01-16-2010, 4:03 PM
So yes, it may have been possible to block the legislation post-incorporation, but it was still very unlikely.

I was not saying the other side was incompetent. I was saying that Supreme Court and Federal Court cases have a norming effect on attitudes about what is and is not Constitutional. Though I disagree with "very unlikely" what I think you miss in your point is that before incorporation it was a certainty that it couldn't be stopped.


What is the compelling interest of the state to control how a weapon is carried? Surely for the state to win the constitutional argument, it must have a compelling interest and the law as a whole must pass strict scrutiny?
...

Despite my arguments above, I expect you're right about this. But we'll see.

The best argument the state can make is that the state has a compelling interest in making all residents more safe from violent crime. Requiring concealed carry has a deterrent effect on all criminals at all times as they can't tell which law abiding citizen is armed. That is a narrowly tailored government interest that doesn't infringe but in fact embraces the right to self defense.


So which one wins: strict scrutiny or stare decisis?

Below the Supreme Court stare decisis is going to win. Federal judges are going to look at the 19th century carry cases in places that clearly respected the right to bear arms. No one can seriously claim that Georgia and Tennessee in the pre civil war era didn't respect the RKBA for white people. From that they're going to use those as guide posts. I don't see Kennedy being willing to say that LOC is a constitutionally protected right when shall issue concealed carry is available to the law abiding.

-Gene

kcbrown
01-16-2010, 5:05 PM
I was not saying the other side was incompetent. I was saying that Supreme Court and Federal Court cases have a norming effect on attitudes about what is and is not Constitutional. Though I disagree with "very unlikely" what I think you miss in your point is that before incorporation it was a certainty that it couldn't be stopped.


I agree with you, in that there was a possibility of avoiding this problem post-incorporation. I just don't think the chances were all that good. In fact, I think they were nearly nonexistent. But they were better than now.



The best argument the state can make is that the state has a compelling interest in making all residents more safe from violent crime. Requiring concealed carry has a deterrent effect on all criminals at all times as they can't tell which law abiding citizen is armed. That is a narrowly tailored government interest that doesn't infringe but in fact embraces the right to self defense.
And that argument is a nonsense argument. If concealed carry isn't prohibited or regulated any more than open carry is, then at best a bad guy can only tell that some people are armed. Of the ones that aren't openly carrying, some may nevertheless be carrying concealed. How does that do anything to reduce the bad guy's uncertainty relative to the situation where anyone who is carrying must be doing so in a concealed fashion? Is the argument here that the bad guy will preferentially target open carriers?

Additionally, the argument also assumes that open carry is itself not a deterrent, that a criminal will preferentially attack someone he knows is armed versus someone he is uncertain about. That argument seems ludicrous on its face.

If that's the best argument the state can put up, then I think our chances of overturning AB 1363 may be a lot higher than you think.



Below the Supreme Court stare decisis is going to win. Federal judges are going to look at the 19th century carry cases in places that clearly respected the right to bear arms. No one can seriously claim that Georgia and Tennessee in the pre civil war era didn't respect the RKBA for white people. From that they're going to use those as guide posts. I don't see Kennedy being willing to say that LOC is a constitutionally protected right when shall issue concealed carry is available to the law abiding.
But arguing that the right to bear isn't being infringed when OC is taken off the table as long as concealed carry is available is the same as arguing that the right to speech isn't being infringed when verbal speech is taken off the table as long as one can still hand out written material. If the latter argument won't pass muster, then how can the former argument pass muster? Note that I'm not talking about what speech is being governed here, I'm talking about restrictions on how the speech is delivered. Restrictions on OC aren't restrictions on what, they're restrictions on how.

Isn't the Constitutional standard of scrutiny the same for both speech and RKBA?


Regardless, I see little reason to believe that a case surrounding this issue would stop short of the Supreme Court. I suspect, though, that the timing would have to be right.

What would happen if someone were to bring up a strict scrutiny challenge to stare decisis in federal court? That is, to argue that stare decisis is invalid when it fails strict scrutiny?

wildhawker
01-16-2010, 5:13 PM
Isn't the Constitutional standard of scrutiny the same for both speech and RKBA?

Maybe not, and I don't think we'll know for a number of years yet until a question that might clarify this presents before the Supreme Court.

kcbrown
01-16-2010, 5:19 PM
Maybe not, and I don't think we'll know for a number of years yet until a question that might clarify this presents before the Supreme Court.

Hmm...are there any enumerated rights in the Constitution which do not get the benefit of strict scrutiny to the same degree that speech does?

If not, then your uncertainty here implies that the 2nd Amendment may be the first such right to not get such benefit.

GrizzlyGuy
01-16-2010, 5:49 PM
Hmm...are there any enumerated rights in the Constitution which do not get the benefit of strict scrutiny to the same degree that speech does?

If not, then your uncertainty here implies that the 2nd Amendment may be the first such right to not get such benefit.

Read Breyer's dissent in Heller (http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf). It wasn't clear (even to the majority) that strict scrutiny was the appropriate standard for 2A. Once Obama gets a few more progressives on the court, it will be even less clear. Excerpt from his dissent:

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U. S. 74, 82 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear. See ante, at 54.

Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of everygovernment—a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U. S. 739, 755 (1987).

kcbrown
01-16-2010, 6:24 PM
Is there some procedural method used to determine what level of scrutiny a given right gets?

RKBA derives in part from the right to self defense, which derives from the right to one's own life. By that argument, RKBA is derived from the most important right we have, and therefore deserves stricter scrutiny than any right which isn't also derived from the right to life.

navyinrwanda
01-16-2010, 6:36 PM
Hmm...are there any enumerated rights in the Constitution which do not get the benefit of strict scrutiny to the same degree that speech does?

If not, then your uncertainty here implies that the 2nd Amendment may be the first such right to not get such benefit.
In practice, strict scrutiny is only applied to the First Amendment unless a "suspect classification" is involved.

To be considered a "suspect classification," a statute at issue must target:

a "discrete" or "insular" minority who

possess an immutable trait (except in the case of religion),
share a history of discrimination, and
are powerless to protect themselves via the political process.

camsoup
01-16-2010, 7:17 PM
That is a narrowly tailored government interest that doesn't infringe but in fact embraces the right to self defense.
-Gene


Is it really a right if we are required to pay fee's to exercise it??

kcbrown
01-16-2010, 7:48 PM
Is it really a right if we are required to pay fee's to exercise it??

Even better, is it really a right if we cannot exercise it without the explicit permission of the state?

That's exactly what a permit system is: a system the state uses to give permission to someone (even the term "permit" implies this).

If one cannot exercise a right without first getting the permission of the state, then it's not a right at all. Shall-issue CCW with prohibitions on all other forms of carry is precisely such a system, and makes a mockery of the term "right".

If people in the U.S. were prohibited by the state from say anything at all in public (even in "private conversation" with another individual) or to write anything at all for distribution to the public without first getting the state's permission in the form of a "shall-issue" permit, the U.S. would be regarded not as a free state, but as a police state. Such a thing would be considered a clear infringement on the right to free speech.

And yet, some/most of the very same people (in the legal system, even!) who would consider the above to be completely unacceptable have no problem at all with implementing that very same kind of system to govern the right to bear arms and, worse, restricting the right to only one form of carry (equivalent to restricting your right to speech to the written word only).

The hypocrisy of the legal system is astounding.

kcbrown
01-16-2010, 7:54 PM
In practice, strict scrutiny is only applied to the First Amendment unless a "suspect classification" is involved.

To be considered a "suspect classification," a statute at issue must target:

a "discrete" or "insular" minority who

possess an immutable trait (except in the case of religion),
share a history of discrimination, and
are powerless to protect themselves via the political process.





If this is the case (that strict scrutiny is applied in the general case only to 1A) then:


Why do you guys think that the "shall-issue" CCW permit system will be subject to strict scrutiny if the right as a whole (and therefore any law which would govern it) is not? What makes you think the permits themselves will be subject to that?
Why is the First Amendment the only amendment to receive generalized strict scrutiny treatment? What makes it so special compared with the rest of the enumerated rights we have that it deserves such a highly elevated status?

mblat
01-16-2010, 8:00 PM
Is it really a right if we are required to pay fee's to exercise it??

You have right to travel. The only travel I know of that one doesn't need to pay for it is travel to a prison.

GrizzlyGuy
01-16-2010, 8:18 PM
The hypocrisy of the legal system is astounding.

Here you go KC, you're not alone, read it and weep (http://www.campaignforliberty.com/article.php?view=530): :(

The Supreme Court has been blundering along a statist/collectivist path for many decades and each passing term brings new decisions that make constitutionalists hang their heads in despair. "Seldom," Levy and Mellor write, "has the ratchet of the Court's decisions turned toward greater individual liberty. To the contrary, the Court has further and further restricted the freedoms that Americans should enjoy as a birthright..."

May I suggest a free state (http://www.freestateproject.org/) to at least partially restore your faith in liberty? :)

navyinrwanda
01-16-2010, 10:38 PM
DYou're not going to get a Federal court to disagree with that line of reasoning as long as CCW is basically available. Training is going to be found unconstitutional only when its way out of line from the other 44 states in costs or time. Permit fees will likely have to have exceptions for the indigent and not otherwise be way out of line with other states. The amount of time for issuance is going to have to be directly related to the actual time it takes to run the background check and issue the license. But with those protections, the states of NY, CA, and TX are going to be able to say that a shall issue concealed license with bans on open carry are not an infringement of your right to bear arms.

To think something else is to be out of touch with the Federal judiciary.

-Gene
This is absolutely right.

First amendment rights to free speech, assembly and religion are not absolute, and neither is the Second Amendment right to keep and bear arms. No right in the U.S. constitutional system in absolute. We have a common law system, which means that our law is a combination of written statues and judicial decisions. So ultimately, the "contours" of any right — enumerated or otherwise — are what the federal courts say they are. And the courts define these "contours" in individual cases when specific statues (or government actions) are challenged.

As the Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This means that unless otherwise prohibited by a federal court decision, states generally have the power to regulate most activities within their borders under the concept of "police powers."

N6ATF
01-17-2010, 1:37 AM
Is it really a right if we are required to pay fee's to exercise it??

Fees=taxes. Taxes on life. Don't pay the tax? You die when a criminal decides your number is up.

"... shall not be infringed" should mean that the government doesn't get to be complicit in crime by disarming victims via any method, whatsoever.

Meplat
01-17-2010, 4:55 AM
Wrong! don't cost to walk. And any Govt. fees involved in travel are generally reasonable, except for fuel taxes.

You have right to travel. The only travel I know of that one doesn't need to pay for it is travel to a prison.

Mulay El Raisuli
01-17-2010, 5:26 AM
OK, but your conclusion is at odds with the conclusions of some pretty experienced folks. Note that Kilmer/Gura didn't even assert what you are saying in their motion for summary judgement in Sykes (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/019-Sykes-v-McGinness-MSJ-P+A-2009-08-6.pdf):



This post from Gene (http://www.calguns.net/calgunforum/showpost.php?p=3567353&postcount=24) also lists a number of decided cases that also go against your conclusion.


Gura's argument in Sykes troubles me. Because it concedes right off the bat that The State can indeed regulate the how of "and bear." I'm not seeing the precedent for that.

The list of cases you link to includes Nunn, which I think I've shown to NOT support Gene's claim. But, I've read the cases & come to a conclusion. Gene has tread them & come to a conclusion. Who's right? SCOTUS will tell us.


The Raisuli

Mulay El Raisuli
01-17-2010, 5:37 AM
Well if you're gonna put it that way ;)

I think you're making a dubious comparison; while we all agree the RKBA is a civil right, it's worth remembering that we still have many, many other components of the democratic process at our disposal -- whereas minorities in the South most certainly did not -- and comparing our struggle for RKBA in CA to the culmination of a couple centuries of enslavement (and resultant ingrainment into Southern culture) isn't really fair.


Which is why I didn't make such a comparison. What I did compare is the futility of of making effort in a legislature clearly hostile to what we believe.


Ultimately we need to preserve the possibility for neutral outcomes at the legislative and legal level where they exist. The argument all along is that the publicity around OC in general hampers that possibility for very little in return.

--Neill


This is actually contradictory. By just giving up we don't preserve ANY possibility, we just concede the field to our opponents. Proof of this is that even though UOC events still occurred, they were much less frequent & still the bad outcome happened. More, that bad outcome came about as a result of something that was NOT related to UOC events. Given this reality, its time (IMHO) to resume UOC events. There may be little to win, but there's nothing to lose, legislature-wise.

As for the courts, they're not supposed to be influenced by anything but the Law. Yeah, I know that's not always the case. Still, it's better to use the Law in a court instead of emotion. The odds of winning are MUCH better that way.


The Raisuli

Mulay El Raisuli
01-17-2010, 5:40 AM
Do you agree that brandishing and discharge laws (construed to have self defense exceptions) are legal? If so, where is the bright line between the legislature's power to keep one from brandishing or discharging but yet not allow open carry when concealed carry is available to all comers? The right is to bear arms for self defense. That legislatures in the past thought it manly to open carry doesn't change the fact that the California legislature is for various reasons (including political power of issuing authorities) going to make you conceal weapons. Some of those compelling reasons include saving police time and money to stop "man with gun" calls, to allow people the right to defend themselves even on private property open to the public, to create "herd immunity" where bad guys can't tell who is carrying and thus must assume most are, etc.

You're not going to get a Federal court to disagree with that line of reasoning as long as CCW is basically available. Training is going to be found unconstitutional only when its way out of line from the other 44 states in costs or time. Permit fees will likely have to have exceptions for the indigent and not otherwise be way out of line with other states. The amount of time for issuance is going to have to be directly related to the actual time it takes to run the background check and issue the license. But with those protections, the states of NY, CA, and TX are going to be able to say that a shall issue concealed license with bans on open carry are not an infringement of your right to bear arms.

To think something else is to be out of touch with the Federal judiciary.

-Gene


kcbrown addressed most of this, so I'll limit myself to saying that we're not going to win the point if we don't even try. As I read Palmer, I'm seeing that the effort isn't going to be made. Which troubles me.


The Raisuli

Mulay El Raisuli
01-17-2010, 5:44 AM
You have right to travel. The only travel I know of that one doesn't need to pay for it is travel to a prison.


An incorrect comparison. The point made wasn't that one has a right to travel for free, but that one doesn't have to pay fees to the govt to do so. It may be a lot easier to do so nowadays, but the fact is that one can still do so.


The Raisuli

GuyW
01-17-2010, 7:46 AM
First amendment rights to free speech, assembly and religion are not absolute, and neither is the Second Amendment right to keep and bear arms. No right in the U.S. constitutional system in absolute.

So say the statists that run governments, and those that must dance to their tune...

.

tankerman
01-17-2010, 7:50 AM
Lonnie- unless I am misreading this, it was LOC with a LTC concealed that scored this, not UOC advocates running wild.
Don't bother him with facts.

Liberty1
01-17-2010, 8:33 AM
Lonnie- unless I am misreading this, it was LOC with a LTC concealed that scored this, not UOC advocates running wild.

Actually I understand it was a LTC loaded and exposed. I would like to know more about the incident and the type of license and the issuing authority.

mblat
01-17-2010, 9:59 AM
Wrong! don't cost to walk.

Yes it does. If nothing else you will have to change you shoes more often when you walk to Montana. Not to mention that unless you are prepared to sleep outside you will end up paying taxes on motel rooms.


And any Govt. fees involved in travel are generally reasonable, except for fuel taxes.

Irrelevant. There are fees. and some of them unreasonably high. So, there are fee on exercising right to travel. I wouldn't consider Utah type fees ( what is it $15 per year? ) unreasonable.

gravedigger
01-17-2010, 12:52 PM
I still can't see the reasoning why someone with a concealed permit would want to open carry anyways.

THERE is the response I was looking for!

So there you are, in the park with your son's little league team. They are playing an away game, so you are not in the pristine park near your home in the nice part of town. Instead, you're team is playing the other team at their home location, based in a ghetto somewhere on the east side of town. It is a hot day and you are there to support your son, but ... it is HOT! so you show up in a pair of shorts and a tank top, some flip flops and the only thing you can carry in your pocket without creating an unsightly bulge is your car key. You want to CARRY, simply because this area has been known for gang activity, such as last week when that gang drove by a funeral at the cemetery DOWN THE ROAD and opened fire on the crowd that assembled for the service.

Now tell me again how you can't see any situation where a CCW holder would want to OPEN carry.

Frankly, I respect Gene and the terrific work he is doing, but on this one, I think he may have jumped the gun. NOTHING is "forever." When they try to shove that "either/or" restriction down our throats, we will watch like hawks for BLATANT violations of that law. There is the mayor, on the beach with his family. He is OPEN carrying, even though he only has a CCW. You can bet that someone like ME will make a point of calling him out on it, and insisting that he be arrested and charged for violating the "concealed" stipulation in his carry permit. Yes, I know ... "He's the mayor! you'll lose!" I don't think so. Just because he is the mayor, that does NOT give him the right to violate any law. The mayor cannot ignore red lights just because he is the mayor! The mayor cannot fail to register his car just because he is the mayor!

The brain dead liberals can pass some "feel good" law, but it will soon be challenged and shown to be typical liberal B.S., and the law WILL have to be struck down, simply because that "tactical choice" (Love that term) MUST be there for anyone who carries. An open carry person MIGHT want to conceal a weapon if he is walking through a museum with his wife, when he comes upon a group of school children on a tour, or he might want to conceal if he finds himself among a group of people that cannot be trusted, such as the mentally handicapped (Read: UNPREDICTABLE). There he is, walking through a swap meet, and he notices that the person in charge of controlling those poor souls is having a difficult time. One goes off to the left and grabs something colorful. Another runs to the right to hop onto a bicycle while the third has found an unattended claw hammer to play with. You can BET that if I were LOC in that situation, I'd conceal my weapon so I am not surprised by one of the handicapped who sneaks up behind me trying to pull my "toy gun" out of it's holster.

I don't know exactly what scenario will arise, forcing CommieFornia to drop the either/or stipulation, but I know that something WILL kill it.

Meplat
01-17-2010, 1:19 PM
I knew that was coming.:rolleyes: Dealers don't give away guns. You pay taxes on ammo. Free speech does not entitle you to a free megaphone. A free press does not preclude a tax on ink.

Now, federal taxes in general are unconstitutional, except for tariffs. But that's another thread.


Yes it does. If nothing else you will have to change you shoes more often when you walk to Montana. Not to mention that unless you are prepared to sleep outside you will end up paying taxes on motel rooms..

marshaul
01-17-2010, 2:42 PM
Congress will need to act to create a shall-issue Federal Firearms Carry License (FFCL). This act of Congress will preempt all state firearms carry licensing and possession laws...
Why? Drivers' licensing works just fine while still using state-issued permits.

As for states which prohibit all carry, post-incorporation courts can make them go "Vermont" until their legislatures get their acts in gear.

marshaul
01-17-2010, 2:59 PM
Let me say it again. No federal court (especially in the 9th circuit) is going to say that a legislature can't regulate the right to carry as long as the right to carry is not completely destroyed. That's what the Nunn court is saying in 1846 in Georgia. This is not Kansas in 1920 or modern New Jersey - it's a court that respected the right to arms and still said that the correct mode of analysis is that if the regulation does not destroy the right to carry, it's legit.

To posit that there is some right to carry without a permit or training and openly by right, then you gotta find me a gun case that seems to say that. Between Heller, Sykes, and Palmer, almost every carry case from 1789 to present has been cited. Go read them and find me a single court who agrees with the position that the right to carry means unlicensed and open.

Just one.

I'll be waiting.

-Gene
What is the legal precedent regarding the licensure of Constitutional rights?

I was long under the impression that the notion "driving is a privilege not a right" existed essentially to justify the licensure thereof.

On the other hand, I know that is has been justified requiring permits for certain kinds of public assemblies (a 1st Amendment right).

The Nunn case dealt with a circumstance where the right-maintaining alternative -- open carry -- was not subject to licensure.

Is there no hope in the U.S. for the exercise of Constitutional rights without a permit? I can't see how there is a "right" to do anything for which you must obtain prior permission. I can't see how my "right" to bear arms for self-defense exists as long as I must get a permit to exercise it. Method of carry is irrelevant to this concern.

As much as I love open carry, I could tolerate "Texas carry" IF no permit were required. As much as I may end up getting some form of carry permit for the ease it provides, I hate to think of any or all of my rights being subject to arbitrary licensure of the exercise thereof.

I mean, I agree that shall-issue is the logical first step, and all that. But is there no light at the end of the tunnel? Will I one day be subject to getting a license before I may speak freely, or to be free of "unreasonable search and seizure"? Imagine that, "Good day random citizen I just observed for the first time 5 seconds ago doing nothing seemingly illegal. Show me your papers or else you get the search again". But how is that right different from the RKBA? What allows licensure of the RKBA, but forbids the licensure of freedom from unreasonable search and seizure? Is the answer to my question already established precedent?

Maestro Pistolero
01-17-2010, 3:34 PM
As much as I love open carry, I could tolerate "Texas carry" IF no permit were required.
I can't tolerate the thought of losing my 2A rights because the wind blew open my jacket some moron panicked. CCW only carry is like having a right to free speech, as long as no-one ever hears you.

marshaul
01-17-2010, 3:53 PM
I can't tolerate the thought of losing my 2A rights because the wind blew open my jacket some moron panicked. CCW only carry is like having a right to free speech, as long as no-one ever hears you.

Well, I agree, but that wasn't quite the point I was aiming at. Nor does it answer my question.

When I referred to Texas, I meant just meant "CC is the allowed carry mode". As far as I am concerned, a crime needs mens rea, so the Texas statute prohibiting accidental exposure oughtn't to be valid. It would be a little different to allow CC and prohibit intentional OC, complete with mens rea.

kcbrown
01-17-2010, 3:55 PM
Much of my previous commentary was made under the assumption that laws which abridged the 2nd Amendment were to be analyzed under strict scrutiny.

My assumption was based on the fact that Gene and others have argued (here (http://www.calguns.net/calgunforum/showpost.php?p=3333380&postcount=64), for example) that what will make a shall-issue CCW permit system acceptable as the only means of carry is that the law which sets that up and/or the cases brought forth challenging them will be analyzed using strict scrutiny.

Now we have some people, including Gene himself, who are hinting if not outright saying that such laws will not be analyzed under strict scrutiny.

This is (or, at least, appears to be) a self-contradictory position on the part of Gene and others.

So which is it? Will 2A be analyzed under strict scrutiny or not? If not, then how is 2A a right when the only way to exercise it is with the permission of the state when such permission isn't even subject to strict scrutiny?

Realize that the consequence of such a system not being subject to strict scrutiny is that the "right" to bear can, in the general case, be denied in practice as a result of the state claiming that arranging the permit system that way furthers some important interest it has in a way that is related to that interest.

I see no reason to believe that discretionary issue like what California has now would not qualify under intermediate scrutiny or lower. But then, as I said before, I'm no legal expert.

Comments?

wildhawker
01-17-2010, 4:16 PM
In a conversation I had last night with a well-known and oft mentioned attorney, we discussed this very thing.

Guns are a different animal. For a 2A issue to go before a court and "win" (to the completeness we wish to see for this right), we'll either need a judge who will follow the law or a pro-gun judge.

Sometimes we'll get one and sometimes we won't. It's very important that we look at this from a multi-generational perspective. If we can win *enough* now that through the next few generations firearms become, again, a cherished right in the hearts and minds of citizens, we'll be well positioned to use currently unavailable options to advance certain aspects in a friendlier sociopolitical climate.

kcbrown
01-17-2010, 6:51 PM
In a conversation I had last night with a well-known and oft mentioned attorney, we discussed this very thing.

Guns are a different animal. For a 2A issue to go before a court and "win" (to the completeness we wish to see for this right), we'll either need a judge who will follow the law or a pro-gun judge.

Sometimes we'll get one and sometimes we won't. It's very important that we look at this from a multi-generational perspective. If we can win *enough* now that through the next few generations firearms become, again, a cherished right in the hearts and minds of citizens, we'll be well positioned to use currently unavailable options to advance certain aspects in a friendlier sociopolitical climate.

The problem is that this new (to me, anyway) revelation raises the very real possibility that we'll get incorporation and nothing will change.

Most people here have been operating under and thinking based on the assurances given by Gene, Ben, and the others here that once we have incorporation, the fact that 2A will then be a right will change the entire game.

That entire notion has now just been thrown under the bus. If 2A is treated with anything less than strict scrutiny, I dare say that very few of the laws here in California would be struck down as unconstitutional by a judge who wouldn't have ruled against it pre-incorporation.

I see that as significant reason for despair.

kcbrown
01-17-2010, 7:02 PM
I should note that I am both a skeptic and an optimist.

I am a skeptic because when someone claims that things are going to get significantly better in a relatively short period of time, I tend to disbelieve them. That wasn't the case with respect to 2A until now.

I am an optimist because when I make a prediction, things usually turn out even worse than I predict.

Dr. Peter Venkman
01-17-2010, 7:23 PM
Sometimes we'll get one and sometimes we won't. It's very important that we look at this from a multi-generational perspective. If we can win *enough* now that through the next few generations firearms become, again, a cherished right in the hearts and minds of citizens, we'll be well positioned to use currently unavailable options to advance certain aspects in a friendlier sociopolitical climate.

That's the real lynchpin here; winning 2nd Amendment legal battles is not going to mean anything in the long run if the populace at large doesn't think it should be a right in the first place. The court cases of today will have to act as a stepping stone to push gun owners out into the accepted mainstream and it will take a very cohesive strategy to do that. Hence the reason for Calguns' public outreach being a continual process.

FastFinger
01-17-2010, 7:49 PM
That's the real lynchpin here; winning 2nd Amendment legal battles is not going to mean anything in the long run if the populace at large doesn't think it should be a right in the first place. The court cases of today will have to act as a stepping stone to push gun owners out into the accepted mainstream and it will take a very cohesive strategy to do that. Hence the reason for Calguns' public outreach being a continual process.


Spot on! And to that end it's incumbent on all of us to help spread our message, which is why I was a bit disappointed today.

We had a meeting of the seminal Los Angeles CGN Chapter and all of 6 or 7 members showed up. If gun enthusiasts are serious about change, we will need convince a lot of middle of the road neighbors that we and our message are worth supporting. That will take substantial community outreach, more than a half dozen members here and there.

GrizzlyGuy
01-17-2010, 8:12 PM
I should note that I am both a skeptic and an optimist.

I am a skeptic because when someone claims that things are going to get significantly better in a relatively short period of time, I tend to disbelieve them. That wasn't the case with respect to 2A until now.

I am an optimist because when I make a prediction, things usually turn out even worse than I predict.

I'd say you are a realist. Although 2A should be interpreted with strict scrutiny, it won't be. We should be able to carry whatever firearm we want, in any manner we want, without needing permission (a permit) from the government. Unfortunately, that's not reality. As Wildhawker pointed out, our 2A rights will in some degree be determined by what the opinions of the citizenry are.

Here in CA, with a predominantly anti-true-2A population, and a government that is run by progressives and will be for the forseeable future, the improvements will be limited. If you're in an urban area and CCW and handguns in general are important to you, you'll be pleased with the changes: shall-issue CCW and no more handgun roster.

If you're like me, primarily a rifle guy in a rural area, the improvements will largely be in the 'who cares' category. In fact, when CA chooses licensed-and-concealed-only carry of handguns, the legislature may put more restrictions on OC in general (including long guns). That would be a net negative for me, even if our AW laws were struck down and I could own a real AR-15: if I can no longer hike the short distance over to the national forest, down public streets/roads with it slung like I do now for my other rifles, the situation would be worse rather than better.

Out in the free states, things will either stay the same or get even better. That's only because their populations/legislatures are different than ours. The gun owners in those states are still successfully fighting the battle at the ballot box, they haven't had to resort to making their last stand in the federal courts as is the case here.

kcbrown
01-17-2010, 8:23 PM
Here in CA, with a predominantly anti-true-2A population, and a government that is run by progressives and will be for the forseeable future, the improvements will be limited. If you're in an urban area and CCW and handguns in general are important to you, you'll be pleased with the changes: shall-issue CCW and no more handgun roster.


You and everyone else are assuming shall-issue CCW.

This latest revelation shows that shall-issue CCW is not a foregone conclusion by any means. Discretionary-issue CCW with no OC allowed is something that might easily pass intermediate scrutiny. And the fact that it might easily pass intermediate scrutiny means that it is almost surely what we will get if strict scrutiny is not the standard chosen to evaluate 2A cases.

If strict scrutiny is not the standard the courts would choose for 2A evaluation then I think we are finished, because if what little I've read about it is any indication (that all the government needs to show is that the law furthers an "important" government interest and that the law in question does so in a reasonably direct manner), intermediate scrutiny is hardly any scrutiny at all when it comes to guns.

As an example, take discretionary-issue CCW. I see little reason to believe that the government can't successfully argue that its important interest is in public safety, and that in order to ensure public safety it is necessary to ensure that only people with "good moral character" are issued CCW permits, and that the only way to determine that is on an indivdual basis. Hence, the need for discretionary issue: shall-issue does not address this "important interest" on the part of the government.


So I reiterate: without strict scrutiny, the game is essentially over.

kcbrown
01-17-2010, 8:34 PM
I should also add that, based on the foregoing, Gura, et. al. had better argue strongly for strict scrutiny in either Palmer or Sykes, because if he doesn't successfully argue for it now, the changes to the Supreme Court which are surely coming will eliminate any chances of getting it within our lifetimes.

hoffmang
01-17-2010, 8:56 PM
This latest revelation shows that shall-issue CCW is not a foregone conclusion by any means.

So I reiterate: without strict scrutiny, the game is essentially over.

Shall issue CCW is a foregone conclusion as a win and as one of the available regulatory options for a state or local government. You need to go read the decision on the 12b6 in Peruta to see why. Discretionary issuance doesn't even pass intermediate scrutiny.

However, rights aren't as absolute as everyone here wants them to be. Parades can and are permitted. Try holding a peaceful assemblage on the national mall without a permit and see what the fines or jail times look like. Try opening an adult bookstore in certain counties at all.

Additionally, strict scrutiny may be reserved for self defense and in the home. The closer to the home or self defense you are, the stricter the scrutiny. Some mode of carry out of the home is going to be required but once that core right is dealt with then you're on your own. The fourth amendment could be read to mean that cops can't even observe you in public, but that isn't the way the 4th has been interpreted.

The issue everyone here ignores is this. We go to battle in the courtroom with the Federal Judiciary that Carter, Reagan, Bush I, Clinton, and Bush II (and soon Obama) gave us. If your argument can't win below or keep Kennedy in the majority, it loses.

What makes everyone here so comfortable that Kennedy would strike down a ban on open carry where shall issue CCW was in place?

-Gene

kcbrown
01-17-2010, 9:20 PM
Shall issue CCW is a foregone conclusion as a win and as one of the available regulatory options for a state or local government. You need to go read the decision on the 12b6 in Peruta to see why. Discretionary issuance doesn't even pass intermediate scrutiny.


I would certainly agree that shall-issue is what we'll get at a minimum if 2A is to be evaluated under strict scrutiny.

Can you please elaborate as to why discretionary issue doesn't pass intermediate scrutiny? What specifically about intermediate scrutiny does discretionary issue fail at? A cursory search for both "intermediate scrutiny" and "discretionary issue" yields nothing enlightening on that.

hoffmang
01-17-2010, 9:29 PM
I would certainly agree that shall-issue is what we'll get at a minimum if 2A is to be evaluated under strict scrutiny.

Can you please elaborate as to why discretionary issue doesn't pass intermediate scrutiny? What specifically about intermediate scrutiny does discretionary issue fail at? A cursory search for both "intermediate scrutiny" and "discretionary issue" yields nothing enlightening on that.

The state has to show evidence that a sheriff's discretion shows a substantial relationship between the statute and the benefits intended to stem from it. If anything, the evidence runs exactly the other way - mainly under any form of equal protections analysis. Evidence here is things like actually valid research. Of course the number of issuances is so low that they may not be statistically valid, thus showing the futility of trying to prove that.

-Gene

nobody_special
01-18-2010, 12:56 AM
Gene, you keep repeating the mantra of parades and porn, but neither example is particularly relevant to the right to bear arms. The former is a time/place/manner restriction of a group activity; yet an individual does not need a permit to walk down the street. And your latter example is not among the core protected elements of the 1st amendment; Heller actually comments on this:

A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people...

I do not believe that the scope of the right to bear arms was limited to the home at the time it was adopted.

I've repeatedly pointed out that there is no other enumerated right where a license or permit is required to exercise any aspect of that right. In fact, I can't think of any enumerated right where a license is required for an individual exercise of a protected activity. So in my view, asking for some unlicensed right to bear arms is not "absolutist" -- it is minimalist, because a licensing requirement is an abrogation of the right by definition.

I mean, seriously... do you think it would be reasonable to require a permit in order to walk down the street? Or post to calguns? I think (maybe it's just a hope?) that Kennedy has more intellectual honesty than you give him credit for.

hoffmang
01-18-2010, 1:23 AM
I mean, seriously... do you think it would be reasonable to require a permit in order to walk down the street? Or post to calguns? I think (maybe it's just a hope?) that Kennedy has more intellectual honesty than you give him credit for.

I don't like the precedents here, but I read them and take them seriously. Southern RKBA loving state supreme courts have consistently said that carry is subject to time place and manner restrictions so long as the core right to a functional firearm for self defense is respected. The southern precedents even show that the state may be able to force you to only carry certain times of handguns (navy revolver is the usual suspect there.) On the "can restrict to certain firearms" point, I do think we can fight that battle because there is pretty good evidence that was simply an attempt to make carry expensive to keep undesirables from carrying.

Let me say it to you this way. I don't care to assume we have Kennedy on carry but I'm pretty hopeful. Let's first ask him whether he'll vote with a majority for carry, read that opinion, and then decide whether unpermitted carry is something in the realm of feasible in the federal courts based on the first SCOTUS carry case.

Also, please think through what a ruling that unpermitted open carry is constitutionally protected while a state can totally ban concealed carry could lead to in this state. Note that SCOTUS said pretty plainly in Heller that the second amendment doesn't constrain banning concealed carry where open carry is allowed. I can see the sign at every mall and restaurant now..

-Gene

wildhawker
01-18-2010, 1:32 AM
Also, please think through what a ruling that unpermitted open carry is constitutionally protected while a state can totally ban concealed carry could lead to in this state. Note that SCOTUS said pretty plainly in Heller that the second amendment doesn't constrain banning concealed carry where open carry is allowed. I can see the sign at every mall and restaurant now..

-Gene

Yep (http://opencarry.mywowbb.com/forum12/36744.html), and I'm not sure we're too far away from it now.

kcbrown
01-18-2010, 3:11 AM
The state has to show evidence that a sheriff's discretion shows a substantial relationship between the statute and the benefits intended to stem from it. If anything, the evidence runs exactly the other way - mainly under any form of equal protections analysis. Evidence here is things like actually valid research. Of course the number of issuances is so low that they may not be statistically valid, thus showing the futility of trying to prove that.


Thanks, Gene.

If the bar really is that high then the situation isn't nearly as grim as I was thinking. Not ideal, to be sure, but not as grim.

But: if CCW is subject to such scrutiny, wouldn't a law forbidding LOC also be subject to such scrutiny?

Where is the evidence suggesting that banning LOC furthers an important government interest? What is the "important interest" that it would further?


Despite the past cases that may define precedent here, if a case comes forward demanding the application of the appropriate level of scrutiny because the fact that what's in question is a Constitutional right, wouldn't that obligate the court to apply the scrutiny in question?

Why does the court have the choice of relying on precedent in the face of a case involving a Constitutional right when the current standards of scrutiny had not been applied in the cases defining precedent?

Would that not imply that the courts can choose to ignore a Constitutional right as long as past courts have done so?

marshaul
01-18-2010, 7:59 AM
Gene, you keep repeating the mantra of parades and porn, but neither example is particularly relevant to the right to bear arms. The former is a time/place/manner restriction of a group activity; yet an individual does not need a permit to walk down the street. And your latter example is not among the core protected elements of the 1st amendment; Heller actually comments on this:



I do not believe that the scope of the right to bear arms was limited to the home at the time it was adopted.

I've repeatedly pointed out that there is no other enumerated right where a license or permit is required to exercise any aspect of that right. In fact, I can't think of any enumerated right where a license is required for an individual exercise of a protected activity. So in my view, asking for some unlicensed right to bear arms is not "absolutist" -- it is minimalist, because a licensing requirement is an abrogation of the right by definition.

I mean, seriously... do you think it would be reasonable to require a permit in order to walk down the street? Or post to calguns? I think (maybe it's just a hope?) that Kennedy has more intellectual honesty than you give him credit for.
I still think this is more convincing that anything I've read from a racist "RKBA-loving" Southern state eager to read things in such a way so as to make the right nonexistent for blacks.

inbox485
01-18-2010, 8:30 AM
The issue everyone here ignores is this. We go to battle in the courtroom with the Federal Judiciary that Carter, Reagan, Bush I, Clinton, and Bush II (and soon Obama) gave us. If your argument can't win below or keep Kennedy in the majority, it loses.

I think this is the part that is too often forgotten. The constitution says what it says, but the supreme court gets to decide what it really says. At the end of WWII, surplus artillery was being sold to civilians. I don't know of a single incident where such weapons were used to hurt others. That was considered and assumed to be part of the second amendment.

I for one read the words of the second amendment, and interpret arms to be any weapon that would not constitute a war crime to use, keep to mean buy/sell/transfer/loan/etc, and bear to mean carry/transport. The original "come and get it" was in reference to a cannon not some revolver or musket. But that is not what the 9 mortal men siting in the supreme court want, and it is not likely they will give it.

The good news is, if places like California, New York, and DC are forced to adopt something even kind of resembling the 2A, the free states will virtually be shamed into lightening up a bit more. If California goes Texas style, Texas might go Vermont, and if California goes Vermont, Texas might make it a felony not to have a gun with you. :)

383green
01-18-2010, 8:55 AM
I can see the sign at every mall and restaurant now..

With an incorporated 2nd Amendment and unrestricted LOC (for the sake of this argument), why would a "no guns" sign be OK at a business open to the public when a "whites only" sign would not?

7x57
01-18-2010, 8:58 AM
I for one read the words of the second amendment, and interpret arms to be any weapon that would not constitute a war crime to use,

That's an interesting interpretation on what 'arms' meant I hadn't heard before. It has some interesting points, however what constitutes a 'war crime' is not a time-independent opinion. Are you prepared to consider a court ruling that expanding ammunition is not protected because post-Hague it is arguably (even though we haven't actually ratified it) a war crime to use?

I don't know what would happen to your suggestion if re-phrased in (some kind of) originalist way. IA study of what sort of 'war crime' notion existed in the late eighteenth century would be interesting.

7x57

383green
01-18-2010, 9:06 AM
Are you prepared to consider a court ruling that expanding ammunition is not protected because post-Hague it is arguably (even though we haven't actually ratified it) a war crime to use?


That's an interesting insight. I think trading expanding defense ammo for suppressors, submachineguns, assault rifles, SBRs, AP/incendiary/tracer ammo, and so forth would be a net win. Hunters may not like it, but large calibers would regain popularity to fill the void.

Maestro Pistolero
01-18-2010, 9:09 AM
With an incorporated 2nd Amendment and unrestricted LOC (for the sake of this argument), why would a "no guns" sign be OK at a business open to the public when a "whites only" sign would not?
Ooh, zing. Excellent. I suppose a business could post "whites only". It probably isn't illegal, but equal opportunity employment laws would make it unenforceable. So perhaps would carry carry laws be unenforceable, if it's truly a fundamental right.

If someone can't OC in their own front yard without a fence, because it's considered open to the public, then the public's protected rights ought to remain protected in a mall, or restaurant, for example. It's open to the public, right? How can it be considered open to the public for the purposes of enforcement, while being considered private property for the purposes of denying protected rights?

383green
01-18-2010, 9:14 AM
Ooh, zing. Excellent. I suppose a business could post "whites only". It probably isn't illegal, but equal opportunity employment laws would make it unenforceable. So perhaps would carry carry laws be unenforceable, if it's truly a fundamental right.

Even if a "whites only" sign would be legal, posting it would surely cause the business to burn down in short order. Perhaps "no guns" signs would be considered similarly inflammatory post-incorporation?

7x57
01-18-2010, 9:17 AM
That's an interesting insight. I think trading expanding defense ammo for suppressors, submachineguns, assault rifles, SBRs, AP/incendiary/tracer ammo, and so forth would be a net win. Hunters may not like it, but large calibers would regain popularity to fill the void.

I'm generally skeptical about random horse-trading, on the theory that we generally lose in the long run. So as a general rule I wouldn't want to trade away effective ammo for some supposed benefit. However, if you posit an (insanely unlikely) situation where we have the opportunity to trade it for taking down the NFA in toto, I would go for that because I think we could re-visit the ammo question but have very very few scenarios where NFA is challengeable.

But this is sort of like speculating on whether we should negotiate for a universal cure for disease or a faster-than-light drive should friendly aliens land on the White House lawn.

7x57

inbox485
01-18-2010, 10:13 AM
That's an interesting interpretation on what 'arms' meant I hadn't heard before. It has some interesting points, however what constitutes a 'war crime' is not a time-independent opinion. Are you prepared to consider a court ruling that expanding ammunition is not protected because post-Hague it is arguably (even though we haven't actually ratified it) a war crime to use?

I don't know what would happen to your suggestion if re-phrased in (some kind of) originalist way. IA study of what sort of 'war crime' notion existed in the late eighteenth century would be interesting.

7x57

My "war crime" litmus test is the answer to "the 2A doesn't cover nuclear/biological/chemical weapons, so an M16 can't be covered either". Perhaps another way to think of it is that anything a typical military division would employ should be protected under the 2A.

In originalists terms, the British was the most powerful military in the world. The colonists while outnumbered in manpower and equipment had and used weapons and vehicles essentially identical to the British. The limiting factor in what the colonists had was the measure of their wealth and the desire to keep and maintain such possessions. A fair portion of colonists had a rifle suitable both for hunting and war of the time, some had more elaborate rifles, pistols, etc., a small segment had cannons and only a couple notables had ships suitable for war. I believe at the time war crimes was essentially the willful/unnecessary killing of non-combatants, and general rape pillage and plunder. Not sure how or if they were codified.

A modern corollary would be allowing the possession of anything used in a typical military engagement. The limiting factor would be the measure of one's wealth and their desire to keep and maintain such possessions. With no government oversight this would result in a fair portion of households having some form of firearm geared more towards either simple self defense in the home or some sporting use, a segment of society having a variety of small arms, and few if any having both the means and motivation to keep and maintain things like missiles, tanks, warships, etc.

Those few who had both the means and motivation to keep large arms were (prior to gun control) and would be kept in check both by the sanity that led them to financial success and by being far to outnumbered to effectively threaten the populace with them (much as our government knows it would cease to exist within a week if it bombed or even threatened to bomb a US city).

I'm not a historian, but IMO the type of "expanding ammunition" that was actually intended to be banned was more the fragmenting/shredding type than simply the expanding type. I think the current application of that to modern hollow points is an artifact of the terminology used. Also the US has decided that expanding ammunition is only a war crime if actually used against another state sponsored military. In any case, I wouldn't care if hollow points were not specifically protected under the 2A. They currently are not protected, but they are widely accepted as a means to minimize over penetration, maximize stopping potential, and even give the recipient a better odds of survival. Protected or not, they would not likely be banned from defensive use.

inbox485
01-18-2010, 10:25 AM
I'm generally skeptical about random horse-trading, on the theory that we generally lose in the long run. So as a general rule I wouldn't want to trade away effective ammo for some supposed benefit. However, if you posit an (insanely unlikely) situation where we have the opportunity to trade it for taking down the NFA in toto, I would go for that because I think we could re-visit the ammo question but have very very few scenarios where NFA is challengeable.

But this is sort of like speculating on whether we should negotiate for a universal cure for disease or a faster-than-light drive should friendly aliens land on the White House lawn.

7x57

I would say that wiping every anti-gun law of the last 100 years in exchange for not protecting hollow points (which are not currently protected anyway) would be not only a win but an outright victory. Despite not being protected anywhere except a few states, hollow points are only banned in a couple areas with the worst of gun control laws. Also, the hollow points could only be banned in such a scenario if the police also stopped using them and we know how likely that is.

In other words, since hollow points are not currently protected, there would be only a gain with no loss.

navyinrwanda
01-18-2010, 1:04 PM
With an incorporated 2nd Amendment and unrestricted LOC (for the sake of this argument), why would a "no guns" sign be OK at a business open to the public when a "whites only" sign would not?
A "whites only" sign involves a suspect classification, e.g., race, which immediately invokes pretty much the highest level of judicial scrutiny. It would also fail on an Equal Protection grounds.

A private business prohibiting guns (open, loaded or otherwise) on their premises is no different than prohibiting speech. In virtually any restaurant (for example), one would be quickly asked to leave if they stood on their table and began lecturing the assembled diners.

Liberty1
01-18-2010, 1:16 PM
And now your wait is over. The Nunn court spent some time going over the 'vagueness' of the law in question. Then it spent some time quoting other state's laws & Rulings. Especially because of the emphasis of those cases on the bearing of concealed weapons. "Weapons" because swords, sword canes & various types of knives are discussed as well as guns. In any event, the Nunn court ended with this:

"We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed. Cite as: Nunn v. State, 1 Kelly 243 (Ga. 1846)" (all emphasis mine)

Now, somewhere in here you're seeing 'it must be one or the other.' I'm not seeing that at all. ALL that I can see is a clear-cut Ruling that says prohibitions against concealed carry are fine, but that prohibitions against openly carrying are not. Even in the part that you quoted ("Collier, Chief Justice, says: "The question recurs, does the act "to suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not.") makes clear that the "evil" practice isn't the carrying of guns, but only of carrying them "secretly."

Since the Nunn court doesn't just seem to say that carrying openly is the Right, it DOES say it, I think I have met you your challenge rather completely, I think.

Just one more reason why I think that LOC is the coming Minimum Constitutional Standard. Which, again, poses no threat at all to CCW, for the reasons I have mentioned many times before.


The Raisuli

In Nunn the origional statute in question banned ALL pistol carry (secret and open) except for carry of "horseman's pistols". The court then choose to accept OC as the protected right in discriminating against concealed carry.

This was not a case where one or the other was already permitted in some form. California would seem to be in the same situation; concealed is banned (shall issue is not a reality at this time) and so too is the general open carry of loaded guns in cities and many rural areas.

But if a "license to carry", as it is was in Heller, is what is desired in any judicial prayer for relief, I'm sure that is what the plantiff will get.

Before the PC 12050 language change, that license was just a license to carry because of the way the exemption in 12031 applied. Now it is only a license to carry concealed or the scarce as hens teeth (apparently not scarce enought to get us past June without effect) license to carry loaded and exposed in only certain counties. :mad:

http://www.guncite.com/court/state/1ga243.html



The act of 1837 was passed to guard and protect the citizens of the State against the unwarrantable and too prevalent use of deadly weapons.

Section 1st enacts, "that it shall not be lawful for any merchant or vendor of wares or merchandize in this State, or any other person or persons whatever, to sell, or to offer to sell, or to keep or to have about their persons, or elsewhere, any of the herein-after-described weapons, to wit: Bowie or any other kinds of knives, manufactured and sold for the purpose of wearing or carrying the same as arms of offence or defence; pistols, dirks, sword-canes, spears, &c., shall also be contemplated in this act, save such pistols as are known and used as horseman's pistols," &c.

Section 2d, prescribes the punishment.

Section 3d, makes it the duty of all civil officers to be vigilant in carrying the act into full effect, &c.

Section 4th, disposes of the fines arising under the act, and exempts sheriffs and other officers, therein named, from its provisions while in the actual discharge of their respective duties. It then declares, that no person or persons shall be found guilty of violating the before-recited act, who shall openly wear, externally, bowie-knives, dirks, tooth-picks, spears, and which shall be exposed plainly to view. It allows vendors or any other persons to sell any of the aforesaid weapons, which they then owned or had on hand, "till the first day of March next ensuing its date."

There is great vagueness in the wording of this statute. It would seem to have been the intention of the Legislature to make the proviso in the 4th section as broad as the enacting clause in the 1st. But such is not the fact. Pistols and sword-canes are inserted in the 1st, and omitted in the 4th section; and tooth-picks are mentioned for the first time in the proviso, in the 4th section. Were we disposed to criticise language, an ample field is here spread out before us. It might be insisted, and with much plausibility, that even sheriffs, and other officers therein enumerated, might be convicted for keeping, as well as carrying, any of the forbidden weapons, while not in the actual discharge of their respective duties. And yet it is hardly to be supposed, that it was expected of sheriffs, constables, marshals, overseers and patrols, to procure a new supply of arms for each successive service, and throw them away when it was accomplished: for they dare not sell or otherwise dispose of them after March, 1838. It is the plain and literal meaning of the act, too, (p.247)that no person should be found guilty of selling or offering to sell, or keeping or having about their persons, or elsewhere, bowie or any other kind of knives, pistols, dirks, sword-canes, or spears, who shall openly wear, externally, bowie-knives, dirks, tooth-picks, and spears, and which shall be exposed plainly to view. But this would be an absurdity too glaring to impute to the wisdom of that body.

What, then, is the obvious purpose of the Assembly, to be deduced from the whole act, deviating a little, as we are at liberty to do, from the literal meaning of its language, and looking to the subject matter, to which the words are always supposed to have regard, and the reason and spirit of the act? It prohibits bowie-knives, dirks, spears, (and it may be, tooth-picks,) from being sold, or secretly kept about the person, or elsewhere; and it forbids, altogether, the use, or sale, or keeping, of sword-canes, and pistols, save such pistols as are known and used as horseman's pistols, &c. Now, the defendant, Hawkins H. Nunn, was indicted and convicted of a high misdemeanor, "for having and keeping about his person, and elsewhere, a pistol, the same not being such a pistol as is known and used as a horseman's pistol."

It is not pretended that he carried his weapon secretly, but it is charged as a crime, that he had and kept it about his person, and elsewhere. And this presents for our decision the broad question, is it competent for the Legislature to deny to one of its citizens this privilege? We think not...

navyinrwanda
01-18-2010, 1:21 PM
I think this is the part that is too often forgotten. The constitution says what it says, but the supreme court gets to decide what it really says.
To say that "the Constitution says what it says," — that it means what an average lay person understands it to mean, is, sadly, only one school of constitutional interpretation. And even "says what is says" is still silent on when — does that mean what it meant to an average lay person at the time of the adoption (original public meaning), or what it means to an average person today (a populist version of developmentalism)? And who's an "average lay person?" Can't reasonable people disagree? Isn't that why we have a judiciary?

Claiming that the plain text of the Constitution means something in absolute terms is an assertion of personal opinion. No more and no less. In our system of government, we've chosen to accept the nine justices of the Supreme Court's opinion of what any particular part of the Constitution means. It's one of the reasons that judicial decisions are called opinions.

Liberty1
01-18-2010, 1:25 PM
In Nunn the origional statute in question banned ALL pistol carry (secret and open) except for carry of "horseman's pistols". The court then choose to accept OC as the protected right in discriminating against concealed carry.

Now Bliss out of Kentucky is really interesting in that it seems to almost take a Vermont view of carry:

This question has occasionally come before the courts of the Union for adjudication. In Bliss vs. The Commonwealth, (2 Littell's Rep. 90,) the defendant was indicted, on the act of the Legislature "to prevent persons from wearing concealed arms." It provides that any person in the Commonwealth, who shall, after its passage, "wear a pocket-pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when traveling on a journey, shall be fined in any sum not less than one hundred dollars; which may be recovered in any court having jurisdiction of like sums, by action of debt, or on presentment of a grand jury."

The indictment, in the words of the act, charges Bliss with having worn, concealed as a weapon, a sword in a cane.

Bliss was found guilty of the charge, and a fine of one hundred dollars assessed by the jury, and judgment was thereon rendered by the court. To reverse that judgment, Bliss appealed to the Supreme Court, by a majority of which (Judge Mills dissenting) the judgment was reversed.

The argument in this case turned mainly on the 23d section of the 10th article of the Constitution of Kentucky, which provides "that the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."

The attorney-general did not contend that it would be competent for the Legislature, by the enactment of any law, to prevent the citizens from bearing arms; but a distinction was taken between a law prohibiting the exercise of the right, and a law merely regulating the manner of exercising that right. And while the former was admitted to be incompatible with the Constitution, it was insisted that the latter was not so. And under that distinction, and by assigning the act in question a place in the latter description of laws, its consistency with the Constitution was attempted to be maintained.(p.248)

But the court say, "that the provisions of the act in question do not import an entire destruction of the right, will not be controverted; for though the citizens are forbid wearing weapons, concealed in the manner described in the act, they may nevertheless bear arms in any admissible form. But to be in conflict with the Constitution, it is not essential that the act should contain a prohibition against bearing arms, in every possible form. It is the right to bear arms, that is secured by the Constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the Constitution."

"If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms, or any other, the consequence in reference to the Constitution is precisely the same, and its collision with that instrument equally obvious."

"And can there be entertained a reasonable doubt, but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right has no limits, short of the moral power of the citizens to exercise it, and in fact consists of nothing else but the liberty. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint which the act in question most indisputably imports, by prohibiting the citizens bearing weapons. In truth, the right of the citizens to bear arms has been as directly assailed by the provisions of this act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets. And, if the act be consistent with the Constitution, it cannot be incompatible with that instrument for the Legislature by successive enactments to entirely cut off the exercise of the right of the citizens to bear arms. For in principle there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing of such as are exposed; and, if the former be unconstitutional, the latter must be so likewise."

The conclusion at which the court arrived was, that an act to prevent persons from wearing even concealed weapons is unconstitutional and void.


My new battle cry, "Give me Bliss or Give me Death!" :D

navyinrwanda
01-18-2010, 2:03 PM
I've repeatedly pointed out that there is no other enumerated right where a license or permit is required to exercise any aspect of that right. In fact, I can't think of any enumerated right where a license is required for an individual exercise of a protected activity. So in my view, asking for some unlicensed right to bear arms is not "absolutist" -- it is minimalist, because a licensing requirement is an abrogation of the right by definition.

Which of the so-called "enumerated rights" (the first eight constitutional amendments) protects the right of an individual to do something — as opposed to protecting an individual against specific governmental actions? The fourth amendment protects individuals against unreasonable search and seizure, and sets standards that must be followed by the government before warrants may be issued. The fifth amendment protects against certain government prosecutions without first obtaining a grand jury indictment — but this right has never been incorporated as against the states. The fifth amendment also protects individuals against government coercion to testify against themselves, and provides protections against the arbitrary government confiscation of property (but this protection has almost been read out of the constitution). The seventh amendment guarantees an individual right to a civil jury trial, but this one, too, has never been incorporated as against the states. And a jury trial certainly involves filing various papers and paying various fees.

In the 20th century, only the First Amendment protected an individual right to do something (speak, assemble, petition and pray, among others). And it was only in the 20th century that the concept of different levels of judicial scrutiny was established (by the famous "footnote four" of United States v. Carolene Products Company, 304 U.S. 144 (1938)). The second amendment also protects an individual right to do something, but this right was not recognized throughout most of the 20th century. It's only now that it is being rehabilitated, and it will take more than one or two Supreme Court decisions to fully determine it's precise outline, extent and application — what are referred to as the judicial contours of a right.

Since the various levels of scrutiny first established in Carolene Products only applied to the first amendment (unless a suspect class was implicated), the same approach may or may not be applied to the second amendment. Today we talk about strict, intermediate and rational basis scrutiny because it's the only reference framework we have to evaluate constitutional rights. But this framework was developed with the first amendment in mind, and it's not necessarily a precise fit for the second amendment. Exactly what sort of standard of review will be applied to the second amendment has been the subject of many law review articles over the past year, and will no doubt be the subject of much litigation before the Supreme Court.

bulgron
01-18-2010, 2:26 PM
But this is sort of like speculating on whether we should negotiate for a universal cure for disease or a faster-than-light drive should friendly aliens land on the White House lawn.

7x57

A universal cure for disease without a means to move people off this rock is just a recipe for an over-populated hell on earth. So I vote for the FTL drive.

Erm, you did want my opinion on that, didn't you? :D

bulgron
01-18-2010, 2:36 PM
A modern corollary would be allowing the possession of anything used in a typical military engagement.

How about if we leave the military out of this, and shoot for "anything that our domestic security forces (police, FBI, DHS, SWAT, etc) carry and use."

Anyone know if SWAT, DHS or some other domestic security forces train in the use of machine guns, grenades, SAMs, etc? :43:

inbox485
01-18-2010, 3:28 PM
How about if we leave the military out of this, and shoot for "anything that our domestic security forces (police, FBI, DHS, SWAT, etc) carry and use."

Anyone know if SWAT, DHS or some other domestic security forces train in the use of machine guns, grenades, SAMs, etc? :43:

That is an affirmative. They also use APC's and tanks.