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hoffmang
02-05-2010, 7:51 PM
All,

There have been many debates about open carry in California. CGF has had a couple of reasons for opposing it in the past as has been more than hashed out. The main concern was that it would lead to a modification in the law that would make 12050 licenses not valid for LOC. Illicit LOC has already made that fear come to pass and thus that opposition lightens. The other concerns remain and are simply about incorporation and the one other law that UOC could force the passage of.

However, I want to point out some evidence that supports a point I had tried to make earlier about focusing on the right to open carry as being the only right to carry while potentially sacrificing constitutionalizing shall issue concealed carry licensing.

I had predicted that if California went open carry only, it would become a moot right in practice as stores all over California would move to ban OC. So far I'm 3 for 4 on that prediction with two coffee houses and CPK banning U/LOC in their stores. I'm pleased with Starbucks (who came from WA where carry has been LOC and shall issue CCW for a while) so far holding back from Brady/LCAV pressure. I do think this entire bruhaha echos the Greensboro Woolworth's (http://en.wikipedia.org/wiki/Greensboro_sit-ins) Lunch Counter sit-ins that started 50 years and 5 days ago where gun owners are seeking to not be discriminated against.

That said, I'd ask that those of you who were confident that LOC was the right thing to aim for to take recent events - as predicted - into consideration as you think about what we all are strategically trying to accomplish.

I don't want this to be a bash U/LOC thread. I want to seriously engage those who think that LOC is a better outcome with the early reality we're watching. I hope to change some minds - not radically but gently. I'm quite concerned we can not obtain Pruneyard (http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins) for the 2A in California. I hope folks here and at OCDO can now better understand my fear.

-Gene

ChrisO
02-05-2010, 8:10 PM
I think shall issue is a better option but would love to be able to do either really. While I am not the most knowledgeable in this 2a stuff I'm trying my best to follow the cause of CG and have not open carried. I do agree with you on these points especially having been brought to light by recent events.

dantodd
02-05-2010, 8:10 PM
Why is LOC better than shall issue? It isn't. BUT if we get LOC as a minimum standard then we will get shall issue because of the OTHER clause in the 14th amendment that gives up equal protection. If bearing is a constitutionally protected right then the state cannot restrict it for some and give it to others.

There is no way that retired cops and judges will give up CCW. If they are given a permit to carry the state would have to show a compelling interest (at the very least) for giving them that right while preventing you and me from the exercising the same. Since these people will have the ability to protect themselves by OCing they can hardly claim a NEED to carry concealed for self-defense, which is the protected right at hand.

However; if "any form of bearing" becomes the base protected right there will not be any political pressure to allow OC in lieu of CCW. Because those with all the political clout have little interest in it.

In other words; Securing Open Carry will ensure Concealed Carry is accessible while if Concealed Carry is protected we will not necessarily get Open Carry.

Also; if "bearing" becomes a protected right stores will not be able to discriminate against people carrying firearms. If Open Carry is the protected standard then the minimum exercise of the second amendment will be to carry a firearm for self-defense. How can a public restaurant or store prevent me from the minimal exercise of the second amendment any more than they could prevent me from entering their store for being black, or for voting, or for my membership in a particular political or social group? The short answer is that they can't. If self-defense is the right protected by 2A then we cannot be forced to give up that right to enter a public establishment.

hoffmang
02-05-2010, 8:17 PM
In other words; Securing Open Carry will ensure Concealed Carry is accessible while if Concealed Carry is protected we will not necessarily get Open Carry.

LOC first means that stores will post "no guns" signs. Are you willing to violate store owner's property rights even surreptitiously?

-Gene

dantodd
02-05-2010, 8:20 PM
LOC first means that stores will post "no guns" signs. Are you willing to violate store owner's property rights even surreptitiously?

-Gene

I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

For the time being I will leave my personal political (how things would be if Dan ran the world) opinions out of the conversation.

hoffmang
02-05-2010, 8:25 PM
I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

Ignoring the California Constitution, stores can eject you for picketing, leafleting, or assembling peaceably as long as it is not race (or other protected class) discriminatory. Why would the Second Amendment be different than the First?

-Gene

Telperion
02-05-2010, 8:31 PM
LOC first means that stores will post "no guns" signs. Are you willing to violate store owner's property rights even surreptitiously?

-Gene

Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

hoffmang
02-05-2010, 8:34 PM
Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

I expect that shall issue concealed licenses would lead to a vast majority of gunowners carrying concealed. LOC only first would lead to some gunowners (which is larger than the current UOC crowd) carrying openly - leading to the "no guns" signs at even more places faster than the 3 current chains...

-Gene

GuyW
02-05-2010, 8:38 PM
I'm quite concerned we can not obtain Pruneyard (http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins) for the 2A in California.

Well....post-McDonald, how does one differentiate the 1st Am from the 2nd Am in a Pruneyard context?

.

hoffmang
02-05-2010, 8:40 PM
Well....post-McDonald, how do one differentiate the 1st Am from the 2nd Am in a Pruneyard context?

Pruneyard relies upon the California Constitution's equivalent "First Amendment" rights. Seeing as the California Constitution has no right to arms...

-Gene

GuyW
02-05-2010, 8:42 PM
Pruneyard relies upon the California Constitution's equivalent "First Amendment" rights. Seeing as the California Constitution has no right to arms...

-Gene

But the US Constitution is the law of the land....

.

G17GUY
02-05-2010, 8:42 PM
Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

A big proponent of the open carry movement is folks that could not get CCW. If they would wait they could have their cake and eat it too.

hoffmang
02-05-2010, 8:49 PM
But the US Constitution is the law of the land...

Let me try again. Pruneyard was decided based on the California Constitution and not the Federal Constitution. The US Supreme Court has ruled that the Federal First Amendment is not applicable inside a shopping center - Lloyd Corp. v. Tanner (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0407_0551_ZS.html), 407 U.S. 551 (1972). However, SCOTUS agreed with the California Supreme Court that California's Constitutional right to free speech was more broad than the Federal First Amendment. Since there is no RKBA in the California Constitution, there will be no Pruneyard equivalent to the right to carry in California.

-Gene

My375hp302
02-05-2010, 8:50 PM
Concealed carry is the only way to go. I understand we all feel opressed and want to lash out at our state government by parading around with our uloaded guns on (IE paper weights) and lets be honest, that's what your doing. The only thing you are accomplishing is pissing off the average people that didn't care one way or the other on the issue or who may have supported us before they saw a bunch of armed thugs at the coffe shop. I understand that you may not be thugs, but you are becasue the media says so and most of the sheeple just accept what they hear. Your justification is that if you don't use your right you will lose it. I call BS. I have every right to go down to Compton and yell the N word as loud and long as I can. Free speech! But is it a good idea? No, it just draws unwanted attention from the wrong people, just like you are doing. If you really care about gun rights here in CA leave you guns at home and donate money to this site, the NRA, and whoever else is fighting the good fight for us. Stop making the rest of us look like ***** clowns...

7x57
02-05-2010, 8:55 PM
Pruneyard relies upon the California Constitution's equivalent "First Amendment" rights. Seeing as the California Constitution has no right to arms...


At least not one capable of withstanding judicial disapproval, anyway.

7x57

oaklander
02-05-2010, 8:56 PM
LOL,

Does this mean I don't have to have my UOC/CGN/CGF BBQ?

:)

G17GUY
02-05-2010, 9:02 PM
LOL,

Does this mean I don't have to have my UOC/CGN/CGF BBQ?

:)

THis would be a good event to open carry the bananas.:rofl:

dantodd
02-05-2010, 9:18 PM
Ignoring the California Constitution, stores can eject you for picketing, leafleting, or assembling peaceably as long as it is not race (or other protected class) discriminatory. Why would the Second Amendment be different than the First?

-Gene

Glad you brought that up. There are degrees of speech just as there are degrees of keeping and bearing arms. Heller has identified self-defense as the core of 2A. The most valued of the rights protected therein. Therefore a store would have to show an interest in prohibiting the exercise of that right that outweighs my right to self-defense.

It is a balancing of rights issue. In most of the examples you give above the activities will interfere with the ability of the property owner to conduct their business and will deprive them of their fifth amendment right against having their property "taken" (in this case used by someone else in a way not consistent with their design for the property.) If you balance this against the picketers or pamphleteers right to expressive speech you find that the business owner cannot effectively conduct his business without the use of his property but in most cases those wishing to exercise their free speech rights can very effectively do so on the sidewalk or in another permissible place. Making the same comparison with OC or CCW the scale goes the other way. The presence of a gun on the person is necessary for the exercise of one's 2A right to self-defense (the core of 2A) while the presence of the gun doesn't constitute a taking property in any significant manner, what little inconvenience it might cause by "offending" the business owner will, imo, carry little weight when balanced against the very core of 2A.

Unfortunately I will acknowledge near zero familiarity with the relevant 1A case law. I will do a little reading and see if I can find case law that supports my assertions.


The really short answer is that shutting up for the time it takes to eat a meal or shop doesn't take away your right to free speech. Disarming completely strips you of your right to self-defense. One right can be temporally shifted, the other cannot.

hoffmang
02-05-2010, 9:33 PM
There are degrees of speech just as there are degrees of keeping and bearing arms.

...

Unfortunately I will acknowledge near zero familiarity with the relevant 1A case law. I will do a little reading and see if I can find case law that supports my assertions.

You'll find that Federal Constitutional jurisprudence under the First Amendment doesn't support your assertions. The case I linked to above about shopping centers under the Federal 1A is an excellent start.

-Gene

pullnshoot25
02-05-2010, 9:43 PM
A response to this will take some thought, just not at the moment.

pullnshoot25
02-05-2010, 9:45 PM
My357hp302, words cannot express my disdain for you...

dantodd
02-05-2010, 9:48 PM
You'll find that Federal Constitutional jurisprudence under the First Amendment doesn't support your assertions. The case I linked to above about shopping centers under the Federal 1A is an excellent start.

-Gene

In reading both Pruneyard and Lloyd I did not come away with that conclusion. Admittedly I have not given them adequate review but at first look Pruneyard would seem to support my position. If forcing a business to permit expressive speech in that form is clearly more disruptive than the carriage of a handgun (lets leave EBR carriage alone for the time being.) And yet the court decided that does not constitute taking under the 5th and 14th amendments.

So, can we agree that SCOTUS would not have a problem with "someone" forcing businesses to permit Open Carry? (i.e. carry is no more a "taking" than soliciting signatures)

If we agree on that then the only question is. Does the right to self-protection extend where certain forms of free speech do not.


ETA: If you have recommended readings beyond Lloyd and Pruneyard please send them along. I find this very valuable and instructive.

kcbrown
02-05-2010, 9:57 PM
Shall-issue CCW is considered to pass Constitutional muster for the core 2A self-defense right despite it being a permitting process because the process itself has to pass whichever level of scrutiny is decided upon by the judiciary as the appropriate level of scrutiny, right?

My question is: suppose one of the qualifications is that, to receive your CCW permit, your name cannot be on the TSA's terrorist watch list. Would that qualification pass strict scrutiny?

Would it pass intermediate scrutiny?

Note that the no-fly list has not yet been successfully challenged with respect to the right to travel, but that might not be relevant here.

hoffmang
02-05-2010, 9:58 PM
In reading both Pruneyard and Lloyd I did not come away with that conclusion. Admittedly I have not given them adequate review but at first look Pruneyard would seem to support my position.

Pruneyard is only controlling in California based on the California Supreme Court's interpretation of the California Constitution. The Federal First Amendment does not allow the same expansive interpretation of the First Amendment in 49 other states.

Once one accepts that that is the case, then you'll see why I'm saying that the Federal right to armed self defense is unlikely to extend more broadly than the Federal right to freedom of speech.

-Gene

hoffmang
02-05-2010, 10:01 PM
My question is: suppose one of the qualifications is that, to receive your CCW permit, your name cannot be on the TSA's terrorist watch list. Would that qualification pass strict scrutiny?


The TSA watch list can't deny you a fundamental right absent due process. The process due to lose a fundamental right implicates most all of the process rights in the Bill of Rights including trial by jury, right not to incriminate self, etc.

Short answer, TSA no fly lists can't abrogate the right to keep or bear arms.

-Gene

obeygiant
02-05-2010, 10:01 PM
Concealed carry is the only way to go. I understand we all feel opressed and want to lash out at our state government by parading around with our uloaded guns on (IE paper weights) and lets be honest, that's what your doing. The only thing you are accomplishing is pissing off the average people that didn't care one way or the other on the issue or who may have supported us before they saw a bunch of armed thugs at the coffe shop. I understand that you may not be thugs, but you are becasue the media says so and most of the sheeple just accept what they hear. Your justification is that if you don't use your right you will lose it. I call BS. I have every right to go down to Compton and yell the N word as loud and long as I can. Free speech! But is it a good idea? No, it just draws unwanted attention from the wrong people, just like you are doing. If you really care about gun rights here in CA leave you guns at home and donate money to this site, the NRA, and whoever else is fighting the good fight for us. Stop making the rest of us look like ***** clowns...

Maybe you missed this part


I don't want this to be a bash U/LOC thread. I want to seriously engage those who think that LOC is a better outcome with the early reality we're watching. I hope to change some minds - not radically but gently. I'm quite concerned we can not obtain Pruneyard (http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins) for the 2A in California. I hope folks here and at OCDO can now better understand my fear.

-Gene

Ron-Solo
02-05-2010, 10:07 PM
I visit my daughter in Arizona frequently. Every visit I see more businesses posting "NO GUN" signs. Lets go for CCW for all law abiding citizens.

kcbrown
02-05-2010, 10:08 PM
The TSA watch list can't deny you a fundamental right absent due process. The process due to lose a fundamental right implicates most all of the process rights in the Bill of Rights including trial by jury, right not to incriminate self, etc.

Short answer, TSA no fly lists can't abrogate the right to keep or bear arms.


What makes the right to travel enough less protected that the no fly list is Constitutional? I realize that the enumerated rights are the most protected of all, but it surprises me that such a basic right as the right to travel is so much less protected.

Note that I'm not disputing the carrier's right to deny service to whomever they choose. The TSA no fly list is not obeyed by choice, so the rights of the service provider are not involved here.

Why does due process not apply to the right to travel?

hoffmang
02-05-2010, 10:11 PM
Why does due process not apply to the right to travel?

Travel isn't an enumerated fundamental right and is thus susceptible to alternative methods (read you can drive.)

I too would like the right to travel to be considered fundamental and derivative of the right to petition but unfortunately a poorly planned case by friends of the EFF that left us with crap precedent on travel here in CA9.

-Gene

pitchbaby
02-05-2010, 10:16 PM
I've read this entire thread.... all I get out of it is a bunch of people who think reasonable action will get reasonable results out of our current legislative body in CA. I agree that UOC is not really the answer and that it draws the wrong kind of attention, but I really don't believe that choosing to not exercise this right is going to get us anywhere either. It really is being stuck between a rock and a hard place.

The only real answer is to do one of two things.... Do what Reagan suggested and vote with you feet.... or get some successful well rounded individuals from this site to run for significant offices in this state and focus the bulk of our collective resources toward getting them elected. Let's face it.... the definition of insanity is doing the same thing over and over again, but expecting a different result. Thinking that anything we do here will with our current legislatures will get us what we want is insanity.

Neither of these suggestions are easy, but they are "Change I can BELIEVE IN".

kcbrown
02-05-2010, 10:18 PM
Travel isn't an enumerated fundamental right and is thus susceptible to alternative methods (read you can drive.)


But driving is a process that is subject to permits as well. Since the TSA no fly list is Constitutional against flying, would it not also be Constitutional against driving?

Would it not be Constitutional against all modes of travel save, perhaps, walking?

dantodd
02-05-2010, 10:20 PM
Pruneyard is only controlling in California based on the California Supreme Court's interpretation of the California Constitution. The Federal First Amendment does not allow the same expansive interpretation of the First Amendment in 49 other states.

Once one accepts that that is the case, then you'll see why I'm saying that the Federal right to armed self defense is unlikely to extend more broadly than the Federal right to freedom of speech.

-Gene

I understand you perfectly well. What I am attempting to do (which is so much easier in a truly syncronous communication) is establish a base of agreement before moving on.

From Pruneyard:

"[A] State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision."

Now, before we discuss if SCOTUS would decide in a 2A case differently than they did in Pruneyard can we agree that they will not have a problem with forcing a business to permit activities they would rather not because they are a place available to the public?

I would rather have the answer to the above first but for the sake of brevity I will ask my next question. Can we also assume that if they accepted the activity in Pruneyard as a permissible restriction on private property that they would view proscriptions against throwing out people open carrying in the same light?

dantodd
02-05-2010, 10:26 PM
Travel isn't an enumerated fundamental right and is thus susceptible to alternative methods (read you can drive.)

I too would like the right to travel to be considered fundamental and derivative of the right to petition but unfortunately a poorly planned case by friends of the EFF that left us with crap precedent on travel here in CA9.

-Gene

I assume you are referring to Gilmore. Wasn't that more about ID than travel really? I would think that Saenz v Roe is more on point and would likely be one of those evil unenumerated rights that so badly needs P/I reinvigorated.

hoffmang
02-05-2010, 11:39 PM
Now, before we discuss if SCOTUS would decide in a 2A case differently than they did in Pruneyard can we agree that they will not have a problem with forcing a business to permit activities they would rather not because they are a place available to the public?

No. Let me quote from the controlling opinion (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0447_0074_ZO.html):


The California Supreme Court reversed, holding that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned."

...

Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits. 444 U.S. 949. We now affirm.

...

Here the California Supreme Court decided that Art. 1, 2 and 3, of the California Constitution gave appellees the right to solicit signatures on appellants' property in exercising their state rights of free expression and petition. [n2] In so doing, the California Supreme Court [p80] rejected appellants' claim that recognition of such a right violated appellants' "right to exclude others," which is a fundamental component of their federally protected property rights. Appeal is thus the proper method of review.

....

Respondents in Lloyd argued that, because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id. at 564. [n4] [p81] In rejecting this claim, we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U.S. 308"]391 U.S. 308 (198), which was later overruled in 391 U.S. 308 (198), which was later overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). We stated that property does not "lose its private character merely because the public is generally invite to use it for designated purposes," and that " [t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center." 407 U.S. at 569.

Our reasoning in Lloyd, however, does not, ex proprio vigore, limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California, 386 U.S. 58, 62 (1967). See also 407 U.S. at 569-570. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.

Pruneyard was a case where the property owner claimed that a more expansive right to freedom of speech infringed his right to control his property. That more extensive right was based on a state constitution. SCOTUS allowed a state to be more permissive than federal protections of the 1A. However, the California constitution is less protective of the 2A than the Federal constitution.

All of which remains a diversion from my point. Businesses in California are likely to moot the right to open carry as the early evidence is proving.

Doesn't that implicate the strategy of pursuing open carry in the courts and legislature/body politic first?

-Gene

dantodd
02-05-2010, 11:47 PM
Now, before we discuss if SCOTUS would decide in a 2A case differently than they did in Pruneyard can we agree that they will not have a problem with forcing a business to permit activities they would rather not because they are a place available to the public?
No. Let me quote from the controlling opinion:No. Let me quote from the controlling opinion (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0447_0074_ZO.html):



Pruneyard was a case where the property owner claimed that a more expansive right to freedom of speech infringed his right to control his property. That more extensive right was based on a state constitution. SCOTUS allowed a state to be more permissive than federal protections of the 1A. However, the California constitution is less protective of the 2A than the Federal constitution.


I do not understand this. I asked if you felt the same argument could be used in a 2A case assuming there was some contravening law. Why do you feel that SCOTUS wouldn't accept a similar statute as that appealed to in Pruneyard?


I don't believe it is a diversion from your point. I believe that there is the potential (the likelihood in fact) that we could seek and win judicial protection much like that in Pruneyard.

hoffmang
02-06-2010, 12:09 AM
I do not understand this. I asked if you felt the same argument could be used in a 2A case assuming there was some contravening law. Why do you feel that SCOTUS wouldn't accept a similar statute as that appealed to in Pruneyard?


I don't believe it is a diversion from your point. I believe that there is the potential (the likelihood in fact) that we could seek and win judicial protection much like that in Pruneyard.

The same argument could be used in a 2A case if there was some State Constitutional right that was deemed by the California Supreme Court to be wider than the Federal Second Amendment.

There is not such a right to arms in the California Constitution that will every be deemed such in California by the California Supreme Court.

I don't know how to make it plainer than that.

-Gene

dantodd
02-06-2010, 12:28 AM
The same argument could be used in a 2A case if there was some State Constitutional right that was deemed by the California Supreme Court to be wider than the Federal Second Amendment.

There is not such a right to arms in the California Constitution that will every be deemed such in California by the California Supreme Court.

I don't know how to make it plainer than that.

-Gene

Why a constitutional right rather than a state or federal statute?

The reason I ask is that it appears SCOTUS gives it the same status as a statute in their opinion.
This case is properly before this Court as an appeal under 28 U.S.C. 1257 (2). A state constitutional provision is a "statute" within the meaning of 1257 (2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected property rights. Pp. 79-80.

hoffmang
02-06-2010, 12:37 AM
Why a constitutional right rather than a state or federal statute?

The reason I ask is that it appears SCOTUS gives it the same status as a statute in their opinion.
This case is properly before this Court as an appeal under 28 U.S.C. 1257 (2). A state constitutional provision is a "statute" within the meaning of 1257 (2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected property rights. Pp. 79-80.

You are confusing the Supreme Court stating that it even has jurisdiction to hear the case with the analysis involved in determining whether a state constitution can expand a fundamental right beyond the scope of the federal right. SCOTUS is simply saying that, in the first place, it has jurisdiction to even hear the cert petition.

It's really not hard to search Google for 28 U.S.C. 1257 (http://codes.lp.findlaw.com/uscode/28/IV/81/1257).

So, now that I hope I've cleared up that Pruneyard is based on California Constitutional interpretation which has a snowball's chance in hell of being paralleled in the right to arms (since there is no RKBA in the CA constitution) can we get back to the practical issue of stores/restaurants/malls banning the right to carry?

-Gene

dantodd
02-06-2010, 12:43 AM
You are confusing the Supreme Court stating that it even has jurisdiction to hear the case with the analysis involved in determining whether a state constitution can expand a fundamental right beyond the scope of the federal right. SCOTUS is simply saying that, in the first place, it has jurisdiction to even hear the cert petition.

It's really not hard to search Google for 28 U.S.C. 1257 (http://codes.lp.findlaw.com/uscode/28/IV/81/1257).

So, now that I hope I've cleared up that Pruneyard is based on California Constitutional interpretation which has a snowball's chance in hell of being paralleled in the right to arms (since there is no RKBA in the CA constitution) can we get back to the practical issue of stores/restaurants/malls banning the right to carry?

-Gene

So are you saying that you believe that the Pruneyard decision is based on the fact that the petitioning is protected by the constitution of California and the same ruling would not have been made had the 1A right been expanded by state or federal statute?

Window_Seat
02-06-2010, 12:51 AM
Gene, assuming that we get CCW reform, and we get to also LOC, can it be predicted for the future that the right becomes a protected right? For the right to be protected, would there need to be a state "preemption" clause? Would there need to be a RKBA in the CA Constitution for all of this to take place?

My attitude (on LOC) is that if it continues to be an activity that calls for having at least 10k for the purpose of defending myself against predatory prosecutors because I carried in a laundromat, it's not worth it to me. I will add "RKBA as a protected activity" in my future wishlists.

Having asked this, I am 100% for being able to LOC, especially in the peak of summer in places like PS, but until we get some of the same protections as a state like KY, I believe in only CCW.

Erik.

wildhawker
02-06-2010, 12:54 AM
LOC of handguns is a dead issue in CA, at least for some time.

bigstick61
02-06-2010, 1:00 AM
Which is too bad if it in fact proves to be true, since under the majority of circumstances I much prefer LOC to CCW. CCW is often a PITA. When I was in Vermont, I rarely chosen concealed over open carry, in part because the pistol I was borrowing was a full-size one (which is what I own now anyways).

dantodd
02-06-2010, 1:15 AM
I really hate even linking to this but it is all I can find.
http://www.legalzoom.com/legal-articles/business-right-to-refuse-service.html

It references the Unruh act in California preventing discrimination by any business establishment. Though not mentioned in the act itself it appears to have been interpreted to prevent exclusion of Police officers, hippies, Republicans etc.

I was unable to find case law via my weak google-law skills.

From the legal-zoom article:
In cases in which the patron is not a member of a federally protected class, the question generally turns on whether the business's refusal of service was arbitrary, or whether the business had a specific interest in refusing service.

I think it would be hard to argue that there is a compelling business interest to refuse service. This would be particularly interesting wrt CCW because if their "business interest" is that it might cause a disruption then CCW moots that objection.

The motorcycle gang colors case might be an interesting analog but since gang-colors aren't constitutionally protected like self-defense it might be not as strong as some might hope.

dantodd
02-06-2010, 2:09 AM
Finally finding a little more info, these cases are all related to the Unruh act:

Stoumen v. Reilly , 37 Cal.2d 713:
Members of the public of lawful age have a right to patronize a public restaurant and bar so long as they are acting properly and are not committing illegal or immoral acts; the proprietor has no right to exclude or eject a patron "except for good cause," and if he does so without good cause he is liable in damages. (See Civ. Code, 51, 52.)

Orloff v. Los Angeles Turf Club, 36 Cal.2d 734
Under our institutions the freedom to pursue the declared right [to public accommodations] on an equal basis is just as precious as many other freedoms and rights. The exercise of the power of its denial, being a restraint on a personal right, is circumscribed by the same constitutional safeguards of equal protection and due process as are restraints under penal laws.


In re COX , 3 Cal.3d 205 (the hippies)
both its history and its language disclose a clear and large design to interdict all arbitrary discrimination by a business enterprise...

In holding that the Civil Rights Act forbids a business establishment generally open to the public from arbitrarily excluding a prospective customer, we do not imply that the establishment may never insist that a patron leave the premises. fn. 12 Clearly, an entrepreneur need not tolerate customers who damage property, injure others, or otherwise disrupt his business. A business establishment may, of course, promulgate reasonable deportment regulations that are rationally related to the services performed and the facilities provided.

Now... the second part of Cox seems to be the only real impediment to making an Unruh claim against restaurants etc. barring open carry. Does open carry constitute a business disruption? I can't claim to know. But we do know that the presence of a firearm is not PC that any crime is committed. I would argue that the mere presence of a gun does not represent a disruption. Naturally brandishing or other activities could be disruptive.


Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142
The Unruh Act prohibits denial of access to public accommodations based on specified classifications (i.e., race, sex, religion and others). Economic and financial distinctions are not among the impermissible classifications listed in the statute. Although our decisions have occasionally recognized additional categories of prohibited discrimination (e.g., physical appearance and family status), those categories were based on personal characteristics of individuals that bore little or no relationship to their abilities to be responsible consumers of public accommodations.

This is the case referenced as trying to reduce the continuing expansion of "protected classes" but interestingly the quote above seems to imply that it should continue to protect "characteristics of individuals that [bear] little or no relationship to their abilities to be responsible consumers of public accommodations." Which a person openly carrying a firearm would seem to fit. Even if OC isn't able to get an extension as a specified protected class it would seem that they might fall under the category of physical appearance. If they are going to argue that the presence of a gun might be unsettling to their customers; well I know lots of people who refuse to look at kids in wheelchairs and that won't fly either. Unless the gun is a direct disruption I can't see them legally refusing service.

Hessians Motorcycle Club v. J. C. Flanagans (2001) , Cal.App.4th
Flanagans did not refuse to admit the Hessians because their appearance or clothing was unconventional. The Hessians concede "bikers" wearing full motorcycle regalia are welcomed in the bar. Its management does not blink at long hair, leather or tattoos. The only part of the Hessians' outfit considered objectionable was an accompanying patch--signifying allegiance to a particular club (and signifying "trouble" to the bar). It was this patch alone which kept the Hessians out of Flanagans. This is not discrimination based on a person's unconventional appearance as recognized in Cox and Harris.

This one I am not sure of. Colors are not protected and can be excluded. I believe the difference is that the colors are a specific and proven incitement where a gun can not be shown to be one. I think it would be the store owners responsibility to prove that people start shooting at each other just because of their guns. (Unless an S&W wheelgunner sees a tupperware shooter I don't think that's very likely.)


So is the Unruh act the "Pruneyard" with which we can prevent discrimination against people wishing to exercise their right to self-defense?


It's very late for me, I hope some of this made sense. If not, I'll be happy to try and explain it and then, hopefully, defend it as well.

artherd
02-06-2010, 3:15 AM
I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

If a library can enforce "no talking" you better believe a store can enforce "no guns"

artherd
02-06-2010, 3:23 AM
Gene, assuming that we get CCW reform, and we get to also LOC

Thanks to the pre-incorporation blunderings of OC-ers, LOC is now banned, probably for good.

Post incorporation we could have stopped it in committee.

dantodd
02-06-2010, 7:08 AM
If a library can enforce "no talking" you better believe a store can enforce "no guns"

Not that I spend much time in libraries these days but I don't recall one ever having a no talking rule. In the past, when I've used libraries, the rule was always to speak softly so as not to create a distraction for other patrons. I could live with the same limitations from a restaurant etc. What little I am there these days is for kids' story time or just in the kids' section. How the times they are a'changing.

Lex Arma
02-06-2010, 7:45 AM
There are practical issues that need to be addressed.

1. Heroin is illegal for about 99.9% of the population to possess without a permit from the Food and Drug Administration. That would include carrying heroin in public. So if Target put up a sign "No Heroin Allowed on Premises" how would they go about enforcing that? Search everybody who walked into the store? Metal detectors at the Mall will be bad for business. There may be municipalities willing to pass ordinances allowing stores to post signs, but they can't pass ordinances permitting private persons to search other private persons. They can only criminalize possession of a gun in the store if they catch you. But more on that later.

2. I know there is a company that makes gun safes for cars. Something that bolts to the floorboard, so that we can lock our guns in our cars when we need to shop in a store that bans guns. Of course then we have the problem of bad guys breaking into cars to steal guns. So the argument to the city council goes like this:

You hate guns. But you have to hate bad guys having guns more than you hate people who have qualified for CCWs having guns on their person. And you can't stop the CCW holder from locking his gun in his car, it is a perfectly reasonable response to your stupid ordinance. Now you can take responsibility for street thugs stealing guns from cars, or you can insure that CCW holders have the right to exercise their Second Amendment rights in the same way that people have a First Amendment right under Pruneyard line of cases.

3. However, the most devastating counterpunch against the private shops that want to ban guns is to remind them that they do not enjoy the same immunity from suit for "failure to protect" that the government does. I am not suggesting that a storeowner is liable for death/injury caused by a crazed gunman who enters his store and becomes an "active shooter." But a store that takes active steps to disarm a vetted, trained CCW holder from defending his own life is another kettle of fish. The CCW holder who had to watch his family massacred might get a jury to make a bankrupting award in damages against the corporation that deprived him/her of a chance to stop the carnage. For example, see the Luby's Massacre (http://en.wikipedia.org/wiki/Luby's_massacre). Then the only places where government immunity will still protect landowners from the policy of disarming their guests will be the usual "gun-free zones" (shooting galleries for bad guys) like: military bases, government run schools, etc...

B Strong
02-06-2010, 7:54 AM
I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

For the time being I will leave my personal political (how things would be if Dan ran the world) opinions out of the conversation.


Dan, a private property owner, even property with limited public access, can restrict the activites of the public on those premises or property.

Here in California right now there are landlords that restrict the type of vehicles (motorcycle prohibitions, recreational vehicles as well in some cases) that can be parked on their property, regardless of state registration, insurance and licensing, and it's 100% legal.

It's no problem for a property owner to prohibit the carrying of firearms on their property, incorporation or no.

dantodd
02-06-2010, 8:01 AM
Dan, a private property owner, even property with limited public access, can restrict the activites of the public on those premises or property.

Yes, but the case law surrounding Unruh is pretty clear that they cannot do so in just any manner they choose.

Mulay El Raisuli
02-06-2010, 8:08 AM
All,

There have been many debates about open carry in California. CGF has had a couple of reasons for opposing it in the past as has been more than hashed out. The main concern was that it would lead to a modification in the law that would make 12050 licenses not valid for LOC. Illicit LOC has already made that fear come to pass and thus that opposition lightens. The other concerns remain and are simply about incorporation and the one other law that UOC could force the passage of.


But it should be emphasized that it was NOT the UOC events that lead to this.


However, I want to point out some evidence that supports a point I had tried to make earlier about focusing on the right to open carry as being the only right to carry while potentially sacrificing constitutionalizing shall issue concealed carry licensing.


And this is where the strategy fails. The lack of constitutional protection for CCW in NO way equals a lack of Shall Issue CCW. As pointed out by Dantodd, me & others elsewhere, CCW will be protected by Equal Protection. If the Right People (Hollyweird stars, legislators, cops, etc) have CCW, then we will also. The only way to keep Walter & Winifred Whitebread from CCW is to outlaw it completely. There is no way in hell the Right People (listed above) will give up their guns. That being reality, there is NO need to fear for CCW.

The BIGGEST drawback to the strategy is that it "constitutionalizes" a "Mother May I?" slip as a minimum for self defense. Something I just cannot get behind. Someone's tagline points out that gun control isn't about guns, its about control. That is completely true. Even when Shall Issue comes to pass, it will still be a case of The State having some control over the process. Still a matter of The State being Constitutionally allowed to know who carries a gun. I'm allowed to anonymously travel, pamphleteer, demonstrate, etc. But thanks to your efforts, I might not be able to defend myself unless I get the "Mother May I?" slip that you're OK with.

The second biggest drawback to your strategy is that it presumed that LOC was something that the PRK legislature would give us at some time in the future. This rates as complete FAIL. A way to "and bear" w/o a "Mother May I?" slip (I.E., unrestricted LOC) would require The State to give up control. Something I just don't see the PRK legislature EVER doing. Now, if Vermont-style carry ever comes about, that would change things quite a bit. But, given that Heller itself noted that "restrictions" on CCW will be allowed, I'm quite confident that this will NEVER happen here in the PRK.

The second biggest drawback is that the approach runs counter to what you've been saying. "Baby steps" you tell us. "Small bites" you tell us. "Go for the low hanging fruit first" you tell us. Except when it comes to the second most important part of the 2A; "AND BEAR" ("keep" obviously being THE most important part). Yes, mag restrictions have to go. So do restrictions on EBRs, etc. But above all of that, AND BEAR is the obvious & most important next step. Even better, LOC is the one mode of 'and bear' that actually enjoys Constitutional protection. Precedent exists for it. Nunn is only one example. In spite this, you go for a strategy that you admit is harder, but telling us that it will lead to LOC in the future. But what you didn't mention is that you were relying on LOC being granted by the legislature in that future. Something that, for the reason listed above, just isn't going to happen & something that was never going to happen.


I had predicted that if California went open carry only, it would become a moot right in practice as stores all over California would move to ban OC. So far I'm 3 for 4 on that prediction with two coffee houses and CPK banning U/LOC in their stores. I'm pleased with Starbucks (who came from WA where carry has been LOC and shall issue CCW for a while) so far holding back from Brady/LCAV pressure. I do think this entire bruhaha echos the Greensboro Woolworth's (http://en.wikipedia.org/wiki/Greensboro_sit-ins) Lunch Counter sit-ins that started 50 years and 5 days ago where gun owners are seeking to not be discriminated against.


First, a reminder that it won't (for the reasons listed above) be a matter of LOC only. But yes, it does echo the lunch counter thing. The biggest thing to be kept in mind is that those guys WON their fight. Something else to keep in mind is that they laid the groundwork for us to win our fight. Especially taking into account the examples that Dantodd has given. "Mootness" is addressed below.


That said, I'd ask that those of you who were confident that LOC was the right thing to aim for to take recent events - as predicted - into consideration as you think about what we all are strategically trying to accomplish.


You can be sure that, now that I have a much better understanding of what you were trying to accomplish, I will most definitely keep it in mind.

In any event, that some stores would forbid the practice wasn't a tough prediction. The question should have been, will ALL stores do so? The answer clearly, is no.

Further, it wasn't LOC that caused those signs to appear in Kansas. That SI-CCW became the law there (and not LOC) was all it took. The point being that some stores are going to ban guns no matter what. The solution (presuming that Dantodd's examples don't carry the day) is to boycott those that do ban us & spend our money at the ones that don't. Like Starbucks.

And that presumes I want to go to hoity toity places like Starbucks. I'm quite happy drinking my coffee at "Joe's Diner." While over-priced eateries like CPK have banned and bear, that doesn't mean that the smaller places will. If nothing else, their ability & willingness to keep people out is not as great.

Which means its time for me to trot out my hypothetical "ghetto mom" example again. There ain't no hoity toity places in her world. Yet, she has the same right to (and a greater need for) self defense that a patron of Starbucks has. For her, it isn't just a matter of The State having control over her ability to self protect. The fees for CCW are, to her, quite large. Likely to the point of being out of reach. And of course, LOC remains the greater deterrent. The better way to say "BACK OFF" & so to make the use of a gun much less likely. Not just important to her, that matters a lot to me as well.

And even if stores/restaurants are allowed to ban the practice, I don't live at the CPK, or even Starbucks. There are lots of places in the world that aren't hoity toity eateries. Places where I'd still like to defend myself w/o having to get a "Mother May I?" slip.


I don't want this to be a bash U/LOC thread. I want to seriously engage those who think that LOC is a better outcome with the early reality we're watching. I hope to change some minds - not radically but gently. I'm quite concerned we can not obtain Pruneyard (http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins) for the 2A in California. I hope folks here and at OCDO can now better understand my fear.

-Gene


I do understand your fear. I hope that you can now understand why I think it groundless & your approach flawed.


The Raisuli

P.S. I'm also hoping I don't get banned! :eek:

Mulay El Raisuli
02-06-2010, 8:11 AM
If a library can enforce "no talking" you better believe a store can enforce "no guns"


The problem with this example being that libraries don't have (and so don't enforce) a "no talking" policy. They have a "no talking loudly" (and so disruptively) policy. Which is quite a bit different.


The Raisuli

Mitch
02-06-2010, 8:34 AM
The really short answer is that shutting up for the time it takes to eat a meal or shop doesn't take away your right to free speech. Disarming completely strips you of your right to self-defense. One right can be temporally shifted, the other cannot.

Since no one is compelling you to enter a private shop where you are obliged to be disarmed, I don't see how you would be able to say anyone is depriving you of a civil right.

MudCamper
02-06-2010, 8:47 AM
Thanks to the pre-incorporation blunderings of OC-ers, LOC is now banned, probably for good.

Ben, could you tone down your rhetoric a bit, please? It sounds very accusatory and confrontational, and UOCers will perceive it is directed at them. As you well know it was not UOC that resulted in the 12050 change. It was a rural county licensed CCW holder OCing in a metropolitan county.

LOC is now banned, probably for good.

Post incorporation we could have stopped it in committee.

LOC via loophole in CCW law is lost. Personally I do not subscribe to the defeatist attitude that that was our only avenue. I believe we can defeat 12031, at least partially, and 626.9 at some point.

Mitch
02-06-2010, 8:49 AM
There are practical issues that need to be addressed.

1. They can only criminalize possession of a gun in the store if they catch you.

2. Now you can take responsibility for street thugs stealing guns from cars, or you can insure that CCW holders have the right to exercise their Second Amendment rights

3. However, the most devastating counterpunch against the private shops that want to ban guns is to remind them that they do not enjoy the same immunity from suit for "failure to protect" that the government does.

These are all practical reasons why shops should not restrict carry inside their premises. But there is no reason to believe property owners will always (or even usually) behave in a reasonable, self-interested manner.

Gawd knows voters hardly ever do.

dantodd
02-06-2010, 9:01 AM
Since no one is compelling you to enter a private shop where you are obliged to be disarmed, I don't see how you would be able to say anyone is depriving you of a civil right.

For the same reason that you are depriving someone of a civil right if you refuse to rent someone a home or serve them coffee if you do not like their profession, or the color of their skin, or their clothing or political affiliation. These are ALL covered by the Unruh Act in California. Did you read the case law that I posted? I have the full opinions still open if there are any that seem unclear or you don't see applicability I will be happy to add more info.

dantodd
02-06-2010, 9:06 AM
Also, if a vendor refuses to let me go in open carrying (though I believe this would be a de facto Unruh violation) they would have to also prevent police officers in uniform from carrying on premises unless they are on official business. Long v. Vanentino establishes that a business cannot deny access to someone based on their profession so I am fairly confident that one cannot give preferential to police by permitting them to carry while preventing people of a different profession from doing the same.

I realize that I didn't even post the text of the Unruh Act: All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, language spoken, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Age, appearance, profession, political party affiliation etc. have all been added as protected classes in the many cases quoted above.

Fyathyrio
02-06-2010, 9:32 AM
OK, question from the cheap seats...in the examples provided so far towards the store's right to ban guns, the phrases store owner and property owner have been used. In reality, most stores are actually rented, what effect does that have? What if the strip mall owner supports 2A, can he trump the store that rents from him?

dantodd
02-06-2010, 10:01 AM
OK, question from the cheap seats...in the examples provided so far towards the store's right to ban guns, the phrases store owner and property owner have been used. In reality, most stores are actually rented, what effect does that have? What if the strip mall owner supports 2A, can he trump the store that rents from him?

Not withstanding Unruh, I would say that the person doing business in the site, generally, would be the party that can make this decision. The exceptions I could see would be something like a vending cart at the mall where there is no expectation on the part of the business person to regulate who walks into their "selling zone." For example, in a large mall, Sears might welcome open carry while William-Sonoma might restrict it. The mall operator could probably not alter either decision except as it might require someone to traverse the mall common areas to enter Sears.

That is strictly a common sense thought process. I know the dangers of applying common sense to CA laws so take it for what it's worth. I personally feel this is all moot as it is illegal discrimination to refuse service to someone from lawfully carrying a firearm in a place of business.

bsim
02-06-2010, 10:09 AM
"No Shirt, No shoes, No Service"

Same for UC, coming to a store near you.

dantodd
02-06-2010, 10:12 AM
"No Shirt, No shoes, No Service"

Same for UC, coming to a store near you.

No shirt, no shoes, no OC? :D


That has to do with health codes. Have you seen these signs in places that are not food service related?

Mitch
02-06-2010, 10:14 AM
For the same reason that you are depriving someone of a civil right if you refuse to rent someone a home or serve them coffee if you do not like their profession, or the color of their skin, or their clothing or political affiliation. These are ALL covered by the Unruh Act in California. Did you read the case law that I posted? I have the full opinions still open if there are any that seem unclear or you don't see applicability I will be happy to add more info.

But gun owners are not a protected class under Unruh, which enumerates the classes and civil rights it seeks to protect.

I am not sure how you want to use a law that is very specific in the classes it protects to protect something that is not mentioned in the text of the law.

BTW, Jesse Unruh's widow owns a quaint little motel and restaurant/bar in Mount Baldy Village called the Buckhorn Lodge, and she performs there on weekends as a torch singer. Great place.

anthonyca
02-06-2010, 10:22 AM
I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

For the time being I will leave my personal political (how things would be if Dan ran the world) opinions out of the conversation.

There was a thread here by a female from socal I believe about her visit to a "free state" where shall issue is standard and LOC requires nothing but not being a prohibited person. She was shocked to see most stores and resturaunts had "no firearms" signs.

Guns are the one issue that will make the Cali legislature and courts respect property rights.

loather
02-06-2010, 10:28 AM
What if the strip mall owner supports 2A, can he trump the store that rents from him?

I'm sure you could write something like that into a lease. Not sure how enforceable it would be, though. California has some really strange property laws.

Roadrunner
02-06-2010, 10:48 AM
There was a thread here by a female from socal I believe about her visit to a "free state" where shall issue is standard and LOC requires nothing but not being a prohibited person. She was shocked to see most stores and resturaunts had "no firearms" signs.

Guns are the one issue that will make the Cali legislature and courts respect property rights.

Could those "No firearms" signs just be a requirement to get liability insurance in those states? If it is, couldn't the state make it illegal for an insurance company to make that a provision of getting insurance? Or perhaps the NRA could begin selling business insurance that trumps that provision. Just throwing stuff out there.

dantodd
02-06-2010, 10:50 AM
But gun owners are not a protected class under Unruh, which enumerates the classes and civil rights it seeks to protect.

Yes it does but that is an exemplar not an exhaustive list.

I am not sure how you want to use a law that is very specific in the classes it protects to protect something that is not mentioned in the text of the law.

Here you go: From SB367 (http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0351-0400/sb_367_cfa_20090908_105932_sen_comm.html) last term. It was passed and is now law, though the explanatory text is not part of statute. If you are interested there is more in the text citing the specific cases and exactly which classes were added.

In fact, the courts have interpreted the categories or classes enumerated in the Unruh Act to be "illustrative" rather than "restrictive," and this is borne by the intent language adopted by the Legislature in reorganizing and consolidating various civil rights statutes in 2005 (AB 1400, Laird, Ch. 420, Stats. 2005).

cltitus
02-06-2010, 10:56 AM
Well I love this thread because of the fact that California by far close with New York has the most stupid rules and regulations. They say its to protect the people when in theory its only hurting the "Law Obeying" citizen's. Criminal's are criminal's with no justification to law and regulations federal or state. I remember reading when Florida went from a Permit Only state to right to carry state the first year total crime rate dropped 7% in crime.

This is little off topic but, has same justification. Just like the .50BMG Ban that was passed. They ban a bullet and all rifles that accept it unless you had it before final deadline. They said "terrorist weapon of mass destruction" but don't get me wrong im a young buck and **** you can do allot of damage with rifle, shotgun, handgun. Another control measure to try and control the 2nd amend.

I really wish california would lighten up on gun laws its making it impossible to protect you, your home, and your property without getting the shaft.

Soon new Governor, and now we need some new Senators that are not so PRO ANTI GUN'S maybe we can make a new change. I cant say for you all but my Representative here where i live is starting to hate me for all the phone calls, emails, letters, office visits to start a change.

Off topic so this 2012 Finger Print ammo thing retarded yes?

kcbrown
02-06-2010, 11:20 AM
If a library can enforce "no talking" you better believe a store can enforce "no guns"

A library can enforce "no talking" (more generally, "no loud talking") because it is (or, at least, can be strongly argued as) necessary to the furtherance of their business purpose.

Can the same be said in the general case for restrictions on carry?

What you seem to be arguing is that a public business can rightly disallow any class of people from its premises for arbitrary reasons. So by your argument, for instance, any publicly-facing business can for no reason related to the furtherance of its business reject people wearing jeans, or wearing a cap, or wearing makeup, or who are shorter than 6 feet tall, or who weigh more than 150 pounds, etc.

Is that really what you're arguing?

I won't be all that surprised if such arbitrary restrictions on patronage are actually allowed, but I wanted to make what you guys are arguing here crystal clear.

paul0660
02-06-2010, 11:20 AM
But yes, it does echo the lunch counter thing. The biggest thing to be kept in mind is that those guys WON their fight.

"Those guys" didn't get lunch, alienated the locals, and did not win until the Federal government intervened judicially. News coverage of the civil rights protests for the most part made clear the evil of discrimination and Jim Crow laws, and painted African Americans as victims of institutional and societal racism, which they were. Coverage of UOC meets does not picture the UOCers as victims, rather the unarmed customers made uneasy by the presence of firearms. UOCers usually come off as illogical attention getters with penile compensation issues. The only positive thing I have seen result from UOC meets is a greater understanding by the average person of how difficult it is to get a CCW permit.

dantodd
02-06-2010, 11:27 AM
Coverage of UOC meets does not picture the UOCers as victims, rather the unarmed customers made uneasy by the presence of firearms. UOCers usually come off as illogical attention getters with penile compensation issues.

Do you realize that Gene requested this to NOT be a UOC bashing thread?

Mute
02-06-2010, 11:39 AM
A library can enforce "no talking" (more generally, "no loud talking") because it is (or, at least, can be strongly argued as) necessary to the furtherance of their business purpose.

Can the same be said in the general case for restrictions on carry?

What you seem to be arguing is that a public business can rightly disallow any class of people from its premises for arbitrary reasons. So by your argument, for instance, any publicly-facing business can for no reason related to the furtherance of its business reject people wearing jeans, or wearing a cap, or wearing makeup, or who are shorter than 6 feet tall, or who weigh more than 150 pounds, etc.

Is that really what you're arguing?

I won't be all that surprised if such arbitrary restrictions on patronage are actually allowed, but I wanted to make what you guys are arguing here crystal clear.

While they can't eject you for your physical characteristics, they most certainly can reject you for the clothes or the makeup you're wearing. I don't believe the law demands, in any way, that they explain the rejection.

GuyW
02-06-2010, 11:43 AM
Let me try again. Pruneyard was decided based on the California Constitution and not the Federal Constitution.... Since there is no RKBA in the California Constitution, there will be no Pruneyard equivalent to the right to carry in California.

-Gene

LOL - let ME try again:

The CA Constitution says that (paraphrased from memory) "the US Constitution is the law of the land". Is that meaningless legal drivel?

Since SCOTUS says the RKBA is indeed alive and well in the US Constitution, and the CA Constitution acknowledges the supremacy of the US Constitution, CA cannot continue to ignore or argue that it can ignore RKBA....a concept otherwise known as "incorporated by reference"....
.
.

nobody_special
02-06-2010, 11:48 AM
The BIGGEST drawback to the strategy is that it "constitutionalizes" a "Mother May I?" slip as a minimum for self defense. Something I just cannot get behind.

Bingo! Gene, you and I have gone back and forth about this on a few occasions.

I do aggre that shall-issue CCW is important and probably more useful day-to-day than LOC. But I was not pleased with the approach Calguns took for two reasons. (1) A permit should not be required in order to exercise a fundamental right -- as I've repeatedly said elsewhere, no other enumerated right is so limited, and it's a bad precedent (and logically unsound) if you have to ask the government permission to exercise a right. And (2), relying on the concealed carry license's legislative loophole for loaded carry in order to obtain LOC doesn't actually provide unlicenses LOC.

There are good reasons for unlicensed LOC. It removes concern about an accidentally exposed weapon if you're carrying concealed. Also, I think it's extremely important to have a method of unlicensed loaded carry for emergency circumstances, or the "ghetto mom" example that Mulai described. There may be exceptions in the law which permit one to LOC in emergencies, but (1) people may not know about those exceptions, and (2) they are sufficiently limited so as to make prosecution a danger anyway.

artherd
02-06-2010, 11:48 AM
Also, if a vendor refuses to let me go in open carrying (though I believe this would be a de facto Unruh violation) they would have to also prevent police officers in uniform from carrying on premises unless they are on official business. Long v. Vanentino establishes that a business cannot deny access to someone based on their profession

Ah - now THAT is interesting :) (but litigating it might just get Long v. Vanentino overturned instead... be careful.)

artherd
02-06-2010, 11:55 AM
Personally I do not subscribe to the defeatist attitude that that was our only avenue. I believe we can defeat 12031, at least partially, and 626.9 at some point.

The problem with this example being that libraries don't have (and so don't enforce) a "no talking" policy. They have a "no talking loudly" (and so disruptively) policy. Which is quite a bit different.

No it isn't.

(1) A permit should not be required in order to exercise a fundamental right

Look, I agree with you.

Now you want to check back into reality? A reality that allows Parade Permits for the 1A?

Finally, you wanna check into reality where fighting a losing battle just gets you killed?

How about we do this:
1) Remove the legislature's ability to infringe upon our rights (McDonald)
2) Secure the rights we can get today including Shall-Issue CCW.
3) Fight for permit-less LOC*.

Can we all grasp that order of operations is critical to overall success?

There are good reasons for unlicensed LOC. It removes concern about an accidentally exposed weapon if you're carrying concealed.
We had that, but OC-ers cost us it earlier this year and thanks that *leg action, may have done so for my lifetime.
Also, I think it's extremely important to have a method of unlicensed loaded carry for emergency circumstances, or the "ghetto mom" example that Mulai described.
We have that already.

artherd
02-06-2010, 11:56 AM
What you seem to be arguing is that a public business can rightly disallow any class of people from its premises for arbitrary reasons.

Any non-protected class, yes. (Im not arguing - this is well settled law.)

dantodd
02-06-2010, 12:14 PM
Ah - now THAT is interesting :) (but litigating it might just get Long v. Vanentino overturned instead... be careful.)

I believe that once we have incorporation and self-defense is identified as the core right equal protection clause of the 14th may suffice.

Plus in addition to Long we also have Sisemore v. Master Financial proscribing bias based on profession under Unruh.

dantodd
02-06-2010, 12:17 PM
Any non-protected class, yes. (Im not arguing - this is well settled law.)

Absolutely. The larger question is will "person exercising the right of self-protection" be a protected class? I argue that it should be, it is not like speech which can be temporally shifted.

(i.e. you can collect signatures tomorrow or you can spew hate on a street corner rather than in a restaurant but you can't protect yourself tomorrow if you face a threat today.)

SP1200
02-06-2010, 12:24 PM
Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

Yea. And then "No Gun" zones in every city...

Gene as much as I would love to enforce my rights, I understand the movement and direction of CGF, and therefor will not participate in any ULOC events. I trust the legal staff of CG and CGF and will wait patently, and I encourage others to do so...

7x57
02-06-2010, 12:44 PM
OK. Not going to weigh in on strategy--in any event, I believe I've argued at length for CGF's position.

What I am concerned about is the type of argument being used. I believe some people have gotten so happy with the idea that the courts might actually obey and enforce the Constitution that they've swung too far in the direction of believing that they'll bend over backwards for us.

They won't, OK? Do you people think anti-gun judges are going to change sides just 'cuz SCOTUS imposed something on them? No. They're going to use all the flexibility they have against us, same as always. Same as the administration making tough-talk about the campaign finance decision, which got partway to saying they'd simply disobey the law. I don't believe that will happen, but you'd better believe they're going to use whatever room they have against the spirit of the decision. Likewise, anti-gun judges are going to use whatever room they have against the spirit of the 2A, Heller, and everything else that gets shoved down their throats.

Game theory says that you plan your strategy based on the assumption that the other side plays perfectly. We need to do that. Too many people here are making plans that work out fine if they're right, but disastrous if they're wrong.

I would also like to say that Gene's score so far on this is pretty formidable, and that should suggest to wise men that when he disagrees with you on what courts are likely to do, ya oughta listen.

You'd think we were playing a game,not fighting a war for the Republic.

7x57

Quser.619
02-06-2010, 1:02 PM
Yea. And then "No Gun" zones in every city..

I'd also imagine that a dramatic influx of people LOC/UC'ing could also be used to justify the "safe" or gun-free zones... Imagine the laws changed from 1000' to 2000'? 3000'?

I for one agree w/ Gene, get Incorporation 1st! Then attack bad law w/ a recognized RTKBA. Remove the damn platform being used to incrementally limit our rights, force the opposition to justify any further transgressions & attack, methodically, the state imposed limits as they are... hopefully preventing any further CA mandated limitations. W/O McDonald & an unassailable argument to act upon, everything else is moot. W/ McDonald, CA is automatically limited in whatever limitations proposed. I'd also imagine w/ a greater amount of items being knocked out while in committee for fear of further case laws & even greater losses of power, if nothing else.

I agree that all Open Carry should be suspended & don't wish to stimy those that feel or believe otherwise, their support & apparent motivation are needed... but gaining this foothold is by far more purposeful towards achieving our goals & weakening our opponents overall & it doesn't risk further laws being put into place before the decision arrives.

dbldblu
02-06-2010, 1:26 PM
And of course, LOC remains the greater deterrent. The better way to say "BACK OFF" & so to make the use of a gun much less likely.

Half of all peace officers killed in the line of duty are killed with their own weapon. The thug(s) take it away from them. You are not safe while LOC.

artherd
02-06-2010, 1:41 PM
Absolutely. The larger question is will "person exercising the right of self-protection" be a protected class? I argue that it should be, it is not like speech which can be temporally shifted.

(i.e. you can collect signatures tomorrow or you can spew hate on a street corner rather than in a restaurant but you can't protect yourself tomorrow if you face a threat today.)

I'm with ya in principle - but IMO we don't have the courts to go from not-a-right, all the way to protected class overnight.

I believe that once we have incorporation and self-defense is identified as the core right equal protection clause of the 14th may suffice.

Probably not - I do like the profession though as that builds upon existing settled law that the judicial will not want to overturn easily. We must be careful though whenever calling a bluff.

dantodd
02-06-2010, 1:50 PM
What I am concerned about is the type of argument being used. I believe some people have gotten so happy with the idea that the courts might actually obey and enforce the Constitution that they've swung too far in the direction of believing that they'll bend over backwards for us.

I'm sorry, can you be more specific on which arguments you think are concerned about and why?

Likewise, anti-gun judges are going to use whatever room they have against the spirit of the 2A, Heller, and everything else that gets shoved down their throats.


Do you REALLY believe anyone on this board is naive enough to not realize this? If we cannot win in the ballot box an you are now saying we will not win judicially what exactly are you suggesting? The only options I see beyond those are giving up or something that is ridiculous to even mention.


I would also like to say that Gene's score so far on this is pretty formidable, and that should suggest to wise men that when he disagrees with you on what courts are likely to do, ya oughta listen.

I have not seen anyone here NOT listen to Gene. A spirited debate is not a refusal to listen.

I have to admit that I am a bit shocked that you of all people would have made this post. I had always thought you a man who believed in spirited debate and realized that it is the path forward in crafting a strategy.

No one is suggesting going out and filing an Unruh suit with one day of research and discussion. No one is arguing that a suit be filed on the grounds that the 2A right to self-defense is different than the 1A right to free speech because it is temporally inviolate.

I thought we were discussing how to address refusal of service by a public establishment of open carriers. Especially because a "no guns" sign would also effect CCWers.

Actually it started out as why should we seek OC as primary right vs. CCW but it quickly evolved. Ultimately because, as you said, we are in "enemy territory" and whether the guns are visible or concealed the media etc. will make it sound like the world is coming to an end and scare businesses into putting up no guns signs.

kcbrown
02-06-2010, 1:56 PM
Now you want to check back into reality? A reality that allows Parade Permits for the 1A?


I thought the permit in that case was for the deprivation of the public resource to those who would otherwise normally use it, not for the exercise of speech itself.

That is a very important distinction, isn't it?


Are there any examples where the right to speech (not commerce, as in selling something, speech as in distributing the spoken or printed word without engaging in commerce) is directly controlled through a permitting process in the same way that shall-issue CCW would control the exercise of the right to bear arms?



Finally, you wanna check into reality where fighting a losing battle just gets you killed?

How about we do this:
1) Remove the legislature's ability to infringe upon our rights (McDonald)
Infringe: act so as to limit or undermine; encroach on.

Does not eliminating LOC infringe on the right to bear arms? Does it not limit or encroach on that right?

Given that, how can we claim to have done this first step until we establish shall-issue CCW and LOC?

That said, I realize we're dealing with the real world, so infringements are to be expected even when they're claimed to be otherwise...



2) Secure the rights we can get today including Shall-Issue CCW.
3) Fight for permit-less LOC*.

Can we all grasp that order of operations is critical to overall success?
Most definitely agree with the above. When all is said and done, we have to deal with reality as it's handed to us. I agree with the above assuming that by securing the rights we can get today, we do not eliminate the possibility of getting other rights later on when a different approach would enable getting all of it.

I hope we're all on the same page as far as what we want, so it's now just a question of how we get it...

wildhawker
02-06-2010, 2:07 PM
No shirt, no shoes, no OC? :D

That has to do with health codes. Have you seen these signs in places that are not food service related?

Yes.

wildhawker
02-06-2010, 2:09 PM
LOL - let ME try again:

The CA Constitution says that (paraphrased from memory) "the US Constitution is the law of the land". Is that meaningless legal drivel?

In California, in certain respects, yes.

kcbrown
02-06-2010, 2:10 PM
I believe those who seem to think that getting shall-issue CCW only and not LOC will somehow keep businesses from putting up a bunch of "no guns" signs are badly fooling themselves. That's the stuff of dreams, not of the real world.

In the real world, as soon as any RKBA is established for the general population, those signs will go up. You can bet big money on this, because the opposition will make sure it happens. They will yell from the rooftops that the world is about to end because we now have the established right to bear arms.

The fact that a firearm is concealed from view will matter in only one way: the business owner will not be able to prove you have it unless he insists on testing you for it prior to allowing you entrance. That is probably something he won't do, not because he lacks incentive, but because it is either expensive or intrusive enough that he knows it will negatively impact his business.

But he will put the sign up nonetheless.

To business owners, money talks far more loudly than even the Supreme Court.


The bottom line is this: I think it's naive in the extreme to believe that shall-issue CCW will somehow magically get us any different results than LOC, except if LOC would somehow preclude shall-issue CCW.

So: is the real argument here that if we get LOC, we'll be denied shall-issue CCW? I could easily see that happening. Of those two options, shall-issue CCW is certainly more desirable because even though you would not be allowed to enter a business while carrying in principle, you would be able to in practice while carrying concealed.

It would just be on your conscience that you were violating the policy of the business. Shame on you. :D

wildhawker
02-06-2010, 2:11 PM
Do you REALLY believe anyone on this board is naive enough to not realize this?

Yes.

kcbrown
02-06-2010, 2:15 PM
In California, in certain respects, yes.

If some parts of the CA Constitution are meaningless drivel, what prevents the entire thing from being that?

nobody_special
02-06-2010, 2:24 PM
(1) A permit should not be required in order to exercise a fundamental right

Look, I agree with you.

Now you want to check back into reality? A reality that allows Parade Permits for the 1A?


I've debated this at length with Gene before here on Calguns. Those time/place/manner restrictions are not particularly relevant. Permits may be required for some 1st amendment activities, but that doesn't mean you need a permit to walk down the street, does it? The courts permit time/place/manner restrictions where they pass a strict scrutiny standard, but the courts do not allow such restrictions upon any possible individual exercise of 1st amendment rights.


Finally, you wanna check into reality where fighting a losing battle just gets you killed?

How about we do this:
1) Remove the legislature's ability to infringe upon our rights (McDonald)
2) Secure the rights we can get today including Shall-Issue CCW.
3) Fight for permit-less LOC*.

Can we all grasp that order of operations is critical to overall success?


I agree that (1) comes first; however the order of (2) and (3) could certainly be debated... things went the opposite way in Ohio, right?




There are good reasons for unlicensed LOC. It removes concern about an accidentally exposed weapon if you're carrying concealed.
We had that, but OC-ers cost us it earlier this year and thanks that *leg action, may have done so for my lifetime.


How did we have unlicensed loaded open carry?


Also, I think it's extremely important to have a method of unlicensed loaded carry for emergency circumstances, or the "ghetto mom" example that Mulai described.

We have that already.

Not in a useful way. Exceptions under the law are of relatively little utility, as most people (even those here on calguns) aren't that familiar with the law, and in case of emergency it isn't exactly convenient to dig up a copy of the PC to ensure that your particular situation falls under an exception, is it?

My point is that legal unlicensed carry (LOC) enables self-defense in a more immediate way than shall-issue concealed carry licenses.

wildhawker
02-06-2010, 2:25 PM
If some parts of the CA Constitution are meaningless drivel, what prevents the entire thing from being that?

We're both oversimplifying this, but for the sake of keeping this portion of the discussion short and sweet:

1. We have no RKBA provision in the CA constitution. The supremacy clause of CA constitution does not incorporate US2A into the CA constitution.

2. The CA Supreme Court has ruled that we have no RKBA. The CA Supreme Court has ruled in the affirmative on other enumerated [and unenumerated] rights in the CA constitution.

wildhawker
02-06-2010, 2:28 PM
For Dan:

(2:50 PM) Do you REALLY believe anyone on this board is naive enough to not realize this?

(3:11 PM) Yes.

(3:24 PM) I agree that (1) comes first; however the order of (2) and (3) could certainly be debated... things went the opposite way in Ohio, right?

dustoff31
02-06-2010, 2:33 PM
Could those "No firearms" signs just be a requirement to get liability insurance in those states?

No, it simply respects the rights of the property owner. He has as much right to be "gun free", as you do to surround yourself with guns.

nobody_special
02-06-2010, 2:35 PM
Wildhawker, I'm certainly not naive enough to believe the courts will bend over backwards for us. But an incorporated Heller provides a right to bear, there is already one case (Palmer v. DC) which should clarify that right. Precedent indicates that either LOC or shall-issue CCW must be protected at the very least.

If we first wait for incorporation, why is shall-issue CCW more obtainable than LOC? What is the objection to the Ohio model, where LOC protests led to shall-issue CC permits?

I'm not saying that's the best approach in California, but it's not clear to me why it's a poor choice either.

Call me naive if you like, but the fact that it worked elsewhere suggests that it may be a viable approach.

dantodd
02-06-2010, 2:41 PM
No, it simply respects the rights of the property owner. He has as much right to be "gun free", as you do to surround yourself with guns.

Could not the same thing be said about excluding people who wear funny clothes or smell bad or are cops/ACLU attorneys? In California businesses do not have the right to be "stink free" or "hippie free" or "cop free" or "tie-dyed shirt free" etc. etc. etc.

7x57
02-06-2010, 2:45 PM
I'm sorry, can you be more specific on which arguments you think are concerned about and why?


Just off the top of my head, any argument that suggests the state will not permit "no guns" signs on private property based on some notion of rights, even up to the denial of the right in practice. I think the ninth circuit will probably permit it, and as for the state courts the judges will personally come out and nail up the signs.


Do you REALLY believe anyone on this board is naive enough to not realize this?


In terms of implications, yes.


If we cannot win in the ballot box an you are now saying we will not win judicially what exactly are you suggesting? The only options I see beyond those are giving up or something that is ridiculous to even mention.


I am suggesting we pursue the game-theoretic strategy of planning based on perfect opposition, and accept lucky breaks as just that.


I have to admit that I am a bit shocked that you of all people would have made this post. I had always thought you a man who believed in spirited debate and realized that it is the path forward in crafting a strategy.


Consider it a commentary on who I think is winning that spirited debate.

7x57

hoffmang
02-06-2010, 2:47 PM
I thought the permit in that case was for the deprivation of the public resource to those who would otherwise normally use it, not for the exercise of speech itself.

Try opening a store selling legally protected adult magazines in certain counties.


The CA Constitution says that (paraphrased from memory) "the US Constitution is the law of the land". Is that meaningless legal drivel?
As to the individual rights in the US Constitution, it is meaningless drivel. It is interpreted by CA Courts as saying that CA's laws are subservient to Federal laws - not the individual rights in the US Consitution.

Wildhawker, I'm certainly not naive enough to believe the courts will bend over backwards for us. But an incorporated Heller provides a right to bear, there is already one case (Palmer v. DC) which should clarify that right. Precedent indicates that either LOC or shall-issue CCW must be protected at the very least.

Palmer and Sykes are a pair. The right to bear we can get today is either shall issue CCW with only reasonable permitting systems or unlicensed open carry.

A whole lot of debate in this thread is trying to undermine everything but my point.

So far we are 1 for 4 at having carry banned at establishments. The Mendoza line does not create a very good strategy. The carrying of arms that stores don't see doesn't cause them to change their policy.

-Gene

7x57
02-06-2010, 2:47 PM
Could not the same thing be said about excluding people who wear funny clothes or smell bad or are cops/ACLU attorneys? In California businesses do not have the right to be "stink free" or "hippie free" or "cop free" or "tie-dyed shirt free" etc. etc. etc.

In the real world, you can't eject Liberal protected classes. But you can absolutely and completely discriminate against the Liberal deprecated classes. Gun owners are a Liberal Deprecated Class, and the state courts will permit the legislature to use state money to print free 'no gun' signs for every business in California if they so choose.

7x57

kcbrown
02-06-2010, 2:48 PM
We're both oversimplifying this, but for the sake of keeping this portion of the discussion short and sweet:

1. We have no RKBA provision in the CA constitution. The supremacy clause of CA constitution does not incorporate US2A into the CA constitution.


If the supremacy clause doesn't incorporate 2A, one of the cornerstones of the Constitution, then what does it incorporate? More pointedly, why does it incorporate those other things while it does not incorporate 2A?



2. The CA Supreme Court has ruled that we have no RKBA. The CA Supreme Court has ruled in the affirmative on other enumerated [and unenumerated] rights in the CA constitution.

I don't doubt this at all. However, that seems arbitrary and capricious. On what basis did they rule against 2A but not against the other enumerated rights?

All of this will hopefully be water under the bridge soon enough, but won't the arbitrary and capricious nature of the CA SC be used against us even after incorporation?

dustoff31
02-06-2010, 2:49 PM
Could not the same thing be said about excluding people who wear funny clothes or smell bad or are cops/ACLU attorneys?

Of course it could. And what is wrong with that? Why does one's right to stink override another's right to not be forced to smell it, on his own property?


In California businesses do not have the right to be "stink free" or "hippie free" or "cop free" or "tie-dyed shirt free" etc. etc. etc.

So I've been told. That's one reason I live in AZ.

wildhawker
02-06-2010, 2:53 PM
If we first wait for incorporation, why is shall-issue CCW more obtainable than LOC? In CA, we have legislation in place that reflects the policy preference of the Legislature (CCW).

What is the objection to the Ohio model, where LOC protests led to shall-issue CC permits?

The Ohio model worked in Ohio. Ohio is not California.

I'm not saying that's the best approach in California, but it's not clear to me why it's a poor choice either.

Call me naive if you like, but the fact that it worked elsewhere suggests that it may be a viable approach.

No, it suggests that it worked in a sociopolitical environment that couldn't be further from that of California. Further, OH courts and CA courts are similarly dissimilar. What about this is unclear, if not glaring, from any number of issues?

wildhawker
02-06-2010, 2:57 PM
To be honest, I have a growing honey-do list that means I cannot spend the kind of time here that would be required of a full answer to your questions. I'll simply suggest that you spend some time researching related cases, how an incorporated constitutional right affects the policies of the states and how an appeal/challenge on 2A grounds post-incorporation might look as compared to today.

If the supremacy clause doesn't incorporate 2A, one of the cornerstones of the Constitution, then what does it incorporate? More pointedly, why does it incorporate those other things while it does not incorporate 2A?

I don't doubt this at all. However, that seems arbitrary and capricious. On what basis did they rule against 2A but not against the other enumerated rights?

All of this will hopefully be water under the bridge soon enough, but won't the arbitrary and capricious nature of the CA SC be used against us even after incorporation?

hoffmang
02-06-2010, 3:06 PM
On what basis did they rule against 2A but not against the other enumerated rights?

The word arms doesn't appear in the California Constitution. See Kasler v. Lockyer (http://www.hoffmang.com/firearms/Kasler-v-Lockyer.pdf).

-Gene

dustoff31
02-06-2010, 3:07 PM
Time will tell, but I really doubt it. How common are these signs in any of the dozen of so states that have gone Shall Issue in recent years?

A business owner will put up those signs not because he gives a rat's *** about whether his patrons are carrying guns or not, but because he doesn't want armed customers frightening away other customers.

A CCW doesn't frighten anyone.

I agree completely.

As to the signs, they have become more common in AZ, but, more to your point, only in major cities and metropolitan areas. In rural areas, I haven't seen any increase at all. In fact, off hand, I can't recall seeing any at all.

And you are also correct about CCW. Unless incidental to some other activity, open carry just isn't done here much at all.

dantodd
02-06-2010, 3:09 PM
I'm with ya in principle - but IMO we don't have the courts to go from not-a-right, all the way to protected class overnight.

Reminds me of something one of my ground school instructors was fond of saying: Nothing good happens fast.

Or, more to the point at hand: McDonald and Incorporation aren't "Game Over" they are "Game On."


Probably not - I do like the profession though as that builds upon existing settled law that the judicial will not want to overturn easily. We must be careful though whenever calling a bluff.

I agree, a courtroom is a really bad place to bluff. It's better to walk in holding all the cards.

dantodd
02-06-2010, 3:17 PM
A sign in one place is not a big deal. But if the signs become common place (for example the City of Los Angeles or San Francisco give them away with every business license) they will essentially prevent people from exercising their right to self-protection. I realize this is a bit of a reduction to the absurd argument but where does one draw the line?

dustoff31
02-06-2010, 3:35 PM
And I would submit they are a result of open carry, which is legal in Arizona and not unusual in parts of the state.

Open carry is a factor, I'm sure. The recent change in the law allowing CCW in bars/resturants unless posted is another.

nobody_special
02-06-2010, 4:11 PM
A whole lot of debate in this thread is trying to undermine everything but my point.

So far we are 1 for 4 at having carry banned at establishments. The Mendoza line does not create a very good strategy. The carrying of arms that stores don't see doesn't cause them to change their policy.

-Gene

The courts forcing shall-issue may cause a change in policy.

kcbrown
02-06-2010, 4:14 PM
Try opening a store selling legally protected adult magazines in certain counties.


This is why I specifically asked for examples not involving commerce.

Would a permit be required to give such magazines away?



As to the individual rights in the US Constitution, it is meaningless drivel. It is interpreted by CA Courts as saying that CA's laws are subservient to Federal laws - not the individual rights in the US Consitution.


Nice.

Gotta love courts that, all the way to the top, interpret words as written as meaning what they want them to mean rather than what they actually say (the words in question literally say "United States Constitution", not "laws of the United States").



Palmer and Sykes are a pair. The right to bear we can get today is either shall issue CCW with only reasonable permitting systems or unlicensed open carry.


Sykes more than Palmer, I would expect, since Sykes is a California case and, as you illustrate above, the California courts will apparently read the law as written however they please.



So far we are 1 for 4 at having carry banned at establishments. The Mendoza line does not create a very good strategy. The carrying of arms that stores don't see doesn't cause them to change their policy.


No, but pressure from outside groups, such as the Brady Campaign, often does. I'm sure you don't believe that such groups are going to let up once 2A has been incorporated. If anything, would it not be wise to expect them to step up their efforts?

nobody_special
02-06-2010, 4:16 PM
In CA, we have legislation in place that reflects the policy preference of the Legislature (CCW).


And that legislative policy preference is may-issue (and mostly no-issue). Clearly the legislature did not choose either of the policies that we are debating here.

dantodd
02-06-2010, 4:18 PM
In the real world, you can't eject Liberal protected classes. But you can absolutely and completely discriminate against the Liberal deprecated classes. Gun owners are a Liberal Deprecated Class, and the state courts will permit the legislature to use state money to print free 'no gun' signs for every business in California if they so choose.

7x57

So what is the direction you see working then? Just give up OC?

dantodd
02-06-2010, 4:21 PM
Of course it could. And what is wrong with that? Why does one's right to stink override another's right to not be forced to smell it, on his own property?

Sorry, that's the way the law works. You might not like it but you aren't going to change it.

bsim
02-06-2010, 4:25 PM
Originally Posted by dantodd
No shirt, no shoes, no OC?

That has to do with health codes. Have you seen these signs in places that are not food service related?Yes, Mid-Ohio Sports Car track is one example.

It bugs me that some people think that if we get some pass to OC, that they can OC anywhere.

Not so, even in free(er) states.

kcbrown
02-06-2010, 4:26 PM
Time will tell, but I really doubt it. How common are these signs in any of the dozen of so states that have gone Shall Issue in recent years?


Reportedly, they are extremely common in Texas, a state that people for some reason consider to be one of the most gun-friendly states.



A business owner will put up those signs not because he gives a rat's *** about whether his patrons are carrying guns or not, but because he doesn't want armed customers frightening away other customers.
Or he will do so under pressure from anti-gun groups. Or they will do so as a result of ordinances requiring them to do so (believe me, such ordinances will be passed. They will be challenged, of course, but they will be passed nonetheless). Or any number of possibilities, no?



A CCW doesn't frighten anyone.It frightens the anti-gun groups at a minimum. It frightens the legislators (else we would already have shall-issue CCW instead of "discretionary" issue CCW).


Again, believing that there won't be significant pressure on businesses to enact "no guns" policies is underestimating the enemy. By a lot. Why do we seem to insist on doing that?


So, based on the foregoing, are we going to keep quiet about victories we achieve in the courts, so as to minimize the resulting publicity and thereby minimize the impact such publicity will have on business-level restrictions on firearms? Because that's the logical conclusion of where all this is going.

nobody_special
02-06-2010, 4:29 PM
I thought the permit in that case was for the deprivation of the public resource to those who would otherwise normally use it, not for the exercise of speech itself.


Try opening a store selling legally protected adult magazines in certain counties.


Except adult magazines are not necessarily granted full 1st amendment protections, they are on the fringe of the obscenity exception; see Roth v. United States and Miller v. California. Whereas the right to carry is a core element of the right to keep and bear arms.

kcbrown
02-06-2010, 4:33 PM
The word arms doesn't appear in the California Constitution. See Kasler v. Lockyer (http://www.hoffmang.com/firearms/Kasler-v-Lockyer.pdf).


OK, I suspect I understand what happened then.

The CA SC decided that the passage meant only that the federal laws override state laws, and that the U.S. Constitution itself wasn't involved at all except as the mechanism authorizing the passage of federal law.

Therefore, the only rights left are the ones explicitly enumerated in the California Constitution, of which RKBA isn't one. Hence, no RKBA in CA.


You can bet they will try to play similar word games with whatever comes out of McDonald, Sykes, and Palmer.

dantodd
02-06-2010, 4:33 PM
So far we are 1 for 4 at having carry banned at establishments. The Mendoza line does not create a very good strategy. The carrying of arms that stores don't see doesn't cause them to change their policy.


So, you are saying that you don't believe we have recourse through the courts and clearly we have no recourse in the legislature.

Then what is the solution? Throw the OCers under the bus? No one OCs in order to let those who would rather CCW do so? Seems like a very "small tent" solution.

Just as it was not the UOC movement but someone LOCing that killed LOC it will not be OCers who ultimately cause "No Guns" signs to sprout up all over but the media and government who try to scare business owners and encourage them to put up signs to fight CCWs. Do you think that it is beneath them to do so?

The only way to defend the right to carry is to defend Open as well as Concealed carry.


ETA: I had to look up the Mendoza Line. Not a big baseball guy.

kcbrown
02-06-2010, 4:39 PM
So what is the direction you see working then? Just give up OC?

Since the assumption is apparently that open carry as a Constitutional right will, if exercised even moderately often, cause all the businesses in the state to put up "no guns" signs, and the objective is to prevent that, it follows that not only are we planning on giving up OC, but we are likely to attempt to ensure that OC never happens except, perhaps, after the "no guns" damage has already been done anyway.

I must be missing something significant for the above to not be true...

nobody_special
02-06-2010, 4:47 PM
Reportedly, they are extremely common in Texas, a state that people for some reason consider to be one of the most gun-friendly states.


Also a state that does not permit open carry...

Lex Arma
02-06-2010, 4:54 PM
Some of you are missing the point. We use constitutions to limit the power of government, not private citizens. Trying to make the government use laws to make people manage their property the way we want them to, is no different from having some people tell us what guns we can buy and keep in our homes.

Private landowners may, indeed, try to prohibit the carrying of weapons on to their property. The issue becomes more complex (according to current interpretation of California Constitutional Law) when the property is open to the public.

Even if we have the political/legal power to "make" shopkeepers let us carry our CCW designated guns in their stores over their objection, our best hope lies in persuading them to allow this practice.

Part of this involves the stick outlined in my earlier post. One strategy is to have Calguns and/or SAF send a letter to the big retailers (Sears, Target, Walmart, etc...) that says: "We will fund any and all plaintiffs' litigation in any suit, in any state, based on facts like the Luby's Cafe Massacre. And we only have to win once."

The carrot? That is what we should be working on now while we are waiting for McDonald. I would suggest that we spend a lot of time and money funding/collecting criminological studies about mass shooting events, and how they are (in many cases) stopped by armed people at the scene with their firearms.

These studies can be used to try and persuade these stores to allow CCW holders into their stores with their guns. They can also be used as the basis for expert testimony if we have to do a Luby's Cafe case.

There is nothing wrong with forcing shopowners to ponder what is less expensive: Allowing CCW holders to carry their guns in their stores in compliance with their permits, or putting metal detectors and armed guards in their parking lots and stores.

Alas: Loaded open carry in urban areas is probably a pipedream, for political and constitutional reasons.

GuyW
02-06-2010, 5:04 PM
If some parts of the CA Constitution are meaningless drivel, what prevents the entire thing from being that?



The CA judiciary's tireless pursuit of Truth, Justice, and The American Way??

:(

.

kcbrown
02-06-2010, 5:07 PM
Some of you are missing the point. We use constitutions to limit the power of government, not private citizens. Trying to make the government use laws to make people manage their property the way we want them to, is no different from having some people tell us what guns we can buy and keep in our homes.

Private landowners may, indeed, try to prohibit the carrying of weapons on to their property. The issue becomes more complex (according to current interpretation of California Constitutional Law) when the property is open to the public.

Even if we have the political/legal power to "make" shopkeepers let us carry our CCW designated guns in their stores over their objection, our best hope lies in persuading them to allow this practice.

Part of this involves the stick outlined in my earlier post. One strategy is to have Calguns and/or SAF send a letter to the big retailers (Sears, Target, Walmart, etc...) that says: "We will fund any and all plaintiffs' litigation in any suit, in any state, based on facts like the Luby's Cafe Massacre. And we only have to win once."

The carrot? That is what we should be working on now while we are waiting for McDonald. I would suggest that we spend a lot of time and money funding/collecting criminological studies about mass shooting events, and how they are (in many cases) stopped by armed people at the scene with their firearms.

These studies can be used to try and persuade these stores to allow CCW holders into their stores with their guns. They can also be used as the basis for expert testimony if we have to do a Luby's Cafe case.

There is nothing wrong with forcing shopowners to ponder what is less expensive: Allowing CCW holders to carry their guns in their stores in compliance with their permits, or putting metal detectors and armed guards in their parking lots and stores.


Isn't the above true even if you substitute "open carry" for "CCW" in the above?

In what way is the means of carry relevant?


Alas: Loaded open carry in urban areas is probably a pipedream, for political and constitutional reasons.

This wouldn't surprise me.

Question: would a law making it a felony to expose your concealed gun (even if it's by "printing") be Constitutional? What about making it a misdemeanor that causes you to lose your CCW privileges when LOC is outlawed?

wildhawker
02-06-2010, 5:09 PM
Question: would a law making it a felony to expose your concealed gun (even if it's by "printing") be Constitutional? What about making it a misdemeanor that causes you to lose your CCW privileges when LOC is outlawed?

CA has case law precedent that makes partially concealed=concealed; they can't have it both ways.

GuyW
02-06-2010, 5:11 PM
The word arms doesn't appear in the California Constitution. See Kasler v. Lockyer (http://www.hoffmang.com/firearms/Kasler-v-Lockyer.pdf).

-Gene

A convenient but transparent ruse to cover the fact that in their intellectual dishonesty they didn't want to take the issue head-on....and want to pick and choose which enumerated rights exist in CA.

Haven't looked it up, but do the words "freedom of the press" (one example) appear in the CA Constitution?

.

dantodd
02-06-2010, 5:11 PM
CA has case law precedent that makes partially concealed=concealed; they can't have it both ways.

Once open carry is outlawed and the legislature wants to be good LCAV lapdogs the statute upon which the case rests can easily be changed.

Hopi
02-06-2010, 5:13 PM
A convenient but transparent ruse to cover the fact that in their intellectual dishonesty they didn't want to take the issue head-on....and want to pick and choose which enumerated rights exist in CA.

Haven't looked it up, but do the words "freedom of the press" (one example) appear in the CA Constitution?

.

Yes. (http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=5090386505+0+0+0&waisaction=retrieve)

wildhawker
02-06-2010, 5:14 PM
And that legislative policy preference is may-issue (and mostly no-issue). Clearly the legislature did not choose either of the policies that we are debating here.

Their policy preference is overwhelmingly CCW, with only a limited exception for sparsely populated counties; if you're in a populated area, they want it concealed. Recent changes to 12031 (via AB1363) confirm and reinforce this. The may-issue system is largely a byproduct of the 58 Sheriffs and not of CA statute. When we win Sykes/Palmer the may-issue system will be nearly shall-issue. Further cases will make carry permits even more accessible to citizens.

GuyW
02-06-2010, 5:16 PM
CA has case law precedent that makes partially concealed=concealed; they can't have it both ways.

I think the BAJI jury instruction says concealed = substantially covered....
.

nobody_special
02-06-2010, 5:17 PM
Their policy preference is overwhelmingly CCW

That's true by a literal reading of the PC, but I submit that their policy preference is overwhelmingly that peons like me should not carry firearms at all. :chris:

GuyW
02-06-2010, 5:17 PM
Yes. (http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=5090386505+0+0+0&waisaction=retrieve)

OK, bad example to make my point....
.

wildhawker
02-06-2010, 5:18 PM
Once open carry is outlawed and the legislature wants to be good LCAV lapdogs the statute upon which the case rests can easily be changed.

Loaded open carry is all but dead; all they can kill now is UOC and LOC in less-populated areas. This would likely stand post-Sykes; transport can probably constitutionally be made more difficult than it is today for all gun owners.

wildhawker
02-06-2010, 5:24 PM
That's true by a literal reading of the PC, but I submit that their policy preference is overwhelmingly that peons like me should not carry firearms at all. :chris:

The codified law pertaining to carry clearly favors CCW, and was made more clear by the recent legislation I mentioned in my previous post. They don't dare take the power of carry permit issuance away from CLEOs, and are fully aware that issuance limitations by subjective and discriminatory GC will die via Sykes/Palmer. Once all CLEOs are forced to accept self-defense as GC, maybe they ask DOJ to take the program over... but don't count on it, as some counties have a fair amount of revenue by permitting volume.

Hopi
02-06-2010, 5:30 PM
OK, bad example to make my point....
.

I'd hope that your point doesn't rely on that one example. ;)


I do find the implications of this text to be interesting:

Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

CalNRA
02-06-2010, 5:58 PM
transport can probably constitutionally be made more difficult than it is today for all gun owners.

like making long guns also in locked containers when transporting?


That would be a shame.

7x57
02-06-2010, 6:11 PM
Time will tell, but I really doubt it. How common are these signs in any of the dozen of so states that have gone Shall Issue in recent years?


We cannot use the precedent from the other states for post-McDonald shall-issue policies. In every case 'till now, the legislature has ultimately voted for shall-issue (or it was already present, as in Vermont, where it is backed up by a state supreme court that will strike down laws in a meaningful way). We have no precedent for what will happen when the Supreme Court does what amounts to imposing shall-issue on a state bureaucracy which is united with the state court system and perhaps even the local federal circuit in hating it.

Whatever happens, assuming McDonald and Palmer/Sykes type carry legislation goes as we hope, we simply have no precedent. As the Right People keep saying, the closest analog is when the feds imposed desegregation, and I think they're right. However good or bad the analog is, it is likely to be better than any of the forty+ states that went shall-issue voluntarily.

Perhaps someone can find specific cases among the forty that are closer, but I think in general I'm right (and as stated, Vermont is a separate case more analogous to a science-fiction United States that never lost judicial protection for the right to arms).

7x57

7x57
02-06-2010, 6:17 PM
McDonald and Incorporation aren't "Game Over" they are "Game On."


Truer words were never spoken....

I think jdberger's sig has something I said in the same vein, about people wanting to use precedent we haven't established yet. The opening moves of the game that Incorporation starts is precedent-building.

Whenever I get too unhappy about how badly we could bungle things, I remind myself that it's impossible to lose worse than not being able to play. We've been losing steadily my entire lifetime because in practical terms the RKBA was a privilege. And because we were always represented by the law firm of Larry, Moe, and Curly (or we weren't even represented :eek:). Now that we actually can play the game, and we have good lawyers, there is no way we cannot do better.

Said another way, there is no way we could do worse than our situation and performance for much of the last hundred years.

7x57

7x57
02-06-2010, 6:25 PM
Gotta love courts that, all the way to the top, interpret words as written as meaning what they want them to mean rather than what they actually say (the words in question literally say "United States Constitution", not "laws of the United States").


I suppose the following will lose all my Calguns friends. :chris:

When I first read the preamble to the state Constitution, I actually read it the way SCOCA reads it. For better or worse, it did not occur to me to read it as incorporating the federal rights.

I don't ask anyone to believe I was right, but the mere fact that I could do that I think makes it clear that there is enough ambiguity that there is absolutely no way to get this changed. The only possible avenue I can imagine would be to conclusively demonstrate that there was a widespread public understanding at the time of ratification that contradicts the current interpretation, but frankly I don't believe that would accomplish anything unless you also replace a majority of justices with people who think originalism is relevant to the law. My guess is the states judges overwhelmingly do not.

7x57

7x57
02-06-2010, 6:34 PM
So what is the direction you see working then? Just give up OC?

Figure out which of the achievable options maximizes the spread and reclamation of the right as belonging to everyone and secure that one first, so we know we have the best tools to fight the generations-long culture war. I'm sorry to say that I think it's pretty clear that CCW is more effective that way because we can bring in people who want to be safe but won't face the public disapproval that OC brings, and also because it will be more useful because it won't be a right you can only exercise on the sidewalk.

After securing that, if we have any options for OC we have to do them, even if it's just to keep hope alive for another day. I *want* OC. I just think we're going to have to make some hard choices. In war your own stuff gets blown up, too. In the Battle of Britain someone had to decide what to protect, and in many cases that amounted to losing civilians in order to preserve military assets. That would suck to have on your conscience, but it had to be done and anyone who can't do it should not be an officer. :chris:

I think we'll have to make similarly heart-rending choices, and are going to have to be men about it or lose a lot more than necessary. :(

7x57

7x57
02-06-2010, 6:44 PM
Then what is the solution? Throw the OCers under the bus? No one OCs in order to let those who would rather CCW do so? Seems like a very "small tent" solution.


Lets be brutally frank. We're going to throw the FA fanatics, and with them a really fundamental part of the meaning of the 2A, under the bus because we have to. Even though if the 2A was meant to protect anything, it's the standard-issue US army infantry rifle I need to report fully kitted for militia duty. We're still going to do it, and we all know that. Why is that any different? It isn't, except the necessity is accepted more widely.

Sucks to be us, doesn't it? It does, but not as much as fighting knowing that it's all just a delaying action to push off the inevitable final defeat a bit longer.

I'll take war over certain defeat. I *really* hope my unit isn't ordered to charge into interlaced machine-gun fire in order to cover another's retreat, but intellectually I understand that it happens. :chris:

I accept it because I want my boys to be able to exercise more of their birthright than I ever will.

Man, I'm in a grim mood tonight. :(

7x57

kcbrown
02-06-2010, 6:54 PM
I suppose the following will lose all my Calguns friends. :chris:

When I first read the preamble to the state Constitution, I actually read it the way SCOCA reads it. For better or worse, it did not occur to me to read it as incorporating the federal rights.


The relevant section isn't in the preamble. It's in Article 3, section 1:


SEC. 1. The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

It directly says that the U.S. Constitution is the "supreme law of the land". I fail to see how anyone can reasonably read it in such a way that it wouldn't include everything in the Bill of Rights. It is particularly difficult to see how the 2nd Amendment wouldn't apply in the face of the above, since it makes no mention of Congress or any other specific government body when it discusses its prohibition on infringements on the right to keep and bear arms.

wildhawker
02-06-2010, 7:06 PM
The relevant section isn't in the preamble. It's in Article 3, section 1:

It directly says that the U.S. Constitution is the "supreme law of the land". I fail to see how anyone can reasonably read it in such a way that it wouldn't include everything in the Bill of Rights. It is particularly difficult to see how the 2nd Amendment wouldn't apply in the face of the above, since it makes no mention of Congress or any other specific government body when it discusses its prohibition on infringements on the right to keep and bear arms.

You expect the CA Supreme Court to hold US2A as incorporated against this state when even the US Supreme Court has as yet failed to do so?

wildhawker
02-06-2010, 7:09 PM
I think the BAJI jury instruction says concealed = substantially covered....
.

A brandishing charge from an incidentally-exposed but otherwise concealed firearm by a CCW holder is not going to stand post-Sykes/Palmer.

dantodd
02-06-2010, 7:11 PM
Lets be brutally frank. We're going to throw the FA fanatics, and with them a really fundamental part of the meaning of the 2A, under the bus because we have to. Even though if the 2A was meant to protect anything, it's the standard-issue US army infantry rifle I need to report fully kitted for militia duty. We're still going to do it, and we all know that. Why is that any different? It isn't, except the necessity is accepted more widely.

Sucks to be us, doesn't it? It does, but not as much as fighting knowing that it's all just a delaying action to push off the inevitable final defeat a bit longer.

I'll take war over certain defeat. I *really* hope my unit isn't ordered to charge into interlaced machine-gun fire in order to cover another's retreat, but intellectually I understand that it happens. :chris:

I accept it because I want my boys to be able to exercise more of their birthright than I ever will.

Man, I'm in a grim mood tonight. :(

7x57

I have no big issue with that actually. As long as we are, as you say, "brutally honest" and admit that we are going to throw the OCers under the bus and don't pretend otherwise.

So, we just accept that there is not going to be OC in CA and that the quicker they outlaw it the less damage will be done to CCW rights by "scaring the fence sitters."

hoffmang
02-06-2010, 7:18 PM
Would a permit be required to give such magazines away?
In those counties, yes.

Sykes more than Palmer, I would expect, since Sykes is a California case and, as you illustrate above, the California courts will apparently read the law as written however they please.

You're confused. Sykes and Palmer are in Federal courts - they are not in state courts. The California state court system is not our friend. Federal courts are just a bit more intellectually honest. If people wish to debate strategy, I suggest they read up on our dual judiciaries for a starter. Asking me to educate you is a waste of your and my time. Google is your friend and failing that, go ask a librarian.

Except adult magazines are not necessarily granted full 1st amendment protections, they are on the fringe of the obscenity exception; see Roth v. United States and Miller v. California. Whereas the right to carry is a core element of the right to keep and bear arms.
Speech is either speech or obscenity. You're talking about whether its obscene or not. Playboy is speech and isn't obscene in any jurisdiction but yet there are all sorts of time place and manner restrictions on it all over the US. I'm sorry you don't like the jurisprudential truth, but there it is.

So, you are saying that you don't believe we have recourse through the courts and clearly we have no recourse in the legislature.
State courts are antagonistic. Expect them to attempt to undermine us.

Federal courts will protect a core right to bear arms. Their going to give legislatures a choice but will require carry of some kind. It's not clear to me that here in California Federal courts we can get any kind of unlicensed carry. To hop up and down and say that isn't right - well, Raich and Kelo were both wrongly decided but they were not hard to predict at all.

As such my point is this. We're batting .250 and heading lower. xOC is cutting into the practical effect of the right to carry. Now that it's not a prognostication on my part, but an observable set of evidence, I want people to think about what xOC is doing for the gun movement in California.

-Gene

Lex Arma
02-06-2010, 7:29 PM
IMHO LOC can be banned if CCW is shall issue. Just as LOC has to be allowed if CCW is anything less than shall issue. Incorporation of the Second Amendment is what should make this happen.

The right is to "keep and bear." The argument (which I wish would not carry the day, but I don't bet on wishes) will be: "as long as you CAN bear, the state can regulate how.

Gray Peterson
02-06-2010, 7:34 PM
As such my point is this. We're batting .250 and heading lower. xOC is cutting into the practical effect of the right to carry. Now that it's not a prognostication on my part, but an observable set of evidence, I want people to think about what xOC is doing for the gun movement in California.

-Gene

Not to mention effecting gun owners in other states, who where OCing peacefully even in urban areas of Seattle and Portland, falling victim to a "decided nationwide corporate policy" due to the reactions of pure hatred by anti-gunners in California. Even Starbucks is being threatened, a Seattle local company, over xOC in California.

wildhawker
02-06-2010, 7:35 PM
I have no big issue with that actually. As long as we are, as you say, "brutally honest" and admit that we are going to throw the OCers under the bus and don't pretend otherwise.

So, we just accept that there is not going to be OC in CA and that the quicker they outlaw it the less damage will be done to CCW rights by "scaring the fence sitters."

Dan, I'm sure you realize that the CA Leg all but killed LOC via 12050 permit in AB1363.

wildhawker
02-06-2010, 7:35 PM
Not to mention effecting gun owners in other states, who where OCing peacefully even in urban areas of Seattle and Portland, falling victim to a "decided nationwide corporate policy" due to the reactions of pure hatred by anti-gunners in California. Even Starbucks is being threatened, a Seattle local company, over xOC in California.

WHAT?!? I thought we operated in a vacuum!

dantodd
02-06-2010, 8:01 PM
Dan, I'm sure you realize that the CA Leg all but killed LOC via 12050 permit in AB1363.

Yes. But that is not really adequate, unless they outlaw UOC private businesses will continue to turn against gun owners and limit the ability of CCWers to exercise their right to self defense.

dantodd
02-06-2010, 8:05 PM
As such my point is this. We're batting .250 and heading lower. xOC is cutting into the practical effect of the right to carry. Now that it's not a prognostication on my part, but an observable set of evidence, I want people to think about what xOC is doing for the gun movement in California.


Since the UOC crowd is carrying on is it not best if the Legislature were to pass a law forbidding UOC much as LOC is outlawed? This would minimize exposure to firearms and limit the number of "no guns" signs CCWers and LUCCers would face.

dantodd
02-06-2010, 8:11 PM
IMHO LOC can be banned if CCW is shall issue. Just as LOC has to be allowed if CCW is anything less than shall issue. Incorporation of the Second Amendment is what should make this happen.

The right is to "keep and bear." The argument (which I wish would not carry the day, but I don't bet on wishes) will be: "as long as you CAN bear, the state can regulate how.

That is my understanding as well. I also don't think it is very likely that the legislature will voluntarily give back LOC.

Therefore if the goal is to secure BOTH OC and CCW the only way to move forward would be to press for LOC to be the minimum constitutional requirement. Then go after shall-issue politically because by letting people carry concealed it will not look like the wild west on the streets of San Francisco. This, imo, is much more likely to occur than trying to recover LOC politically.

But. The problem with that, strategically, is that some businesses will put up "no guns" signs and it is clear from your postings and Gene's that there is no interest in fighting a business owner who discriminates against people carrying guns.

So, this makes OC undesirable in any form if we want to maximize the effectiveness of CCW.

kcbrown
02-06-2010, 8:12 PM
You expect the CA Supreme Court to hold US2A as incorporated against this state when even the US Supreme Court has as yet failed to do so?

No.

I don't expect anything of the kind. I expect the CA Supreme Court, and any other CA (or federal, for that matter) governmental body, to be supremely corrupt.

I expect them to rule against RKBA even in the face of overwhelming judicial guidance on the part of the circuit courts and the Supreme Court as long as doing so generates no significant negative consequences for them. I expect the CA legislature to pass all manner of laws infringing on RKBA even after incorporation because there are no negative consequences for them to do so.

I expect the U.S. Supreme Court to either rule against RKBA in the end or to rule for incorporation via due process. I expect to not get P or I.

I expect "shall-issue" CCW will be, in practice, anything but "shall-issue" for a very long time. I expect we will have to fight bitterly for every inch of room on RKBA.

I expect we will lose the Republic as a result of the corruption of the Supreme Court with respect to the Commerce Clause if nothing else.


I may come across as something of an idealist, but I assure you, I am an immensely cynical person. You do not want to know what I expect.

hoffmang
02-06-2010, 8:17 PM
But. The problem with that, strategically, is that some businesses will put up "no guns" signs and it is clear from your postings and Gene's that there is no interest in fighting a business owner who discriminates against people carrying guns.

It's not "no interest," it's "no chance." Gunowners aren't a protected class just like speakers aren't a protected class under the Federal constitution.

-Gene

kcbrown
02-06-2010, 8:37 PM
It's not "no interest," it's "no chance." Gunowners aren't a protected class just like speakers aren't a protected class under the Federal constitution.


Protected classes haven't always been protected classes.

What does it take to make a given class "protected"?

Not expecting anything at all from that, but it might be something to consider for the very long term...

wildhawker
02-06-2010, 8:37 PM
Interestingly, I am not nearly so pessimistic and in many areas am very optimistic about our future. Maybe if you were able to see past those coloring emotions you'd have a better perspective by which to judge this issue.

No.

I don't expect anything of the kind. I expect the CA Supreme Court, and any other CA (or federal, for that matter) governmental body, to be supremely corrupt.

I expect them to rule against RKBA even in the face of overwhelming judicial guidance on the part of the circuit courts and the Supreme Court as long as doing so generates no significant negative consequences for them. I expect the CA legislature to pass all manner of laws infringing on RKBA even after incorporation because there are no negative consequences for them to do so.

I expect the U.S. Supreme Court to either rule against RKBA in the end or to rule for incorporation via due process. I expect to not get P or I.

I expect "shall-issue" CCW will be, in practice, anything but "shall-issue" for a very long time. I expect we will have to fight bitterly for every inch of room on RKBA.

I expect we will lose the Republic as a result of the corruption of the Supreme Court with respect to the Commerce Clause if nothing else.


I may come across as something of an idealist, but I assure you, I am an immensely cynical person. You do not want to know what I expect.

7x57
02-06-2010, 8:41 PM
I have no big issue with that actually. As long as we are, as you say, "brutally honest" and admit that we are going to throw the OCers under the bus and don't pretend otherwise.


I wouldn't use the word myself, it was yours. How about triage? Someone gets trauma care first, and it sucks to have to make that choice but if you don't even more die.


So, we just accept that there is not going to be OC in CA and that the quicker they outlaw it the less damage will be done to CCW rights by "scaring the fence sitters."

I'm not going to cheer anytime we lose anything, nor am I bloodyminded enough to deliberately sacrifice a piece. Again, I think triage fits, and we have to know that at some point we'll lose someone we could have saved if they'd been first. But someone has to be second, and what matters is what we end up saving in the long run. That means making sure we can expand the franchise to as many people who will come to value it and pass it on as possible.

Recall that the reason for standing down wasn't just other things--it was to try and ultimately save both CCW and LOC. I *wanted* that. So instead of throwing OC under the bus, the hope was to wait until we could win. It was OC that killed OC, not us sacrificing a piece to save the queen.

7x57

wildhawker
02-06-2010, 8:42 PM
Here's a start:

Protected class
From Wikipedia, the free encyclopedia
Protected class is a term used in United States anti-discrimination law. The term describes groups of people who are protected from discrimination and harassment. The following characteristics are considered "Protected Classes" and persons cannot be discriminated against based on these characteristics:
Race - Federal: Civil Rights Act of 1964 and the Civil Rights Act of 1866
Ethnicity
Religion or sect - Federal: Civil Rights Act of 1964
Color - Federal: Civil Rights Act of 1964
National origin - Federal: Civil Rights Act of 1964
Age (40 and over) - Federal: Age Discrimination in Employment Act of 1967
Sex - Federal: Equal Pay Act of 1963 & Civil Rights Act of 1964
Familial status (Housing, cannot discriminate for having children, exception for senior housing)
Sexual orientation (in some jurisdictions and not in others)
Gender identity (in some jurisdictions and not in others)
Disability status - Federal: Vocational Rehabilitation and Other Rehabilitation Services of 1973 & Americans with Disabilities Act of 1990
Veteran status - Federal Vietnam Era Veterans Readjustment Assistance Act of 1974
Genetic Information - Federal: Genetic Information Nondiscrimination Act

See also:

Equal Employment Opportunity Commission
Civil Rights Act of 1968 -- In particular, Title VIII of the Act, also known as the Fair Housing Act
Affirmative action
Protected group

14th Amendment of the United States Constitution

Protected classes haven't always been protected classes.

What does it take to make a given class "protected"?

Not expecting anything at all from that, but it might be something to consider for the very long term...

kcbrown
02-06-2010, 8:48 PM
IMHO LOC can be banned if CCW is shall issue. Just as LOC has to be allowed if CCW is anything less than shall issue. Incorporation of the Second Amendment is what should make this happen.

The right is to "keep and bear." The argument (which I wish would not carry the day, but I don't bet on wishes) will be: "as long as you CAN bear, the state can regulate how.

I think it'll be very interesting to see how this ends up playing out.

The CA legislature and judiciary are both malevolent with respect to RKBA. With that in mind, I fully expect the legislature to enact whichever combination of measures will yield the most restricted RKBA they can get.

So: what's the most restricted combination of such measures? Seems to me that it would be shall-issue permit-based LOC: lots of complaints from the population, yielding lots of law enforcement harassment of OCers, combined with targeted legislation such as severe restrictions on businesses that do not forbid firearms on their premises, results in a right that is all but useless -- exactly what a malevolent legislature would like.

CCW would, under the above, remain as it is: discretionary. It will pass "equal protection" muster just like it does right now. The "important" people will get it, the rest of us won't. The fact that LOC is available at all will eliminate the retort that self-defense isn't available, since under the law it will be -- but in practice it won't be.


Please poke holes in the above.

hoffmang
02-06-2010, 8:57 PM
Permit based LOC will run into the political power of local sheriffs as they will want the ability to retain the ability to issue concealed carry licenses - even if they are shall issue.

I expect there to be two classes of shall issue carry licenses in California. The one that we all can get in 30 days or so and the one that you get in 24 hours or less because you donated to the campaign. The permit will be no different - just the processing. Proving that favoritism is hard too but I mostly just worry about making the usual process reasonable for everyone.

-Gene

nobody_special
02-06-2010, 9:25 PM
IMHO LOC can be banned if CCW is shall issue. Just as LOC has to be allowed if CCW is anything less than shall issue. Incorporation of the Second Amendment is what should make this happen.

The right is to "keep and bear." The argument (which I wish would not carry the day, but I don't bet on wishes) will be: "as long as you CAN bear, the state can regulate how.

It sets a bad -- no, terrible -- precedent if we abdicate a core element of an enumerated right to a licensing requirement without protest. I'll quote from my post here (http://www.calguns.net/calgunforum/showthread.php?p=3658790#post3658790):



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.


You never know what SCOTUS will give you if you don't ask. (Obviously there's every reason to expect that the lower courts, especially those in California, won't give an inch.) But looking at Heller (quoting another source) it seems like an argument that has yet to be made.


“As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873)
[...]
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).
[...]


I submit that the precedent which allows prohibition of open carry when concealed carry permits are shall-issue may be vulnerable.

kcbrown
02-06-2010, 9:27 PM
Permit based LOC will run into the political power of local sheriffs as they will want the ability to retain the ability to issue concealed carry licenses - even if they are shall issue.


But wouldn't they rather retain discretion for CCW issuance? Shall-issue removes most of their discretion, does it not?

As long as some minimum Constitutional standard is maintained (i.e., something is shall-issue, whether it's LOC or CCW), it doesn't matter if anything above and beyond that is discretionary, right?

I fully expect that all permit processing will remain with the local sheriffs, whether or not any given permit is "shall-issue". I expect "shall-issue" will be anything but for quite a long time even after incorporation, but perhaps I'm being too pessimistic.



I expect there to be two classes of shall issue carry licenses in California. The one that we all can get in 30 days or so and the one that you get in 24 hours or less because you donated to the campaign. The permit will be no different - just the processing. Proving that favoritism is hard too but I mostly just worry about making the usual process reasonable for everyone.
I would think there are all sorts of games they could play with that, too, right? Such as: what if the permit "for the rest of us" expires in a relatively short period of time, such that the time it takes to get the permit is a large fraction of the time the permit is good for?

Does shall-issue carry permit expiration even pass Constitutional muster?

nobody_special
02-06-2010, 9:30 PM
Speech is either speech or obscenity. You're talking about whether its obscene or not. Playboy is speech and isn't obscene in any jurisdiction but yet there are all sorts of time place and manner restrictions on it all over the US. I'm sorry you don't like the jurisprudential truth, but there it is.
-Gene

The obscenity standard is based on the "contemporary community standards" and so it varies by community. There is no single standard of what constitutes obscenity, so I think you're almost certainly wrong here. There are some pretty conservative communities (thinking Amish etc.).

But consider also what I posted above, quoting from our previous discussion. If the courts in this country are intellectually dishonest to the point where the simplest possible individual exercise of a core enumerated right must be licensed, then I submit that we have no rights, and the third box has failed to protect liberty.

nobody_special
02-06-2010, 9:36 PM
The codified law pertaining to carry clearly favors CCW, and was made more clear by the recent legislation I mentioned in my previous post. They don't dare take the power of carry permit issuance away from CLEOs, and are fully aware that issuance limitations by subjective and discriminatory GC will die via Sykes/Palmer. Once all CLEOs are forced to accept self-defense as GC, maybe they ask DOJ to take the program over... but don't count on it, as some counties have a fair amount of revenue by permitting volume.

That revenue will dry up if the licensing fees become reasonable (which they must).

Do you really believe that the legislature will just throw up their hands and say "oh well, we lost, nothing to do now" if Sykes forces shall-issue in CA? Do you think the big (and very anti) CLEO's are going to be content with having discretion removed?

Gray Peterson
02-06-2010, 9:43 PM
That revenue will dry up if the licensing fees become reasonable (which they must).

Do you really believe that the legislature will just throw up their hands and say "oh well, we lost, nothing to do now" if Sykes forces shall-issue in CA? Do you think the big (and very anti) CLEO's are going to be content with having discretion removed?

Don't know about the Legislature, but you're of the mistaken belief that sheriffs as a general rule want to be put into jail for contempt of court. Even Governor George Wallace, after being confronted by US marshals and the US military, finally stood aside when he was told that refusing to comply would mean the loss of his freedom, and this was a guy that supposedly believed in his segregation (he didn't, in reality, because it was the only way that he would get elected in early 1960's Alabama). These sheriffs are no different.

From the wiki entry on contempt of court: (http://en.wikipedia.org/wiki/Contempt_of_court#United_States)

The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required.

The Legislature is limited by one factor you are not thinking of.

9th Circuit Court of Appeals rules California Ultra-Violent Video Game Law Unconstitutional (http://en.wikinews.org/wiki/California%27s_violent_video_game_ban_law_ruled_un constitutional_by_US_Court_of_Appeals)

By December 2005, both bills had been struck down as unconstitutional, by Ronald M. Whyte, District Judge, Presiding in the United States District Court for the Northern District of California in San Jose, thereby preventing either from going into effect on January 1, 2006.

We would have the ability to go to a federal court and ask for a preliminary injunction against any gun control law which the Legislature passes, thereby keeping it from going into effect until a federal judge can rule on the law's constitutionality. If it's an attempt to raise the fees into the stratosphere, or to create so many off limits places as to make the license completely ineffective, we can put a stop to it before it even takes effect. We don't have that capability now pre-McDonald.

Also, never ever underestimate having your lead counsel as the guy who argued two of the most important civil rights cases in over one hundred years (Heller and now McDonald), and is perfectly willing to embarrass you by appealing a dumb ruling you wrote. This point was accentuated by the recent Palmer oral arguments in DC, where the federal district judge asked point blank at the end, if he was the lawyer who argued the Heller case. This should denote an understanding that their opinions will be watched and reviewed by the Court of Appeals or the Supreme Court. Federal District judges don't generally like being overruled and ridiculed by their higher ups.

nobody_special
02-06-2010, 9:45 PM
Don't know about the Legislature, but you're of the mistaken belief that sheriffs as a general rule want to be put into jail for contempt of court. Even Governor George Wallace, after being confronted by US marshals and the US military, finally stood aside when he was told that refusing to comply would mean the loss of his freedom, and this was a guy that supposedly believed in his segregation (he didn't, in reality, because it was the only way that he would get elected in early 1960's Alabama). These sheriffs are no different.

I think you've mistaken my point here. I'm not suggesting that the CLEO's would balk in the face of a court order, but rather that they have considerable political clout in Sacramento.

hoffmang
02-06-2010, 11:03 PM
I think you've mistaken my point here. I'm not suggesting that the CLEO's would balk in the face of a court order, but rather that they have considerable political clout in Sacramento.

The Sheriff's political clout means that there will be concealed carry licenses. Federal courts will mean that there will be shall issue as the legislature can't override such a Federal court ruling. Even in a post Sykes world, sheriffs want to retain the ability to issue carry licenses - even if they have to give them to everyone.

Your right to sell magazines can be permitted. Your right to assemble on the National Mall can be permitted. You need to get past your knee jerk reaction. This argument about permitting is about prior restraint under the speech. There are lots of places where permits are required. Try posting a sign anywhere in Redwood City without a permit. You have a right to an attorney but all attorneys require a permit from the state to practice. You have the right to practice a religion, but a local government can require you meet most zoning rules and get a building permit for your church. A judge can issue a permit to a police officer to look through your underwear drawer. Rights, can, are, and always have been subject to permits. A lack of knowledge of the law does not mean that your knowledge of the law is correct.

What rights do, however, is make sure that the permit doesn't stop the right from being used. And when those permits are not fairly given, then courts enforce fairness.

-Gene

corrupt
02-06-2010, 11:31 PM
Damn, you guys are too pointed-headed for me!

kcbrown
02-06-2010, 11:37 PM
Federal District judges don't generally like being overruled and ridiculed by their higher ups.

What are the consequences to those judges if they don't have any aspirations to serve on a higher court?

Embarrassment only gets you so far in the general case. If the District judge being overruled and ridiculed simply doesn't care, then what leverage do the courts above him have over him?

The 9th Circuit court has a reputation (perhaps undeserved) of being the most overruled Circuit court in the land. If that hasn't caused them to change their general approach to things, then why would a District court that earned the same status change theirs?

Gray Peterson
02-07-2010, 12:19 AM
The 9th Circuit court has a reputation (perhaps undeserved) of being the most overruled Circuit court in the land. If that hasn't caused them to change their general approach to things, then why would a District court that earned the same status change theirs?

It is, for the most part, pretty much undeserved.

nobody_special
02-07-2010, 1:01 AM
Your right to sell magazines can be permitted. Your right to assemble on the National Mall can be permitted. You need to get past your knee jerk reaction. This argument about permitting is about prior restraint under the speech. There are lots of places where permits are required. Try posting a sign anywhere in Redwood City without a permit. You have a right to an attorney but all attorneys require a permit from the state to practice. You have the right to practice a religion, but a local government can require you meet most zoning rules and get a building permit for your church. A judge can issue a permit to a police officer to look through your underwear drawer. Rights, can, are, and always have been subject to permits. A lack of knowledge of the law does not mean that your knowledge of the law is correct.


It's not a knee-jerk reaction, Gene. I will give up this argument as soon as someone gives an example of a single enumerated right (aside from the right to bear arms) which cannot be exercised in any way without a permit in the state of California.

And no, my right to assemble on the national mall cannot be absolutely limited by a permit requirement. See Forsyth County v. Nationalist Movement -- the permits requirement is a balancing act between the right to assemble and the government interest of public order. It passes strict scrutiny if you're going to hold a parade or demonstration; however, a basic exercise of my right of assembly and association such as meeting a few friends can not be subject to a permit.

Those protected adult magazines are still subject to regulations that pass strict scrutiny, i.e. "do it for the children" generally works. But again, this is a fringe aspect of first amendment rights, not a core element. The first amendment does not say "Congress shall pass no law respecting pornography" but the second does say something about a right to bear arms that shall not be infringed.

It's one thing to say "permits are required for distributing pornography which is a fringe element of the first amendment, therefore it's reasonable to require permits to carry concealed, which is a fringe element of the second amendment." It's quite another to say "permits are required for a particular exercise of the first amendment, therefore permits may be required for any exercise of a core 2nd amendment right."

Zoning rules for churches, business licenses or permits for attorneys, etc. are completely irrelevant, and I'm surprised you'd raise them in this context. Freedom of religion does not imply that you have the right to build a church wherever you choose. The right to counsel does not imply that anyone can practice law regardless of qualification. These arguments are specious.


What rights do, however, is make sure that the permit doesn't stop the right from being used. And when those permits are not fairly given, then courts enforce fairness.


Look from another perspective: let's assume that the 2nd amendment is incorporated and the core element of self defense has strict scrutiny protection; this much seems possible. Does a permit requirement for carry pass strict scrutiny, when that requirement makes the right impossible to otherwise exercise? Is that really a narrowly tailored, minimally restrictive way of serving a compelling government interest? (And note that the compelling interest cannot violate the right...)

I think that would be difficult to argue.




Would a permit be required to give such magazines away?

In those counties, yes.

Have any of these ordinances been subject to a challenge in a federal court, where the challenge in question was for non-commercial distribution between consenting adults?

Mulay El Raisuli
02-07-2010, 5:52 AM
It's not a knee-jerk reaction, Gene. I will give up this argument as soon as someone gives an example of a single enumerated right (aside from the right to bear arms) which cannot be exercised in any way without a permit in the state of California.

And no, my right to assemble on the national mall cannot be absolutely limited by a permit requirement. See Forsyth County v. Nationalist Movement -- the permits requirement is a balancing act between the right to assemble and the government interest of public order. It passes strict scrutiny if you're going to hold a parade or demonstration; however, a basic exercise of my right of assembly and association such as meeting a few friends can not be subject to a permit.

Those protected adult magazines are still subject to regulations that pass strict scrutiny, i.e. "do it for the children" generally works. But again, this is a fringe aspect of first amendment rights, not a core element. The first amendment does not say "Congress shall pass no law respecting pornography" but the second does say something about a right to bear arms that shall not be infringed.

It's one thing to say "permits are required for distributing pornography which is a fringe element of the first amendment, therefore it's reasonable to require permits to carry concealed, which is a fringe element of the second amendment." It's quite another to say "permits are required for a particular exercise of the first amendment, therefore permits may be required for any exercise of a core 2nd amendment right."


ALL of this is VERY good.


Zoning rules for churches, business licenses or permits for attorneys, etc. are completely irrelevant, and I'm surprised you'd raise them in this context. Freedom of religion does not imply that you have the right to build a church wherever you choose. The right to counsel does not imply that anyone can practice law regardless of qualification. These arguments are specious.


All I can add to this is that Gene's reference to "A judge can issue a permit to a police officer to look through your underwear drawer. Rights, can, are, and always have been subject to permits." is especially specious because it turns the Constitution on its head. I don't need a "Mother May I?" slip to be secure in my home & so keep the cops out. The cops need one to come in.


Look from another perspective: let's assume that the 2nd amendment is incorporated and the core element of self defense has strict scrutiny protection; this much seems possible. Does a permit requirement for carry pass strict scrutiny, when that requirement makes the right impossible to otherwise exercise? Is that really a narrowly tailored, minimally restrictive way of serving a compelling government interest? (And note that the compelling interest cannot violate the right...)

I think that would be difficult to argue.




My fear is that the successful argument might just be made. So, think about this;
We're about to get the greatest advance in Civil Rights this country has seen in decades. But, thanks to Sykes/Palmer, that advance is going to add the tiny little requirement that a "Mother May I?" slip can be Constitutionally required for a core, enumerated Right. So, it might come to pass some day that your local preacher might not only have to get a building permit, but he could be required to get a preaching permit as well. Ridiculous? Think no one thought of that after Jonestown? Think they'll never think of it again? The comment was made that we should think long-term. Maybe we should think very long-term & consider what Constitutionalizing a "Mother May I?" slip for this Right will do to all our other Rights?


I think it'll be very interesting to see how this ends up playing out.

The CA legislature and judiciary are both malevolent with respect to RKBA. With that in mind, I fully expect the legislature to enact whichever combination of measures will yield the most restricted RKBA they can get.

So: what's the most restricted combination of such measures? Seems to me that it would be shall-issue permit-based LOC: lots of complaints from the population, yielding lots of law enforcement harassment of OCers, combined with targeted legislation such as severe restrictions on businesses that do not forbid firearms on their premises, results in a right that is all but useless -- exactly what a malevolent legislature would like.

CCW would, under the above, remain as it is: discretionary. It will pass "equal protection" muster just like it does right now. The "important" people will get it, the rest of us won't. The fact that LOC is available at all will eliminate the retort that self-defense isn't available, since under the law it will be -- but in practice it won't be.


Please poke holes in the above.


I'm not seeing anyone poke holes in that yet. I also see it as yet another reason to fight for a method of "and bear" that doesn't require a permit.


Half of all peace officers killed in the line of duty are killed with their own weapon. The thug(s) take it away from them. You are not safe while LOC.


That over-simplifies things. You also have to look into why cops have their guns taken away from them & what they're doing at the time this happens.


How about we do this:
1) Remove the legislature's ability to infringe upon our rights (McDonald)
2) Secure the rights we can get today including Shall-Issue CCW.
3) Fight for permit-less LOC*.

Can we all grasp that order of operations is critical to overall success?



Actually, no. By "Fighting" for LOC you mean in the PRK legislature. Where, for the reasons I've already mentioned, we will lose. That means that LOC is being thrown under the bus. That would be fine (7X57's wise words about some squads being sent forth while others run being kept in mind) if it resulted in greater freedom. But that isn't the case, for the reasons mentioned above.

One more thing. I've been in libraries across the land. Not a single one has a policy of not talking. But each & every one of them has a policy against talking loudly. They at least recognize the difference between the two.


The Raisuli

Lex Arma
02-07-2010, 6:48 AM
Isn't the above true even if you substitute "open carry" for "CCW" in the above?

In what way is the means of carry relevant?

This wouldn't surprise me.

Question: would a law making it a felony to expose your concealed gun (even if it's by "printing") be Constitutional? What about making it a misdemeanor that causes you to lose your CCW privileges when LOC is outlawed?

You are correct. Constitutionally, the issue isn't LOC v CCW, as long as one form is permitted by the law of the state, county, city, etc... The political issue should be, what is the better policy to insure maximum exercise of the right for the maximum number of people. Again, I wish (but if wishes were wings,...) that the Second Amendment would be given the same dignity as the First, but that is not a political reality at this time. That is why CCW is the "rational choice" here for the policy maker. It puts the maximum number of weapons into the hands of known virtuous citizens, without offending (the often times irrational) sensibilities of people who hate guns and/or don't care about guns.

Police officers are allowed to carry off duty; most do, many are required to carry by their department policy. They don't open carry. Why?

Partial answer: Because police departments are an urban phenomenon. A man walking around town in plain clothes with a gun on his hip, is going to draw police attention. Thousands of people walking around town with guns is going to have a lot of uniformed police officers responding to a lot of useless calls.

Another partial answer: LOC is a dumb idea in an urban environment for tactical reasons. Who is the first guy the bank robbers are going to shoot when they rob a bank. Answer: anybody standing there who is an obvious threat. (e.g., security guard with a side arm) Your chances of being effective, saving lives and getting out of an active shooter situation alive go up if your weapons is concealed at the beginning of the encounter.

Now switch to rural Montana. I am privy to scenarios in which ordinary citizens walk into banks and stores with their LOC weapons. The only response they get from a security guard or sheriff: Hey Albert, is that a new gun?

Put yourself in the shopkeepers place. If you own a feedstore in Bozeman, you don't care if your customer is LOC. But if you own Macy's in downtown Manhattan, you probably would prefer that the only hardware on display in your store consists of jewelry, watches and toasters. The urban environment probably compels -- exclusively -- CCW as a rational alternative to LOC.

It is a great fantasy to have Angelina Jolie on your arm, as you walk with her down 5th Avenue in New York. You both walk into Macy's while she picks out a PPK that goes with her handbag and shoes. And because there was no waiting period, she was able to use the .380 to save both your lives that night when you were attacked by armed thugs after a night at the theater. (sigh) But alternate universe discussions are probably off topic.

As for a law criminalizing the negligent display of a CCW permitted weapon; proportionality probably compels that it be treated like an infraction (fine) if it happens, like making an illegal left hand turn. And yes, repeat offenders should lose their permit for a while. If you can't keep your CCW weapon hidden on your person, then maybe you should carry a purse.

Window_Seat
02-07-2010, 8:25 AM
...Even in a post Sykes world, sheriffs want to retain the ability to issue carry licenses - even if they have to give them to everyone. ...

This is fine with me (I could get flamed for saying that), but it could backfire on them...

Remember when cell phones started becoming a big thing, the issue with 911 calls placed from cell phones were being directly routed to the CHP. There was a reason for that, and it was because the CHP wanted those calls routed to the CHP (I'm sure for some valid reason). Now you get a recorded message saying "Please wait for the next operator", and a message in Spanish, & blah blah, and years later, the CHP comes out and says "oh...".

If the Sheriff wants all the applications, that's fine with me, but if they are given a time limit to issue, they could run into a problem, no? Maybe they should take some lessons from the CHP.

Erik; watching.

hoffmang
02-07-2010, 8:29 AM
It's not a knee-jerk reaction, Gene. I will give up this argument as soon as someone gives an example of a single enumerated right (aside from the right to bear arms) which cannot be exercised in any way without a permit in the state of California.

And no, my right to assemble on the national mall cannot be absolutely limited by a permit requirement. See Forsyth County v. Nationalist Movement -- the permits requirement is a balancing act between the right to assemble and the government interest of public order. It passes strict scrutiny if you're going to hold a parade or demonstration; however, a basic exercise of my right of assembly and association such as meeting a few friends can not be subject to a permit.

Those protected adult magazines are still subject to regulations that pass strict scrutiny, i.e. "do it for the children" generally works. But again, this is a fringe aspect of first amendment rights, not a core element. The first amendment does not say "Congress shall pass no law respecting pornography" but the second does say something about a right to bear arms that shall not be infringed.

You make my point for me. In California carry permits will be done for the children to balance the people's right not to get shot by us fringe people. A court in DC just ruled that the allowed number of assemblers at the Jefferson Memorial without a permit is 0 and permits to assemble are not available for the Jefferson Memorial. This approaches the "permits absolutely ban" the right to assembly which shouldn't be Constitutional but it's going to be a fight.

Post a sign in Redwood City without a permit (Chapter 3 (3.61) of the Redwood City Municipal Code (http://www.ci.redwood-city.ca.us/government/codesandordinances.html).) Show me where in the Constitution it says commercial speech isn't included in "the freedom of speech."

I'm not telling you what I want. I'm trying to explain to you what we're going to be able to get over the short term. We might get lucky and get something more broad, but I seriously doubt that based simply on the State Court cases interpreting their 2A analogues or the federal 2A.

-Gene

hoffmang
02-07-2010, 8:37 AM
Also, you wish to try to argue my underlying assumption that we can't get unlicensed open carry as a right. Granted that TX's constitution allows the legislature more latitude on carry than the 2A does, but then you need to explain to me why the TX legislature doesn't change the law. If the TX legislature can't be persuaded that unlicensed open carry is a fine idea, why do you think we can convince the Federal judiciary of that?

Now, please respond to my point about stores banning carry. What value is a right that can't be effectively used at malls/stores/restaurants? Do you really want to have to constantly leave your gun in the car?

-Gene

7x57
02-07-2010, 8:38 AM
That means that LOC is being thrown under the bus. That would be fine (7X57's wise words about some squads being sent forth while others run being kept in mind) if it resulted in greater freedom. But that isn't the case, for the reasons mentioned above.


I ran with another's "thrown under the bus" phrase. My own feeling is that LOC was thrown under the bus by OCers insisting on doing it at the wrong time. We simply have to do triage and save what is still on the table.

And I do think if we have to choose CCW results in greater freedom than LOC, because it lets us extend the franchise without forcing newcomers to the social front line instantly.

I am extremely sorry that we have to do the triage, but I repeat it was OCers that decided to stand defiantly in front of the bus at the wrong time.

7x57

MudCamper
02-07-2010, 8:55 AM
... That is why CCW is the "rational choice" here for the policy maker. It puts the maximum number of weapons into the hands of known virtuous citizens, without offending (the often times irrational) sensibilities of people who hate guns and/or don't care about guns.

...Put yourself in the shopkeepers place. If you own a feedstore in Bozeman, you don't care if your customer is LOC. But if you own Macy's in downtown Manhattan, you probably would prefer that the only hardware on display in your store consists of jewelry, watches and toasters. The urban environment probably compels -- exclusively -- CCW as a rational alternative to LOC.


The problem you describe is a cultural one. Yes, today's culture in America is one that fears guns. But that will never change unless people are exposed to the use of guns by normal peaceful people around them. With that exposure the culture can change. That is a great benefit of OC IMO.

Another partial answer: LOC is a dumb idea in an urban environment for tactical reasons. Who is the first guy the bank robbers are going to shoot when they rob a bank. Answer: anybody standing there who is an obvious threat. (e.g., security guard with a side arm) Your chances of being effective, saving lives and getting out of an active shooter situation alive go up if your weapons is concealed at the beginning of the encounter.

That is an inaccurate argument IMO. And I'm tired of repeating the argument against it, so I will post a link to an article on this by a person more eloquent than I: The Open Carry Argument (http://www.usacarry.com/forums/open-carry-discussion/7230-open-carry-argument.html) It's a short article and worth the read, even if you disagree with it.

7x57
02-07-2010, 9:02 AM
Now switch to rural Montana. I am privy to scenarios in which ordinary citizens walk into banks and stores with their LOC weapons. The only response they get from a security guard or sheriff: Hey Albert, is that a new gun?


Rub it in, willya Don? Now I'm so homesick.... ;)


Put yourself in the shopkeepers place. If you own a feedstore in Bozeman, you don't care if your customer is LOC.


Actually, I'm afraid that Bozemen may go toward being the "People's Republic of Boulder" equivalent for Montana because of the university. The growth has been outrageous since I left.

I think Missoula is probably still the winner in that category because UofM is the better school for the majors that most attract the hard-core antigunners--when I was at MSU in Bozeman you weren't supposed to keep your deer rifle in your dorm but you could carry it in from your car and check it in at the front desk without campus security getting the screaming heebie-jeebies. It is the better ag. college of the two universities, and ag. colleges in Montana are hunter friendly or else they quit having students.

Remember, Californians, Montana is a pluto-like icy hell on earth with liquid nitrogen rain every winter and carbon dioxide snow kilometers deep. NASA uses it to simulate the environment of iceball mini-planets in deep space. Go move to Boulder where you've already created your little paradise-away-from-California. :chris:

Not entirely a threadjack--notice how the urban prejudice Don is talking about gets imported into places that tend toward the rural mindset. Colorado is generally OC friendly, but not in Boulder and Denver. You can't keep the right while destroying the culture. The core difference between LOC and CCW is that LOC *requires* a culture that accepts it to be generally effective and let you carry on private property and so on. CCW can invade the anti-gun culture and undermine it, and it can preserve the practice of the right in places where it is under seige.

Which do we need to do in California?

7x57

nobody_special
02-07-2010, 9:03 AM
There is another reason why I believe it is imperative to have an unlicensed right to carry. Recall the two recent court decisions (anyone have links? I didn't boookmark them...) back east which held it legal for an LEO to detain, probably at gunpoint, someone who was seen to be legally carrying concealed. In one of those cases the gun was confiscated. This was all fine according to the courts because carrying a concealed weapon is illegal by default.

What sort of "right to bear" do you have when you can be detained if you are seen to be exercising that right, and have your gun confiscated?

Let me also add that I am not a proponent of open carry at this time in California, and I have never practiced open carry.


You make my point for me. In California carry permits will be done for the children to balance the people's right not to get shot by us fringe people.

State courts would certainly rule that way at the least. But an interesting question to ask would be, how does a license -- a piece of paper -- prevent someone from being shot? An even better argument would be an analogy to prior restraint.

A court in DC just ruled that the allowed number of assemblers at the Jefferson Memorial without a permit is 0 and permits to assemble are not available for the Jefferson Memorial.
If that were the case, then nobody would be allowed at the Jefferson memorial. The court actually ruled that permits for demonstrations were not available... another time/place/manner restriction, upon location in this case. And I recall reading that Gura might appeal.

This approaches the "permits absolutely ban" the right to assembly which shouldn't be Constitutional but it's going to be a fight.

How is a ban to demonstrate in the Jefferson memorial an absolute ban upon all demonstrations? It isn't. Rather, it's similar to the bans on carrying in "sensitive places" so long as those are not over-broadly defined.

Post a sign in Redwood City without a permit (Chapter 3 (3.61) of the Redwood City Municipal Code.) Show me where in the Constitution it says commercial speech isn't included in "the freedom of speech."

Commercial speech isn't granted the same protection. Neither are machine guns protected under Heller. Your point?

If the statutes ban any signs, including e.g. political signs on your front lawn, I expect they would likely be overturned upon challenge.

I'm not telling you what I want. I'm trying to explain to you what we're going to be able to get over the short term. We might get lucky and get something more broad, but I seriously doubt that based simply on the State Court cases interpreting their 2A analogues or the federal 2A.
I'm not limiting myself to what we can get in the short term. I fully expect that an unlicensed right to carry will require a SCOTUS decision, and obviously that is not a short term proposition.


Also, you wish to try to argue my underlying assumption that we can't get unlicensed open carry as a right. Granted that TX's constitution allows the legislature more latitude on carry than the 2A does, but then you need to explain to me why the TX legislature doesn't change the law. If the TX legislature can't be persuaded that unlicensed open carry is a fine idea, why do you think we can convince the Federal judiciary of that?

I'm unsure to what level the Texas statute has been challenged, but as I noted above I expect it would have to go to SCOTUS and I'm quite certain that has not yet occurred.

Here, you're talking about legislative politics while I'm discussing the definition of a right to bear under original intent. I'm assuming a hostile legislature, so any gain we make must be done via the courts. What is politically possible in the legislature clearly differs from what is supposed to be legally protected by the judiciary. I'm not at all familiar with Texas politics.


Now, please respond to my point about stores banning carry. What value is a right that can't be effectively used at malls/stores/restaurants? Do you really want to have to constantly leave your gun in the car?

I agree with you, Gene. I don't OC. But this concern remains if we have shall-issue CCW and no open carry.

hoffmang
02-07-2010, 9:59 AM
The TX statute hasn't been challenged but OC proponents have attempted to get the legislature to change the law. They have not been able to.

A right to carry that is shall issue will create plenty of protection for underlying 4A rights. It's a red hearing to worry otherwise. In the case you mention the court actively avoided the 2A issues.

Commercial speech is an enumerated right that has been judicially narrowed which proves my point. It just got a little less narrow in Citizen's United.

This all comes down to a very simple calculus - Can your argument for unlicensed open carry keep the Heller 5 together. I'm suspicious it can keep both Kennedy and Roberts in the majority. I'm much more confident that a case that states that the right to carry can be subject to time/place/manner restrictions but that those manner have to meet Constitutional requirements will command a majority. That is the short term. We might be able to expand that later, but that will require a few more trips to SCOTUS after Palmer/Sykes.

nobody - the basic issue is that the jurisprudence doesn't agree with your desired stance and you keep spending a lot of breath arguing with me about the underlying jurisprudence. It's frankly a pointless argument since I started this thread to talk about the practical impact - something which you seem to agree. Concealed carry doesn't cause the same direct social reaction because, by definition, no one sees that you're carrying next to them or in their store.

Why would gunowners not want to factor in the practical when setting a strategy to expand the recognition of the right to keep and bear arms?

-Gene

Lex Arma
02-07-2010, 10:09 AM
Nobody wants to comment on my Angelina Jolie fantasy?

nobody_special
02-07-2010, 10:24 AM
I've seen far more "no guns" signs on store windows in New Mexico and Arizona than I've seen here. Yes I agree we should tread carefully, but that might make little difference. The true repercussions of Heller won't be felt for some time yet. If we get incorporation and the courts force shall-issue in urban liberal areas, there may be some backlash.

A right to carry that is shall issue will create plenty of protection for underlying 4A rights. It's a red hearing to worry otherwise. In the case you mention the court actively avoided the 2A issues.

Maybe I haven't thought about it enough, but I don't see this.

Nobody wants to comment on my Angelina Jolie fantasy?
:gene:

I presume that you're suggesting that any expectation of an unlicensed right to bear is on par with an Angelina Jolie fantasy. Hey, you're the expert... but I'm still waiting for an answer to these two questions:

1. What other enumerated right cannot be exercised in any way without a permit in the state of California?

2. How is there a right to carry if it is by default illegal to carry?

N6ATF
02-07-2010, 10:34 AM
If a library can enforce "no loud talking" you better believe a store can enforce "no guns"

Library rules seem related to PC 415(2):
(2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.

So disturbing people's reading is one thing, helping to keep them alive by 1) deterring crime 2) stopping crimes in progress is another.

I visit my daughter in Arizona frequently. Every visit I see more businesses posting "NO GUN" signs.

Let the free market and tort system decide. If they want to go out of business by rejecting the non-suicidal, and having the remaining customers be massacred, whose relatives sue them into bankruptcy...

nobody_special
02-07-2010, 10:50 AM
nobody - the basic issue is that the jurisprudence doesn't agree with your desired stance

That's not strictly true either, is it? I can think of a couple cases in Kentucky just from this morning's required Gura reading, for starters...

7x57
02-07-2010, 10:58 AM
Nobody wants to comment on my Angelina Jolie fantasy?

I was going to say something about how *your* version has all this boring irrelevant shopping stuff, then decided it was far too much information. ;)

Not that there's anything wrong with that if you reeeaaallly like shopping. :D

7x57

MudCamper
02-07-2010, 11:06 AM
Nobody wants to comment on my Angelina Jolie fantasy?

I specifically avoided it when quoting you! :) She's over-rated anyway. :hide:

kcbrown
02-07-2010, 11:07 AM
I will ask this as plainly as I can:

Is it the belief of Gene, Don, Ben, and our other legal experts here that if we do not argue for a shall-issue permit-based carry system in front of the Supreme Court, we will lose McDonald??

Because if that is not the case, then it follows that there is no harm to attempting to get permit-less carry as the minimum Constitutional standard.

Put another way: what's the downside for attempting to argue for a permit-less based carry system as the minimum Constitutional standard?

Note that I'm not talking about LOC or CCW specifically -- I'm talking about the permit system itself.

If we attempt to argue for a permit-less based standard and are overruled by the Court and given a permit-based system as a minimum Constitutional standard, that would be unfortunate but not altogether unexpected. And we can say that we tried our absolute best.

But to actually argue in favor of a permit-based system for all public exercise of the core right is something that should be done only when loss of the core right itself is a real possibility, wouldn't you say?

kcbrown
02-07-2010, 11:09 AM
Now, please respond to my point about stores banning carry. What value is a right that can't be effectively used at malls/stores/restaurants? Do you really want to have to constantly leave your gun in the car?


I don't understand why you don't think that will happen regardless (i.e., even with shall-issue CCW as the only means of carry). It's not like there isn't precedence. See Texas, for instance.

MudCamper
02-07-2010, 11:09 AM
Another thing that I've always wondered about this is how Palmer/Sykes will change anything anywhere but in the counties in question. Won't all the other county sheriffs just keep on issuing at their discretion until each and every one of them is sued?

kcbrown
02-07-2010, 11:15 AM
I'm not telling you what I want. I'm trying to explain to you what we're going to be able to get over the short term. We might get lucky and get something more broad, but I seriously doubt that based simply on the State Court cases interpreting their 2A analogues or the federal 2A.


Gene, I think the reason there is such debate is that there is belief on the part of at least some people that what you're explaining isn't just what we're likely to be able to get but what we are actually going to argue for in the courts.

Well, if that's what we're actually going to argue for then of course it's the most we're likely to be able to get.


If we get shall-issue CCW as a minimum Constitutional standard despite attempting to get permitless CCW then so be it. But if we are actually going to limit ourselves through our arguments to requiring permission from the state to exercise a core right in public, then there needs to be an astonishingly good reason for it, because requiring permission from the state to exercise a core right is an affront to the very concept of a right.

Hopi
02-07-2010, 11:24 AM
The problem you describe is a cultural one. Yes, today's culture in America is one that fears guns. But that will never change unless people are exposed to the use of guns by normal peaceful people around them. With that exposure the culture can change. That is a great benefit of OC IMO.




I completely agree here. I think the timing is really the issue *right now*.

wildhawker
02-07-2010, 11:25 AM
Nobody wants to comment on my Angelina Jolie fantasy?

I'll only say that up until this morning I thought I was the only one. I can now tell my wife that it's a rational desire proved by the memorialized account of another rational man. Did I ever tell you about the time I took Ms. Jolie and Catherine Zeta Jones dancing?

Hopi
02-07-2010, 11:26 AM
I'll only say that up until this morning I thought I was the only one. I can now tell my wife that it's a rational desire proved by the memorialized account of another rational man. Did I ever tell you about the time I took Ms. Jolie and Catherine Zeta Jones dancing?

Just keep your hands off of my Salma. ;)

wildhawker
02-07-2010, 11:27 AM
Another thing that I've always wondered about this is how Palmer/Sykes will change anything anywhere but in the counties in question. Won't all the other county sheriffs just keep on issuing at their discretion until each and every one of them is sued?

Either/both will be appealed; the appellate decision is persuasive (if Palmer) and binding (if Sykes). One is likely to go on to SCOTUS, given the players.

wildhawker
02-07-2010, 11:28 AM
Just keep your hands off of my Salma. ;)

<sigh> Damn you for reminding me of FDTD. :chris:

wildhawker
02-07-2010, 11:34 AM
I will ask this as plainly as I can:

Is it the belief of Gene, Don, Ben, and our other legal experts here that if we do not argue for a shall-issue permit-based carry system in front of the Supreme Court, we will lose McDonald??

Bear will be argued in Palmer or Sykes, not McDonald. McDonald is a 14A/2A Incorporation case; manner of carry will not be directly addressed in the case.

Put another way: what's the downside for attempting to argue for a permit-less based carry system as the minimum Constitutional standard?

1. Bad precedent, likely from both the civil suits and the criminal appeals based on a 2A right to bear grounds
2. Millions of people will not have any right to carry for years to come until a successful CCW case is brought (like, say, Sykes/Palmer - again).

Why wouldn't we want to win the right to carry to the courthouse first first and argue for the margin later?

Note that I'm not talking about LOC or CCW specifically -- I'm talking about the permit system itself.

If we attempt to argue for a permit-less based standard and are overruled by the Court and given a permit-based system as a minimum Constitutional standard, that would be unfortunate but not altogether unexpected. And we can say that we tried our absolute best.

We can try our absolute best while we have a permit to carry in our wallet and the precedent from a strong right to carry(s) case behind us. I believe, if you look closely, this is the same approach we'll see on a number of issues. Anal sex, anyone?

But to actually argue in favor of a permit-based system for all public exercise of the core right is something that should be done only when loss of the core right itself is a real possibility, wouldn't you say?

See above. This reminds me of conversations I've had with junior engineers (intelligent, but lacking some perspective) trying to re-sequence and re-plan a large project.

Gene, I think the reason there is such debate is that there is belief on the part of at least some people that what you're explaining isn't just what we're likely to be able to get but what we are actually going to argue for in the courts.

Well, if that's what we're actually going to argue for then of course it's the most we're likely to be able to get.

If we get shall-issue CCW as a minimum Constitutional standard despite attempting to get permitless CCW then so be it. But if we are actually going to limit ourselves through our arguments to requiring permission from the state to exercise a core right in public, then there needs to be an astonishingly good reason for it, because requiring permission from the state to exercise a core right is an affront to the very concept of a right.

What you're missing is that there's a difference between what we may want to argue vs. what can be argued for. Choosing the latter doesn't mean it's a preference. Choosing the former does mean that we lose. I'm not sure I can understand why we cannot just accept Shall Issue CCW licensing for now (which opens the right to overwhelmingly more people than LOC) and appreciate its utility as an interim foundation by which to propagate the gun culture and move towards other, better, outcomes later?

Did anyone here have a new Ferrari as a first car? A 3 acre Plantation estate for their first home?

kcbrown
02-07-2010, 11:39 AM
You are correct. Constitutionally, the issue isn't LOC v CCW, as long as one form is permitted by the law of the state, county, city, etc... The political issue should be, what is the better policy to insure maximum exercise of the right for the maximum number of people. Again, I wish (but if wishes were wings,...) that the Second Amendment would be given the same dignity as the First, but that is not a political reality at this time. That is why CCW is the "rational choice" here for the policy maker. It puts the maximum number of weapons into the hands of known virtuous citizens, without offending (the often times irrational) sensibilities of people who hate guns and/or don't care about guns.


And that is why it won't happen.

The typical CA policy maker is not interested in putting the maximum number of weapons into the hands of known virtuous citizens, he is interested in putting the minimum possible number in their hands. The only people he wants to have weapons are the "important people" and LEOs.

The typical CA policy maker wants to make carry as worthless as possible in order to achieve the goal of minimizing the number of weapons wielded by law-abiding citizens. This means you will see all kinds of time, place, and manner restrictions on carry for those lacking "special" CCW permits (or, if that gets tossed out, LEOs). They will attempt to restrict it to the maximum degree possible. You can bank on that.



Police officers are allowed to carry off duty; most do, many are required to carry by their department policy. They don't open carry. Why?

Partial answer: Because police departments are an urban phenomenon. A man walking around town in plain clothes with a gun on his hip, is going to draw police attention. Thousands of people walking around town with guns is going to have a lot of uniformed police officers responding to a lot of useless calls.
Yes, that is how it will happen initially. Do you think the calls will continue month after month, year after year, when thousands of people walking around with guns has become a typical thing to see?



Another partial answer: LOC is a dumb idea in an urban environment for tactical reasons. Who is the first guy the bank robbers are going to shoot when they rob a bank. Answer: anybody standing there who is an obvious threat. (e.g., security guard with a side arm) Your chances of being effective, saving lives and getting out of an active shooter situation alive go up if your weapons is concealed at the beginning of the encounter.
And yet, if you're walking around outside, LOC is a better tactical choice to make, because a criminal who decides he is going to attack someone will go for the prey with the weakest appearance. Someone who is carrying concealed appears to be unarmed and therefore appears to be weaker. There is the chance that the person who appears to be unarmed isn't, but a chance that he is unarmed is better than no chance from the criminal's point of view.

The combination of the scenario you state and the scenario I state is why we need the choice.



It is a great fantasy to have Angelina Jolie on your arm, as you walk with her down 5th Avenue in New York. You both of walk into Macy's while she picks out a PPK that goes with her handbag and shoes. And because there was no waiting period, she was able to use the .380 to save both your lives that night when you were attacked by armed thugs after a night at the theater. (sigh) But alternate universe discussions are probably off topic.
"Off-topic" doesn't imply "not worthwhile". :drool5:



As for a law criminalizing the negligent display of a CCW permitted weapon; proportionality probably compels that it be treated like an infraction (fine) if it happens, like making an illegal left hand turn. And yes, repeat offenders should lose their permit for a while. If you can't keep your CCW weapon hidden on your person, then maybe you should carry a purse.Ah, so this is an uncertain area of the law? Then it means it has to be litigated. That means you can bet your bottom dollar that the legislature will pass such a law if shall-issue CCW is what they wind up deciding on.

hoffmang
02-07-2010, 11:41 AM
Maybe I haven't thought about it enough, but I don't see this.
If permits to carry concealed are available to all comers then no police officer can use reasonable suspicion or probable cause to detain a person who he just happens to notice is carrying. If you read the mayor's amicus against us in McDonald, you'll see that the reason NY cops can stop people they see carrying concealed is because the permit is a unicorn.

1. What other enumerated right cannot be exercised in any way without a permit in the state of California?
The right to post a sign (speech.) The right to vote. The right to sell certain kinds of protected speech. The right to peaceably assemble on open public property.

2. How is there a right to carry if it is by default illegal to carry?
It's not illegal to carry - it will be illegal to carry without getting an easily available permit.

That's not strictly true either, is it? I can think of a couple cases in Kentucky just from this morning's required Gura reading, for starters...
Those cases in KY say that you can't fully ban carry. There has to be a viable mode. Why do you think we cite them?

Is it the belief of Gene, Don, Ben, and our other legal experts here that if we do not argue for a shall-issue permit-based carry system in front of the Supreme Court, we will lose McDonald??

..

Put another way: what's the downside for attempting to argue for a permit-less based carry system as the minimum Constitutional standard?

This has nothing to do with McDonald and everything to do with Sykes and Palmer. Here are the downsides of starting with unlicensed open carry.

1. If we win, then there is no lever to force shall issue concealed carry in the anti-gun urban areas. Say we won. California could claim that "may issue" is just fine since anyone can carry LOC now.

2. If we carry LOC, stores and patrons will notice and ban the practice practically - mooting the right.

3. We can't win carry on LOC in SCOTUS. A loss in SCOTUS after two wins is far worse for gun rights than 3 straight wins. In a post 3-0 environment, we can start making far more expansive arguments. We may well be able to get LOC after we secure shall issue permits, but I know we can't go the other direction.
I don't understand why you don't think that will happen regardless (i.e., even with shall-issue CCW as the only means of carry). It's not like there isn't precedence. See Texas, for instance.
You can not open carry in Texas. You can obtain a shall issue concealed carry permit and carry to your hearts content. Very few places ban carry in TX. Also note that California open carry has limited TX establishments more than Texans at this rate.
Gene, I think the reason there is such debate is that there is belief on the part of at least some people that what you're explaining isn't just what we're likely to be able to get but what we are actually going to argue for in the courts.

See above. What you will not see is Gura/SAF/CGF argue cases we can't win. The way you expand a right is to keep taking on the lowest hanging fruit. That way you constantly extend the width of the decisional base so that you have less and less chance of losing as you stray further and further from the heart of the right.

The civil rights movement basically started in interstate commerce on interstate buses because that was their strongest argument. They didn't start with interracial marriage for a reason.

-Gene

kcbrown
02-07-2010, 11:44 AM
What you're missing is that there's a difference between what we may want to argue vs. what can be argued for. Choosing the latter doesn't mean it's a preference. Choosing the former does mean that we lose. I'm not sure I can understand why we cannot just accept Shall Issue CCW licensing for now (which opens the right to overwhelmingly more people than LOC) and appreciate its utility as an interim foundation by which to propagate the gun culture and move towards other, better, outcomes later?


It's because I, at least, am skeptical that doing so will move the gun culture forward, as opposed to merely slowing the backwards slide.

See Texas, for instance. The number of signs at establishments forbidding guns is reportedly growing, not shrinking. They have shall-issue CCW. That is evidence that shall-issue CCW does not do what you think it will.


Furthermore, on what basis can we later claim that the minimum Constitutional system is a permit-less based system when we argued earlier that a shall-issue permit system is that? I fail to see how arguing for a permit-based system now does anything other than lock it into place permanently.

wildhawker
02-07-2010, 11:51 AM
If accessible CCW isn't useful to advance the gun culture in CA, rest assured that LOC-only will all but reduce it to the realms and levels we see today.

It's because I, at least, am skeptical that doing so will move the gun culture forward, as opposed to merely slowing the backwards slide.

See Texas, for instance. The number of signs at establishments forbidding guns is reportedly growing, not shrinking. They have shall-issue CCW. That is evidence that shall-issue CCW does not do what you think it will.

Furthermore, on what basis can we later claim that the minimum Constitutional system is a permit-less based system when we argued earlier that a shall-issue permit system is that? I fail to see how arguing for a permit-based system now does anything other than lock it into place permanently.

Re-read Sykes/Palmer; the core of the argument is that we have a *right to carry*, not that we have a *right to carry with a permit*.

kcbrown
02-07-2010, 12:08 PM
If permits to carry concealed are available to all comers then no police officer can use reasonable suspicion or probable cause to detain a person who he just happens to notice is carrying. If you read the mayor's amicus against us in McDonald, you'll see that the reason NY cops can stop people they see carrying concealed is because the permit is a unicorn.


Really?

Permits are available to all comers in Texas, but police officers can detain a person who he happens to notice is carrying. What is the specific difference in the law there (or the constitution upon which it's based) and the law we anticipate getting that makes the difference here?



It's not illegal to carry - it will be illegal to carry without getting an easily available permit.
Yes. That means it will be illegal by default. That is what a permit system means by definition.

And you assume that it will be "easily available". "Easily" may be a relative term here. The powers-that-be will make it as difficult to get as they possibly can, and they will place as many restrictions on it as they possibly can.



This has nothing to do with McDonald and everything to do with Sykes and Palmer.
I'm confused.

Are you saying that after 2A is incorporated against the states, it's still possible that we'll get no legal means of carrying in public???



Here are the downsides of starting with unlicensed open carry.

1. If we win, then there is no lever to force shall issue concealed carry in the anti-gun urban areas. Say we won. California could claim that "may issue" is just fine since anyone can carry LOC now.
What makes you think CA won't do precisely this anyway, with the exception that LOC will be permit-based as well?



2. If we carry LOC, stores and patrons will notice and ban the practice practically - mooting the right.
See Texas. This will happen regardless. The rate at which it happens may differ but our opposition will do all they can to make sure it happens fast.



3. We can't win carry on LOC in SCOTUS. A loss in SCOTUS after two wins is far worse for gun rights than 3 straight wins. In a post 3-0 environment, we can start making far more expansive arguments. We may well be able to get LOC after we secure shall issue permits, but I know we can't go the other direction.
Okay, this is the real meat of the argument.

But based on your prior arguments, I'm frankly extremely skeptical that we'll even try to get LOC at all after we secure shall-issue CCW, for reasons that you previously enumerated. Why would we, when we believe that doing so will damage the usefulness of shall-issue CCW?

ETA: And is your argument that we can't get LOC or that we can't get a permit-less based system? In other words, what of trying to get permit-less CCW?



You can not open carry in Texas. You can obtain a shall issue concealed carry permit and carry to your hearts content. Very few places ban carry in TX. Also note that California open carry has limited TX establishments more than Texans at this rate.
That's interesting and something I hadn't considered before.



See above. What you will not see is Gura/SAF/CGF argue cases we can't win. The way you expand a right is to keep taking on the lowest hanging fruit. That way you constantly extend the width of the decisional base so that you have less and less chance of losing as you stray further and further from the heart of the right.
So proactively arguing in favor of restricting a right doesn't serve to take arguments against such restrictions off the table later??


The civil rights movement basically started in interstate commerce on interstate buses because that was their strongest argument. They didn't start with interracial marriage for a reason.
Fair enough, but did they proactively argue in favor of restricted versions of the rights early on?

Lex Arma
02-07-2010, 12:21 PM
The problem you describe is a cultural one. Yes, today's culture in America is one that fears guns. But that will never change unless people are exposed to the use of guns by normal peaceful people around them. With that exposure the culture can change. That is a great benefit of OC IMO.

That is an inaccurate argument IMO. And I'm tired of repeating the argument against it, so I will post a link to an article on this by a person more eloquent than I: The Open Carry Argument (http://www.usacarry.com/forums/open-carry-discussion/7230-open-carry-argument.html) It's a short article and worth the read, even if you disagree with it.

Wait a minute. Gun ownership is not a rare phenomenon in USA. Most people are not afraid of guns per se, they are afraid of people they don't trust having guns. Situational awareness requires that I monitor multiple known threats in an urban LOC environment, while I still try to maintain a state of readiness for unknown threats. You are just asking for operator overload. LOC in an urban environment practically requires me to treat every shopping errand and public outing like a reconnaissance in force. (i.e., I need a team member guarding my back, while I guard theirs.)

Another reason crowded urban environments are a bad place for LOC: Do you want to stand in line for a theater or restaurant having to keep your hand on the grip of our pistol the whole time? People usually maintain their distance from Police officers. In fact one of the lessons police learn during weapon retention training is guarding your personal perimeter to avoid giving the BG an opportunity for a take away. Can you control every person who stands in line behind you, sits next to you on a bus, at a theater, etc...

I read the article. I still disagree. The same deterrent effect could be achieved by wearing a jacket with an NRA logo that says " Hi, I am a CCW instructor." "Call 1-800-CCW-RKBA for lessons." The fine print could say: "Do you feel lucky punk. Huh, do you?" :cool2:

Sidenote: This is an interesting conundrum. CCW law says you have to keep your gun concealed. But the First Amendment probably protects someone who wants to make a political statement that says, in effect: "I exercise the right to keep and bear, do you?" A variation would the Second Amendment version of "Got Milk?"

Bad guys who are going to use violence to commit crimes in public places break down into:

(1) Opportunistic cowards, who will run away when confronted. In this case, LOC may be a deterrent without actually using deadly force. But in that case, mere brandishing is also a deterrent, and an affirmative defense to the threat of death or GBI. [I have experience defending cases like this.] If the guy is going to rob you, he will expect you to have to reach for your wallet (whether its in your vest pocket or purse), so you still get to make the call of paying him to avoid the threat or going for the gun. If he gets the drop on you while you are in a status of LOC, you just gave him your gun too.

(2) Active shooters who intend to commit murder without regard to confrontation. In this situation, I need the element of surprise to survive.

nick
02-07-2010, 12:31 PM
Nobody wants to comment on my Angelina Jolie fantasy?

You don't have a good taste in women :p

Or were you looking for some other kind of comment? :)

hoffmang
02-07-2010, 12:32 PM
Permits are available to all comers in Texas, but police officers can detain a person who he happens to notice is carrying. What is the specific difference in the law there (or the constitution upon which it's based) and the law we anticipate getting that makes the difference here?
Show me the case. A police officer can not base 4A reasonable suspicion on someone doing something that's constitutionally protected. In a state where carry permits are common, someone concealed carrying does not create reasonable suspicion absent something else significant.

And you assume that it will be "easily available". "Easily" may be a relative term here. The powers-that-be will make it as difficult to get as they possibly can, and they will place as many restrictions on it as they possibly can.
For a host of political reasons, the CA legislature is likely to leave the system as it stands alone. And if they do mess with it in any way that makes it worse, we'll sue. That kind of suit has a high likelihood of winning. All counties in California will be bound by even a Federal district court ruling, not to mention a 9th Circuit court of appeals decision. At that point all states and counties in the 9th Circuit are bound.


I'm confused.

Are you saying that after 2A is incorporated against the states, it's still possible that we'll get no legal means of carrying in public???

Argh! McDonald only means that the Second Amendment applies to the states. It does not change any law in California. Sykes, which relies upon McDonald, seeks to change the California law/practice. Please understand that I get skeptical of those disagreeing with me when they don't understand the base rules of how Federal courts and state courts interact.


See Texas. This will happen regardless. The rate at which it happens may differ but our opposition will do all they can to make sure it happens fast.
No obvious guns in the store, no video for newscasters to run scary reports, much less popular support for stores to ban guns in them. 44 states have shall issue concealed carry. There are very few "no guns" signs. Absent the public noticing the change, then 760,000 Californians concealed carrying (2% is the amount of population that will even go get a CCW in states where they can) will not be noticed themselves.

Why would we, when we believe that doing so will damage the usefulness of shall-issue CCW?
Once the practice and the jurisprudence is that carry permits must be shall issue, it is highly unlikely and almost foreclosed that the state can go back on that. However, nothing forecloses us from them moving on to a more expansive argument.

ETA: And is your argument that we can't get LOC or that we can't get a permit-less based system? In other words, what of trying to get permit-less CCW?A federal right to permitless CCW isn't going to happen - Scalia said that plainly in Heller. States are free to pass laws that allow it like VT and AK, but it's not going to be something Federal courts are going to require.


So proactively arguing in favor of restricting a right doesn't serve to take arguments against such restrictions off the table later??

Fair enough, but did they proactively argue in favor of restricted versions of the rights early on?
Saying that we aren't challenging governments ability to do something in this case doesn't mean we can't challenge it later. Yes, the civil rights litigators did exactly that. In Heller, Gura didn't challenge registration at all. In McDonald he squarely challenged Chicago's re-registration requirement.

-Gene

hoffmang
02-07-2010, 12:34 PM
The same deterrent effect could be achieved by wearing a jacket with an NRA logo that says " Hi, I am a CCW instructor." "Call 1-800-CCW-RKBA for lessons." The fine print could say: "Do you feel lucky punk. Huh, do you?" :cool2:

Does everyone get that if we have shall issue carry permits you can wear a T-shirt over your firearm that has a screen print of your firearm that says "I'm armed and you should be too!" on its front?

-Gene

kcbrown
02-07-2010, 12:37 PM
If accessible CCW isn't useful to advance the gun culture in CA, rest assured that LOC-only will all but reduce it to the realms and levels we see today.


As much of a cynic as I might be, I'm actually quite unsure about how LOC-only would play out. I expect we'll initially see a lot of establishments putting up "no guns" signs, but I expect that to happen with accessible CCW as well. I see relatively little difference between the two cases in that respect.

But that's the immediate term. The longer term is where I think things will start to diverge. In the case of CCW, the rate of carry will remain relatively small. Why? Because there will be no significant force counteracting the fear of guns on the part of the population. The fact that the guns are out of sight means the population will never get used to them.

With LOC:



Businesses will probably initially put up a bunch of signs saying "no guns" but while in public, people will be able to wear guns openly and some will most certainly do so.
The sight of guns will become more common as more people do it and, more importantly, the rest of the people will get used to it. There will be an initial spate of "man with a gun" calls but they will subside over time.
As people get used to seeing guns in their midst and discover that their environment hasn't turned into a shooting gallery, their fear of guns will naturally drop. And as their fear drops, their interest will (statistically) increase.
As their interest increases, the demand of the population for removal of the "no guns" signs will increase, and businesses will cave to that because they want to remain in business.


Additionally, how can an unarmed individual protect themselves from an armed individual? That's hard to do, right? The easiest way to do that is by the unarmed individual arming himself, right?

So some of the unarmed people who are in public, walking amongst people who are armed, will feel vulnerable, and will be motivated to arm themselves for that reason alone. And as the number of people who are armed increases, the people who aren't will feel more and more uncomfortable, and their only recourse will be to arm themselves. Taken to its logical conclusion, it follows that in the end, most people will wind up being armed if LOC is the only widely-available means of carry.


So shall-issue CCW changes nothing for the population as a whole, even long-term, because there is no psychological reason for it to. It only changes the situation for those of us who already wish to be armed. LOC, on the other hand, can change the entire dynamic, but it will take time.

So: which of those two possibilities do you regard as being better for us long term?



Re-read Sykes/Palmer; the core of the argument is that we have a *right to carry*, not that we have a *right to carry with a permit*.OK, very good! I was under the impression that we've been arguing here that a permit-based system is what we'd be arguing for in front of the Court. I'm ecstatic that this is not the case!

Lex Arma
02-07-2010, 12:44 PM
Hey, you're the expert... but I'm still waiting for an answer to these two questions:

1. What other enumerated right cannot be exercised in any way without a permit in the state of California?

2. How is there a right to carry if it is by default illegal to carry?

Response to Question #1.

You have a Sixth Amendment right to counsel when you are charged with a crime that could land you in jail. You don't have a right to an unlicensed lawyer.

You have a Fifth Amendment right to own/possess real and personal property, that the government cannot take away from you without due process of law and/or just compensation. Ownership includes use. Do you have the "right" to drive an unlicensed, uninsured automobile on public streets, even though you own the car? You don't have a right to erect a building without appropriate permits and standards.

If you make money exercising your "right of speech and/or press" can you legally avoid the income tax on that income?

The government cannot discriminate against your right to vote on the basis of age, race, sex, etc., Can you vote without being a registered voter? (no ACORN jokes)

You have a right to peaceably assemble, do you have a right to hold a parade on a public street without a permit?

Response to #2.

You are confusing ordered liberty and anarchy.

The libertarian in me might not like all these permits, licenses, permissions, but as long as they are rational and permit the exercise of fundamental rights, I have to decide if the burden of living in a society with these rules outweighs the burden of living on a desert island or self-sustaining farm.

wildhawker
02-07-2010, 12:49 PM
So: which of those two possibilities do you regard as being better for us long term?

The options you presented are not those from which we have to choose. This is beginning to become a CCW vs. LOC discussion; reasonable men can disagree on this. My point is simply that, as an initial milestone, CCW presents more people in California with the legal ability and socially-acceptable conditions to carry often during the course of normal life. This is a substantial net positive for us. LOC is, at least currently, extraordinarily limiting in many respects and would preclude many less-vigorous advocates from bearing arms, thereby reducing the effectiveness of the right to carry.

OK, very good! I was under the impression that we've been arguing here that a permit-based system is what we'd be arguing for in front of the Court. I'm ecstatic that this is not the case!

The current bear cases basically say that "self defense is good cause, so licence issuance should be accessible and shall-issue to otherwise non-prohibited persons". Remember that Sykes/Palmer is challenging the discriminatory language and application of the current statute here, not creating new statute. However, as Gene points out above, there's nothing to say that further litigation could not be initiated as strategically prudent. First one foot, then the other...

Lex Arma
02-07-2010, 1:05 PM
You don't have a good taste in women :p

Or were you looking for some other kind of comment? :)

I was referring more to the archetype she has come to represent. A sexy woman who smokes a bad guy before you even clear your holster is a flavor of foreplay that I will probably never experience. And it is so unrealistic as to fall into the category of fantasy.

7x57
02-07-2010, 1:15 PM
I want to make an observation that struck me, because I have not seen it discussed. Calgunners have gotten used to the fact that California is one of the lead dogs in the fight to restore legal protection to the RKBA. Something to be proud of.

But consider one of the reasons why. If CA wants to be in the game at all it has to work the legal angles precisely because it is at the back of the pack in terms of restoring the culture. This is reflected in the fact that more than eighty percent of the states went shall-issue through the legislature, which is a reflection of the strength of the culture. They go there through the soap box and the ballot box. We're going through the jury box because we are unable to work the first two in CA. It is a tool to break the stubborn hold-out states where the standard route is unavailable.

In terms of getting both OC and CCW and getting permitless carry, most of the other states haven't managed that yet. Is it logical to assume that we can do *everything* through one branch of government, in an exceptionally hostile state? Notice that for a long time only VT had permitless CC--Alaska finally followed suit, and I gather there is a decently strong attempt now in AZ.

It is my opinion that CA cannot lead the way on these particular issues, because of the failure to preserve a positive gun culture. We're leading the way for the assault on the other bastions of gun control, yes. But I think the only hope left for permitless and/or open carry, now that OC has essentially destroyed itself, is for the movement to take hold and spread in other states just as CCW did. I see signs of that happening--I believe that while Montana is usually described as shall-issue CCW, in fact it is permitless in rural areas (which is a lot more significant in such a rural state than it may sound to you city boys). If the movement can break out beyond VT and AK, MT may be a domino that is relatively easy to topple as well. But we're not likely to be the leaders.

In short, I don't like the mindset that I see happening: we're going to do it all alone, and we're going to do it all through the jury box. It isn't going to work. We already know the courts will simply ignore the full meaning of the 2A, for example. What we need to have is a mindset that we are going to take on the battles that we're best suited to fight, and leave alone the ones we are not, so that the entire nationwide movement is more than the sum of the parts.

Perhaps I see this because I come from elsewhere, and so I remember that doing things without regard for the rest of the country is part of the coastal mindset. But it isn't going to work, and trying it will lose us battles we could have won.

In short--with a few other lead dogs, we can really spearhead the legal fight. But we need to rely on our brothers in gun-friendly states to do things like spread LOC and permitless carry if they can, so we can benefit from it later. I'd love to have more than forty states witnessing the fact that unpermitted citizens and citizens with openly carried firearms are safe, just as we already have them witnessing the fact that citizens with CCWs are safe.

That was the part I hadn't worked out about my analogy with fighting a war. Not only could I be ordered into a bad spot for the good of the entire war effort, my unit can't win the battle by ourselves. We have to depend on others to keep our flanks from being enveloped, just as they depend on us for the same thing.

As proof, notice that Gene and Gray both believe that we'll get CCW reciprocity from congress within the next eighteen months. Do you think *we're* going to do that? No, legislators from pro-gun states will do that while ours whine and sob. But those other guys are depending on us to fight the court fight for them while they're covering us in congress.

To continue the analogy, remember that for a terrifying span of time Great Britain fought the Battle of Britain alone for us and every free man, because no one could manage an intercontinental invasion to free Europe even if they had the will. But they could give us little but goodwill in the Pacific. We depended on each other to win in our own respective theaters.

7x57

dantodd
02-07-2010, 1:29 PM
Some of you are missing the point. We use constitutions to limit the power of government, not private citizens.

You were right up to 1868.

IrishPirate
02-07-2010, 1:34 PM
Maybe it's just me, but it seems that every new UOC story i hear is actually a little less of a step backward than the last. I think the people of the "UOC movement" have finally let their emotions cool down and they are starting to think things through a little better. Less people seem to be getting pissed off and more people seem to be getting informed. Don't get me wrong, I'm sure it still pisses people off pretty good, but I think (and i could be wrong) that it's starting to be less damaging than when the movement first started. It's obviously not quite a step forward yet, but at least they are trying to step in the right direction rather than just square dance all over the place and confuse the hell out of people.

Like anything these days, if you don't advertise, people wont know. If you don't make it known to people that not all gun owners are thugs and red necks, they are going to keep the same old assumptions and always be scared of guns. UOC has been good for getting the message out, but I don't think we've been able to perfect or unify that message into the most constructive one possible yet.

If only everyone with a gun was on Calguns........

N6ATF
02-07-2010, 1:37 PM
Anal sex, anyone?

No, thanks!

Like anything these days, if you don't advertise, people wont know. If you don't make it known to people that not all gun owners are thugs and red necks, they are going to keep the same old assumptions and always be scared of guns. UOC has been good for getting the message out, but I don't think we've been able to perfect or unify that message into the most constructive one possible yet.

If only everyone with a gun was on Calguns........

Short of a mass mailing to all CA residences, begging all law-abiding adult white males to LUCC, and all other law-abiding adults to UOC (and how)... not sure how the message is going to be clear enough; that self-defense is a basic human right, regardless of gender, color, creed, or sexual orientation.

hoffmang
02-07-2010, 1:47 PM
You were right up to 1868.

He's correct up to 2010. The 14th made the change that the Federal goverment could intervene against some private individuals interfering with some constitutional rights.

Remember that part of Cruikshank may be correct in that the blacks murdered were the rightful agents of the state who were massacred by the election usurpers.

-Gene

Mad Scotsman
02-07-2010, 2:08 PM
Maybe it's just me, but it seems that every new UOC story i hear is actually a little less of a step backward than the last. I think the people of the "UOC movement" have finally let their emotions cool down and they are starting to think things through a little better. Less people seem to be getting pissed off and more people seem to be getting informed. Don't get me wrong, I'm sure it still pisses people off pretty good, but I think (and i could be wrong) that it's starting to be less damaging than when the movement first started. It's obviously not quite a step forward yet, but at least they are trying to step in the right direction rather than just square dance all over the place and confuse the hell out of people.

Like anything these days, if you don't advertise, people wont know. If you don't make it known to people that not all gun owners are thugs and red necks, they are going to keep the same old assumptions and always be scared of guns. UOC has been good for getting the message out, but I don't think we've been able to perfect or unify that message into the most constructive one possible yet.

If only everyone with a gun was on Calguns........

I tend to agree and would like to hear of ACTUAL instances where people UOC and what kind of responses they got from the public( mass pandemonium and SWAT response), not the anti-rhetoric of the media.

N6ATF
02-07-2010, 2:23 PM
I had predicted that if California went open carry only, it would become a moot right in practice as stores all over California would move to ban OC. So far I'm 3 for 4 on that prediction with two coffee houses and CPK banning U/LOC in their stores. I'm pleased with Starbucks (who came from WA where carry has been LOC and shall issue CCW for a while) so far holding back from Brady/LCAV pressure.

3 for 5.

Starbucks - go
Buckhorn Grill - go

California Pizza Kitchen - no go
Peet's Coffee & Tea - no go
*Sacred Grounds Coffee - no go

*Not sure if this is the second coffee house you are referring to.

kcbrown
02-07-2010, 2:24 PM
The options you presented are not those from which we have to choose. This is beginning to become a CCW vs. LOC discussion; reasonable men can disagree on this. My point is simply that, as an initial milestone, CCW presents more people in California with the legal ability and socially-acceptable conditions to carry often during the course of normal life. This is a substantial net positive for us.


I have no disagreement with the above whatsoever. Of the two (LOC versus CCW), CCW is more immediately useful. The question in my mind is whether or not it will prove a better long term choice. I have very serious doubts that it will.



LOC is, at least currently, extraordinarily limiting in many respects and would preclude many less-vigorous advocates from bearing arms, thereby reducing the effectiveness of the right to carry.


Agreed for the short and intermediate term.



The current bear cases basically say that "self defense is good cause, so licence issuance should be accessible and shall-issue to otherwise non-prohibited persons". Remember that Sykes/Palmer is challenging the discriminatory language and application of the current statute here, not creating new statute. However, as Gene points out above, there's nothing to say that further litigation could not be initiated as strategically prudent. First one foot, then the other...

OK, so basically, we're not saying anything at all one way or the other on the issue of permits -- we're leaving that for later. Fair enough.

I was under the impression that we were going to explicitly argue in favor of permits in order to secure a more general victory, and I'm pleased to see that it appears we don't have to do that.

kcbrown
02-07-2010, 2:39 PM
Show me the case. A police officer can not base 4A reasonable suspicion on someone doing something that's constitutionally protected. In a state where carry permits are common, someone concealed carrying does not create reasonable suspicion absent something else significant.


"Intentional" failure to conceal is a misdemeanor under PC 46.035. "Concealed handgun" is defined in GC 411.171(3) as "a handgun, the presence of which is not openly discernable to the ordinary observation of a reasonable person".

So if the officer has a reasonable suspicion that PC 46.035 is being violated, can he not detain the individual for that violation? How else is that law to be enforced?



Argh! McDonald only means that the Second Amendment applies to the states. It does not change any law in California. Sykes, which relies upon McDonald, seeks to change the California law/practice. Please understand that I get skeptical of those disagreeing with me when they don't understand the base rules of how Federal courts and state courts interact.
Okay, I follow now.



No obvious guns in the store, no video for newscasters to run scary reports, much less popular support for stores to ban guns in them. 44 states have shall issue concealed carry. There are very few "no guns" signs. Absent the public noticing the change, then 760,000 Californians concealed carrying (2% is the amount of population that will even go get a CCW in states where they can) will not be noticed themselves.
I suppose only time will tell, but I'm willing to concede this point absent further evidence one way or the other.


Once the practice and the jurisprudence is that carry permits must be shall issue, it is highly unlikely and almost foreclosed that the state can go back on that.
True, but I believe they will nevertheless try.


A federal right to permitless CCW isn't going to happen - Scalia said that plainly in Heller. States are free to pass laws that allow it like VT and AK, but it's not going to be something Federal courts are going to require.
So the only permitless form of carry possible, then, is OC?

And that's off the table. Which means a permitless form of carry is off the table.


Saying that we aren't challenging governments ability to do something in this case doesn't mean we can't challenge it later. Yes, the civil rights litigators did exactly that. In Heller, Gura didn't challenge registration at all. In McDonald he squarely challenged Chicago's re-registration requirement.
This was my misunderstanding. Again, I was under the impression that we were explicitly arguing for a permit-based system. I see that we are not. Please pardon me for that error -- the zeal with which you seemed to be arguing in favor of it led me to the erroneous conclusion that we were going to actually argue in favor of a permit-based system in court.

Gray Peterson
02-07-2010, 3:07 PM
I have no disagreement with the above whatsoever. Of the two (LOC versus CCW), CCW is more immediately useful. The question in my mind is whether or not it will prove a better long term choice. I have very serious doubts that it will.




Agreed for the short and intermediate term.




OK, so basically, we're not saying anything at all one way or the other on the issue of permits -- we're leaving that for later. Fair enough.

I was under the impression that we were going to explicitly argue in favor of permits in order to secure a more general victory, and I'm pleased to see that it appears we don't have to do that.

In the Heller case, there is a telling passage from Justice Scalia you may want to read:

the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

In DC, there were two different licenses: a license to carry in public, and a license to carry in one's home. The reason for the concession is so that you don't involve too many "issues" to brief in the court. By conceding something for the purposes of prayer for relief, you preserve your argument later.

There were three laws challenged in DC: The handgun registration ban, the refusal to issue a carry license to carry in one's home, and the "locking device" requirement. The prayer for relief was: Strike down the registration ban, issue him a permit to carry in his home, and the "locking device" requirement. DC had to repeal the registration requirement, DC chose to repeal the carry license in one's home requirement, and the locking device requirement was generally required to repeal it. DC passed several emergency amendments to it's laws. Though they were not required to by the strict reading of the supreme court ruling, they repealed the "any semi-auto which can handle more than 12 rounds=machine gun" after a few months of legal prodding after they realized it was legally indefensible given the wording of the SCOTUS decision.

If you read the McDonald (http://www.chicagoguncase.com/wp-content/uploads/2008/06/complaint.pdf) complaint, you'll see that plaintiffs (represented by Gura), are challenging 4 points of Chicago's municipal ordinances: The re-registration requirement, the "if it becomes not registered in term, it becomes unregisterable" requirement/punishment, and "you must register it before it arrives in Chicago or it becomes unregisterable".

Future litigation (such as strongly hinted at litigation against New York) will focus on other unacceptable requirements, such as the high fee rate in NYC (over 1000 dollars to be able to possess a handgun in one's home over a 10 year period is unacceptably high, but the possess and carry licenses are the same price).

By litigating the stuff around the margins (re-registration, high fee requirements rather than attacking the underlying licensing itself), we preserve our ability to challenge the licensing requirements after we win on the core issues.

kcbrown
02-07-2010, 3:17 PM
This is the best explanation for the overall strategy that I've seen to date. Thanks very much for this -- it clears my mind of nearly all questions on how we are proceeding and why we're proceeding that way.

Well done sir!


In the Heller case, there is a telling passage from Justice Scalia you may want to read:



In DC, there were two different licenses: a license to carry in public, and a license to carry in one's home. The reason for the concession is so that you don't involve too many "issues" to brief in the court. By conceding something for the purposes of prayer for relief, you preserve your argument later.

There were three laws challenged in DC: The handgun registration ban, the refusal to issue a carry license to carry in one's home, and the "locking device" requirement. The prayer for relief was: Strike down the registration ban, issue him a permit to carry in his home, and the "locking device" requirement. DC had to repeal the registration requirement, DC chose to repeal the carry license in one's home requirement, and the locking device requirement was generally required to repeal it. DC passed several emergency amendments to it's laws. Though they were not required to by the strict reading of the supreme court ruling, they repealed the "any semi-auto which can handle more than 12 rounds=machine gun" after a few months of legal prodding after they realized it was legally indefensible given the wording of the SCOTUS decision.

If you read the McDonald (http://www.chicagoguncase.com/wp-content/uploads/2008/06/complaint.pdf) complaint, you'll see that plaintiffs (represented by Gura), are challenging 4 points of Chicago's municipal ordinances: The re-registration requirement, the "if it becomes not registered in term, it becomes unregisterable" requirement/punishment, and "you must register it before it arrives in Chicago or it becomes unregisterable".

Future litigation (such as strongly hinted at litigation against New York) will focus on other unacceptable requirements, such as the high fee rate in NYC (over 1000 dollars to be able to possess a handgun in one's home over a 10 year period is unacceptably high, but the possess and carry licenses are the same price).

By litigating the stuff around the margins (re-registration, high fee requirements rather than attacking the underlying licensing itself), we preserve our ability to challenge the licensing requirements after we win on the core issues.

wildhawker
02-07-2010, 3:34 PM
Gray FTW.

Sgt Raven
02-07-2010, 3:34 PM
Reportedly, they are extremely common in Texas, a state that people for some reason consider to be one of the most gun-friendly states.


Most of those signs don't mean squat in Texas because they aren't posted according to Texas Penal Code Section 30.06(c)(3)(B).

Sgt Raven
02-07-2010, 3:55 PM
The codified law pertaining to carry clearly favors CCW, and was made more clear by the recent legislation I mentioned in my previous post. They don't dare take the power of carry permit issuance away from CLEOs, and are fully aware that issuance limitations by subjective and discriminatory GC will die via Sykes/Palmer. Once all CLEOs are forced to accept self-defense as GC, maybe they ask DOJ to take the program over... but don't count on it, as some counties have a fair amount of revenue by permitting volume.


The state may decide they need the revenue more than the counties do and take issuing over for the money. :p

hoffmang
02-07-2010, 3:56 PM
"Intentional" failure to conceal is a misdemeanor under PC 46.035. "Concealed handgun" is defined in GC 411.171(3) as "a handgun, the presence of which is not openly discernable to the ordinary observation of a reasonable person".

So if the officer has a reasonable suspicion that PC 46.035 is being violated, can he not detain the individual for that violation? How else is that law to be enforced?


What's missing from your analysis is all of the California state court rulings that partially concealed == concealed. The courts can't have the precedents both ways.

-Gene

kcbrown
02-07-2010, 4:13 PM
What's missing from your analysis is all of the California state court rulings that partially concealed == concealed. The courts can't have the precedents both ways.


Interesting. So if some of the weapon is covered (more than some percentage, or whatever standard they've decided upon), it's "concealed"? Sounds like we don't have to worry about "printing" or other such matters as long as those precedents stand. I must say I like the idea of our CCW laws actually being more permissive than those in Texas. :D

Also, do such court rulings regarding definitions apply when the law is rewritten to explicitly define what is meant? I know you don't anticipate that happening, but this is a 2A-hostile legislative body we're talking about here, and they are almost certainly going to want to enact some sort of "retribution" for having 2A shoved down their throats via incorporation.

nobody_special
02-07-2010, 6:03 PM
Responses in bold.

Response to Question #1.

You have a Sixth Amendment right to counsel when you are charged with a crime that could land you in jail. You don't have a right to an unlicensed lawyer.
Not the same thing at all. There is a difference between a right to have counsel and a right to be counsel.

You have a Fifth Amendment right to own/possess real and personal property, that the government cannot take away from you without due process of law and/or just compensation. Ownership includes use. Do you have the "right" to drive an unlicensed, uninsured automobile on public streets, even though you own the car? You don't have a right to erect a building without appropriate permits and standards.
That doesn't impact the entirety of the fifth amendment.

If you make money exercising your "right of speech and/or press" can you legally avoid the income tax on that income?
Agan, a disconnect: income tax has nothing specifically to do with free speech; neither is it a license on the first amendment.

The government cannot discriminate against your right to vote on the basis of age, race, sex, etc., Can you vote without being a registered voter? (no ACORN jokes)
The right to vote is not enumerated, and voter registration is not a license. There are no fees or tests involved either.

You have a right to peaceably assemble, do you have a right to hold a parade on a public street without a permit?
As I said before, one can certainly meet friends on a public street without a permit. Permits for demonstrations are the result of a balancing act between the right to assemble, the public's access to a space, and the government's interest in maintaining order. Certainly the right to assemble in it's entirety is not subject to licensing.

Response to #2.

You are confusing ordered liberty and anarchy.

The libertarian in me might not like all these permits, licenses, permissions, but as long as they are rational and permit the exercise of fundamental rights, I have to decide if the burden of living in a society with these rules outweighs the burden of living on a desert island or self-sustaining farm.

So, it's anarchy in the many other states in which unlicensed open carry is legal? Those states lack ordered liberty? Maybe the anti's are right after all! :rolleyes:

I don't think so. SCOTUS would certainly not allow any jurisdiction to require a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel. Is a permit needed to exercise avoid self-incrimination, or to be secure against unreasonable search or seizure? No.

All of Gene's examples are similarly specious. None are situations where an entire right is licensed, i.e. the enumerated right may not be exercised in any way without a license.

7x57
02-07-2010, 6:41 PM
SCOTUS would certainly not allow

Who in their right mind can use that phrase in a sentence after studying the history of Second Amendment jurisprudence?

I guess it's in-con-CEIV-able.

Has anyone noticed the remarkable unanimity of the judgement of the lawyers and semi-hemi-demi-lawyers (hi Gene!) on this thread? Coincidence?

7x57

kcbrown
02-07-2010, 6:48 PM
Who in their right mind can use that phrase in a sentence after studying the history of Second Amendment jurisprudence?

I guess it's in-con-CEIV-able.


Well, then, why hasn't some government (state or federal) attempted to pass a law requiring a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel?

I mean, if there's a reasonable chance the Supreme Court will uphold it, such a thing would be a big win for government power, would it not?



Has anyone noticed the remarkable unanimity of the judgement of the lawyers and semi-hemi-demi-lawyers (hi Gene!) on this thread? Coincidence?


Inconceivable! :D

nobody_special
02-07-2010, 6:51 PM
If permits to carry concealed are available to all comers then no police officer can use reasonable suspicion or probable cause to detain a person who he just happens to notice is carrying. If you read the mayor's amicus against us in McDonald, you'll see that the reason NY cops can stop people they see carrying concealed is because the permit is a unicorn.
[and...]
Show me the case. A police officer can not base 4A reasonable suspicion on someone doing something that's constitutionally protected. In a state where carry permits are common, someone concealed carrying does not create reasonable suspicion absent something else significant.


Gene, you're wrong here. If licenses are shall-issue but unlicensed carry is illegal, then there is certainly reasonable suspicion for police detention. One of the cases was in Florida, which is shall-issue. I'll post a link when I find it (looking now).


Those cases in KY say that you can't fully ban carry. There has to be a viable mode. Why do you think we cite them?

As I recall, the first KY case from the early 19th century struck a ban on concealed carry. The constitution was later amended, and then another case held for unlicensed open carry while allowing licensed concealed carry. It seems to support my point, but after I find the cite for the two recent cases I'll go and review these.


3. We can't win carry on LOC in SCOTUS. A loss in SCOTUS after two wins is far worse for gun rights than 3 straight wins. In a post 3-0 environment, we can start making far more expansive arguments. We may well be able to get LOC after we secure shall issue permits, but I know we can't go the other direction.


If that's the goal, fine. I'm not sure why the Ohio model won't work here; certainly the legislature wouldn't be happy about a crowd of people open carrying down the street in San Francisco. But I'll defer to your judgment here.

I'll also defer to your judgment on SCOTUS, as you obviously know more about what the justices are likely to do. My argument depends upon Heller and "original public meaning," but if the justices are inconsistent and unwilling to carry that through to it's logical conclusion, that's a different story.

I'm arguing this with you because (1) I believe you are wrong regarding licenses and the right to bear -- and this seems clear from reading Heller and thinking about original public meaning; (2) I'm afraid that further loss of liberties might follow from a permit requirement, and (3) I'm trying to make these concerns known to CGF.

What I hope for is an assurance that CGF will, as a long-term goal, aim for judicial protection of some kind of unlicensed carry; or at least not foreclose the possibility. It doesn't matter to me if this is pretty far down the road; but based on what I've heard from you and Mr. Kilmer, it sometimes sounds like there is no hope for this goal and it has been abandoned.

nobody_special
02-07-2010, 6:59 PM
Who in their right mind can use that phrase in a sentence after studying the history of Second Amendment jurisprudence?


I'm afraid I must call you out on this.

SCOTUS would certainly not allow any jurisdiction to require a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel

Which of those do you think can be subject to a license or permit which would be upheld by SCOTUS?

Lower courts make all kinds of bad decisions, as 2nd Amendment jurisprudence demonstrates. That's why I prefixed my statement with "SCOTUS." If you really think that SCOTUS would allow such things, then I'll expect you to be leading the revolution. :chris::D;)

Lex Arma
02-07-2010, 7:01 PM
All of Gene's examples are similarly specious. None are situations where an entire right is licensed, i.e. the enumerated right may not be exercised in any way without a license.

Your argument is specious on its own terms. The entire "right to keep and bear arms" is not being licensed/permitted. Just public bearing.

nobody_special
02-07-2010, 7:24 PM
Your argument is specious on its own terms. The entire "right to keep and bear arms" is not being licensed/permitted. Just public bearing.

The right in question is the bearing of arms. As we've seen with Theseus and elsewhere, the private property / public space wording essentially means that the right to 'bear' is restricted to inside the home. Requiring a license to exercise the right to bear arms anywhere outside of the home is an extraordinary and unprecedented restriction of an enumerated right. No other enumerated right (assembly, religion, speech, counsel, jury trial, search/seizure, etc.) is so limited that one must obtain a permit to exercise it upon walking out your front door!

All of these rights can be exercised in public without a permit or license. I can pray in public. I can speak in public, I can meet friends in public. I can retain an attorney, plead the 5th, and petition Congress in public. And all of these can be done without a permit. That's virtually every enumerated right which involves an individual's actions... except the right to keep and bear arms, which apparently is special. ;)

And I could be wrong, but I'm not sure that carrying a gun within the home would actually fall under the original public meaning of "bearing arms." If I were to speak of it in that context to a person from the late 18th century, I'd expect to see an odd and quizzical expression.

yellowfin
02-07-2010, 7:25 PM
^ Lack of right to bear in public makes the 2nd amendment practically useless to everyone except invalids, home office workers, and agoraphobes.

kcbrown
02-07-2010, 7:31 PM
Your argument is specious on its own terms. The entire "right to keep and bear arms" is not being licensed/permitted. Just public bearing.

That's probably what he meant, but I'll let him speak for himself.

But I must reiterate his point: there is no other fundamental core enumerated right of which all forms of exercise in public are prohibited by default and require a permit prior to exercise.

Do you disagree with that statement? If so, please cite an example of an enumerated fundamental right, exercise in public of which is prohibited by default (i.e., without the permission of the state) in its entirety, and which requires a permit prior to any exercise in public.


In any case, it looks like (and I sincerely hope I'm right) the permit requirement will be challenged in a future court case, but is something that needs to be done strategically along with the other various things we're after.

So here's a question for the legal guys: where does a challenge to the permit requirement fit in with the rest of the strategy? If it's unwise for you to say, I certainly understand, but would ask that you at least say that much. :)

(And feel free to PM me if you feel comfortable telling me "off the record" -- I will certainly say nothing to anyone else about it if you do so)

bwiese
02-07-2010, 7:50 PM
So here's a question for the legal guys: where does a challenge to the permit requirement fit in with the rest of the strategy?

Probably far down the list if the permit essentially is trivial in terms of cost or threshold of pain and is near shall-ssue.

Remember that Heller did not kill registration: registration is legally supportable (and we might not win a challenge to that!). The permit concept can be conflated with registration + background check and/or basic safety competence testing, all which likely would receive court support if not onerous. And the gov't can make a case for these, esp for "first purchase gating".

Basic competency test like the HSC questionnaire likely will pass muster. Waiting period for first gun will likely past muster given there are some legit quality studies indicating it can affect suicide, though waiting periods for "folks with guns" won't pass muster given there's no need and it infringes a right.

The part about permitting that would (will) go is the part where if a permit expires you then lose the gun (and worse, lose the right). The permit might be used as a (or conflated with) gateway for basic competence testing and/or registration, both of which will likely get court support.

Fears of registration post-incorporation-plus-a-few-cases will diminish when it's seen as trivial, a fundamental right can't be taken away (without reason: felony, mental health, etc.) and the data available on police MDT units indicating "owns a gun" becomes so common that 'familiarity breeds contempt'.

nobody_special
02-07-2010, 7:54 PM
Here are my references. Two cases, one in Georgia and one in Massachussets.

http://armsandthelaw.com/archives/2009/12/probable_cause.php
http://armsandthelaw.com/archives/2010/01/egad_2.php

Direct links:

Decision (http://www.georgiacarry.com/marta_raissi/Doc%2055%20Order%20on%20Motions.pdf); Georgia is shall-issue.

... possession of a firearms license is an affirmative defense to, not an element of, the crimes of boarding with a concealed weapon and carrying a concealed weapon. [...] Because a Georgia firearms license is an affirmative defense to the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon, it does not matter if there was no reason to suspect that Raissi did not have a Georgia firearms license. After Raissi concealed his handgun and started walking toward the MARTA station, he had committed all of the acts required for the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon. Officer Nicholas saw this happen. The officers were not then required “to explore and eliminate every theoretically plausible claim of innocence,” including affirmative defenses, before making an investigative stop of Raissi.


Decision (http://www.ca1.uscourts.gov/pdf.opinions/09-1370P-01A.pdf) by the 1st circuit.


...the officer leaped from his cruiser in a "dynamic and explosive" manner, with his gun unholstered. Stern then pointed his weapon at Schubert's face.
[...]
"[u]nder Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity, not whether the defendant's actions are subject to no reasonable innocent explanation." United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990). It is clear in this case that, in hindsight, Schubert in fact posed no threat to public safety. However, on these facts, Officer Stern certainly had reasonable suspicion to stop the unknown armed man in order to ascertain his identity, his authority to possess the gun, and his intentions.
[...]
Schubert also takes issue with the manner in which Stern suddenly emerged from the police cruiser with his weapon drawn. Further, Schubert questions Stern's subsequent five-minute detention of Schubert in the rear of the cruiser, during which time he partially Mirandized Schubert and mentioned the possibility of charging him with a crime.
[...]
The officer took several reasonable steps given that Schubert was an unknown armed man walking in that particular location: he emerged quickly from his vehicle, drew his gun, executed a pat-frisk, requested identification and a gun license, attempted to confirm the validity...

dantodd
02-07-2010, 8:07 PM
What's missing from your analysis is all of the California state court rulings that partially concealed == concealed. The courts can't have the precedents both ways.

-Gene

They can simply change the statute upon which that ruling is based.

dantodd
02-07-2010, 8:13 PM
He's correct up to 2010. The 14th made the change that the Federal goverment could intervene against some private individuals interfering with some constitutional rights.


I was merely pointing out that the 14th is, in fact, a constitutional tool which applies to non-governmental infringement. A fact which is contradictory to Don's statement that "We use constitutions to limit the power of government, not private citizens"

I in no way meant that to imply that the government is empowered to prevent all such infringement. I think the ability of people to limit first amendment rights in private areas is pretty clear here. But there are plenty of places where the individual is prevented from acting as they wish by constitutional law.

7x57
02-07-2010, 8:23 PM
I mean, if there's a reasonable chance the Supreme Court will uphold it, such a thing would be a big win for government power, would it not?


I didn't say the court was like flipping a coin, no predictability at all. I said it is pushing it to be so confident in predicting what they will do in most areas.

Every time we go to court there is *some* chance that insanity will follow, and our grandchildren will be cursing us for it. Our job is to try to always have the odds in our favor, yes, but also to try not to roll the dice when we don't have to or when we're risking too much.

Notice how those with actual experience with the law want to nail down one thing at a time and not play "winner take all" with one big case. It's the amateurs with *no* experience that think that's a good idea.

7x57

nobody_special
02-07-2010, 8:26 PM
Notice how those with actual experience with the law want to nail down one thing at a time and not play "winner take all" with one big case. It's the amateurs with *no* experience that think that's a good idea.


Funny, I don't see anyone advocating a winner take all approach with one big case.

7x57
02-07-2010, 8:38 PM
I'm afraid I must call you out on this.


*Must*? If you had the right to bear maybe you could prevent someone from compelling you like this. ;)



SCOTUS would certainly not allow any jurisdiction to require a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel


Which of those do you think can be subject to a license or permit which would be upheld by SCOTUS?


It's all in how you do it. You asked for a counterexample, which means I only need one. I am quite sure that some of the court would accept a permit to own a printing press as long as the justification is that the inks, lubricants, and other chemicals required to operate it are an environmental hazard. It doesn't matter whether that would make any sense or not--it's for the environment. The environment!!!

The way you would play this if you want to maximize your chances is to make sure the claimed (or real!) consequences are of the right kind. Make sure they fall disproportionately on a liberal protected class, whose lives are worth much more than those of the less favored Helots. Then you can use the magic phrase "environmental justice." It gives certain justices a -4 on their saving throw vs. Unconstitutional Arguments.

Other justices are tempted by other things, but they're all human. Panels of humans sometimes do incomprehensible things. SCOTUS is essentially a committee, and while the members are supposed to be smarter than the average bear, but they are a committee.


Lower courts make all kinds of bad decisions, as 2nd Amendment jurisprudence demonstrates. That's why I prefixed my statement with "SCOTUS."


Given the actual lying in the opinions for Slaughterhouse and that ilk, your faith that one court made of human beings is somehow magically protected from the failings and foibles of other human beings is touchingly naive.


If you really think that SCOTUS would allow such things, then I'll expect you to be leading the revolution. :chris::D;)

I just went out on my porch with the Garand and looked both ways, twice. Where were you, man?!?

7x57

ddestruel
02-07-2010, 8:40 PM
I expect that shall issue concealed licenses would lead to a vast majority of gunowners carrying concealed. LOC only first would lead to some gunowners (which is larger than the current UOC crowd) carrying openly - leading to the "no guns" signs at even more places faster than the 3 current chains...

-Gene




This will happen if we are not careful. it is already evolving around the state. careful what you wish for or pursue. Sometimes silent integration is your best asset.

U/LOC seriously risks raising public awareness at the wrong time prior to certain court rulings risks putting in place many new barriers that alot of people under estimate the repercussions of.

7x57
02-07-2010, 8:43 PM
In any case, it looks like (and I sincerely hope I'm right) the permit requirement will be challenged in a future court case, but is something that needs to be done strategically along with the other various things we're after.


Here is a dynamic I want you guys to ponder stated in more familiar terms: if you say "mother may I" and mother says no, a note to that effect goes up on the fridge so daddy and the baby sitter know the answer is no forever. But if you don't ask, there is no note and you can wait to ask until mom is talking on the phone, really happy, or just in a hurry, whatever is most likely to get her to say yes.

The key is that not asking never sets a precedent.

I think it was *always* understood that opportunities will be taken. The key is not to close them off forever by asking at the wrong time or in the wrong way (c.f. "United States v. Crackhead").

7x57

kcbrown
02-07-2010, 8:59 PM
Here is a dynamic I want you guys to ponder stated in more familiar terms: if you say "mother may I" and mother says no, a note to that effect goes up on the fridge so daddy and the baby sitter know the answer is no forever. But if you don't ask, there is no note and you can wait to ask until mom is talking on the phone, really happy, or just in a hurry, whatever is most likely to get her to say yes.


Unfortunately, it appears we are going to be forced to say "mother may I" on an individual basis in order to exercise RKBA in public. There will be no option to not ask without giving up the right.



The key is that not asking never sets a precedent.
Are you sure of this?

Doesn't the mere existence of something, unchallenged, for an extended period of time give it the status of precedence?

nobody_special
02-07-2010, 9:05 PM
It's all in how you do it. You asked for a counterexample, which means I only need one. I am quite sure that some of the court would accept a permit to own a printing press as long as the justification is that the inks, lubricants, and other chemicals required to operate it are an environmental hazard. It doesn't matter whether that would make any sense or not--it's for the environment. The environment!!!


That doesn't pass strict scrutiny, it isn't a minimally restrictive way to further a compelling government interest. A ban on certain toxic inks or lubricants would pass, but there are generally substitutes that could be used.

Given the actual lying in the opinions for Slaughterhouse and that ilk, your faith that one court made of human beings is somehow magically protected from the failings and foibles of other human beings is touchingly naive.
Slaughterhouse is par for the course, in that it nullified a liberty interest in favor of police powers. Now if you want real travesties, try Wickard and Raich...

I just went out on my porch with the Garand and looked both ways, twice. Where were you, man?!?

I was there, but I tripped over the garden hose and landed behind a hedge. I'm obviously so nimble and stealthy, you never noticed! :shuriken:

:smilielol5:

Here is a dynamic I want you guys to ponder stated in more familiar terms: if you say "mother may I" and mother says no, a note to that effect goes up on the fridge so daddy and the baby sitter know the answer is no forever. But if you don't ask, there is no note and you can wait to ask until mom is talking on the phone, really happy, or just in a hurry, whatever is most likely to get her to say yes.

The key is that not asking never sets a precedent.


That approach merely allows the Gary Gorski's to set precedent. :eek:

nobody_special
02-07-2010, 9:06 PM
Doesn't the mere existence of something, unchallenged, for an extended period of time give it the status of precedence?

Isn't that why we're stuck with the NFA, GCA, etc.?

7x57
02-07-2010, 9:07 PM
Doesn't the mere existence of something, unchallenged, for an extended period of time give it the status of precedence?

A good point, though I don't think it is so strong. The point is that once you have the precedent, the issue is settled. It takes time for custom to achieve something like the same thing, time that we can use at a minimum for choosing a better time.

Nationally, we are still spreading the ability to carry through the legislatures, which after all are supposed to be the normal means (the courts mean normal means have failed, as indeed they have in California and the other bastions of Infringement). The more progress our brothers in less-unfree states make, I suspect the less incentive judges have to ignore the law "for the good of the state."

7x57

hoffmang
02-07-2010, 9:19 PM
Here are my references. Two cases, one in Georgia and one in Massachussets.

http://armsandthelaw.com/archives/2009/12/probable_cause.php
http://armsandthelaw.com/archives/2010/01/egad_2.php


The first case you site is about to be appealed since it isn't over yet. The second case you cited has the court specifically not talking about the right to arms since the plaintiff didn't raise it. Neither are binding.

Please read what the antis have to say (http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521bsacunitedstatesconferenceofmayors.pdf)and tell me why they agree with me. Cops are not going to be able to Terry stop people carrying. The standard is armed and dangerous - not just armed.

Let me be plainer. If we go for LOC first we might get it and never get shall issue permits (however, I doubt we have Kennedy and Roberts for it.) Do you really want to not be able to carry at any commercial property?

Why are you so certain that Roberts and Kennedy will vote for LOC?

-Gene

7x57
02-07-2010, 9:29 PM
That doesn't pass strict scrutiny,


Doesn't have to, once enough Protected interests are involved. Well, I mean officially it still does, but officially I have equal protection before the law and officially the Constitution reserves powers not granted to the states or the people. :smilielol5:

I can't even say it with a straight face. Reserves powers...I kill myself. :rofl:


Slaughterhouse is par for the course, in that it nullified a liberty interest in favor of police powers. Now if you want real travesties, try Wickard and Raich...


It was the first thing that came to mind, but anything involved with the Magic Wish-Granting Genie Clause (nee Commerce clause) is automatically a fine example.


I was there, but I tripped over the garden hose and landed behind a hedge. I'm obviously so nimble and stealthy, you never noticed! :shuriken:


I'll put you you down for espionage and special ops, then.


That approach merely allows the Gary Gorski's to set precedent. :eek:

That is a major limiting factor, isn't it? CGF is well aware of it--notice how insanely quick out the gate they were with Sykes and Pena? If they aren't so quick to file other cases, it means that factor wasn't enough to compel them to file.

7x57