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Fjold
06-28-2010, 6:40 AM
So far:

Alito:

"JUSTICE BREYER’s conclusion that the Fourteenth Amendment does not incorporate the right to keep and bear arms appears to rest primarily on four factors: First,“there is no popular consensus” that the right is fundamental,"

..............................

"First, we have never held that a provision of the Bill of Rights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule."

In other words, Justice Breyer is an idiot!



Now I'm going out and smoke a cigar.

1JimMarch
06-28-2010, 6:41 AM
First, remember that the "syllabus" is not valid case law. It's a handy summary prepared by the clerks, however there's at least one case that states you cannot cite to it as authority. You can only cite what the Supremes themselves write.

So the VERY first sentence in McDonald, majority opinion, goes like so:

Two years ago, in District of Columbia v. Heller, 554
U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.

Well guess what? They did NOT make that absolutely dead clear as a "holding" in the actual Heller decision.

I'm only up to page 18 and I haven't started looking up case citations. But I predict that this sentence above will prove to be one of the more important pieces of the decision.

They HELD that we have a right to bear arms (in Heller), and then applied that right to the states (in McDonald).

Think that isn't going to influence the Parker decision at the DC district court level?

Think that isn't going to make DAMNED hard to successfully bust somebody for illegal CCW? Really? Esp. if they're also denied open carry rights? If that damn UOC bill passes in Cali, that will clearly be the case. It's the case right now in Chicago, DC, NYC, lots more.

EBR Works
06-28-2010, 6:45 AM
Some good news for a change! Let the litigation begin...

:party:

yakmon
06-28-2010, 6:46 AM
here's a nugget that i like:
Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

gunsmith
06-28-2010, 6:49 AM
Well guess what? They did NOT make that absolutely dead clear as a "holding" in the actual Heller decision.
If that damn UOC bill passes in Cali, that will clearly be the case. It's the case right now in Chicago, DC, NYC, lots more.
LOL, I KNEW that banning UOC would bite them in the rear hahahah hurry up and read Jim, I am not patiently awaiting your analysis.
after reading your thread I was hopeful our "wise Latina" would agree with most Latinos that RKBA is a basic human right. She lied during her hearings.

1JimMarch
06-28-2010, 6:54 AM
On incorporation, and this is the LAST thing I'll say about it: Thomas and the Liberals couldn't combine to form a PorI block, likely because Breyer and at least one or two others held totally hardcore gun-grabber in negotiations and/or because too many of the conservatives held out against it. So Thomas went his own way and stood with Hugo Black and others, the Liberals said "screw you" - the ladies signed onto Breyer's frothings and Stevens did God only knows what.

I remain convinced PorI was possible if enough of them had bent a bit. BUT, it's also possible that what quashed the deal was Ginsburg or another Lib holding out for "rational basis review" and Alito, Scalia or others stood firm against that.

Mstrty
06-28-2010, 7:01 AM
I like this one.
Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of theBill of Rights because it concerns the right to possess adeadly implement and thus has implications for public safety. Brief for Municipal Respondents and theynote that there is intense disagreement on the question whether the private possession of guns in the home in-creases or decreases gun deaths and injuries. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisionsthat impose restrictions on law enforcement and on theprosecution of crimes fall into the same category. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding onthe States on the ground that the right at issue has dis-puted public safety implications.

EastBayRidge
06-28-2010, 7:01 AM
Scalia's concurrence has a bunch of pithy gems.

Chatterbox
06-28-2010, 7:04 AM
Oh yeah, Scalia can be very sarcastic. :)

"JUSTICE STEVENS has a different distinction in mind: Even though he does “not doubt for a moment that many Americans . . . see [firearms] as critical to their way of lifeas well as to their security,” he pronounces that owning a handgun is not “critical to leading a life of autonomy,dignity, or political equality.”6 Post, at 37–38. Who says?"

Tack
06-28-2010, 7:10 AM
Jim, please post partial conclusions. I'm really eager to hear what the ruling said.

7x57
06-28-2010, 7:16 AM
Municipal respondents’ remaining arguments are rejected be
cause they are at war with Heller’s central holding. In effect, they
ask the Court to hold the right to keep and bear arms as subject to a
different body of rules for incorporation than the other Bill of Rights
guarantees.


Still in the Syllabus, not the actual decision, but if that interpretation of the holding holds good it should put lower courts on notice that SCOTUS' patience with attempts to interpret away Heller and McDonald is not infinite.

7x57

gunsmith
06-28-2010, 7:25 AM
Still in the Syllabus, not the actual decision, but if that interpretation of the holding holds good it should put lower courts on notice that SCOTUS' patience with attempts to interpret away Heller and McDonald is not infinite.

7x57

Does that mean we can put Bloomberg/Daley/Newsome in jail for contempt of court if they keep up with their shenannigans?

stitchnicklas
06-28-2010, 7:28 AM
i suggest real close attention to justice stevens opinion even though he dissented,most of his opinion side in favor of otis and gun rights...........:yes:

IEShooter
06-28-2010, 7:35 AM
From Alito's writing of the majority opinion in the actual text:

In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554
U. S., at ___ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession offirearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.

Here, they once again reject the premise that the 2nd amendment right turns on the militia issue.

IEShooter
06-28-2010, 7:42 AM
Another quote from the text and perhaps my favorite:

Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’”

According to municipal respondents, if it is possi-ble to imagine any civilized legal system that does notrecognize a particular right, then the Due Process does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal re-spondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxem-bourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possesssuch weapons is protected by the Fourteenth Amendment. Id., at 21–23.

This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases.See Duncan, 391 U. S., at 149, and n. 14. And the pre-sent-day implications of municipal respondents’ argumentare stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminaloffenses are virtually unique to this country.28

If ourOpinion of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessaryattributes of any civilized country, it would follow that theUnited States is the only civilized Nation in the world.

This once again strikes down the absurd notion that congress and the courts can selectively ignore parts of the constitution that they don't like because similiar rights don't exist in other "civilized" countries. :rolleyes:

7x57
06-28-2010, 7:45 AM
Does that mean we can put Bloomberg/Daley/Newsome in jail for contempt of court if they keep up with their shenannigans?

No, they're (edited to add: not) that stupid or that dedicated. It just puts limits on how far they can talk big (like DC did) before they have to give in precisely to avoid a visit from the federal marshals.

I don't think any anti-gunner will ever go to jail for any infringement whatsoever.

7x57

gunsmith
06-28-2010, 7:46 AM
^^^^
darn!

yellowfin
06-28-2010, 7:56 AM
From Scalia's concurrence:
And the Court’s approach intrudes less upon the democratic process because the rights it acknowledges are thoseestablished by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge areleft to be democratically adopted or rejected by the people, with the assurance that their decision is not subject tojudicial revision. JUSTICE STEVENS’ approach, on the other hand, deprives the people of that power, since whatever the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be. After all, he notes, the people have been wrong before, post, at 55, and courts may conclude they are wrong in the future. JUSTICE STEVENS abhors a system in which “majorities orpowerful interest groups always get their way,” post, at 56, but replaces it with a system in which unelected and lifetenured judges always get their way. That such usurpation is effected unabashedly, see post, at 53—with “the judge’s cards . . . laid on the table,” ibid.—makes it even worse. In a vibrant democracy, usurpation should have tobe accomplished in the dark. It is JUSTICE STEVENS’ approach, not the Court’s, that puts democracy in peril.
Calling a spade a spade.

Fjold
06-28-2010, 8:21 AM
Scalia:

"The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences?"

1JimMarch
06-28-2010, 8:34 AM
OK, found something else vital starting from the bottom of page 17 if you were to print it, 23 if you're reading it as a PDF:

Finally, the Court abandoned “the notion that the Four
teenth Amendment applies to the States only a watered
down, subjective version of the individual guarantees of
the Bill of Rights,” stating that it would be “incongruous”
to apply different standards “depending on whether the
claim was asserted in a state or federal court.” Malloy,
378 U. S., at 10–11 (internal quotation marks omitted).
Instead, the Court decisively held that incorporated Bill of
Rights protections “are all to be enforced against the
States under the Fourteenth Amendment according to the
same standards that protect those personal rights against
federal encroachment.” Id., at 10; see also Mapp v. Ohio,
367 U. S. 643, 655–656 (1961); Ker v. California, 374 U. S.
23, 33–34 (1963); Aguilar v. Texas, 378 U. S. 108, 110
(1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149,
157–158; Benton, 395 U. S., at 794–795; Wallace v. Jaffree,
472 U. S. 38, 48–49 (1985).14

Employing this approach, the Court overruled earlier
decisions in which it had held that particular Bill of Rights
guarantees or remedies did not apply to the States. See,
e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25);
Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455);
Malloy, supra (overruling Adamson, 332 U. S. 46, and
Twining, 211 U. S. 78); Benton, supra, at 794 (overruling
Palko, 302 U. S. 319).

Footnote 14 lists an exception but they also explain why it doesn't matter.

TRANSLATION, pending looking up ALL those citations, is that basically everything important in the Heller decision gets crammed down Chicago's throat and all the states. So that means Chicago can't do an unloaded-guns-only rule or violate any core principle ("holding") of Heller - including what McDonald says is a holding, the "right to BEAR arms".

snobord99
06-28-2010, 8:37 AM
"In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

dantodd
06-28-2010, 8:50 AM
Fixed, I think. Heller was to keep (in the home), not to bear (in public).

According to Justice Alito, and the opinion of the court the right incorporated is to "keep and bear"

Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.

It is important to note that while the law struck down was to keep a gun in the house, the right affirmed was to keep AND bear.

1JimMarch
06-28-2010, 8:56 AM
Exactly! The McDonald court has now clarified Heller to be both a "keep" and "BEAR" ruling! HELLER CAN NO LONGER BE DESCRIBED AS A PURE "KEEP IN THE HOME" CASE AND ANYBODY WHO SAYS OTHERWISE IS A LIAR.

yellowfin
06-28-2010, 8:57 AM
Exactly! The McDonald court has now clarified Heller to be both a "keep" and "BEAR" ruling! HELLER CAN NO LONGER BE DESCRIBED AS A PURE "KEEP IN THE HOME" CASE AND ANYBODY WHO SAYS OTHERWISE IS A LIAR.Among said liars includes a fair chunk of the so called justices in at least two federal circuits. Expect them to lie repeatedly in response to challenges to Bach v. Pataki and Scherr v. Handgun Permit Review Board. My guess is they'll say anything possible in the English language and possibly even others to avoid striking down bad laws.

Liberty1
06-28-2010, 8:58 AM
Jim, please post partial conclusions. I'm really eager to hear what the ruling said.

They said you have a right to keep and bear arms protected against state laws and to let the law suits begin to figure out what that right encompasses because they're not going to tell us yet what that right means specifically...;)

Untamed1972
06-28-2010, 9:00 AM
From page 39 section IV "Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defensewithin the home."


Notice is "keep and bear are for lawful purposes"....not ONLY in the home, but "most notably in the home." (ETA which would mean by exetention "also for self-defense less notably outside the home."...but less notably is still notable.)

To me that indicates the bearing arms for lawful purposes OUTSIDE of the home is ALSO protected.

Untamed1972
06-28-2010, 9:04 AM
gotta love this part "And the pre-sent-day implications of municipal respondents’ argumentare stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country.28 If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessaryattributes of any civilized country, it would follow that theUnited States is the only civilized Nation in the world."

"Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substan-tive as opposed to procedural rights. Brief for Municipal Respondents 10, n. 3. But even in this trimmed form, municipal respondents’ argument flies in the face of more than a half-century of precedent."


Bascially flat out called them idiots! glad to see the court is as offended by their anti-american, anti liberty arguements as we all are.

Untamed1972
06-28-2010, 9:15 AM
"we stressedthat the right was also valued because the possession offirearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.”

Notice they didnt say "only in the home."

1JimMarch
06-28-2010, 9:26 AM
Another important bit:

Municipal respondents assert that, although most state
constitutions protect firearms rights, state courts have
held that these rights are subject to “interest-balancing”
and have sustained a variety of restrictions. Brief for
Municipal Respondents 23–31. In Heller, however, we
expressly rejected the argument that the scope of the
Second Amendment right should be determined by judicial
interest balancing, 554 U. S., at ___–___ (slip op., at 62–
63), and this Court decades ago abandoned “the notion
that the Fourteenth Amendment applies to the States only
a watered-down, subjective version of the individual guar-
antees of the Bill of Rights,” Malloy, supra, at 10–11 (in-
ternal quotation marks omitted).

As evidence that the Fourteenth Amendment has not
historically been understood to restrict the authority of the
States to regulate firearms, municipal respondents and
supporting amici cite a variety of state and local firearms
laws that courts have upheld. But what is most striking
about their research is the paucity of precedent sustaining
bans comparable to those at issue here and in Heller.
Municipal respondents cite precisely one case (from the
late 20th century) in which such a ban was sustained. See
Brief for Municipal Respondents 26–27 (citing Kalodimos
v. Morton Grove, 103 Ill. 2d 483, 470 N. E. 2d 266 (1984));
see also Reply Brief for Respondents NRA et al. 23, n. 7
(asserting that no other court has ever upheld a complete
ban on the possession of handguns). It is important to
keep in mind that Heller, while striking down a law that
prohibited the possession of handguns in the home, recog
nized that the right to keep and bear arms is not “a right
to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” 554 U. S., at ___
(slip op., at 54). We made it clear in Heller that our hold
ing did not cast doubt on such longstanding regulatory
measures as “prohibitions on the possession of firearms by
felons and the mentally ill,” “laws forbidding the carrying
of firearms in sensitive places such as schools and gov
ernment buildings, or laws imposing conditions and quali
fications on the commercial sale of arms.” Id., at ___–___
(slip op., at 54–55). We repeat those assurances here.
Despite municipal respondents’ doomsday proclamations,
incorporation does not imperil every law regulating
firearms.

Yet again we see that any state trying to do a blanket ban on the carrying of personal defense arms is in for a nasty, nasty surprise.

hill billy
06-28-2010, 9:49 AM
gotta love this part "And the pre-sent-day implications of municipal respondents’ argumentare stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country.28 If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessaryattributes of any civilized country, it would follow that theUnited States is the only civilized Nation in the world."

:79::79:

Sleepy1988
06-28-2010, 10:22 AM
So far:

Alito:

"JUSTICE BREYER’s conclusion that the Fourteenth Amendment does not incorporate the right to keep andbear arms appears to rest primarily on four factors: First,“there is no popular consensus” that the right is fundamental,"

..............................

"First, we have never held that a provision of the Bill ofRights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule."

In other words, Justice Breyer is an idiot communist judicial activist!



Now I'm going out and smoke a cigar.

Edit:I misinterpreted what was said. I should have known better. Breyer gave a typical Democrat lib answer, that the majority can make the laws for everyone in a society. The problem is, I would bet that in the current climate a majority of people support the the private ownership of firearms.

Typical hypocritical lib justice, trying to justify his decision to ignore the law by the most backwards and convoluted logic.

stitchnicklas
06-28-2010, 10:45 AM
i suggest real close attention to justice stevens opinion even though he dissented,most of his opinion side in favor of otis and gun rights...........:yes:

any thought on this people,his opinion was very leaning it seemed towards pro-gun i think

SAN compnerd
06-28-2010, 11:16 AM
Exactly! The McDonald court has now clarified Heller to be both a "keep" and "BEAR" ruling! HELLER CAN NO LONGER BE DESCRIBED AS A PURE "KEEP IN THE HOME" CASE AND ANYBODY WHO SAYS OTHERWISE IS A LIAR.

Easy there big guy. Don't blow a gasket, we need the rest of your analysis:D

stag1500
06-28-2010, 11:33 AM
Exactly! The McDonald court has now clarified Heller to be both a "keep" and "BEAR" ruling! HELLER CAN NO LONGER BE DESCRIBED AS A PURE "KEEP IN THE HOME" CASE AND ANYBODY WHO SAYS OTHERWISE IS A LIAR.

That should be very helpful in Palmer v. DC.

1JimMarch
06-28-2010, 3:38 PM
Oh yeah. The Supremes just told the Parker judge how to rule. Period.

Said judge was apparently holding his decision until he got some guidance from McDonald - nothing else explains why its so late.

Lateralus
06-28-2010, 3:53 PM
Oh yeah. The Supremes just told the Parker judge how to rule. Period.

Said judge was apparently holding his decision until he got some guidance from McDonald - nothing else explains why its so late.

My thoughts on Nordyke exactly.

2009_gunner
06-28-2010, 4:06 PM
Hopefully the Palmer judge also gets the clue

http://wiki.calgunsfoundation.org/index.php/Palmer_v._District_of_Columbia

BillCA
06-28-2010, 4:53 PM
I've just been trying to read Breyer's dissent (with Ginsburg and Sotomayor joining). I'm not sure if it's the heat here or the content that's souring my stomach. But I did find a "nugget" that suggests that Breyer is being closed minded and disengenious at best.

In trying to dismiss the 2nd Amendment as not "fundamental" to our form of government, Breyer writes:
Unlike the First Amendment’s religious protections, the Fourth Amendment’s protection against unreasonable searches and seizures, the Fifth and Sixth Amendments’ insistence upon fair criminal procedure, and the Eighth Amendment’s protection against cruel and unusual punishments, the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority.

Perhaps Sotamayor, being the "wise Latina" and a minority, should have reminded Breyer about the reconstruction-era abuses of free Negroes. I think African-Americans who lost a great-grandparent or other relatives to the ex-Confederate militias or the Klu-Klux-Klan might disagree. I think they'd say the right to keep and bear arms significantly protects minorities from unfair abuses by the majority.

Breyer spends a lot of time claiming that "self-defense" really meant "defense of the King" or "defense of the realm" in English common law (much like "right of the people" really means right of the State). He suggests that "self-defense" isn't found in the [historical] documents and thus cannot be the "core component" of the 2A right.

That's sort of like suggesting we have "freedom of speech", but because it's not explicitly written, we do not have a right to develop the language with which to use it.

Fyathyrio
06-28-2010, 4:56 PM
I'm enjoying reading Scalia's condemnation of Stevens. Should anybody ever find themselves at a loss for words on how to tell somebody they are an idiot, Justice Scalia has prepared a nice primer. He's particularly scathing in his footnotes. I guess he just wanted to give him a nice parting gift before retirement! :D

taperxz
06-28-2010, 5:05 PM
Scotus, with the words, rights for personal protection is the basis for the 2A, How could any sheriff in CA deny you a ccw with that same good cause statement? Basically, if you use that statement for good cause and got denied you could sue them for violating your 2a rights!!

choprzrul
06-28-2010, 6:52 PM
Scotus, with the words, rights for personal protection is the basis for the 2A, How could any sheriff in CA deny you a ccw with that same good cause statement? Basically, if you use that statement for good cause and got denied you could sue them for violating your 2a rights!!

Ya know, I really think that a prepared direct and relevant quotation from SCOTUS for a good cause would be most excellent. The 2A is my good cause. Let CLEOs around the state start denying and then bring on the civil rights violation lawsuits. Put 'em on the ropes and don't give them an inch of wiggle room. Money talks and govt entities in CA don't have any to be waging ideological warfare with us. They're down, let's hit them hard and make sure they don't get back up again. Sue everyone in sight for violating our civil rights and use the supreme's own words to set it all up. Most delightful.

Etoshan
06-28-2010, 8:50 PM
Scotus, with the words, rights for personal protection is the basis for the 2A, How could any sheriff in CA deny you a ccw with that same good cause statement? Basically, if you use that statement for good cause and got denied you could sue them for violating your 2a rights!!

I'm obviously confused, again. If we have a right that is guaranteed by the second amendment why would one even apply for a ccw permit (license) when a permit (license) gives one permission to something that would otherwise be illegal. I mean...If it's a right, how can it be illegal, therefore requiring a permit?

1JimMarch
06-28-2010, 9:54 PM
OK, finally finished a draft article. Editing help would be welcome :).

I put some effort in...NOT for re-distribution until I do one more edit in the AM. I'm too tired for words right now...

BillCA
06-28-2010, 10:17 PM
As it currently stands in California, you can only open carry in counties with less than 200,000 population. That means, for the majority of Californians, the only other option is concealed carry. Both require permits by current law. But you are limited by county as to which permit(s) you can obtain.

Being a law-abiding citizen, you apply for a CCW and in your good cause statement refer to the Supreme Court decision that says you not only have a right to keep, but to bear arms for lawful self-defense because self-defense is the core component of the right.

They will turn you down anyhow and make you sue them to get the permit.

Amongst other things a department might do, is check your background. If you ever had a warrant of any kind (FTA, failure for jury duty, etc) or any conviction for a "violent crime", including a mutual-combat assault when you were 18, the agency will say that indicates a lack of "good moral character". The same might be said for a poor credit-score, lots of late payments to city utilities/services, etc.

In theory, an unconstitutional law is void. California's carry laws are "clearly" unconstitutional according to McDonald. But I wouldn't push the envelope right now without deep pockets funding me.

The California legislature will have a tough choice to make. IF a person can carry a firearm in a non-prohibited public place for self-defense as part of the right, then the state cannot require a permit to do so. Thus, the legislature's choice will have to be between allowing open carry or concealed carry without a permit.

Some speculate they'll allow concealed so that the bedwetters aren't panicked by open carriers and to avoid people realizing in the long run how stifled their liberties have become. I doubt it.

The CLEOs and POAs will lobby against no-permit concealed carry in their own self-interests. I think it's likely that lawmakers will realize that most folks work for someone else and those companies frequently have a "no weapons at work" policy. Thus, open carriers will be forced to secure guns in their cars or leave it at home. They will let employment agreements limit the right.

Nor would I put it past the legsislature to impose certain requirements on businesses to ensure a "no weapons" policy. For instance, adding 25% to the cost of a business license "to cover additional public services" if the company does not explicitly prohibit employees, customers, vendors, suppliers, etc. from bringing weapons into the business. They could also add 40% in extra fees to cover "workman's compensation" in case imployees get hurt with firearms (not that the benefits would change).

dantodd
06-28-2010, 10:26 PM
As it currently stands in California, you can only open carry in counties with less than 200,000 population. That means, for the majority of Californians, the only other option is concealed carry. Both require permits by current law. But you are limited by county as to which permit(s) you can obtain.

I know there was some talk about delinking the "standard" CCW from open carry but did a new law pass?

postal
06-28-2010, 10:51 PM
Well written Jim.

Some good key points.

BillCA
06-28-2010, 11:42 PM
I know there was some talk about delinking the "standard" CCW from open carry but did a new law pass?

Not that I'm aware of.

Penal code §12050 allows any CLEO to issue a CCW. But the only ones who may issue open-carry permits are the ones in counties with less than 200,000 people. A CCW is generally valid statewide, but the OC permit is only valid in the county of issuance.

If you live in any of the costal counties between San Diego up to San Francisco, you can just about forget getting a CCW. Most agencies in those areas make it very hard to obtain a permit.

dantodd
06-28-2010, 11:44 PM
Penal code §12050 allows any CLEO to issue a CCW. But the only ones who may issue open-carry permits are the ones in counties with less than 200,000 people. A CCW is generally valid statewide, but the OC permit is only valid in the county of issuance.

What you are referring to is an Open Carry only permit. With one of these you can open carry in county but not concealed carry. with a regular CCW you can ALSO open carry anywhere in the state.

Mulay El Raisuli
06-29-2010, 5:29 AM
If our Opinion of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.



An assertion I agree with entirely!


The Raisuli

hill billy
06-29-2010, 5:50 AM
Jim, you need to fix the sentence in the third or so paragraph starting with "Steven's dissent" and the 4000 lynching's.

It should read," This was the case that launched 4,000 lynchings, with far
more than that dead as a result of horrible criminal court “rulings” and countless other civil rights violations."

Serpentine
06-29-2010, 6:53 AM
As it currently stands in California, you can only open carry in counties with less than 200,000 population. That means, for the majority of Californians, the only other option is concealed carry. Both require permits by current law. But you are limited by county as to which permit(s) you can obtain.

Being a law-abiding citizen, you apply for a CCW and in your good cause statement refer to the Supreme Court decision that says you not only have a right to keep, but to bear arms for lawful self-defense because self-defense is the core component of the right.

They will turn you down anyhow and make you sue them to get the permit.

Amongst other things a department might do, is check your background. If you ever had a warrant of any kind (FTA, failure for jury duty, etc) or any conviction for a "violent crime", including a mutual-combat assault when you were 18, the agency will say that indicates a lack of "good moral character". The same might be said for a poor credit-score, lots of late payments to city utilities/services, etc.

In theory, an unconstitutional law is void. California's carry laws are "clearly" unconstitutional according to McDonald. But I wouldn't push the envelope right now without deep pockets funding me.

The California legislature will have a tough choice to make. IF a person can carry a firearm in a non-prohibited public place for self-defense as part of the right, then the state cannot require a permit to do so. Thus, the legislature's choice will have to be between allowing open carry or concealed carry without a permit.

Some speculate they'll allow concealed so that the bedwetters aren't panicked by open carriers and to avoid people realizing in the long run how stifled their liberties have become. I doubt it.

The CLEOs and POAs will lobby against no-permit concealed carry in their own self-interests. I think it's likely that lawmakers will realize that most folks work for someone else and those companies frequently have a "no weapons at work" policy. Thus, open carriers will be forced to secure guns in their cars or leave it at home. They will let employment agreements limit the right.

Nor would I put it past the legsislature to impose certain requirements on businesses to ensure a "no weapons" policy. For instance, adding 25% to the cost of a business license "to cover additional public services" if the company does not explicitly prohibit employees, customers, vendors, suppliers, etc. from bringing weapons into the business. They could also add 40% in extra fees to cover "workman's compensation" in case imployees get hurt with firearms (not that the benefits would change).

They may require you to sign an authorization to release your medical records (which would raise serious questions under the The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. Not sure if it's legal for any LEO to require you sign over your medical records for the right the keep and or bear arms - CCW or not.

http://www.hhs.gov/ocr/privacy/index.html

http://www.hhs.gov/ocr/privacy/hipaa/administrative/privacyrule/index.html


.

Untamed1972
06-29-2010, 7:18 AM
What you are referring to is an Open Carry only permit. With one of these you can open carry in county but not concealed carry. with a regular CCW you can ALSO open carry anywhere in the state.


I believe as of Jan. 1, 2010 the LOC provision of a CCW permit was removed from the law.

See this thread posted by Gene hoffman http://www.calguns.net/calgunforum/showthread.php?t=259400

Glock22Fan
06-29-2010, 7:33 AM
What you are referring to is an Open Carry only permit. With one of these you can open carry in county but not concealed carry. with a regular CCW you can ALSO open carry anywhere in the state.

It is common practice for sheriffs to revoke the CCW's of people found open carrying. Whether this is right or not, I will not say, but it does happen.

7x57
06-30-2010, 5:22 AM
This thread may be dead, but here is a quote (of a quote) from the majority opinion that I find obnoxious:


They question whether there is sound evidence of “ ‘any strong public awareness of nationalizing the entire Bill of Rights.’ ”


ETA: I forgot to give the location, and I should because it is not Alito's words but something he quotes. It is in a footnote on p21 of the pdf, p15 by the internal numbering scheme.

Here is the problem: I have attempted to explain the current litigation strategy many times, and I have NEVER met anyone not deeply plugged into gun rights who does not believe that the Bill of Rights applies to any governmental level at all. Never.

I don't think I've brought it up on Calguns before, but I really would like to see a well-done survey with good statistical controls done to test this, because I believe the result would be that there is a near-universal public belief that the Bill of Rights is theirs to assert against any US government--federal, state, or local.

Perhaps a small point, but it was worth mentioning in a Supreme Court decision as part of the rationale for not revisiting Slaughterhouse.

I'm bothered by the likely fallacious argument more than by the use to which it is put, but then I'm funny that way.

7x57

Mulay El Raisuli
06-30-2010, 8:00 AM
From the Ruling, page 5 of the pdf.

(ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause,it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33.


OK, what may become my favorite quote is this one. Now, INAL, but it seems to me that this pretty much answers the question of 'what level of scrutiny did we just get?' If the 2A gets the same treatment as everything else, doesn't that automatically mean the scrutiny applied is to be strict?


The Raisuli

dantodd
06-30-2010, 9:12 AM
I believe as of Jan. 1, 2010 the LOC provision of a CCW permit was removed from the law.

See this thread posted by Gene hoffman http://www.calguns.net/calgunforum/showthread.php?t=259400

Thanks for tracking that down. I stand corrected.

7x57
06-30-2010, 9:44 AM
The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason.


Another comment--my appreciation for Scalia's prose, including his razor wit, is renewed. I've been miffed with him on a couple of things, but the dissent, skewering Stevens, is just lovely so far.

It is interesting that Gura was batted about like a catnip toy for a bit over a very similar issue: the absence of a coherent theory of the P&I clause.


He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is.


Scalia manages to call people irrational idiots in more beautiful ways than just about anyone. :D

7x57

7x57
06-30-2010, 11:28 AM
Another nice line, from Thomas' concurrence. After summarizing Selective Incorporation, he begins a new paragraph thusly:


All of this is a legal fiction.


Sometimes, it's nice to lead with a right cross instead of dancing around and jabbing about. :D

7x57

7x57
06-30-2010, 11:58 AM
More Thomas on Selective Incorporation:


This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle.


7x57

Barabas
06-30-2010, 1:25 PM
This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle.

That right thar is a gem that shines so brightly that it illuminates something that has been hidden in plain sight for a very long time. Due Process and scrutiny is hollow and subject to the political whims of the Members of the Court.

Untamed1972
06-30-2010, 1:41 PM
That right thar is a gem that shines so brightly that it illuminates something that has been hidden in plain sight for a very long time. Due Process and scrutiny is hollow and subject to the political whims of the Members of the Court.


After reading some of Steven's foul blathering and Alito's response to it.....it seems that some of them want it that way. They seem to forget that it is the Constitution itself that gives them a seat on the bench. Take the constitution away and what right do any of them have to be there in the first place?

Southwest Chuck
06-30-2010, 3:56 PM
OK, finally finished a draft article. Editing help would be welcome :).

I put some effort in...NOT for re-distribution until I do one more edit in the AM. I'm too tired for words right now...

Page 6, first sentence, add the word "to".
powerful condemnation of her concepts with regards to the 2nd Amendment.17

Fjold
06-30-2010, 5:14 PM
OK, finally finished a draft article. Editing help would be welcome :).

I put some effort in...NOT for re-distribution until I do one more edit in the AM. I'm too tired for words right now...

Jim,

Very good article. Since I am officially a member of the Grammar Police, I did proof it for you.

1.) "Thomas’ dissent goes out of it’s way not to weaken the core holdings," "it's" is only used for the contraction of "it is".


2.) "Colfax LA in 1873" - should be "Colfax, LA in 1873"

3.) "This was the case that launched 4,000 lynchings along," This should read "alone"

4.) "far more than that dead as a result of horrible criminal court “rulings” This should read "died"

5.) it applies as a limit to state and local authority to the same degree it does so to the Federal government. This reads cleaner without the "so"

6.) New York supporting that state’s ability to discriminated against visitors from out of state Tense error

7.) Ohio gun owners launched a series of open-carry rallies circling the various state and local capitals in happy, harmless and heavily armed mobs I would use "groups", as "mobs" has a pejorative bent. Also, I don't think that there are "various state and local capitols". It should be "the State Capitol and local governmental buildings"

7x57
06-30-2010, 9:44 PM
I'm enjoying Thomas' extended dissent. It doesn't have Scalia's crushing wit, but the historical scholarship is excellent. But here he quotes Frederick Douglass in what becomes a horribly ironic prophecy:


the Legislatures of the South can take from him
the right to keep and bear arms, as they can—they would
not allow a negro to walk with a cane where I came from,
they would not allow five of them to assemble together.


As I read that, I recalled a report of a man's cane being confiscated in Britain, because it might be a weapon.

Yah. Jim Crow law in Britain. And they think we're joking when we talk about the difference between a citizen and a subject.

7x57