PDA

View Full Version : Heller, McDonald, and CCW


choprzrul
04-04-2011, 2:56 PM
**Rant On**

From pages 19 & 20 of the McDonald decision, partly referencing their Heller decision:

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” ...(“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”

When I read this SCOTUS decision, I must try and reconcile the bolded words with the following from SLO Sheriff's CCW app's section for Good Cause:

Details of Reason for Applicant desiring a CCW License

I can find no reason not to side with Justice Alito in the McDonald decision and simply state on the application "Self Defense". Yet, when I have done so, my application is denied on grounds of lacking good cause??? How can they circumvent Justice Alito's very specific statement: Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense. What part of MUST do they not understand??? How can this blatant disregard for a SCOTUS decision be allowed to stand? How can they be allowed to continue violating my fundamental civil right to self defense?

The words are right there, black on white, written by the Supreme Court. Yet, a single person elected at the county level, is allowed to randomly violate my civil rights? For the life of me, I fail to understand how this condition persists. How are these county Sheriffs not guilty under 18USC241 and 242:

§ 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States...

§ 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...

BAM!

How can they be anything but guilty under 241 & 242??? Why are they not being locked up? Why are they allowed "...under the color of any law....to the deprivation of ANY rights, privileges..." to separate me from lawfully carrying a concealed weapon for the expressed purpose of self defense? Are they above SCOTUS? Are we living in some kind of vacuum where Supreme Court decisions magically cease to be enforced at the Nevada/California border? IMHO, crimes are being committed each time a CCW app is denied because "self defense" is expressed in the Good Cause section.

**Rant Off*

.

hoffmang
04-04-2011, 3:04 PM
And this would be the argument in Richards v Prieto (http://wiki.calgunsfoundation.org/index.php/Richards_v._Prieto).

-Gene

Joe
04-04-2011, 3:08 PM
Great post OP and I hope Yolo county gets destroyed in court

loose_electron
04-04-2011, 3:43 PM
Gene:

In your opinion, when the Yolo county thing (richards v prieto) finishes up, will that pave the way for a "shall issue" on CCW statewide?

dantodd
04-04-2011, 4:02 PM
It almost certainly will, but not for the reason you or I might hope. It will apply to all of CA because it will only be decided in our favor at the circuit (or more likely SCOTUS) level which has jurisdiction broader than the Eastern District where the case is currently.

As clear as Heller and McDonald are district and even circuit courts have managed to completely ignore their implications and done what Patrick-2 has eloquently described as the 2A two step. Part 1, since Heller was only about "in the home" it is only binding on cases about "in the home" and therefore carry cases are "not core." Part 2, "not core" cases only get intermediate (not strict scrutiny) Then they mis-apply rational basis scrutiny labeled as intermediate and decide the right really doesn't exist.

I would expect the same in Richards at the District level. I would be surprised if it were anything but this exact rationale. Happily surprised, but surprised.

It is a recognition of this fact and a crafting of the initial complaint specifically for Circuit and The Supreme Court that makes Richards so much superior to cases like Peruta which are written with the full expectation that it can be properly adjudicated at the district level. The Peruta amended complaint went far to improve it but you can only do so much with a faulty case to start with.

Connor P Price
04-04-2011, 4:41 PM
It almost certainly will, but not for the reason you or I might hope. It will apply to all of CA because it will only be decided in our favor at the circuit (or more likely SCOTUS) level which has jurisdiction broader than the Eastern District where the case is currently.

As clear as Heller and McDonald are district and even circuit courts have managed to completely ignore their implications and done what Patrick-2 has eloquently described as the 2A two step. Part 1, since Heller was only about "in the home" it is only binding on cases about "in the home" and therefore carry cases are "not core." Part 2, "not core" cases only get intermediate (not strict scrutiny) Then they mis-apply rational basis scrutiny labeled as intermediate and decide the right really doesn't exist.

I would expect the same in Richards at the District level. I would be surprised if it were anything but this exact rationale. Happily surprised, but surprised.

It is a recognition of this fact and a crafting of the initial complaint specifically for Circuit and The Supreme Court that makes Richards so much superior to cases like Peruta which are written with the full expectation that it can be properly adjudicated at the district level. The Peruta amended complaint went far to improve it but you can only do so much with a faulty case to start with.

This seems the only reasonable expectation to me. At first I was hoping for a win in Richards after reading all the tweets coming out of the court room because Gura's argument seems perfectly sound to me. Of course the argument is solid, but its not going to win here, not now. It's sad to have to watch a case go through a long drawn out battle, but in the end it can certainly work for the better.

wildhawker
04-04-2011, 4:50 PM
Gene:

In your opinion, when the Yolo county thing (richards v prieto) finishes up, will that pave the way for a "shall issue" on CCW statewide?

I would put it this way:

When the [numerous] 'bear' cases are concluded, they will have paved the way to a national constitutional standard for applying the Second Amendment to the possession of functional firearms by law-abiding people outside the home, and associated application of states' police powers.

choprzrul
04-04-2011, 4:53 PM
The 2A two step depends upon Heller/McDonald ending at the front door of one's home. However, McDonald doesn't say 'only' in the home, but rather says it is most acute in the home:

Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,”

Now, I would have had to read this to say that it applies only to the home but with one exception: Alito included "...and family" at the end of the above quote. How can anyone argue that one's family would not need the veil of protection outside the home? Taken one step further, a family is made up of (in general terms for this argument) father, mother, and children. If the father has a CCW, protecting himself would fall within the specification of "...and family" as he is a member of the family. Taken one step further yet, we all have a mother and father, so we are all part of one 'family' or another, so everyone should be included in "...and family". The 2A two step fails because Alito did not say "...use for protection of one’s home and family at home...” (emphasis mine).

To me, this makes the 2A two step argument seem very disingenuous on the surface. I cannot see how anyone of even moderate intelligence can read McDonald and not understand that it applies to more than just the home.

.

hoffmang
04-04-2011, 5:05 PM
I cannot see how anyone of even moderate intelligence can read McDonald and not understand that it applies to more than just the home.

Even the Judges who try to limit the 2A to the home can read it, know it doesn't say that, but rule that way anyway.

Bear arms is the part that really worries the prohibitionists. Since 40 states went shall issue and nothing bad happened, it's getting very, very hard for them to pursue a strategy of civilian disarmament.

-Gene

HondaMasterTech
04-04-2011, 5:27 PM
The anti's strategy has always relied on fear. They do not need facts when they have impressionable people who are easily convinced.

Even though 40+ states are shall-issue, only a fraction of those populations actually carry. I don't think theres a state where the CCW numbers have reached 10%.

That leaves 90% who don't see firearms as a necessary tool for self-defense, potentially.

N6ATF
04-04-2011, 6:19 PM
And this would be the argument in Richards v Prieto (http://wiki.calgunsfoundation.org/index.php/Richards_v._Prieto).

-Gene

It's not a case that can result in federal criminal penalties for Prieto's violations of 241 and 242, though...

stix213
04-04-2011, 6:31 PM
That leaves 90% who don't see firearms as a necessary tool for self-defense, potentially.

That's not necessarily true, since there will be some people who will view the entire idea that there are some random people carrying in society as a way to discourage crime. They may just not be comfortable with themselves carrying for whatever reason, while they are more than happy that there may be several people in the room with a gun.

hoffmang
04-04-2011, 6:38 PM
It's not a case that can result in federal criminal penalties for Prieto's violations of 241 and 242, though...

Criminal penalties are EXTREMELY RARE. I didn't point that out as it took more time than I had.

-Gene

HondaMasterTech
04-04-2011, 6:39 PM
What percentage of gun-owners vote according to a candidates 2nd Amendment position?

stix213
04-04-2011, 6:43 PM
What percentage of gun-owners vote according to a candidates 2nd Amendment position?

I would think it would be a factor for many, but most gun owners are not single issue voters if that is what you mean.

N6ATF
04-04-2011, 6:43 PM
Criminal penalties are EXTREMELY RARE. I didn't point that out as it took more time than I had.

-Gene

Adding "most of" between "be" and "the" would have taken more time than you had? Jeez man, you're busy! :p

hoffmang
04-04-2011, 6:45 PM
Adding "most of" between "be" and "the" would have taken more time than you had? Jeez man, you're busy! :p

You have NO idea...

-Gene

choprzrul
04-04-2011, 6:47 PM
Criminal penalties are EXTREMELY RARE. I didn't point that out as it took more time than I had.

-Gene

Yet, is it not blatantly obvious that 241 & 242 are being violated? The way that they are written, it would seem that if I was killed by an attacker after being denied access to my civil right to self defense, the person found guilty under 241 could face the death penalty:

and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

I'm thinking that I should advise family to pursue a civil suit if something should happen to me now that I have been denied using 'self defense' as a GC. Time to make copies of paperwork and tuck them safely away...

.

N6ATF
04-04-2011, 6:50 PM
I think 241 and 242 have as much utility as Article III, Section 3. If nobody will prosecute the violators, these may as well be printed on toilet paper.

hoffmang
04-04-2011, 6:54 PM
Yet, is it not blatantly obvious that 241 & 242 are being violated? The way that they are written, it would seem that if I was killed by an attacker after being denied access to my civil right to self defense, the person found guilty under 241 could face the death penalty:

That's way too indirect. This was to prosecute a LEO who was also a KKK'er who let a lynch mob kill black people. It's not about more attenuated circumstances.

Everyone should just forget about the criminal penalties and realize that the civil penalties work just fine to bring governments into line.

-Gene

dantodd
04-04-2011, 7:16 PM
That's way too indirect. This was to prosecute a LEO who was also a KKK'er who let a lynch mob kill black people. It's not about more attenuated circumstances.


And if a gang member kills someone and direct evidence is found that counsel members are specifically turning a blind eye to certain gang activity, Such as Your Black Muslim Bakery in Oakland?

taperxz
04-04-2011, 7:19 PM
And if a gang member kills someone and direct evidence is found that counsel members are specifically turning a blind eye to certain gang activity, Such as Your Black Muslim Bakery in Oakland?

I find that scenario being more involved with organized crime than gangs. JMO

Not discrediting your idea though. Those folks had more going on than just gang activity.

hoffmang
04-04-2011, 10:17 PM
And if a gang member kills someone and direct evidence is found that counsel members are specifically turning a blind eye to certain gang activity, Such as Your Black Muslim Bakery in Oakland?

Not how that federal law works.

-Gene

trevilli
04-05-2011, 1:00 PM
The 2A two step depends upon Heller/McDonald To me, this makes the 2A two step argument seem very disingenuous on the surface. I cannot see how anyone of even moderate intelligence can read McDonald and not understand that it applies to more than just the home.

The counter argument of course, is if they meant what you said, why didn't they say so explicitly? Would it have been that much more difficult to say “the need for defense of self, family, and property is most acute, but by no means limited to” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s family both inside and outside the home,”
Problem solved. But they didn't say that, they left the door open a crack, and the people that don't want us to exercise our rights are galloping through it.

I'm beginning to believe that before the right to carry is settled, especially in states like California, SCOTUS will have to rule on it explicitly. After all, before Heller and McDonald, 2A infringement was seen as appropriate because the right was considered to be a collective one, given to the militia; it wasn't for individuals, heck, it didn't even apply to the states!

CaliforniaLiberal
04-05-2011, 4:28 PM
The counter argument of course, is if they meant what you said, why didn't they say so explicitly? Would it have been that much more difficult to say “the need for defense of self, family, and property is most acute, but by no means limited to” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s family both inside and outside the home,”
Problem solved. But they didn't say that, they left the door open a crack, and the people that don't want us to exercise our rights are galloping through it.

I'm beginning to believe that before the right to carry is settled, especially in states like California, SCOTUS will have to rule on it explicitly. After all, before Heller and McDonald, 2A infringement was seen as appropriate because the right was considered to be a collective one, given to the militia; it wasn't for individuals, heck, it didn't even apply to the states!


Remember that SCOTUS opinions are written and rewritten in order to get the votes needed to make them majority opinions. The writer of the opinion may not be able to say everything that they want to, in the language that they would prefer. Draft opinions get passed around and sometimes a Justice might say "If you use this language I can't vote for this opinion" and changes are made. I betcha that the original draft opinions used much more clear and strong language before compromising began.

trevilli
04-05-2011, 9:00 PM
Remember that SCOTUS opinions are written and rewritten in order to get the votes needed to make them majority opinions. The writer of the opinion may not be able to say everything that they want to, in the language that they would prefer. Draft opinions get passed around and sometimes a Justice might say "If you use this language I can't vote for this opinion" and changes are made. I betcha that the original draft opinions used much more clear and strong language before compromising began.
I wasn't aware of that, but it would certainly explain why there are "holes". I don't believe they exist in fact; rather, I think those are favor restrictions are looking for any toehold or foothold.

hoffmang
04-05-2011, 9:15 PM
Dunno. When Heller came out, most of us were shocked with how much it addressed carry outside the home.

-Gene

yellowfin
04-06-2011, 4:47 AM
Dunno. When Heller came out, most of us were shocked with how much it addressed carry outside the home.

-GeneYet did nothing about it.

voiceofreason
04-06-2011, 6:40 AM
@Yellowfin

Dig your Sig!

Connor P Price
04-06-2011, 9:49 AM
Yet did nothing about it.

While we might wish they would have done something about it, there's a very good reason that courts avoid making broad overreaching rulings. It might be nice if it happened to our benefit, but we certainly don't want it happening to our detriment.

hoffmang
04-06-2011, 9:00 PM
Yet did nothing about it.

What? They haven't heard a carry case yet?!

-Gene