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sbrady@Michel&Associates
05-27-2011, 1:15 PM
On Monday, May 23, 2011, the CRPA Foundation and a number of San Diego residents had attorneys from Michel & Associates, PC file their opening brief in the Ninth Circuit Court of Appeals in their appeal seeking to overturn a U.S. district court ruling from December 10, 2010 that upheld San Diego Sheriff William Gore’s restrictive and unfair policies in issuing permits to carry concealed firearms. The case is Peruta v. County of San Diego. (See the Opening Brief here).

Today, May 27, 2011, the National Rifle Association weighed in on this appeal with an amicus brief authored by former Solicitor General and renowned constitutional litigator, Paul Clement. The NRA’s brief reiterates the position NRA took in a previous amicus brief filed with the Ninth Circuit in the Nordyke v. King case, that infringements on fundamental rights, like the right to bear arms, must be reviewed under strict scrutiny. The brief continues though, arguing even if the “substantial burden” test that was ultimately adopted by the Ninth Circuit in Nordyke is the proper test for reviewing Second Amendment infringements, San Diego County’s CCW issuance policy still fails. (See NRA's amicus brief here).

NRA’s amicus brief is the second to be filed in this important case. On May 25, 2011, the Congress of Racial Equality (CORE) filed its amicus brief, authored by the renowned Second Amendment scholar, and author of "The Framer's Second Amendment," Stephen P. Halbrook, in support of Plaintiffs/Appellants in Peruta case The CORE brief emphasized how the right to “bear arms” does not stop at one’s doorstep, and gave a historical analysis of the Fourteenth Amendment, discussing how discretionary firearms licensing laws were an incident of slavery. (See CORE’s amicus brief here)

More amicus briefs are expected to be filed over the next few days. To be kept up to date on these filings, subscribe to our alerts at http://michellawyers.com/subscribe.

California law allows a permit to carry a concealed firearm (CCW) to be issued if an applicant has “good cause.” The Peruta lawsuit asserts that under the Second Amendment, a desire for self-defense must constitute “good cause” for the issuance of a CCW, and that Gore’s requirement that an applicant demonstrate some special need or a specific threat in order to get a CCW is an unconstitutional restriction on the right to carry a loaded firearm in public ready to be used for self-defense.

In a nutshell, the district court held that rather than needing a CCW to defend oneself, since California law allows unloaded open carry of handguns one can carry unloaded and openly, and then act pursuant to a California law that requires you to wait until you are about to be attacked, then load your firearm (see Cal. Pen. Code section 12031(j)). Because of the time needed to get an unloaded firearm ready to be used for self-defense, unloaded carry is not an effective way to exercise your fundamental, individual constitutional right to be ready and able to defend yourself under the Second Amendment. Plaintiffs are asking the Ninth Circuit to overrule the district court’s decision. (See opening appellate brief here).

The plaintiffs include several individuals who were either denied CCWs or do not qualify under the Sheriff’s strict issuance standards, as well as the CRPA Foundation. Copies of the court filings in the lawsuit and appeal can be viewed at http://michellawyers.com/perutavsandiego.

The lawsuit and appeal are being funded by the NRA-CRPA Foundation Legal Action Project (LAP). To fight for the self-defense civil rights of all Californians, the NRA and CRPA Foundation have joined forces. Through LAP, NRA/CRPAF attorneys fight ill-conceived gun control laws and ordinances, educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners, and produce valid science about game and wildlife resource management.

To contribute to the NRA/CRPAF Legal Action Project (LAP) and support this and similar efforts and Second Amendment litigation in California, visit www.crpafoundation.org and www.nraila.org.

Grakken
05-27-2011, 1:53 PM
Made sense to me but what do I know.

odysseus
05-27-2011, 1:55 PM
Thanks for the informative post.

mofugly13
05-27-2011, 1:57 PM
But the right to carry a (loaded) firearm only for immediate self-defense is no right at all. The right does not materialize until it is too late to exercise. Unless criminals and other who pose the threats that a right to self-defense protects against plan to announce their intent to present a grave and immediate threat and then take a time out to enable the potential victim to exercise his or her Second Amendment rights, a right to immediate self-defense is entirely illusory

Excellent, this brief and the CORE brief are so well argued, it seems as if there's no way we can lose. We'll see though...

Wolverine
05-27-2011, 1:57 PM
Wow! That's a great brief. Thank you NRA. Thank you Paul Clement.

HondaMasterTech
05-27-2011, 1:58 PM
Will the NRA help as much as they did in McDonald?

Wolverine
05-27-2011, 2:02 PM
Excellent, this brief and the CORE brief are so well argued, it seems as if there's no way we can lose. We'll see though...

If Williams is granted cert. (likely I believe), then it is also likely that all of these other carry cases will be put on hold pending SCOTUS' decision. Still it's good to read the CORE and now NRA briefs. There are some powerful arguments in there.

Southwest Chuck
05-27-2011, 2:04 PM
(See the Opening Brief here).
(See NRA's amicus brief here).
(See CORE’s amicus brief here)



Links?

Edit: Found them on your website

sbrady@Michel&Associates
05-27-2011, 2:16 PM
Links?

Edit: Found them on your website

Yes, if no links came through on my post, I apologize. I am the wrong guy to ask to get the links posted here (hence my becoming a lawyer, computer and math illiterate). All links work on www.calgunlaws.com. I think there is also a link to our website that has all filings in the Peruta case to date.

wash
05-27-2011, 2:27 PM
Will the NRA help as much as they did in McDonald?
:rolleyes:

Librarian
05-27-2011, 2:47 PM
Yes, if no links came through on my post, I apologize. I am the wrong guy to ask to get the links posted here (hence my becoming a lawyer, computer and math illiterate). All links work on www.calgunlaws.com. I think there is also a link to our website that has all filings in the Peruta case to date.

Indeed - http://michellawyers.com/guncasetracker/perutavsandiego/

Getcher notifications ahead of the pack! Sign up to receive the emails here: http://michellawyers.com/subscribe/

sbrady@Michel&Associates
05-27-2011, 2:54 PM
Indeed - http://michellawyers.com/guncasetracker/perutavsandiego/

Getcher notifications ahead of the pack! Sign up to receive the emails here: http://michellawyers.com/subscribe/

Thank you, Librarian. That is the one. And, I agree it is convenient to sign up for alerts. You will likely get one alert a week or every other week, it won't flood your e-mail. Unless, of course, it is this particular week, but this is exceptional.

Maestro Pistolero
05-27-2011, 11:22 PM
Well I feel like just got my money's worth out of the easy pay life membership. Fantastic brief. It renews my hope.

bruss01
05-28-2011, 5:06 AM
I loved that the brief made the point that the county is requiring anyone applying for a CCW to have a higher than average need in order to qualify. And then pointed out that mathematically, "above average" of necessity excludes most people. In excluding most people, rather than a select few such as felons or the mentally incompetent, it's obviously a substantial burden. Therefore, FAIL.

Mulay El Raisuli
05-28-2011, 5:56 AM
I loved that the brief made the point that the county is requiring anyone applying for a CCW to have a higher than average need in order to qualify. And then pointed out that mathematically, "above average" of necessity excludes most people. In excluding most people, rather than a select few such as felons or the mentally incompetent, it's obviously a substantial burden. Therefore, FAIL.


Yup.


The Raisuli

Paladin
05-28-2011, 6:40 AM
Yeah, baby! "Go, Team, Go!"

sighere
05-28-2011, 6:59 AM
A very well constructed brief. They took the time to address all of the salient points along the way to a brilliant conclusion. This one is worth reading for those who might only read some of the stuff that is coming out of the current cases....

GaryV
05-28-2011, 8:43 AM
I loved that the brief made the point that the county is requiring anyone applying for a CCW to have a higher than average need in order to qualify. And then pointed out that mathematically, "above average" of necessity excludes most people. In excluding most people, rather than a select few such as felons or the mentally incompetent, it's obviously a substantial burden. Therefore, FAIL.

Actually, that's not true. Mathematically the majority of people, even a very significant majority, could be above average. In mathematical terms, "average" doesn't necessarily mean the value at the center of the distribution. The mathematical term for that is the Median. While Median is a type of "average", the term "average" as used in common speech usually applies to the Mean. And with a Mean, unless the values are distributed in a more or less symmetrical fashion around the Median, it is quite easily the case that most values fall either above or below the "average". If you have a group of 10 people in which 9 are 6' tall, and 1 is 5' tall, then the "average" height is 5'11", and 9 of the 10 people would be above average, at 6'.

However, in common speech, we very often use the word "average" to mean Mean, but with the assumption that Mean and Median (and Mode, the most common value, as well) are the same or very similar, though in real-world situations this is often far from true. So from a common speech perspective, though definitely not a mathematical one, the NRA's point is valid, even if the wording is incorrect.

Untamed1972
05-28-2011, 9:07 AM
I love that the false "only in the home" interpretation is finally being addressed head on.

That fact is that NO WHERE is Heller or McD does it ever say "ONLY in the home". It amazes me how the anti's can ignore pages and pages of historical analysis on the history of the right to BEAR/CARRY/OR WEAR upon the person, and then just zero in on the "reasonable regulation" part, and then try and claim that total or near total bans are reasonable.

It will be nice to see some feedback from the courts finally agreeing that "No....Heller does not say only in the home....is just says not in certain sensitive places.....and no you can call everything outside the home a sensitive place."

I think all the filings are excellently written and go straight to the heart of the issues. In reading the Peruta appeal filings I am starting to see where the equal protection claim, in trying to bring in the HDSA stuff all seems to start to muddy the waters a bit. Where the pure constitutional challenge really is quite clear and simple, especially when you can use the SDSO's statements and intent of policy is to limit the number to legal permit holders. It'll be nice to see what Gore comes up with to try at satisfy his burden of proof to justify his policies and actions.

dawgcasa
05-28-2011, 3:59 PM
This is excellent. One thing that constantly amazes me is how those promoting rigorous gun control laws can be so completely blind to the failed logic of their arguments. In this case the argument by SD county and the District courts decision that because guns are dangerous that it's completely valid to significantly burden a core element of a fundamental right in the interest of "public safety" without any demonstrable proof that such a burden actually has ANY effect on increasing public safety. In fact considerable data shows exactly the opposite, that increased freedom for law abiding citizens to carry loaded weapons reduces violent crime. They also completely miss the slippery slope of fully thinking through their faulty logic: that if it's constitutional to significantly burden a fundamental right in the interest of public safety, that there are other rights they could burden besides the 2nd that would be considerably more effective in increasing public safety. E.g., how about curtailing LEO restrictions on unreasonable search and seizure? Just bust down the doors of every suspected gang banger without any probable cause and they're sure to find some criminal activity and 'improve' public safety. How about curtailing restrictions on cruel and unusual punishment and self incrimination to get some confessions? A little water boarding might get some useful convictions that improves "public safety". Jury trials? Who needs 'em, just draw the scoundrels up in front of an appointed panel and send them to the chamber. After all expeditious justice at the hands of beliefs and opinions with a few speed bumps over some trampled fundamental rights is justified by public safety in the view of some of our public officials.

Slippery slope. But hey, the district court said it was ok to nullify fundamental rights in the interests of public safety, right?

What the anti-gun rights folks don't see (including those in robes) is while they tilt at windmills with arguments that do absolutely nothing to affect violent crime, that their arguments ... if carried to their logical conclusion ... would completely undermine the very foundations of our society's unique legacy of liberty.

sreiter
05-29-2011, 12:50 PM
I love that the false "only in the home" interpretation is finally being addressed head on.

That fact is that NO WHERE is Heller or McD does it ever say "ONLY in the home". It amazes me how the anti's can ignore pages and pages of historical analysis on the history of the right to BEAR/CARRY/OR WEAR upon the person, and then just zero in on the "reasonable regulation" part, and then try and claim that total or near total bans are reasonable.

It will be nice to see some feedback from the courts finally agreeing that "No....Heller does not say only in the home....is just says not in certain sensitive places.....and no you can call everything outside the home a sensitive place."

I think all the filings are excellently written and go straight to the heart of the issues. In reading the Peruta appeal filings I am starting to see where the equal protection claim, in trying to bring in the HDSA stuff all seems to start to muddy the waters a bit. Where the pure constitutional challenge really is quite clear and simple, especially when you can use the SDSO's statements and intent of policy is to limit the number to legal permit holders. It'll be nice to see what Gore comes up with to try at satisfy his burden of proof to justify his policies and actions.

The issue of carry was never a question before the court. The opinion given was only on the question before the court. Everything else was dicta.

So while no where do the opinions state "only in the home", the opinions also don't say "you have the right to bear...."

Which is why:

1. the anti's keep saying you cant bear outside the home
2. we are even having laws suites trying to get bear

Funtimes
05-29-2011, 1:26 PM
If you didn't have any right to carry outside of the home, then "sensitive" places, as discussed in the majority opinion in Heller, would be a moot issue.

So no -- they didn't say you had a right, they said there are places outside the home where you don't have the right. Therefore, because you don't have right the right in some places, it means you do have the right in others.

sreiter
05-29-2011, 2:40 PM
If you didn't have any right to carry outside of the home, then "sensitive" places, as discussed in the majority opinion in Heller, would be a moot issue.

So no -- they didn't say you had a right, they said there are places outside the home where you don't have the right. Therefore, because you don't have right the right in some places, it means you do have the right in others.

dicta is not binding law. its commentary, which is what Scalia was doing when he when he commented "we aren't saying that its a absolute law. there can be some restrictions such as [oh, i dont know] limiting possession in sensitive area's.

He was just throwing out some common types restrictions that the scotus wouldnt have a problem with.

All the commentary means nothing. the only legally binding part of a decision is the one or two sentence's that specifically answer the question put forth.

In hellers case's:

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

and answered

We affirm the judgment of the Court of Appeals.

It is so ordered.

Even:
"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

is just reiterating the court of appeals position

wildhawker
05-29-2011, 3:12 PM
I love that the false "only in the home" interpretation is finally being addressed head on.

To be fair, "finally" is not exactly true. That false understanding of bear was first challenged in Sykes v. McGinness (now Richards v. Prieto) and subsequently many other bear cases throughout the country (most of them by SAF/Gura).

In reading the Peruta appeal filings I am starting to see where the equal protection claim, in trying to bring in the HDSA stuff all seems to start to muddy the waters a bit. Where the pure constitutional challenge really is quite clear and simple, especially when you can use the SDSO's statements and intent of policy is to limit the number to legal permit holders.

Yep. These are actually very simple issues to address. Do you, or do you not have a right to bear arms outside one's home? If so, what does the contour of the right look like? What did "bear" mean at the time of the ratification of the 14th amendment?

dicta is not binding law. its commentary, which is what Scalia was doing when he when he commented "we aren't saying that its a absolute law. there can be some restrictions such as [oh, i dont know] limiting possession in sensitive area's.

He was just throwing out some common types restrictions that the scotus wouldnt have a problem with.

All the commentary means nothing. the only legally binding part of a decision is the one or two sentence's that specifically answer the question put forth.

In hellers case's:

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

and answered

We affirm the judgment of the Court of Appeals.

It is so ordered.

Even:
"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

is just reiterating the court of appeals position

You're not exactly correct. In order to reach the majority result in Heller - namely, that the D.C. ordinances infringed on rights guaranteed under 2A, as was found by the D.C. Circuit - the USSC undertook one of the most intensive historical analysis of an enumerated right, ever. Part of that analysis was to determine what "arms", "keep", and "bear" meant. That text is not superfluous, and to claim it merely dicta is to make a significant legal and tactical blunder.

-Brandon

sreiter
05-29-2011, 4:00 PM
To be fair, "finally" is not exactly true. That false understanding of bear was first challenged in Sykes v. McGinness (now Richards v. Prieto) and subsequently many other bear cases throughout the country (most of them by SAF/Gura).



Yep. These are actually very simple issues to address. Do you, or do you not have a right to bear arms outside one's home? If so, what does the contour of the right look like? What did "bear" mean at the time of the ratification of the 14th amendment?



You're not exactly correct. In order to reach the majority result in Heller - namely, that the D.C. ordinances infringed on rights guaranteed under 2A, as was found by the D.C. Circuit - the USSC undertook one of the most intensive historical analysis of an enumerated right, ever. Part of that analysis was to determine what "arms", "keep", and "bear" meant. That text is not superfluous, and to claim it merely dicta is to make a significant legal and tactical blunder.

-Brandon

Brandon - while commendable they spent the time to fully investigate all of the above (well, more to the point, utilized the various amicus briefs where the analysis was done, how exactly would dismissing it as dicta be a legal and tactical blunder?

There was no new ground covered. Gun advocates have long used historical documents, citing exactly what the founding fathers meant when they created the 2a. It worked here. It hasn't in the past.

Just like citing exactly what the author of the 14a meant with P or I. that wasn't persuasive.

Are the definitions of what "arms", "keep", and "bear" now part of con law and are now legal and binding? Never subject to re-interpretation to a different court?

The issue of Scalia talking about regulations and sensitive places being off limits is judicial dictum (an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.) Scalia writes "I understand the concerns about gun violence voiced in various amicus briefs, .... it is not this courts job to render the 2a extinct"

i would argue dictum proprium also applies.

Also, are you saying that I'm am incorrect when stating "the only legally binding thing to take away from Heller was the answer to the single question put forth to the court?

Now, I understand that even dicta, or descenting opinions are often used as part of a argument in a future action, and sometimes carry weight. Thats not the issue here. The discussion is "did the remarks about no possession in sensitive area in heller give us "bear" outside the home"...hell did heller in general give us bear outside the home

yellowfin
05-29-2011, 4:05 PM
the USSC undertook one of the most intensive historical analysis of an enumerated right, ever. Which isn't saying much because previous attempts by courts, other than reviewing their own prior decisions all saying no, have been as close to zero as possible.

gunsmith
05-29-2011, 4:16 PM
Good luck in Court, & thanks for all your hard work.

wildhawker
05-30-2011, 1:17 AM
You're falling into the trap of viewing the 2A through a peephole.

Brandon - while commendable they spent the time to fully investigate all of the above (well, more to the point, utilized the various amicus briefs where the analysis was done, how exactly would dismissing it as dicta be a legal and tactical blunder?

The majority's historical and etymological analysis provided insight as to what the Second Amendment meant and served to protect. In order to reach the decision it did, the Court used those data to form the legal basis of its holding to affirm the D.C. Circuit's decision and rule D.C.'s ordinances as unconstitutionally infringing on Dick Heller's 2A rights. SCOTUS could have made Heller a one or two-page decision stating that 2A was an individual right and simply affirm without much analysis. However, the majority chose to create and publish a lengthy decision that went deeply to what 2A meant for an individual right of self-defense, including much on "bear" and what it meant to "bear arms".

The blunder is in assuming that the Court didn't mean what it said. That sort of challenge generally doesn't go well for the challenger. I expect a few judges in CA4 and CA7 to learn that in the next 12-24 months.

There was no new ground covered. Gun advocates have long used historical documents, citing exactly what the founding fathers meant when they created the 2a. It worked here. It hasn't in the past.

I'm not sure I follow. Are you saying that there was an acknowledged fundamental enumerated individual right to keep and bear arms prior to Heller and McDonald?

We won 2A in 2008. We won incorporation in 2010. This is a new (and fast-growing) body of law in a new world.

Just like citing exactly what the author of the 14a meant with P or I. that wasn't persuasive.

Are you unintentionally overlooking McDonald and Thomas's concurring opinion?

Are the definitions of what "arms", "keep", and "bear" now part of con law and are now legal and binding? Never subject to re-interpretation to a different court?

Stare decisis is taken seriously by those sitting on the Court. Given an opportunity, they chose to not disturb even a decision they knew to be wrongly-decided (Slaughter House Cases). There's no going backward with liberty (especially this one) without severe consequences. Imagine what could/would happen if another Court overturned Heller and McDonald 20 years or so from now, after hundreds of federal district and appellate court decisions. Remember, you don't piss off the guy that holds your money, or the guy who has the guns.

The issue of Scalia talking about regulations and sensitive places being off limits is judicial dictum (an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.) Scalia writes "I understand the concerns about gun violence voiced in various amicus briefs, .... it is not this courts job to render the 2a extinct"

i would argue dictum proprium also applies.

You're misunderstanding what Heller said, and why. Here's an extraordinarily boiled-down version for easier comprehension:

We hold that:

* 2A protects a fundamental, individual right of self-defense unconnected with militia service.

* Keep is more than possessing parts, and in fact means "operable for the purpose of immediate self-defense." "Keep arms was simply a common way of referring to possessing arms, for militiamen and everyone else."

* Bear means to "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."

* Arms are "all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

* D.C.'s ordinances before us are unconstitutional as they violate the 2A we discussed above for all of the reasons we discussed above.

* (Paraphrasing) "Yes, we understand that this decision is huge, a game-changer for the Republic, and its implications will scare people. Please don't think that we're going to let everyone walk around in schools with concealed MP-5 submachine guns. Some gun regulations, such as keeping guns out of courthouses and restrictions on concealed carry (but only where open carry is available for bear), don't infringe on 2A rights."

Why would Heller discuss concealed carry and sensitive places if it was only about "in the home"? They were offering lower courts guidance on a fundamental right that *included* the right to bear in public, not writing a long opinion on a social lightning rod because they needed the practice.

Also, are you saying that I'm am incorrect when stating "the only legally binding thing to take away from Heller was the answer to the single question put forth to the court?

That's exactly what I'm saying. I'm also saying that courts who should know better are participating in the 2A 2 Step dance-a-thon and SCOTUS is going to "say so more plainly" so even those with reading comprehension problems can understand what they said in Heller.

Now, I understand that even dicta, or descenting opinions are often used as part of a argument in a future action, and sometimes carry weight. Thats not the issue here. The discussion is "did the remarks about no possession in sensitive area in heller give us "bear" outside the home"...hell did heller in general give us bear outside the home

Heller can easily and justifiably be read to acknowledge "bear" outside the home, but only if you're intellectually honest enough to admit it.

-Brandon

Al Norris
05-30-2011, 5:33 AM
There's another part of this "dicta" mess that we should all understand.

Dicta*, in and of itself, is an opinion of the court, that is ordinarily not binding nor especially persuasive, because it is not necessary to the reasoning of the court in deciding the issue at hand. However ...

In cases of First Impression** (and Heller was just that), what we would normally call "dicta" is now highly persuasive. Most especially if that dicta is from the Supreme Court itself.

Why? Because there is no other authority to turn to, in cases of first impression.









*Dicta n. Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court's opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum. http://legal-dictionary.thefreedictionary.com/dicta (West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved)

**Case of first impression n. a case in which a question of interpretation of law is presented which has never arisen before in any reported case. Sometimes, it is only of first impression in the particular state or jurisdiction, so decisions from other states or the federal courts may be examined as a guideline. http://legal-dictionary.thefreedictionary.com/case+of+first+impression (Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved)

sreiter
05-30-2011, 11:25 AM
You're falling into the trap of viewing the 2A through a peephole.

Actually, I'm not. My view of what the 2a is, is not what i'm discussing, I'm discussing what the SCOTUS has, up until this point told us it is.

You're looking at it too broadly, and specifically avoiding my statement. Yes or No, SCOTUS ruled on only one thing in the Heller case "Is Washington DC's ban on keeping a functional handgun in the home for personal protection constitutional", and there ruling ONLY speaks to that.

Originally Posted by sreiter
Brandon - while commendable they spent the time to fully investigate all of the above (well, more to the point, utilized the various amicus briefs where the analysis was done, how exactly would dismissing it as dicta be a legal and tactical blunder?



The majority's historical and etymological analysis provided insight as to what the Second Amendment meant and served to protect. In order to reach the decision it did, the Court used those data to form the legal basis of its holding to affirm the D.C. Circuit's decision and rule D.C.'s ordinances as unconstitutionally infringing on Dick Heller's 2A rights. SCOTUS could have made Heller a one or two-page decision stating that 2A was an individual right and simply affirm without much analysis. However, the majority chose to create and publish a lengthy decision that went deeply to what 2A meant for an individual right of self-defense, including much on "bear" and what it meant to "bear arms".

But everyone with any sense, and anyone who read any founding father documentation pre-constitution knew all this. The reference material in the briefs that you are citing above, have all been brought up before. I knew about all that in 1991.

The only thing different here is these judges were pro 2a enough to agree with the documentation. They could have just as easily dismissed it as hogwash.

The fact remains the supporting documents/definitions don't need to be considered by any other judge or court.



The blunder is in assuming that the Court didn't mean what it said. That sort of challenge generally doesn't go well for the challenger. I expect a few judges in CA4 and CA7 to learn that in the next 12-24 months.

Wut? Of course they meant what they said. They said DC must issue a permit for Heller to have a functioning handgun in his home. Thats what his lawsuit was about. It says so right there in the last paragraph of the decision.


There was no new ground covered. Gun advocates have long used historical documents, citing exactly what the founding fathers meant when they created the 2a. It worked here. It hasn't in the past.



I'm not sure I follow. Are you saying that there was an acknowledged fundamental enumerated individual right to keep and bear arms prior to Heller and McDonald?

I'm saying all the historical reference material, the definitions of what "arms" "bear" ,etc are is nothing new. We've been saying all that before, and it's been before courts before. This is the first 2a case in a very long time to come before the SCOTUS, and the first time the material may have to in case before the SCOTUS, however no other court gave a ... hoot. The definitions, founding fathers intent, etc. wasn't all of a sudden discovered locked in a attic and somehow the discovery of it is of biblical proportion and will have the weight of god himself.

Judges have ignored it the supporting evidence before, they will in the future.

If someone was to ignore the actually ruling to the 1 question put before the SCOTUS (having a working handgun in the home for personal protection is a constitutional guarantee), then they do so at their own peril


Are you unintentionally overlooking McDonald and Thomas's concurring opinion?

Are you unintentionally overlooking McDonald and Scalia telling Gura to STFU and STFD when he said "are you trying to get a job teaching, or do you want to win this case. Get off the P or I argument"

Thomas was the only justice even considering P or I, irrespective of having enough documentation of what the congress, and the author of the 14a meant it to mean, that a blind man could see.


Stare decisis is taken seriously by those sitting on the Court. Given an opportunity, they chose to not disturb even a decision they knew to be wrongly-decided (Slaughter House Cases). There's no going backward with liberty (especially this one) without severe consequences. Imagine what could/would happen if another Court overturned Heller and McDonald 20 years or so from now, after hundreds of federal district and appellate court decisions. Remember, you don't piss off the guy that holds your money, or the guy who has the guns.

I understand Stare decisis well. It didn't seem to bother the court when they voted on citizens united



You're misunderstanding what Heller said, and why. Here's an extraordinarily boiled-down version for easier comprehension:

We hold that:

* 2A protects a fundamental, individual right of self-defense unconnected with militia service.

* Keep is more than possessing parts, and in fact means "operable for the purpose of immediate self-defense." "Keep arms was simply a common way of referring to possessing arms, for militiamen and everyone else."

* Bear means to "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."

* Arms are "all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

* D.C.'s ordinances before us are unconstitutional as they violate the 2A we discussed above for all of the reasons we discussed above.

* (Paraphrasing) "Yes, we understand that this decision is huge, a game-changer for the Republic, and its implications will scare people. Please don't think that we're going to let everyone walk around in schools with concealed MP-5 submachine guns. Some gun regulations, such as keeping guns out of courthouses and restrictions on concealed carry (but only where open carry is available for bear), don't infringe on 2A rights."



I'm sorry, but I whole hearty disagree with you, and I fell you are really stretching it. I believe the above is what we would all like to believe thats what Heller GAVE US in terms of binding law.

It doesnt give us all those things, any more then it doesn't give the anti's anything they falsely say Heller gave them.

This is what Heller gave us, it's right there is in the written decision.

"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

The SCOTUS gives us an extraordinarily boiled-down version for easier comprehension right there, in their own words.

Anything else such as "arms in common use" is nice ammo for us because they make reference to it. But the haven't really ruled what is or isn't "in common use. We cherry pick phrases, just like the anti's when they ignore everything else but "hand gun in the home for self defense" and "reasonable regulation [all bans are reasonable restrictions to them].

My point being nothing was settled other then a working handgun in the home for self defense by Heller. and nothing will be until all the other issued raised by Heller (ie all the things we want and believe it gave us) until we go to SCOTUS and they specifically rule "you have a constitutional right to carry everywhere but these specific places"


Why would Heller discuss concealed carry and sensitive places if it was only about "in the home"? They were offering lower courts guidance on a fundamental right that *included* the right to bear in public, not writing a long opinion on a social lightning rod because they needed the practice.

to address all the briefs before them saying the world would cease to exit as we know it if people were allowed to own a gun and to appease the idiots on the wrong side of this issue. Its still a political hotbed


Also, are you saying that I'm am incorrect when stating "the only legally binding thing to take away from Heller was the answer to the single question put forth to the court?



That's exactly what I'm saying. I'm also saying that courts who should know better are participating in the 2A 2 Step dance-a-thon and SCOTUS is going to "say so more plainly" so even those with reading comprehension problems can understand what they said in Heller.

So, it's your contention that a SCOTUS ruling comprises everything stated in the entire decision, regardless of the question asked and answered.

We'll have to agree to disagree on that one. But, then i dont understand why were arent all carrying everywhere except the specific place Scalia said we couldn't?

I mean, as soon as Heller came down, you started carrying, right?


Heller can easily and justifiably be read to acknowledge "bear" outside the home, but only if you're intellectually honest enough to admit it.


Heller can easily and justifiably be read to acknowledge "bear" inside the home was the only thing specifically mentioned in both the suit and answer. Everything else is assumption, inference, wishful thinking, and projecting your own views into the decision, but only if you're intellectually honest enough to admit it.

*** unless I am completely mistaken about how the SCOTUS works with the whole "The QUESTION before the court...." thing.

There is a specific question before the court. Only the answer to that question matters and becomes the standard of law.

Please show me where in jurisprudence the above statement is not the case.

Refer me to Blacks, the constitution, somewhere that states the supreme court decisions function as anything other then answering the 1 specific question put before them.

thanks
Steve

Kharn
05-30-2011, 12:12 PM
You should count the number of times Heller was cited in McDonald.

sreiter
05-30-2011, 12:51 PM
You should count the number of times Heller was cited in McDonald.

Exactly what does that have to do with anything?

Referencing something that you feel will bolster your position/side of the debate doesn't mean that what you are citing is binding law.

Again, real simple, if Heller gave us carry, why is no one carrying?

Why are the law suits for carry all predicated on refusal of permit, and not because someone was arrested for exercising their constitutional right to carry under Heller and McDonald?

I'll answer that. Because, we need the courts to come right out and specifically state we have the right to carry, because as of now, we don't.

You might want to research some cases where one of the parties cite the dissenting opinion as the legal basis of their position/side of the debate.

Funtimes
05-30-2011, 3:10 PM
You might want to research some cases where one of the parties cite the dissenting opinion as the legal basis of their position/side of the debate.

Wasn't the definition of carry cited in Heller from a dissenting opinion?

tonelar
05-30-2011, 3:22 PM
This "only in the home" nonsense comes from the view that the DC Gun Ban prevented people from having operable firearms in their homes.
Aside from incorporation, I was hoping McDonald would clarify this point.

Al Norris
05-30-2011, 3:46 PM
Is this a replay over what Heller did or didn't say? It sure appears that way.

Justice Alito writing the opinion of the Court:

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.[my emphasis]

That is the very first sentence in the McDonald opinion: Heller held ... AND they struck down ... because of that holding.

This is not rocket science, even if the lower courts (and so many others) want to make it out as such.

wildhawker
05-30-2011, 4:10 PM
Indeed.

Is this a replay over what Heller did or didn't say? It sure appears that way.

Justice Alito writing the opinion of the Court:

That is the very first sentence in the McDonald opinion: Heller held ... AND they struck down ... because of that holding.

This is not rocket science, even if the lower courts (and so many others) want to make it out as such.

sreiter
05-30-2011, 4:59 PM
Justice Alito writing the opinion of the Court:

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.[my emphasis]

That is the very first sentence in the McDonald opinion: Heller held ... AND they struck down ... because of that holding.



emphasis fixed.

Of course they ruled 2a protects the right to keep and bear for self defense. Never a question.

What you're missing, as everyone else, Heller specifically dealt with the ban DC placed on guns in the home. Thats what Heller sued for. The right to keep a handgun in operating condition in his house for self defense purposes.

if you don't understand that, I'm not going to keep trying to how a lawsuit works.

if you believe Heller gives you the right to carry everywhere but the few places Scalia mentioned, I suggest you start carrying, as Ca. can't touch you because McDonald made BEAR the law of the land and you are now protected from state and federal impediments to your 2a right

Maestro Pistolero
05-30-2011, 6:25 PM
Sreiter, I can assure you Al Norris has not missed a thing. As the author and compiler of what is perhaps the most comprehensive and up-to-date archive of all things 2A in the judicial world, Al Norris could school most of us on the finer points of 2A jurispridence.

Al Norris, is assuming, I believe correctly, that what Heller and McDonald say about the scope of the right is entirely beyond what they say about the scope of either particular case. There is much much more inherent in the dicta and in the rulings than the details of the cases themselves.

ddestruel
05-30-2011, 6:29 PM
emphasis fixed.

Of course they ruled 2a protects the right to keep and bear for self defense. Never a question.

What you're missing, as everyone else, Heller specifically dealt with the ban DC placed on guns in the home. Thats what Heller sued for. The right to keep a handgun in operating condition in his house for self defense purposes.

if you don't understand that, I'm not going to keep trying to how a lawsuit works.

if you believe Heller gives you the right to carry everywhere but the few places Scalia mentioned, I suggest you start carrying, as Ca. can't touch you because McDonald made BEAR the law of the land and you are now protected from state and federal impediments to your 2a right

that must be why SCOTUS just asked the maryland SC to explain why they think it doesnt apply outside of the home last week.

curtisfong
05-30-2011, 7:01 PM
What are we arguing? The state of the law *before* the court rules? If that were the case, there would be no lawsuit.

So we are arguing over how we expect a *rational* court to rule? If that were the case, there would also be no lawsuit, since existing case law is hardly rational.

So we are arguing over how we expect an *irrational* court will rule?

We've all seen what bad judges can do. Predicting the outcome is hardly easy. Look at what happened in Nordyke. They outright said that they could rule however they wanted "despite language [from SCOTUS] suggesting the contrary"!

The best we can do in that situation is to have the 9th make a ruling so obviously out of whack that we can force SCOTUS to issue a smackdown.

Hardly an assured slam dunk, from where I sit.

Untamed1972
05-31-2011, 7:50 AM
To be fair, "finally" is not exactly true. That false understanding of bear was first challenged in Sykes v. McGinness (now Richards v. Prieto) and subsequently many other bear cases throughout the country (most of them by SAF/Gura).
-Brandon


Yes that's true....I realize it been addressed but I guess it just seemed a little more to the point in these recent briefs....at least to me anyway.

But then again it's been awhile since I read the other filings so maybe it was in there and I just dont remember it.

Never-the-less.....great work by all involved. I'm looking forward to the comical filings of the opposition.

I would love to read a decision from SCOTUS that basically said "Go back and read Heller you dumbarses......we already told you carry outside the home was protected! Do we really need to say it again? Sheriff Gore and County counsel are hereby ordered to attended constitutional retraining and education." LOL

Untamed1972
05-31-2011, 8:24 AM
emphasis fixed.

Of course they ruled 2a protects the right to keep and bear for self defense. Never a question.

What you're missing, as everyone else, Heller specifically dealt with the ban DC placed on guns in the home. Thats what Heller sued for. The right to keep a handgun in operating condition in his house for self defense purposes.

if you don't understand that, I'm not going to keep trying to how a lawsuit works.

if you believe Heller gives you the right to carry everywhere but the few places Scalia mentioned, I suggest you start carrying, as Ca. can't touch you because McDonald made BEAR the law of the land and you are now protected from state and federal impediments to your 2a right


For SCOTUS to be able to answer the question posed by Heller they had to and did an exhaustive historical analysis of what the scope of the 2A is.....which also included carry.

So it's like making a 2A list:

2A included items 1-10
Item #1 is keep in the home

So since 2A includes item #1-10
of course banning item #1 is unconstitutional because it's included in 1-10, as we showed with our pages long historical analysis.

Just because the specific question before the court was item #1....that doesn't mean that items 2-10 are not included because we stated in our analysis what items 1-10 were.

All that "dicta" and historical analysis was to give lower courts guidance on what all the 2A included, the lower courts are just refusing to see it. I dont see the historical analysis part as just "opinion". They defined the scope of the right.

Fact is Heller/McD DID give us carry......some of these states are just refusing to acknowledge it. Hence the need for more suits.

As stated before when thse lower courts are says "If that's what SCOTUS meant then they need to say so more plainly." Well then they most likely to get what they asked for and the SCOTUS response will prolly say something like "As we stated in Heller/McD...blah, blah, blah."

Then we can all thumb our noses at the anti's and say "See....we told you Heller included carry outside the home."

A quote I heard the other day.....not sure who it was from "There are none so blind as those who refuse to see.'

Untamed1972
05-31-2011, 8:32 AM
I thought of a good analogy:

Mr. Heller has a question about making a cake.

He asks the baking specialists at SCOTUS if one can make a cake without flour.

So SCOTUS does a many pages analysis of what all the ingredients are in making a cake and determine that flour is one of them, if not even the CORE ingredient.

So in respone to Mr. Heller they say: "Based on our anaylsis of all the ingredients required to make a cake (ingredients listed on previous pages), we find flour to be a core ingredient....so to answer your question...No you cannot make a cake w/o flour."

Should their answer be taken to mean that SCOTUS has now stated the ONLY ingredient in cake is flour?

sighere
05-31-2011, 9:49 AM
The hair that is being split is "dicta" vs "holding". The court said all of those wonderful things about carrying and being ready for confrontation in its discussion of the case and is therefore "dicta". This means that it is what the court thinks, but it is not binding. The "holding" was that McD had a right to have a gun in the home. As pointed out by many: this is the question that the court was asked to answer.

Therefore, Maryland is not being flip when they say that SCOTUS should more plainly say what it means. It's a double edged sword. Scotus does not rule broadly, so they don't always say plainly what they mean for a related case with a different question. But, they "mention" these things that pull more questions out of the woodowork and thus more cases.

The problem comes in if SCOTUS does not grant cert, you're stuck with dicta on your "additional" or broader question.

This can lead to the conclusion that Heller and McDonald were poorly thought out because they addressed only a very narrow item. Of course it's easy to say this after the fact. Easy to say they should have gone for keep, bear, carry, loaded, and everywhere except courthouses and jails....


All that "dicta" and historical analysis was to give lower courts guidance on what all the 2A included, the lower courts are just refusing to see it. I dont see the historical analysis part as just "opinion". They defined the scope of the right.


This part below is a quote, not my material.... sorry, I think I messed up the formatting.
Fact is Heller/McD DID give us carry......some of these states are just refusing to acknowledge it. Hence the need for more suits.

As stated before when thse lower courts are says "If that's what SCOTUS meant then they need to say so more plainly." Well then they most likely to get what they asked for and the SCOTUS response will prolly say something like "As we stated in Heller/McD...blah, blah, blah."

Then we can all thumb our noses at the anti's and say "See....we told you Heller included carry outside the home."

A quote I heard the other day.....not sure who it was from "There are none so blind as those who refuse to see.'[/QUOTE]

goober
05-31-2011, 10:32 AM
Actually, that's not true. Mathematically the majority of people, even a very significant majority, could be above average. In mathematical terms, "average" doesn't necessarily mean the value at the center of the distribution. The mathematical term for that is the Median. While Median is a type of "average", the term "average" as used in common speech usually applies to the Mean. And with a Mean, unless the values are distributed in a more or less symmetrical fashion around the Median, it is quite easily the case that most values fall either above or below the "average". If you have a group of 10 people in which 9 are 6' tall, and 1 is 5' tall, then the "average" height is 5'11", and 9 of the 10 people would be above average, at 6'.

However, in common speech, we very often use the word "average" to mean Mean, but with the assumption that Mean and Median (and Mode, the most common value, as well) are the same or very similar, though in real-world situations this is often far from true. So from a common speech perspective, though definitely not a mathematical one, the NRA's point is valid, even if the wording is incorrect.

i think what you meant is "Actually, that's not necessarily true."
in a normally distributed population, which is what we might assume we have wrt "need", the mean, median, and mode are indeed all equal.
while the conditions you described (a skewed distribution where mean < median) can certainly exist, unless there is some reason to believe it does for the variable in question, there is no reason to quibble about the point being made.

sreiter
05-31-2011, 1:48 PM
This "only in the home" nonsense comes from the view that the DC Gun Ban prevented people from having operable firearms in their homes.
Aside from incorporation, I was hoping McDonald would clarify this point.

whole this is true, please re-read the decision, or the 4 time i copied and pasted the last paragraph of the decision.

SCOTUS specifically say we find the ban on hand guns in the home for self defense unconstitutional

Thats all they said, thats all the suit was about.

thats all scotus has ruled is unconstitutional. they have yet to rule bear outside the home is constitional.

i dont understand whats so difficult about that to understand

sreiter
05-31-2011, 1:53 PM
that must be why SCOTUS just asked the maryland SC to explain why they think it doesnt apply outside of the home last week.

Either that, or like every other case, the court is asking because they are challenging the lawyer to make a case for his. Or perhaps they want to give full weight of his arguments so they can consider every aspect so when they rule in favor of MD they can cover all the fine point Md has given. Or maybe they just feel like screwing with lawyers minds for awhile.

Like they grilled Gura. in McDonald

sreiter
05-31-2011, 1:55 PM
What are we arguing? The state of the law *before* the court rules? If that were the case, there would be no lawsuit.



exactly the point of my first post. thank you

sreiter
05-31-2011, 2:07 PM
For SCOTUS to be able to answer the question posed by Heller they had to and did an exhaustive historical analysis of what the scope of the 2A is.....which also included carry.



I disagree. the only reason the SCOTUS even looked at any historical analysis was because several amicus curiae submitted amicus briefs which provided the analysis.

Yes, they looked at the amendment which obviously says "bear" right there in the verbage

No they did not gives us carry anywhere, anytime other then the few sensitive places Scalia mentioned, as they only defined carry in the home was constitutional.

What if the SCOTUS says "everywhere but in the home is sensitive"? would you still say Heller gave us carry?

The fact is, is we have no idea what carry is. How about i say they gave us bear, but other then "in the home" which was specifically mentioned, we have no idea what bear is, including if anywhere outside the home would be included.

Does that satisfy you?

Does that qualify as us really having "Bear"?

Heller sued for injunctive relief. How can the court grant more then the relief sought?

jerryg1776
05-31-2011, 2:08 PM
Excellent, this brief and the CORE brief are so well argued, it seems as if there's no way we can lose. We'll see though...

Yeah...Sometimes I use just plain good commonsense logic when talking to the wife and it still fails. Just because it makes sense and is right doesn't mean that the light bulb will come on and help some one pull his/her head out of the darkness (usually head up the ### syndrome as my dad used to say).

I hope that we get shall issue.

curtisfong
05-31-2011, 2:10 PM
exactly the point of my first post. thank you

I would say a majority of discussion on this forum involves what people *want* the law to say (i.e. "a court should rule x"), rather that what it "actually says", assuming what it "actually says" is based on dicta and precedent (i.e. "courts have ruled y")... forgetting that the law *as it stands* rarely has anything to do with what they think the constitution says.

To that extent, there is generally a lot of is/should confusion... especially since that "activist" courts have a habit of getting things "wrong". Optimists call that behavior unpredictable. Pessimists call it predictable. Cynics call it inevitable.

Untamed1972
05-31-2011, 2:13 PM
I disagree. the only reason the SCOTUS even looked at any historical analysis was because several amicus curiae submitted amicus briefs which provided the analysis.

Yes, they looked at the amendment which obviously says "bear" right there in the verbage

No they did not gives us carry anywhere, anytime other then the few sensitive places Scalia mentioned, as they only defined carry in the home was constitutional.

What if the SCOTUS says "everywhere but in the home is sensitive"? would you still say Heller gave us carry?

The fact is, is we have no idea what carry is. How about i say they gave us bear, but other then "in the home" which was specifically, we have no idea what bear is, including if anywhere outside the home would be included.

Does that satisfy you?

Does that qualify as us really having "Bear"?

Heller sued for injunctive relief. How can the court grant more then the relief sought?



Just because a court hasn't ruled on something yet doesn't mean it's not still unconstitutional.

SCOTUS defined the scope of the 2A in Heller. My question to you would be this: "Why are some states getting sued while others are not? Or why are some counties in CA getting sued while others are not?

The reason is that those other states/counties do not have laws or policies which are at odds with the 2A.

To quote the Heller "dicta"

JUSTICE BREYER chides us for leaving so many applications
of the right to keep and bear arms in doubt, and for
not providing extensive historical justification for those
regulations of the right that we describe as permissible.
See post, at 42–43. But since this case represents this
Court’s first in-depth examination of the Second Amendment,
one should not expect it to clarify the entire field,
any more than Reynolds v. United States, 98 U. S. 145
(1879), our first in-depth Free Exercise Clause case, left
that area in a state of utter certainty. And there will be
time enough to expound upon the historical justifications
for the exceptions we have mentioned if and when those
exceptions come before us.

The way I read that is "The 2A covers ALOT more than in the home, and we gave gov't everywhere SOME guidance on what it covers, but we fully expect that you will continue to push the issue, so we expect to see more cases regarding this in the future, because we know you wont take the hint and just get with the program."

No, the court can more relief that is sought, but that doesn't mean that what they say can't have a broader application.

sreiter
05-31-2011, 2:15 PM
I thought of a good analogy:

Mr. Heller has a question about making a cake.

He asks the baking specialists at SCOTUS if one can make a cake without flour.

So SCOTUS does a many pages analysis of what all the ingredients are in making a cake and determine that flour is one of them, if not even the CORE ingredient.

So in respone to Mr. Heller they say: "Based on our anaylsis of all the ingredients required to make a cake (ingredients listed on previous pages), we find flour to be a core ingredient....so to answer your question...No you cannot make a cake w/o flour."

Should their answer be taken to mean that SCOTUS has now stated the ONLY ingredient in cake is flour?

Straw man argument.

We aren't talking about ingredients, we are talking about the measure of ingredients.

SCOTUS gave us bear, but bear in the home (a pinch of Bear)...

Hopefully a case will come before them and they'll revise the recipe to include a smattering of Bear (everywhere), or a dash of bear..

We dont know what restriction will be, or what places are or aren't sensitive.

sreiter
05-31-2011, 2:22 PM
Just because a court hasn't ruled on something yet doesn't mean it's not still unconstitutional.

SCOTUS defined the scope of the 2A in Heller. My question to you would be this: "Why are some states getting sued while others are not? Or why are some counties in CA getting sued while others are not?

The reason is that those other states/counties do not have laws or policies which are at odds with the 2A.

We don't know what is or isn't constitutional until it's challenged and ruled upon. I'm sure negro's in the south thought a whole lot was unconstitutional but that didnt mean a thing to the various racist courts ruling against them.

As to why some states aren't being sued, could be because their state constitutions have built in protections (i'm sure you're aware of states rights), maybe because irrespective of the US constitution, those states have liberal gun laws, so no need to sue for that.

Just because a state isn't sued over something, doesn't mean it's in line with the constitution

sreiter
05-31-2011, 2:24 PM
I would say a majority of discussion on this forum involves what people *want* the law to say (i.e. "a court should rule x"), rather that what it "actually says", assuming what it "actually says" is based on dicta and precedent (i.e. "courts have ruled y")... forgetting that the law *as it stands* rarely has anything to do with what they think the constitution says.

To that extent, there is generally a lot of is/should confusion... especially since that "activist" courts have a habit of getting things "wrong". Optimists call that behavior unpredictable. Pessimists call it predictable. Cynics call it inevitable.

Are you reading my mind????

i'm as guilty as the next guy WISHING it said something more, WANTING more. But i read it for what it said, without projecting my personal views cloud what it said.

excellent post

hoffmang
05-31-2011, 2:32 PM
Heller sued for injunctive relief. How can the court grant more then the relief sought?

I'll quote Alan Gura for you:
Under this reasoning, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) would be limited to cases concerning the President’s delivery of judicial commissions. That is simply not how the law works.

There is dicta and there is Supreme Court Dicta. Ginsberg's definition of "carry" isn't dicta.

I also suggest you read footnote 4 of the SAF/CGF amicus in Peruta (http://www.hoffmang.com/firearms/richards-v-prieto/SAF-CGF-Peruta-Amicus-2011-0531.pdf) as the gloss you but on the injunctive relief in Heller isn't legally accurate.

-Gene

Untamed1972
05-31-2011, 2:43 PM
I'll quote Alan Gura for you:


There is dicta and there is Supreme Court Dicta. Ginsberg's definition of "carry" isn't dicta.

I also suggest you read footnote 4 of the SAF/CGF amicus in Peruta (http://www.hoffmang.com/firearms/richards-v-prieto/SAF-CGF-Peruta-Amicus-2011-0531.pdf) as the gloss you but on the injunctive relief in Heller isn't legally accurate.-Gene

Could expound a little bit on what you meant by that for the less-legally-scholared like myself?

Goin' to read the who brief not too!

hoffmang
05-31-2011, 2:44 PM
Could expound a little bit on what you meant by that for the less-legally-scholared like myself?

Goin' to read the who brief not too!

Dude. I love Calgunners, but I have other things to get done in lieu of summarizing something you can easily read :)

-Gene

Untamed1972
05-31-2011, 3:19 PM
Dude. I love Calgunners, but I have other things to get done in lieu of summarizing something you can easily read :)

-Gene


So what you were saying is that Heller's prayer for relief was for a permit to carry in the home, and the court granted him what he asked for....but doing that didn't mean their ruling on the scope of the 2A, meant the 2A only applied in the home?

I read the brief and the footnote, just trying to draw the connection between it at how the "gloss you put on the injunctive relief in Heller isn't legally accurate."

But no worries.....I know all you guys are busy. Thanks for all you do!

sreiter
05-31-2011, 3:34 PM
I'll quote Alan Gura for you:


There is dicta and there is Supreme Court Dicta. Ginsberg's definition of "carry" isn't dicta.

I also suggest you read footnote 4 of the SAF/CGF amicus in Peruta (http://www.hoffmang.com/firearms/richards-v-prieto/SAF-CGF-Peruta-Amicus-2011-0531.pdf) as the gloss you but on the injunctive relief in Heller isn't legally accurate.

-Gene

I'm sorry, but i fail to see how [from foot note 4] "The Supreme Court was merely tracking Heller’s prayer for relief." is any different from "Heller sued for injunctive relief".

The supreme court, by declaring the ban unconstitutional, and ordering DC to provide him with a permit to keep and bear a functional weapon in his home, was the relief he sought.

sreiter
05-31-2011, 3:38 PM
Just because a court hasn't ruled on something yet doesn't mean it's not still unconstitutional.

SCOTUS defined the scope of the 2A in Heller. My question to you would be this: "Why are some states getting sued while others are not? Or why are some counties in CA getting sued while others are not?

The reason is that those other states/counties do not have laws or policies which are at odds with the 2A.

To quote the Heller "dicta"



The way I read that is "The 2A covers ALOT more than in the home, and we gave gov't everywhere SOME guidance on what it covers, but we fully expect that you will continue to push the issue, so we expect to see more cases regarding this in the future, because we know you wont take the hint and just get with the program."

No, the court can more relief that is sought, but that doesn't mean that what they say can't have a broader application.

I've stated numerous times, it give us ammo, but it's ammo, not a cold hard SCOTUS decision that we can seek relief upon. We have to win one where SCOTUS says BEAR means everywhere but X,Y,Z. then we can go about and sue the F%^& out of those not complying

sreiter
05-31-2011, 3:55 PM
I'll quote Alan Gura for you:


-Gene

What case is the Gura quote from?

Marbury v Madison is interesting, but I'm not sure its the same, because the relief he sought was SCOTUS issuing a writ of mandamus, and the court ruled it didn't have the power/jurisdiction to issue such a writ.

Therefore, any cases asking the SCOTUS for relief by issuing a writ of mandamus, regardless of what the writ was for, would denied because the court already said it didnt have the power to issue ANY writs

hoffmang
05-31-2011, 4:12 PM
What case is the Gura quote from?

Marbury v Madison is interesting, but I'm not sure its the same, because the relief he sought was SCOTUS issuing a writ of mandamus, and the court ruled it didn't have the power/jurisdiction to issue such a writ.

Therefore, any cases asking the SCOTUS for relief by issuing a writ of mandamus, regardless of what the writ was for, would denied because the court already said it didnt have the power to issue ANY writs

It's one of the carry cases where Brady is trying to make your point. In no way can Heller be read to only be in the home. It's a lie. There is dicta (about sensitive places) that confirms the non dicta analysis of the word "bear" which was required to refute DC's arguments that "keep and bear" was idiomatic.

Saying the ruling was limited to the home is a useful way for lower courts to attempt to obscure the meaning of Heller, but it's flat wrong. Also you ignore US v. Miller which is still binding and was most certainly not in the home.

-Gene

BigDogatPlay
05-31-2011, 4:18 PM
Saying the ruling was limited to the home is a useful way for lower courts to attempt to obscure the meaning of Heller, but it's flat wrong.

Very, very true. So at risk of thread jacking, how do we frame the argument, outside of a courtroom in the venue of public opinion that makes exactly that case to those who are on the fence? We'll never really convince the hard core anti's, no matter how many wins we ultimately rack up.

It's the big lie, but it has become conventional wisdom to some degree.

taperxz
05-31-2011, 4:39 PM
Wasn't the reading more in the area of " the right of the people to keep and bear arms, most notably in the home? (not only in the home but most notably)

Meaning basically, yes we have the right to keep and bear arms especially in the home. AKA: Don't mess with a persons gun in the home because the have a specific right to keep and bare arms in this country.

sreiter
05-31-2011, 5:30 PM
It's one of the carry cases where Brady is trying to make your point.

-Gene

WOW hold on there. Don't lump me in with the Brady bunch.

I'm going specifically by what the SCOTUS wrote when they gave Heller the relief he was looking for.

i didn't write the opinion, I'm just quoting from it.

Again, the only place SCOTUS said we could carry is in the home, everything is open for debate except the places they said we couldn't carry.

Again, why didn't everyone start carrying after Heller?
Why do we still need a permit?

Because the states can still impose "reasonable restrictions".
And i contend that until we know what the court means by reasonable restrictions, we don't have carry.

Maybe its the semantics, but I'm taking a pragmatic view. Until we have what is reasonable, the anti states will say any town > 50 people is sensitive, and no one can carry. thats reasonable.

To me, since it is yet to be well defined, we dont have carry

As far as Miller, what am i missing? They talked about militia vs people right to keep arms (possession).

The case was about the NFA
decision:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.


Dicta:
Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

dantodd
05-31-2011, 7:54 PM
I disagree. the only reason the SCOTUS even looked at any historical analysis was because several amicus curiae submitted amicus briefs which provided the analysis.

Yes, they looked at the amendment which obviously says "bear" right there in the verbage

No they did not gives us carry anywhere, anytime other then the few sensitive places Scalia mentioned, as they only defined carry in the home was constitutional.

What if the SCOTUS says "everywhere but in the home is sensitive"? would you still say Heller gave us carry?

The fact is, is we have no idea what carry is. How about i say they gave us bear, but other then "in the home" which was specifically mentioned, we have no idea what bear is, including if anywhere outside the home would be included.

Does that satisfy you?

Does that qualify as us really having "Bear"?

Heller sued for injunctive relief. How can the court grant more then the relief sought?

The question before the court was:
"We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution."

How do you suggest they could have answered that question without addressing what the right protected by the second amendment is?

If "The Right of the People" were defined, as D.C. requested and Steven's et. al. wanted, to mean "the people" collectively rather than individually the court may well have decided the other way. Therefore defining this was critical.

"Keep and Bear arms" must also be defined to come to the result the court found. If "keep and bear" could be defined as some suggested (e.g. to own but keep in the local armory) or as Stevens claimed in his dissent as an idiom for military action only then the result may well have been different.

So, we know that both "The right of the people" and "Keep and bear arms" had to be defined and documented in the courts opinion.

This leaves open the prefatory clause and "shall not be infringed" which were not well addressed in Heller. Why were these not well addressed? Because, unlike the other portions they were not critical to the case. The Prefatory clause was only addressed in so much as it was excluded as being a restricting clause and was rather a rationale for the amendment. "Shall not be infringed" was, to the best of my recollection, not addressed at all because the court decided that under any level of heightened scrutiny the law would fall.

hoffmang
05-31-2011, 7:55 PM
WOW hold on there. Don't lump me in with the Brady bunch.
It is a relevant observation as you are persisting on an argument that parallels Brady's exactly.

I'm going specifically by what the SCOTUS wrote when they gave Heller the relief he was looking for.
And your ignoring that the way SCOTUS got to that relief was by way of being forced to analyze what bear meant which is to carry in case of confrontation and that the 2A protects things like hunting. Those points aren't dicta as they were necessary to the holding and you keep ignoring that.

As far as Miller, what am i missing? They talked about militia vs people right to keep arms (possession).
He was indicted for transporting across state lines. If the 2A didn't apply outside the home, then there would have been no 2A analysis, wouldn't there?

-Gene

Al Norris
05-31-2011, 8:36 PM
Of course they ruled 2a protects the right to keep and bear for self defense. Never a question.

It was precisely the question that needed to be answered (was there an individual right) before the Court in Heller could resolve the dispute (did the laws of D.C. violate that right).

If there had not been a 2A right, the Court could not have struck down the law as being violative of that right.

Your "fixing" the emphasis of what I wrote, does nothing more than place the cart before the horse. Striking down the law was incidental to judicially recognizing the 2A as an individual right (for the first time in US history, I should add). Without that recognition, no law could have been stricken.

An awful lot of people are currently hung up on the term, dicta. I include you, as well as the Judges of the lower courts. Under ordinary circumstances you, and those judges, would be correct. Dicta in and of itself, is not binding.

These cases are not ordinary, in as much as they are meant to define the parameters (the scope) of the right. The only case that anyone has to go by (for guidance), is Heller itself. The dicta in this case (being the only case we can use) is highly persuasive, because it is only by analyzing the right, that the Court could reach any decision.

Anyone who says that the Heller Court intimated that the right encompassed only the right to self defense in the home, is intentionally misreading what the Supreme Court held. They are looking only at the resolution of the case, not at what the Majority decided in order to reach that resolution.

It is also why each and every Judge has explicitly ignored the opening statement of Justice Alito in McDonald. To recognize that statement is to cause their House of Cards to fall in upon itself.

sreiter
05-31-2011, 8:58 PM
It was precisely the question that needed to be answered (was there an individual right) before the Court in Heller could resolve the dispute (did the laws of D.C. violate that right).

If there had not been a 2A right, the Court could not have struck down the law as being violative of that right.

Your "fixing" the emphasis of what I wrote, does nothing more than place the cart before the horse. Striking down the law was incidental to judicially recognizing the 2A as an individual right (for the first time in US history, I should add). Without that recognition, no law could have been stricken.

An awful lot of people are currently hung up on the term, dicta. I include you, as well as the Judges of the lower courts. Under ordinary circumstances you, and those judges, would be correct. Dicta in and of itself, is not binding.

These cases are not ordinary, in as much as they are meant to define the parameters (the scope) of the right. The only case that anyone has to go by (for guidance), is Heller itself. The dicta in this case (being the only case we can use) is highly persuasive, because it is only by analyzing the right, that the Court could reach any decision.

Anyone who says that the Heller Court intimated that the right encompassed only the right to self defense in the home, is intentionally misreading what the Supreme Court held. They are looking only at the resolution of the case, not at what the Majority decided in order to reach that resolution.

It is also why each and every Judge has explicitly ignored the opening statement of Justice Alito in McDonald. To recognize that statement is to cause their House of Cards to fall in upon itself.

When i wrote "Of course they ruled 2a protects the right to keep and bear for self defense. Never a question", i meant, i wasn't questioning SCOTUS ruled there was a RKBA.

"Striking down the law was incidental to judicially recognizing the 2A as an individual right"

i don't see how thats possible, since the whole case revolved around his suit

hoffmang
05-31-2011, 9:21 PM
"Striking down the law was incidental to judicially recognizing the 2A as an individual right"

i don't see how thats possible, since the whole case revolved around his suit

No. That's again like saying that Marbury was only about Judicial Commissions. To find that a writ of mandamus could be issued the court had to find that it had the ability to order such. Marbury establishes that the Supreme Court has Constitutional Judicial review.

Let me try this in smaller concepts for you.

Necessary precondition for the finding and relief - not dicta and binding.

Not a necessary precondition for the finding and relief - dicta and from the Supreme Court - persuasive.

Paraphrasing:

"Bear means to carry arms in case of confrontation" = necessary to finding that the 2A is an individual right and therefor DC's regulation violated it.

"Does not cast doubt on restriction on carrying in sensitive places" = not necessary, and dicta, but persuasive that we have no right to carry into courtrooms but begs the question that we clearly do have a right to carry in non sensitive places.

Can you explain to me why you can't see the distinction?

-Gene

sreiter
05-31-2011, 10:21 PM
No. That's again like saying that Marbury was only about Judicial Commissions. To find that a writ of mandamus could be issued the court had to find that it had the ability to order such. Marbury establishes that the Supreme Court has Constitutional Judicial review.

Let me try this in smaller concepts for you.

Necessary precondition for the finding and relief - not dicta and binding.

Not a necessary precondition for the finding and relief - dicta and from the Supreme Court - persuasive.

Paraphrasing:

"Bear means to carry arms in case of confrontation" = necessary to finding that the 2A is an individual right and therefor DC's regulation violated it.

"Does not cast doubt on restriction on carrying in sensitive places" = not necessary, and dicta, but persuasive that we have no right to carry into courtrooms but begs the question that we clearly do have a right to carry in non sensitive places.

Can you explain to me why you can't see the distinction?

-Gene
i see your distinction in the "smaller concept" and 100% agree there

re: Marbury again, this is different.

Scotus couldn't find the 2a unconstitutional. i don't believe SCOTUS would have looked at the historical had it not been presented in amicus briefs.

I don't think Scotus needed to look at historical documents to come to the correct conclusion that a ban in a federal enclave such DC, is unconstitutional. its a no brain-er, and only communist heathens would say otherwise.

The fact still remains by virtue of Scalia saying "reasonable restrictions still apply", he left the door open for anti's to make all sort of UNREASONABLE restrictions that will need to be challenged before we know exactly what "bear" really means.

This isnt the way i want it. its not the way the founding fathers want it. i'm saying thats the way SCOTUS left it.

Scalia even said "the scope of the right will be left to future law suits"

What i'm saying is the SCOTUS only told us specifics on a few prohibited places, and told us 1 place specifically where it would be permitted, in the home, with other places to be decided at a future date, in future cases.

Why else do we have law suits going up the chain as we speak trying to establish where, when, and how we can carry?

all this points to a pragmatic view that since we don't know what "bear" means to the scotus, and there is no national standard for what BEAR means. Therefore for all intents and purposes, we don't have BEAR and and won't until SCOTUS Tells us what BEAR means to them (what is and isn't a reasonable restriction, if any)

And i believe the definition won't be settle for some time to come. I believe it will be a moving target for at least the next 10 years

sreiter
05-31-2011, 10:21 PM
Originally Posted by sreiter
WOW hold on there. Don't lump me in with the Brady bunch.

It is a relevant observation as you are persisting on an argument that parallels Brady's exactly.

Except it's not. The Brady's want it to end there. I don't. Maybe the 5-10 times I stated I want carry, I've donated a to CFG a number of times, etc, you missed it. I don't how is it you don't see me say at this point Scotus only said X, we need them to say Y, and Z.



Quote:
Originally Posted by sreiter
I'm going specifically by what the SCOTUS wrote when they gave Heller the relief he was looking for.

And your ignoring that the way SCOTUS got to that relief was by way of being forced to analyze what bear meant which is to carry in case of confrontation and that the 2A protects things like hunting. Those points aren't dicta as they were necessary to the holding and you keep ignoring that.

I'm not ignoring it at all. What i say over and over is they analyzed it because they had briefs that had the analysis done.

Why is it no one answered "why hasn't anyone just start carrying" if we truly have carry?
Thats my only point. and its the point that you, and everyone else keeps missing. SCOTUS hasn't defined exactly what BEAR really means. What are the limitations.

Would you argue differently? Do we really know what will or won't pass as far as where, how, when we can carry until cases go to SCOTUS and they tell us what it means?

TO ME if we don't know what carry means yet, we don't have carry.


Quote:
Originally Posted by sreiter
As far as Miller, what am i missing? They talked about militia vs people right to keep arms (possession).

He was indicted for transporting across state lines. If the 2A didn't apply outside the home, then there would have been no 2A analysis, wouldn't there?


from heller
""Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.""



from miller
"An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton

"did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 26, and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

He was indicted for [transporting] a NFA firearm, without a stamp.

And more to the point, transportation, <> BEAR

Also, the court makes note of "most if not all states have a version of RKBA". the fact it notes MOST, means that it wasn't a national "right" (not every state had the right), so I still don't see how miller applies. But thats me. I'm open (i really am) to hear a deeper explanation of Miller gave us "BEAR"

HondaMasterTech
05-31-2011, 10:31 PM
I'm afraid of how "sensitive places" will be defined. "sensitive" is subjective.

wildhawker
05-31-2011, 10:40 PM
I'm afraid of how "sensitive places" will be defined. "sensitive" is subjective.

Only for now.

sreiter
05-31-2011, 10:50 PM
Dantodd and hoffmang -

I do agree 100% that the court had to examine what definitions and only by those definitions were they able to come up with the correct conclusion that rkba is a individual right (which speaks to your explaining in smaller concepts)

This was never part of my argument

hoffmang
06-01-2011, 12:22 AM
Why is it no one answered "why hasn't anyone just start carrying" if we truly have carry?
Because civil litigation to invalidate a law on the books beats criminal. However, Williams v. Maryland may be the exception that proves the rule.

from miller
"An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton

"did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 26, and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."
And you leave out the part that can't be in the opinion if the 2A doesn't apply outside of the home:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

If your argument was correct the quote above would have said:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the home, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Yet the opinion assumed that the 2A applies outside of the home - which is where one would transport something in interstate commerce.

Are you willing to finally admit that saying that the 2A only applies in the home is an improper legal reading of Heller and Miller? Recall that "most notably" means "also notably in other instances but maybe less so."

-Gene

Untamed1972
06-01-2011, 7:04 AM
What i'm saying is the SCOTUS only told us specifics on a few prohibited places, and told us 1 place specifically where it would be permitted, in the home, with other places to be decided at a future date, in future cases.

Why else do we have law suits going up the chain as we speak trying to establish where, when, and how we can carry?

all this points to a pragmatic view that since we don't know what "bear" means to the scotus, and there is no national standard for what BEAR means. Therefore for all intents and purposes, we don't have BEAR and and won't until SCOTUS Tells us what BEAR means to them (what is and isn't a reasonable restriction, if any)

And i believe the definition won't be settle for some time to come. I believe it will be a moving target for at least the next 10 years

I'm not ignoring it at all. What i say over and over is they analyzed it because they had briefs that had the analysis done.

Why is it no one answered "why hasn't anyone just start carrying" if we truly have carry?
Thats my only point. and its the point that you, and everyone else keeps missing. SCOTUS hasn't defined exactly what BEAR really means. What are the limitations.

Would you argue differently? Do we really know what will or won't pass as far as where, how, when we can carry until cases go to SCOTUS and they tell us what it means?

TO ME if we don't know what carry means yet, we don't have carry.


Remember......the law does not define what is legal, it only defines what is specifically stated as ILLEGAL. So by stating that restrictions like banning of firearms in sensitive places like schools and courtrooms would be considered constitutional......that is where the line actually stands. So in reality SCOTUS gaves us BEAR everywhere except schools and courtrooms and laws restricting bear in any place other than those will have to be justfied by the state....which is why many are getting sued now, because their existing laws ban carry EVERYWHERE.

SCOTUS even said so when they said "schools and courtrooms are only as examples" (paraphrased) What they meant was there could be and probably are a few other places that could be constitutionally justified as a sensitive place, but you have the framework with which to make an informed, constitutional assessment of that if you put that restriction in place, so you best be prepared to properly defend that choice if you make it....and again...the broad concern of "public safety" in NOT sufficient.

Fact is you could go out right now and CCW w/o a permit and use the 2A as your defense if you get arrested and charged. And you might win eventually. But that is a risky path to you as an individual at this juncture. So these issues are being addressed thru civil suits instead so that no one need take such risks.

You are also forgetting that States have a choice in how to assimilate these court decisions. They can choose to stay AS FAR AWAY from the line of civil rights violation as possible, and thus likely avoid being sued......or they can do like CA is and will do.....push and cross the line constantly and get sued every step of the way.

So a state could adopt carry laws that basically state you can CCW or open carry EVERYWHERE....w/o a permit....except for schools and courtrooms.....and it would be pretty hard for anyone to successfully sue them over those laws wouldnt it? Why? Because they adopted the most minimum restrictions that have been judicially stated as passing muster, vs. those who are trying to squeeze the maximum restrictions possible out of what SCOTUS said...ie trying to claim Heller only protects 2A in the home.

kwikrnu
06-01-2011, 7:08 AM
Why take a case such as peruta's to court? Open carry is legal in California. Why not sue in a state where both unlicensed open and concealed carry is illegal. Or where open carry is illegal and the state has a "shall issue" statute that it uses arbitrarily.

Untamed1972
06-01-2011, 7:16 AM
Why take a case such as peruta's to court? Open carry is legal in California. Why not sue in a state where both unlicensed open and concealed carry is illegal. Or where open carry is illegal and the state has a "shall issue" statute that it uses arbitrarily.

because LOADED open carry is NOT legal in CA.

UOC and the restrictions even on that do not make it a viable means of self-defense, hence does not meet a constitutional minimum.

And even if cases in other states like you suggest were to win, CA would still have to be sued to strike the laws on the books here unless the .leg suddenly got their heads out of their rectums and changed the laws to pass constitutional muster before they got sued.

kwikrnu
06-01-2011, 7:29 AM
because LOADED open carry is NOT legal in CA.

UOC and the restrictions even on that do not make it a viable means of self-defense, hence does not meet a constitutional minimum.

And even if cases in other states like you suggest were to win, CA would still have to be sued to strike the laws on the books here unless the .leg suddenly got their heads out of their rectums and changed the laws to pass constitutional muster before they got sued.

Tennessee prohibits unlicensed loaded open carry (loaded in Tennessee is ammunition in the vicinity). Tennessee prohibits the carry of loaded long arms. Tennessee has a shall issue permit system. Tennessee permanently suspended my handgun carry permit, not due to any violation of law). I have a FFL. I have carry permits from three other states, even though state law prohibits residents from carrying under another stat'es permit. I have NFA weapons. Honorably discharged from the military. Never been convicted or charged with a crime. A case like mine reaching the supreme court would decide if the carry of a loaded handgun is legal. Any decision would result in something which will allow the carry of a firearm. One plus is that mine has survived at least one motion for summary judgment after the judge reversed a previous order he made.

Untamed1972
06-01-2011, 7:41 AM
Tennessee prohibits unlicensed loaded open carry (loaded in Tennessee is ammunition in the vicinity). Tennessee prohibits the carry of loaded long arms. Tennessee has a shall issue permit system. Tennessee permanently suspended my handgun carry permit, not due to any violation of law). I have a FFL. I have carry permits from three other states, even though state law prohibits residents from carrying under another stat'es permit. I have NFA weapons. Honorably discharged from the military. Never been convicted or charged with a crime. A case like mine reaching the supreme court would decide if the carry of a loaded handgun is legal. Any decision would result in something which will allow the carry of a firearm. One plus is that mine has survived at least one motion for summary judgment after the judge reversed a previous order he made.



I'm not sure what you're getting at? Suits over TN law would only invalidate the TN law being sued over and also create precident over which to attack CA laws. But the CA laws would still have to be taken to court unless the .leg changed them first to pass muster. This is why there are several carry suits going concurrently in several different states. One win, even in SCOTUS, over one state law will not automatically invalidate every law in every other state.

Every law in every state that seems to not pass muster will have to be challenged in court to get it struck down if the respective state .leg does not address them first.

sreiter
06-01-2011, 6:12 PM
Because civil litigation to invalidate a law on the books beats criminal. However, Williams v. Maryland may be the exception that proves the rule.


And you leave out the part that can't be in the opinion if the 2A doesn't apply outside of the home:


If your argument was correct the quote above would have said:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the home, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Yet the opinion assumed that the 2A applies outside of the home - which is where one would transport something in interstate commerce.

Are you willing to finally admit that saying that the 2A only applies in the home is an improper legal reading of Heller and Miller? Recall that "most notably" means "also notably in other instances but maybe less so."

-Gene

1. I copied the courts decision in Miller verbatim
2. re: Your inclusion of the word "Home" in miller.. WOW. you take the justices saying " we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." and turn that into thiis gives us BEAR because they didn't say "the 2a doesnt include NFA guns", and because they didnt include the word home...errrr...ummm... i can't follow your logic at all. Even if they said NFA is protected by the 2a, its a long jump to go from them not qualifying the statement to assuming they mean everywhere.

i admit, your more knowledgeable they I in these matters but understanding logic, and language is my stock in trade. i really don't see how you can come to the conclusions you do, namely, NFA not protected by the 2a = we have bear, and how transporting = BEAR. i transport my weapons in a locked case to and from the range, does that mean I'm bearing arms (ready for self defense)?

3. Am I willing to admit the 2a extend outside the home. Absolutely. And I freely admit its a individual right, as is every BOR. I never said it didn't. what i said is the courts haven't told us what "BEAR" means, in the context of real world application. We have to sue to have those parameters defined. So, if I can't exercise BEAR, we don't have it yet, in a real world application. I admit we have it in a abstract way. But TO ME, until I no longer have a fear of being in jail for exercising my constitutional right (BEARING arms), I say i don't have that right at all.

4. re: Because civil litigation to invalidate a law on the books beats criminal.

So you say we have a right yet exercising that right is illegal. Doesn't sound like a right to me.

sreiter
06-01-2011, 6:24 PM
Remember......the law does not define what is legal, it only defines what is specifically stated as ILLEGAL.


EXCELLENT POINT. I admit, i'm looking at Heller from the standpoint of what specific relief was granted, and from that POV, a BAN is illegal.

If I were to accept the postulate put forth by Gene et.al.

I do see your point. And might even agree your point. But the down side of your point is Scalia left the door too wide open, and we as of yet don't know the boundaries. We don't so the various totalitarian governments (at all levels) can keep making laws to keep us under their thumb. Until I no longer have to fear being arrested, its my personal believe a right not able to be exercised isn't a right a all. It's some amorphic construct.

Untamed1972
06-01-2011, 6:35 PM
EXCELLENT POINT. I admit, i'm looking at Heller from the standpoint of what specific relief was granted, and from that POV, a BAN is illegal.

If I were to accept the postulate put forth by Gene et.al.

I do see your point. And might even agree your point. But the down side of your point is Scalia left the door too wide open, and we as of yet don't know the boundaries. We don't so the various totalitarian governments (at all levels) can keep making laws to keep us under their thumb. Until I no longer have to fear being arrested, its my personal believe a right not able to be exercised isn't a right a all. It's some amorphic construct.


An unconstitutional law is still in effect until basically one of 3 things happens:

1) it is challenged in court and struck down
2) it is repealed or ammended by the .leg to pass muster (or in this case the sheriff changes his policy to accept self-defense as good cause....like Sac did)
3) it is basically ignored and no gov't agent/agency attempts to enforce it.

So to answer your previous question, yes you have the right but you are subject to prosecution AT THIS TIME for exercising it till the law is struck down or repealed/ammended.

The civil rights movement, and the 1st ammendment stuff didn't happen over night either. But because of those things, the 2A process should move faster because their is already alot of civil rights precedent already established.

sreiter
06-01-2011, 7:00 PM
An unconstitutional law is still in effect until basically one of 3 things happens:

1) it is challenged in court and struck down
2) it is repealed or ammended by the .leg to pass muster (or in this case the sheriff changes his policy to accept self-defense as good cause....like Sac did)
3) it is basically ignored and no gov't agent/agency attempts to enforce it.

So to answer your previous question, yes you have the right but you are subject to prosecution AT THIS TIME for exercising it till the law is struck down or repealed/ammended.

The civil rights movement, and the 1st ammendment stuff didn't happen over night either. But because of those things, the 2A process should move faster because their is already alot of civil rights precedent already established.

again..i agree 99% with you. And that was my argument all along."subject to prosecution AT THIS TIME for exercising it till the law is struck down or repealed/amended."

To me, If i can be prosecuted, I don't have that right AT THIS TIME. Just because someone tells me the sun is shining, doesn't mean i can go outside and get a tan, if it's really is raining

WHEN the laws are struck down, and i can exercise that right to whatever extend our overlords grace us with, I will say I have the right to BEAR arms

BTW - i don't believe in god given rights. First off, I don't believe in a supreme creator, but more to the point, the fact we live in a world were those that came before us decided they wanted to live in a societal form of living arrangement, people in power have been telling those who aren't how to live. It's all a social construct and we must go along, to get along. The only juggernaut is those powerful enough to take by force, or trickery a position of power. Then they get to make rules they like

Untamed1972
06-01-2011, 7:15 PM
To me, If i can be prosecuted, I don't have that right AT THIS TIME. Just because someone tells me the sun is shining, doesn't mean i can go outside and get a tan, if it's really is raining


We are more in the "its stopped raining and the clouds are starting break and the sun will be shining soon" phase.



Well soon in judicial time anyway.

sreiter
06-01-2011, 7:34 PM
We are more in the "its stopped raining and the clouds are starting break and the sun will be shining soon" phase.



Well soon in judicial time anyway.

we can only hope :o)

curtisfong
06-01-2011, 7:37 PM
Until I no longer have to fear being arrested, its my personal believe a right not able to be exercised isn't a right a all.

IMO when it comes to legal questions of what *is* (and not what *should be*), this is the only sane metric.

Especially when the odds of being arrested is nearly 100%.

hoffmang
06-01-2011, 8:59 PM
Tennessee prohibits unlicensed loaded open carry (loaded in Tennessee is ammunition in the vicinity).
Uhm.. Having LOC'ed in TN in the last 7 days, LOC is perfectly legal in public in TN without a permit. Only concealed carry requires a permit.
1. I copied the courts decision in Miller verbatim
2. re: Your inclusion of the word "Home" in miller.. WOW. you take the justices saying " we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." and turn that into thiis gives us BEAR because they didn't say "the 2a doesnt include NFA guns", and because they didnt include the word home...errrr...ummm... i can't follow your logic at all.

Let me try to explain it again. If the 2A only applied to the home then the Supreme Court in Miller would have not done a 2A analysis as the "crime" occurred outside the home. Clearly the 2A applies outside the home because the Court had to perform a 2A analysis of whether a sawed off shotgun was an arm that the people had a right to keep and bear (which includes transport across state lines.)

I admit to a bit of frustration that you aren't grasping this simple item of logic and legal reasoning.

-Gene

sreiter
06-01-2011, 9:41 PM
Let me try to explain it again. If the 2A only applied to the home then the Supreme Court in Miller would have not done a 2A analysis as the "crime" occurred outside the home. Clearly the 2A applies outside the home because the Court had to perform a 2A analysis of whether a sawed off shotgun was an arm that the people had a right to keep and bear (which includes transport across state lines.)

I admit to a bit of frustration that you aren't grasping this simple item of logic and legal reasoning.

-Gene

The analysis was whether a NFA is protected under the 2a, irrespective of whether it was in or out of the home.

More to the point, your argument is a straw man. My contention has nothing to do with, as I have stated on every post, if the 2a exists only in the home, or outside the home. You keep trying to obfuscate that fact.

My contention, is SCOTUS define the scope of the 2a in relationship to the home, they have as of yet, not defined the scope of the 2a outside the home.

And since they haven't and since it is still illegal here in Cali, I don't have the right to bear outside my home.

(seriously, just give me a number of how many times i need to repeat myself before you actually see the point I'm making...not agree with, but just acknowledge my argument for what it is)

I admit to a bit of frustration that you aren't grasping this simple item of logic and legal reasoning.

I don't know, maybe you aren't aware that when people get charged with a crime, especially a serious one, they "get the book thrown at them.

Interstate transport was a "let's just add this on too, and whatever else we think we can make stick" charge.

The ICA was created to regulate train monopolies (i.e. companies that regularly do business across state lines). Was Miller really in a business that sold NFA weapons across state lines on a regular basis, and if so, the ICC only has the power to regulate the prices charged by trains, buses, and common carrier.

Again, explain to my simple brain how if I TRANSPORT my weapon across a state line to sell my weapon to a FFL (interstate commerce), I can't be charged with BEAR'ing arms, yet by virtue of the fact Miller crossed the same state line I potentially could, it automatically means that he was BEARING arms, and further, it gave everyone the right to bear arms.

Future explain (for dummies) by the SCOTUS saying "him doing so was not protected at all by the 2a", how that gets turned into "the SCOTUS gave us the right to bear arms"

Mind bottling indeed.

Oh, sorry, if its not to much trouble, please reconcile your view of Miller against Heller:

“Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right."

"The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

akagunnut
06-01-2011, 9:50 PM
SAF FILES AMICUS BRIEF IN
SAN DIEGO COUNTY GUN PERMIT CASE



BELLEVUE, WA - The Second Amendment Foundation has filed an amicus brief in a California case that challenges the constitutionality of discretionary gun permit rules adopted by officials in San Diego County, California.

The brief, submitted by attorney Alan Gura, is also on behalf of the Calguns Foundation and two Yolo County residents, Adam Richards and Brett Stewart, who are parties to a separate, but fundamentally related lawsuit. The case at hand, Peruta v. San Diego County, is now on appeal to the Ninth Circuit Court of Appeals in San Francisco.

At issue in both cases is the broad discretionary authority exercised by California authorities under existing statute in the issuance of carry permits. Edward Peruta's lawsuit against San Diego County challenges the constitutionality of "good cause" criteria used as a basis for issuing or, more typically, denying a permit to carry. SAF has filed an appeal in its own case, Richards v. Prieto, in the Ninth Circuit.

"To be sure," Gura writes in his amicus brief, "(officials) are able to license the carrying of handguns in the interest of public safety. But they must not be in the business of judging people's character, or forcing individuals to prove a sufficiently good reason for wanting to exercise something that is their right."

The SAF brief also notes that the court "should recognize that (California Penal Codes) good cause' and good moral character' requirements are classic specimens of unconstitutional prior restraints."

Such conditions, Gura writes in his brief for SAF, "plainly condition the exercise of a fundamental right upon the unbridled discretion of a licensing official. Accordingly, they must be struck down as such."





The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.

sreiter
06-01-2011, 10:13 PM
IMO when it comes to legal questions of what *is* (and not what *should be*), this is the only sane metric.

Especially when the odds of being arrested is nearly 100%.

+1000

Liberty1
06-01-2011, 10:16 PM
Uhm.. Having LOC'ed in TN in the last 7 days, LOC is perfectly legal in public in TN without a permit.

-Gene

I've always known TN as a licensed OC state?:confused:

http://www.opencarry.org/tn.html

Possession Prohibited http://www.michie.com/tennessee/lpext.dll/tncode/1203d/12a88/12de7/12e29?f=templates&fn=document-frame.htm&2.0#JD_39-17-1307

Licensed Exemption http://www.michie.com/tennessee/lpext.dll/tncode/12043/12a8e/12ded/12e2f?fn=document-frame.htm&f=templates&2.0#

Maestro Pistolero
06-01-2011, 10:30 PM
I admit to a bit of frustration that you aren't grasping this simple item of logic and legal reasoning.Don't bother, Gene, the guy is stuck in a loop. He seems to think that constructive reasoning, based on the sum of facts and case law upon which the SCOTUS directly relied for the Heller and McDonald decisions somehow equals the denial of the present condition of the right. :confused:

You tried.

hoffmang
06-01-2011, 10:48 PM
I've always known TN as a licensed OC state?:confused:

My bad. You are correct and since I'm licensed I didn't worry about that part of it.
Don't bother, Gene, the guy is stuck in a loop.

You tried.

Alan Gura, the Supreme Court and me just aren't correct... :rolleyes:

-Gene

curtisfong
06-01-2011, 10:50 PM
There seems to be some confusion over his position. I understand it just fine, as I've pointed out in several of my posts, which have gone entirely ignored :(

Bottom line: if everything was perfect none of these lawsuits would be needed. That doesn't mean the lawsuits are pointless, or wrong headed, or doomed to failure.

What is wrong with pointing out *things are fundamentally broken* until all of these lawsuits are resolved, and/or SCOTUS issues smackdowns where appropriate (i.e. where the lower courts *deliberately* defy it)?

Again, until I'm fairly sure I won't get arrested for action "x", I do not (functionally) have the right to commit action "x". Claiming otherwise is equivalent to screaming "what part of shall not be infringed do you not understand" over and over and over and over again.

hoffmang
06-01-2011, 10:56 PM
There seems to be some confusion over his position. I understand it just fine, as I've pointed out in several of my posts, which have gone entirely ignored :(

The lower courts are wrong. There is nothing incorrect about pointing out that we're going to have to have the Supreme Court spell it out for them in small words and simple letters. They're also wrong because they are fundamentally being statist and are substituting personal preferences (protected by armed US Marshalls) for the Bill of Rights in some cases.

However, there is no valid legal argument that binding Supreme Court precedent is only that the 2A is in the home or that the parts of Heller and McDonald about carry are dicta. Some is, but most is not. And the some that is, is both in accordance with the parts that aren't and are a special kind of dicta - Supreme Court dicta which has the persuasive force almost equivalent to another federal circuit court of appeals decision.

But what do I know about any of this crap? :rolleyes:

-Gene

curtisfong
06-01-2011, 11:09 PM
However, there is no valid legal argument that binding Supreme Court precedent is only that the 2A is in the home or that the parts of Heller and McDonald about carry are dicta.

Again, from my naive (non-lawyer) standpoint, I have watched the lower courts (not to mention LEO, BATFE, DAs, etc) defy logic, reason, and even SCOTUS over and over and over again, whether or not there is any valid legal argument for them to do so...

And because of my inexperience, I can not predict *what* will make those organizations finally capitulate. From my perspective, it seems arbitrary and nearly random - there seems to be no distinct pattern. So I pretty much always assume the lower courts (for example) defy whatever they want to, whenever they want to, up until some arbitrary point "x", since whenever I hear "no, this time, they'll really have to capitulate", it seems there is some way the lower courts weaseled out of it. Now extend this principle to LEO, DAs, DOJ, BATFE, etc. etc. and you begin to see the depth of my pessimism.

So as a result, when I hear "no really, when we win this, they HAVE to pay attention", I am skeptical, and I expect the lower courts to play word games just as sreiter described; not because I think their arguments are legally valid, but because playing word games is 1) what the courts have experience doing 2) historically, what they have done almost every time, without exception.

hoffmang
06-01-2011, 11:22 PM
Again, from my naive (non-lawyer) standpoint, I have watched the lower courts (not to mention LEO, BATFE, DAs, etc) defy logic, reason, and even SCOTUS over and over and over again, whether or not there is any valid legal argument for them to do so...

And so we move as quickly as possible to get the 5 we have to use the small words I spoke of.

Please don't confuse fear with legal analysis.

sreiter had this exact same argument (http://www.calguns.net/calgunforum/showpost.php?p=2615124&postcount=120) with Brandon and me in 2009 and he's not progressed at all. Basically interacting with him is a waste of time.

sreiter - why did the Nordyke panel perform any 2A analysis at all at either panel opinion? Gun shows aren't in the home.

-Gene

Maestro Pistolero
06-01-2011, 11:36 PM
The Second Amendment isn't about indoor militias?

wildhawker
06-01-2011, 11:51 PM
Two years ago already? Time flies when you're not having to repeat yourself 5x daily.

One day, this will be two years ago...

-Brandon

And so we move as quickly as possible to get the 5 we have to use the small words I spoke of.

Please don't confuse fear with legal analysis.

sreiter had this exact same argument (http://www.calguns.net/calgunforum/showpost.php?p=2615124&postcount=120) with Brandon and me in 2009 and he's not progressed at all. Basically interacting with him is a waste of time.

sreiter - why did the Nordyke panel perform any 2A analysis at all at either panel opinion? Gun shows aren't in the home.

-Gene

Untamed1972
06-02-2011, 7:42 AM
What part of "one SCOTUS ruling does not automatically invalidate every gun law in the country" is so hard for some to understand?

Go back and read my post about the 3 ways an unconstitutional law can get removed.

A ruling on a speficially challenged law in one state, invalidates that specific law....BUT ALSO creates precident with which to challenge other laws in other states. A state can avoid challenge by reading the handwriting on the wall and changing or repealing the law BEFORE it gets challenged.

Al Norris
06-02-2011, 9:52 AM
My contention, is SCOTUS define the scope of the 2a in relationship to the home, they have as of yet, not defined the scope of the 2a outside the home.

That is a false idea, as the Court emphatically did not define the scope of the right. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment ..." Heller opinion, PDF pg. 54. "But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field ..." ante at 63.

What they defined was the core of the right; Self defense. "As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right." ante at 56. “A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.” ante at 57, quoting State v. Reid, 1 Ala. 612, 616–617 (1840). "This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." ante at 58.

The Court in Heller only defined the initial parameters of the right. In McDonald, the Court solidified what it held in Heller, "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 ..." McDonald opinion, PDF pg. 1, and incorporated that right as against the States and local government, citation omitted.

In sum, this is what you, and the lower courts, are neglecting. Instead, you, and the lower courts, are focusing only upon the specific relief sought by Mr. Heller, which has much to do with the outcome of the case, but little to do with what the Supreme Court actually held to arrive at the resolution of the case at hand.

I have had these arguments with many individuals, over at The Firing Line, ever since the Heller decision came out. So it comes as no surprise that the States, local governments and lower courts all view this the same as you. It is a simple fact that holding onto this idea that Heller only said, "in the home," keeps the boat from rocking. The Status Quo is preserved, and is the essential meme for conservatism (regardless of an individuals personal politics, the judiciary is conservative, by and large - this is not an indictment against conservatism, merely an observation of the way things are).

To say what others have been saying to you, sreiter: Each and every law passed by a legislative body (or voter approval in the case of voter initiatives) is presumed to be lawful. A single judgment, by a court, even the Supreme Court, does not automagically overturn every law on the books in every jurisdiction. Each of these laws must be litigated.

This action is illustrated by the results of McDonald. Once incorporated, the laws of Chicago would be invalidated when the case went back down to the District Court. Chicago knew this, because incorporation of the 2A meant that the specific and narrow holding of Heller became a nationwide standard. Guns, specifically handguns, must be allowed in the homes of honest citizens.

Instead of continuing as they had, they repealed their laws and enacted legislation allowing guns in the home. This mooted the cases at the district level. What is being litigated now (in Chicago) is different than what was being litigated before incorporation.

That is Chicago, and has nothing whatsoever to do with the current litigation that is attempting to establish that the right of self defense is a right, regardless of where the individual finds herself.

Finally, if you cannot be convinced, by what Gene and several others have tried to educate you with, then you are not simply ignorant of the facts, you are obstinate in your beliefs. This is what Gene implied by equating you with the position(s) held by the anti-gun faction.

sreiter
06-02-2011, 11:55 AM
My bad. You are correct and since I'm licensed I didn't worry about that part of it.


Alan Gura, the Supreme Court and me just aren't correct... :rolleyes:

-Gene

Well since your view is in direct contrast to SCOTUS view of Miller (as articulated in Heller), I don't see how you and SCOTUS having the same view can be mentioned in the same sentence.

As far as Heller, well, Thing thing about an adversarial judicial system is each side believes their interpretation is correct.

So you and Mr Gura may believe SCOTUS meant one thing, but until they rule, stating emphatically that you know exactly what they meant, and by extension exactly how they will rule, is disengage at best.

We believed the best way to incorporation was through P or I, but that wasn't the way they ruled.

sreiter
06-02-2011, 12:07 PM
And so we move as quickly as possible to get the 5 we have to use the small words I spoke of.

Please don't confuse fear with legal analysis.

sreiter had this exact same argument (http://www.calguns.net/calgunforum/showpost.php?p=2615124&postcount=120) with Brandon and me in 2009 and he's not progressed at all. Basically interacting with him is a waste of time.

sreiter - why did the Nordyke panel perform any 2A analysis at all at either panel opinion? Gun shows aren't in the home.

-Gene

Brandon and i took it off line, and he convinced me of his side of the argument

why did the Nordyke panel perform any 2A analysis at all at either panel opinion? Well, it wasn't to see if Nordyke had the right to BEAR arms at the show. It was to see if the county, by prohibiting sales on county land, put a undue burden on "we the people" from obtaining weapons, so we could exercise our 2a rights .......in the home :43:

sreiter
06-02-2011, 12:20 PM
That is a false idea, as the Court emphatically did not define the scope of the right. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment ..." Heller opinion, PDF pg. 54. "But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field ..." ante at 63.

What they defined was the core of the right; Self defense. "As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right." ante at 56. “A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.” ante at 57, quoting State v. Reid, 1 Ala. 612, 616–617 (1840). "This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." ante at 58.

The Court in Heller only defined the initial parameters of the right. In McDonald, the Court solidified what it held in Heller, "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 ..." McDonald opinion, PDF pg. 1, and incorporated that right as against the States and local government, citation omitted.

In sum, this is what you, and the lower courts, are neglecting. Instead, you, and the lower courts, are focusing only upon the specific relief sought by Mr. Heller, which has much to do with the outcome of the case, but little to do with what the Supreme Court actually held to arrive at the resolution of the case at hand.

I have had these arguments with many individuals, over at The Firing Line, ever since the Heller decision came out. So it comes as no surprise that the States, local governments and lower courts all view this the same as you. It is a simple fact that holding onto this idea that Heller only said, "in the home," keeps the boat from rocking. The Status Quo is preserved, and is the essential meme for conservatism (regardless of an individuals personal politics, the judiciary is conservative, by and large - this is not an indictment against conservatism, merely an observation of the way things are).

To say what others have been saying to you, sreiter: Each and every law passed by a legislative body (or voter approval in the case of voter initiatives) is presumed to be lawful. A single judgment, by a court, even the Supreme Court, does not automagically overturn every law on the books in every jurisdiction. Each of these laws must be litigated.

This action is illustrated by the results of McDonald. Once incorporated, the laws of Chicago would be invalidated when the case went back down to the District Court. Chicago knew this, because incorporation of the 2A meant that the specific and narrow holding of Heller became a nationwide standard. Guns, specifically handguns, must be allowed in the homes of honest citizens.

Instead of continuing as they had, they repealed their laws and enacted legislation allowing guns in the home. This mooted the cases at the district level. What is being litigated now (in Chicago) is different than what was being litigated before incorporation.

That is Chicago, and has nothing whatsoever to do with the current litigation that is attempting to establish that the right of self defense is a right, regardless of where the individual finds herself.

Finally, if you cannot be convinced, by what Gene and several others have tried to educate you with, then you are not simply ignorant of the facts, you are obstinate in your beliefs. This is what Gene implied by equating you with the position(s) held by the anti-gun faction.

If i may call you Al, you have articulated my EXACT position with this post. That the court did not fully examine the full scope of the law. they did not clarify the entire field.

The Court in Heller only defined the initial parameters of the right. And those initial parameters were defining what is A-OK in the home.

But is where we part ways. You, like others keep saying " In sum, this is what you, and the lower courts, are neglecting. Instead, you, and the lower courts, are focusing only upon the specific relief sought by Mr. Heller, which has much to do with the outcome of the case, but little to do with what the Supreme Court actually held to arrive at the resolution of the case at hand."

No, what I am saying is until the court defines more parameters, BEARing arms in public because i believe Heller and McDonald made BEARing in public the law of the land, would be a fools errand, and in doing so, i would do it at my own peril.

And to that end, if being arrested is certainty, I don't have that right.

It's like saying i have the right not to incriminate myself, but the second I invoke that right, i'll be summarily executed.

sreiter
06-02-2011, 12:23 PM
What part of "one SCOTUS ruling does not automatically invalidate every gun law in the country" is so hard for some to understand?



None, and thats exactly my point. Apology accepted (tip o' the hat to Steve Colbert)

sreiter
06-02-2011, 12:25 PM
. Basically interacting with him is a waste of time.

-Gene

I understand that my questions painted you into a corner, and this is a easy out ;):43::D

sighere
06-02-2011, 12:32 PM
Love the "indoor militia"!!!!

Dicta does not overturn laws, rulings do. Unfortunately the best parts of Heller/McD are dicta. The holdings are narrow and the lower courts will use that as cover until SCOTUS makes clear that "bearing" = to carrying around a loaded weapon. Of course once SCOTUS does that, the anti's will hang their hats on the "sensitive areas" part. You will see myriad laws about what a sensitive area is (stadiums, malls, movie theaters, bars, restaurants, busses, sidewalks) and the game of striking them down starts all over again. This is one of the weaknesses of the Maryland case. Again it calls for a very narrow ruling. It should have also asked to define sensitive areas to be limited to jails, airplanes and boxing matches.... ok maybe not boxing matches.

Untamed1972
06-02-2011, 12:39 PM
None, and thats exactly my point. Apology accepted (tip o' the hat to Steve Colbert)

Apology not offered....I'm not really sure what it is you're trying to take credit for.

Heller didn't give Chicago 2A in the home till Chicago was sued directly....even tho by your arguement we'd already been given that.

So I'm not really seeing your point.

Why didn't Heller and McD gives us BEAR outside the home? My contention is they gave us PRECEDENT to challenge laws restricting/banning carry outside the home.

Heller/McD will be the hammer that strikes down those laws. And would good clear decision from SCOTUS stating such will just further define what they already said......and I'd bet money that a large part of the decision will simply refer back to already stated analysis in Heller/McD.

It seems that you are attempting to argue from a position that is not taking into account how the courts work, so it's pointless to argue a flawed position.

The 1A freedom of religion and speech suits of the JWs in the 40's werent the result of ONE suit, and the civil rights movements of the 60's weren't either. Just because SCOTUS makes a decision doesn't mean every state and municipality automatically fall into line over night. So SCOTUS can give you the right, then you have to force some of the individual players to accept it the hard way.

Glock22Fan
06-02-2011, 12:40 PM
Steve, if the only thing in Heller that matters is the four lines you keep saying is the only thing about it that matters, why did SCOTUS take some 400 pages (I believe) to lay it out?

Seems to me (IANAL) that they used those pages to explain their logic in arriving at those four lines clearly and thereby exactly laying down why they thought the way they did and to make it very plain (unless maybe the court's membership changes) how they will rule on any related topic in future.

So, although they may not have ruled that "carry outside the home is definitely legal," to me it seems obvious that if and when this question is put to them, this is how they will rule - and the lower courts have been duly warned that this is the case.

Otherwise why waste all that paper?

Maestro Pistolero
06-02-2011, 12:58 PM
Nope. No rights exist even in theory until the Supreme Court says they do specifically. Brown and beige may be constitutional, but tan may be banned unless the Supreme Court specifically says "no, tan's okay too." Never mind that shades of brown are specifically enumerated in the one document that has supremacy over all three branches and the states, as incorporated.

How many other amendments used the strong prohibitive language: shall not be infringed?
Doesn't that, in and of itself articulate a standard?
When, EVER, was the 2A limited to indoor activity? In the entire, exhaustive historical journey of Heller, was there even one example where the right was limited to the home?
Doesn't the Scotus's assertion that a right is MOST ACUTE in the home inescapably mean that it is also acute outside of the home?
Isn't the ONLY basis for concluding the right is confined to the home that the prayer for relief in Heller was no broader?
What the hell is wrong with Sreiter?

sreiter
06-02-2011, 1:12 PM
. Basically interacting with him is a waste of time.

-Gene

I understand that my questions painted you into a corner, and this is a easy out ;):43::D

wildhawker
06-02-2011, 1:16 PM
In addition, if Heller was only to reach "keep" and "in the home", why did they console fearful readers that they would not strike *every* gun control law as violative of the Second Amendment? (Note that the right to bear under the Fourteenth was not before them in Heller.)

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Let's rephrase the above for clarity in this conversation:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, something in our opinion should be taken to cast doubt on prohibitions not related to possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

If the opinion cannot be read to say the Second Amendment reaches beyond "keep"..."in the home", why did the majority need to provide further guidance as to the sorts of regulations that lower courts could expect them (the Court) to uphold (in some manner, after further historical analysis)?

The answer is that they *expected* lower courts to see litigation and defenses based on the Heller decision beyond "keep...in the home", and preemptively offered some counsel to lower courts as to some of the initial sorts of cases beyond the "in the home" regulations that would logically be brought before them.

The right to "bear arms" is integral to the right found in 2A and 14A, and the very text of the Second Amendment itself. The Heller decision was the vehicle they used to indicate how the fundamental, individual right to "keep and bear arms [for self-defense]" would be contoured and construed in subsequent decisions beyond Dick Heller's desire to acquire a permit to keep a handgun for self-defense in the home there in D.C.

-Brandon

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Definition of SUM

1: an indefinite or specified amount of money
2: the whole amount : aggregate
3: the utmost degree : summit <reached the sum of human happiness>
4
a : a summary of the chief points or thoughts : summation <the sum of this criticism follows — C. W. Hendel>
b : gist <the sum and substance of an argument>
5
a (1) : the result of adding numbers <the sum of 5 and 7 is 12> (2) : the limit of the sum of the first n terms of an infinite series as n increases indefinitely
b : numbers to be added; broadly : a problem in arithmetic


Steve, if the only thing in Heller that matters is the four lines you keep saying is the only thing about it that matters, why did SCOTUS take some 400 pages (I believe) to lay it out?

Seems to me (IANAL) that they used those pages to explain their logic in arriving at those four lines clearly and thereby exactly laying down why they thought the way they did and to make it very plain (unless maybe the court's membership changes) how they will rule on any related topic in future.

So, although they may not have ruled that "carry outside the home is definitely legal," to me it seems obvious that if and when this question is put to them, this is how they will rule - and the lower courts have been duly warned that this is the case.

Otherwise why waste all that paper?

sreiter
06-02-2011, 1:19 PM
Apology not offered....I'm not really sure what it is you're trying to take credit for.

Heller didn't give Chicago 2A in the home till Chicago was sued directly....even tho by your arguement we'd already been given that.

So I'm not really seeing your point.

Why didn't Heller and McD gives us BEAR outside the home? My contention is they gave us PRECEDENT to challenge laws restricting/banning carry outside the home.

Heller/McD will be the hammer that strikes down those laws. And would good clear decision from SCOTUS stating such will just further define what they already said......and I'd bet money that a large part of the decision will simply refer back to already stated analysis in Heller/McD.

It seems that you are attempting to argue from a position that is not taking into account how the courts work, so it's pointless to argue a flawed position.

The 1A freedom of religion and speech suits of the JWs in the 40's werent the result of ONE suit, and the civil rights movements of the 60's weren't either. Just because SCOTUS makes a decision doesn't mean every state and municipality automatically fall into line over night. So SCOTUS can give you the right, then you have to force some of the individual players to accept it the hard way.
We are saying the same thing, you just don't realize it

Oh, and i guess humor is lost on you. Re: apology accepted.

My point now, as then, you are saying the exact same thing as I am, and you're making my points

randian
06-02-2011, 1:19 PM
I'm afraid of how "sensitive places" will be defined. "sensitive" is subjective.
There is also the danger that when it gets defined, SCOTUS uses wording that is prescriptive rather than permissive. That would be a disaster for efforts to expand carry that are ongoing in numerous states.

curtisfong
06-02-2011, 1:28 PM
No rights exist even in theory until the Supreme Court says they do specifically.

And not in practice until the DA stops prosecuting people who "violate" those laws and LEO are instructed to stop arresting people for "violating" those laws.

Nevermind local legislators getting successfully sued to take bogus laws off of the books - we know that almost never happens.

We might quibble over the probabilities involved, but saying *with 100% certainty* that ALL THREE will happen (because your legal argument is bulletproof) is ridiculous, not to mention berating people who are skeptical of those assurances.

ESPECIALLY if we all agree your legal arguments are bulletproof! How often have we seen bulletproof arguments go down in flames?

sreiter
06-02-2011, 1:29 PM
I don't get why everyone keeps missing the point. A vast majority of these posts (Brandons latest, etc) is exactly what i'm saying. i stated this over and over. there's no disagreement

The only issue everyone seems to have is I come right out and say "SCOTUS hasn't told us to what extent we can BEAR, so for now, it's still illegal for all intents and purposes, except where specifically authorized by permit. And I guess thats being a blasphemer because I'm not proclaiming "hoorah - we can all carry now"

Everyone else is saying the same thing, except, not one will say it directly.

Everyone wants to keep saying we have the bear anywhere we want, just if we actually do that, we'll be arrested, so its better to sue in civil court, them to defend ourselves as criminals for exercising our "right"

sreiter
06-02-2011, 1:36 PM
How many other amendments used the strong prohibitive language: shall not be infringed?


Hows that been working out for us so far?

(right back at you) What the hells wrong with you?

As for me, I'm a skeptic, a pragmatic, a glass is half empty kinda and a cynic.

I want definitive, empirical proof, not a "in theory until it's proven or shot down" construct to base my actions on.

sreiter
06-02-2011, 1:40 PM
Steve, if the only thing in Heller that matters is the four lines you keep saying is the only thing about it that matters, why did SCOTUS take some 400 pages (I believe) to lay it out?


Otherwise why waste all that paper?

My assumption is the same reason a mathematical proof, or a scientific paper uses 400 pages to answer one question. The same reason teachers use in high school. Show/prove your work.

Who knows, maybe because they are lawyers and are taught the longer winded, run on sentences you use, the better you are.

Maybe they are so taken with themselves every time they put pen to paper they feel the need to publish a weighty tome

Untamed1972
06-02-2011, 2:13 PM
We are saying the same thing, you just don't realize it

Oh, and i guess humor is lost on you. Re: apology accepted.

My point now, as then, you are saying the exact same thing as I am, and you're making my points

I dont think so.

You're saying Heller said 2A only in the home.

I'm saying Heller said 2A everywhere except schools and courtrooms, it's just that some states are refusing to recognize that Heller said that.

So those really arent the same thing.....and saying that they are doesnt just make it so.

Untamed1972
06-02-2011, 2:22 PM
I don't get why everyone keeps missing the point. A vast majority of these posts (Brandons latest, etc) is exactly what i'm saying. i stated this over and over. there's no disagreement

The only issue everyone seems to have is I come right out and say "SCOTUS hasn't told us to what extent we can BEAR, so for now, it's still illegal for all intents and purposes, except where specifically authorized by permit. And I guess thats being a blasphemer because I'm not proclaiming "hoorah - we can all carry now"
Everyone else is saying the same thing, except, not one will say it directly.

Everyone wants to keep saying we have the bear anywhere we want, just if we actually do that, we'll be arrested, so its better to sue in civil court, them to defend ourselves as criminals for exercising our "right"

I disagree....they said you can bear everywhere except schools and courtrooms and possibly a few other yet to be determined places. It is still "illegal" many places bascially because those places are stubbornly refusing to acknowledge what SCOTUS said.

If SCOTUS ruled tomorrow in say one of the east coast cases that carry outside the home is protected........guess what....it would still be illegal in CA till the CA law is repealed/changed/struck down via the courts.

SCOTUS gave us carry outside the home......you cant exercise it yet because the SCOTUS decision must now be sytematically and individually applied to any existing, offending laws one at a time. That's how the system works and to say you the reason you cant carry yet is because SCOTUS didn't say so is flat out wrong. You cant carry yet because your state is refusing to recognize your right....not be SCOTUS didn't say so, but because the state is a bunch of pig-headed turds.


ETA: Yes....I will concede that the result of either your argument or everyone elses (mine included) is that you still can't carry in CA.....YET. I will concede that point. But to say you cant carry yet is because SCOTUS said only in the home is absolutely incorrect.

The fact is even if SCOTUS has been uber-uber-explicitly clear in Heller that carry everywhere except schools and courtrooms was also protected....YOU STILL COULDNT CARRY IN CA....until the CA laws get challenged in court directly, or get repealed or ammended by the .leg.

So that is where your "we cant carry cuz SCOTUS said only in the home" argument fails. Because even if SCOTUS have been even more clear than they were, the ruling in Heller would STILL only be precedent to be used against CA. Heller was specfically addressing a DC law, so at most they can only strike the DC law in their ruling, and then ruling is used as precedent to strike other similar laws with further litigation specifically challenging those laws.

Actually go do some research about how several other communities around the country voluntarily repealed similar handgun ban laws very shortly after Heller and/or McD decisions. There were a handful actually. The point being it is possible for a state/municipality to see the writing on the wall and change w/o having to be sued to make the change happen.

So again.....although the effect of all of this is you cant carry in CA yet....it's not because SCOTUS didn't rule on carry outside the home.

Al Norris
06-02-2011, 2:28 PM
If i may call you Al, ...

Most certainly, else I wouldn't have used my first name.

No, what I am saying is until the court defines more parameters, BEARing arms in public because i believe Heller and McDonald made BEARing in public the law of the land, would be a fools errand, and in doing so, i would do it at my own peril.

No, what we are saying is that the Court left guidance on how the lower courts were to further define the parameters of the right(s). We are saying that the lower courts have explicitly chosen to ignore the persuasive dicta of a Supreme Court decision.

The Williams decision by the Court of Appeals of Maryland, and the 4th Circuits decision in Masciandaro (citing and quoting Williams), are perfect examples of this behavior.

sreiter
06-02-2011, 2:34 PM
If SCOTUS ruled tomorrow in say one of the east coast cases that carry outside the home is protected........guess what....it would still be illegal in CA till the CA law is repealed/changed/struck down via the courts.


Wait, where did I hear this before....?????

It sounds an awful lot like you are say the law is only effectual for the specific relief granted. Naw that can't be.



SCOTUS gave us carry outside the home......you cant exercise it yet because the SCOTUS decision must now be sytematically and individually applied to any existing, offending laws one at a time

Hmm, sounds familiar, just like "if I can't exercise my right yet, we really don't have that right, until SCOTUS tells us we do and to what extent


Seriously, you guys are trolling me, right?

sreiter
06-02-2011, 2:38 PM
Most certainly, else I wouldn't have used my first name.

No, what we are saying is that the Court left guidance on how the lower courts were to further define the parameters of the right(s). We are saying that the lower courts have explicitly chosen to ignore the persuasive dicta of a Supreme Court decision.

The Williams decision by the Court of Appeals of Maryland, and the 4th Circuits decision in Masciandaro (citing and quoting Williams), are perfect examples of this behavior.

Please, call me Steve

Slight disagreement here. By virtue of Scalia saying we haven't full flushed out the law, and we intend to down the line, i think Scalia knew their would be butt-loads of more cases heading their way because he knew the lower courts were *****-hats, and even if they ruled the right way, anti pee-pee heads would appeal.

i'll have to read the cases you cited. i'm sure they are as you say they are, and it'll be interesting reading. thanks

Glock22Fan
06-02-2011, 2:43 PM
Steve, if we are saying what you are saying, why do you keep arguing that we've got it all wrong?

We all know that the Heller ruling didn't immediately cast out California's laws, not those of other states, except for the narrow ruling in Heller nand McDonald.

However, the Supremes gave clear guidance on what is and isn't permissible.

The lower courts are clearly ignoring this guidance, and we will need reference back up to Scotus to get them overruled.

We know we will not get unfettered loaded carry anywhere and everywhere, but we do expect to get a lot better than we've got now, probably including that we must get at least one of concealed or open carry of loaded firearms in all but sensitive places.

I don't think anyone is arguing that we can all carry our loaded and possibly concealed firearms on California's streets now, argue that Heller gives us that right, and not expect all sorts of nasty drama. But one day we should be able to if things continue as they are going.


So, where do you differ from us?

sreiter
06-02-2011, 2:48 PM
I dont think so.

You're saying Heller said 2A only in the home.

I'm saying Heller said 2A everywhere except schools and courtrooms, it's just that some states are refusing to recognize that Heller said that.

So those really arent the same thing.....and saying that they are doesnt just make it so.

jesus!! maybe i'll make it my tag line "i'm saying heller only defined the 2a in terms of the home. at some point they will define it in terms outside the home. Only at that point people not be subjected to criminal charges, and we will know the extent of what bear outside the home means.

Only at that point will we be able to exercise our 2a rights. blah blah blah...go back and read my last 37 explainations

sreiter
06-02-2011, 2:54 PM
Steve, if we are saying what you are saying, why do you keep arguing that we've got it all wrong?

We all know that the Heller ruling didn't immediately cast out California's laws, not those of other states, except for the narrow ruling in Heller nand McDonald.

However, the Supremes gave clear guidance on what is and isn't permissible.

The lower courts are clearly ignoring this guidance, and we will need reference back up to Scotus to get them overruled.

We know we will not get unfettered loaded carry anywhere and everywhere, but we do expect to get better than we've got now.



I'm not!!! i keep saying we are in agreement, and everyone still want to castigate me by way of a didactic diatribe.

I'm defending my position over and over as if this was a some grand inquisition, or Doctoral thesis (or Gura being grilled in McDonald)



So, where do you differ from us?



From your synopsis above, me and you don't differ at all

sreiter
06-02-2011, 3:01 PM
ETA: Yes....I will concede that the result of either your argument or everyone elses (mine included) is that you still can't carry in CA.....YET. I will concede that point. But to say you cant carry yet is because SCOTUS said only in the home is absolutely incorrect.


Same mistake in my words, same strawman

i said we can't carry yet, because the scotus hasn't told us what carry outside the home, means. they only told us what inside the home means. when they tell us, we will be able to exercise the right.

TO ME, and many others, a right incapable of being exercised, is no right at all. It's placation, and lip service. Even if that wasn't their intent.

the net result is we aren't carrying, but we know we have a individual right to keep a weapon ready to rock and roll in the home

Untamed1972
06-02-2011, 3:04 PM
Wait, where did I hear this before....?????

It sounds an awful lot like you are say the law is only effectual for the specific relief granted. Naw that can't be.

Hmm, sounds familiar, just like "if I can't exercise my right yet, we really don't have that right, until SCOTUS tells us we do and to what extent


Seriously, you guys are trolling me, right?

Guess what......lets just say for argument that Heller has been a case about stiking down a carry in public law and Heller won.

Even with a specific ruling on a carry law.....you still wouldn't have carry in CA till that precedent was applied to the CA law.

No.....it doesn't take SCOTUS to tell us we have carry....they already did. It takes a lower court to properly apply what Heller said to any of the current carry rights cases....which still would have had to been done even if Heller has been a carry case.

Where you keep losing everyone is saying Heller said only in the home. What if CA had had a ban on guns in the home? Would Heller have instantly invalidated that law and given you a right to a gun in your home overnight? No.....the CA law would still have to been changed, repealed, or struck down even though Heller said a ban on guns in the home was invalid. Hmmm....sounds alot like what McD was about wasnt it? Even with incorporation in the Chicago case, THAT still wouldn't have stuck down a CA law.

SO your contention that you dont have the right because SCOTUS hasn't said so yet is wholly incorrect. You dont have it yet because the ruling they made just hasn't been properly applied to CA law yet.

Your gripe is not with SCOTUS.....it's with our state .leg and the lower courts.

Untamed1972
06-02-2011, 3:13 PM
jesus!! maybe i'll make it my tag line "i'm saying heller only defined the 2a in terms of the home. at some point they will define it in terms outside the home. Only at that point people not be subjected to criminal charges, and we will know the extent of what bear outside the home means.

Only at that point will we be able to exercise our 2a rights. blah blah blah...go back and read my last 37 explainations

Yes....we know what you're saying.....and what you're saying is wrong.

Because if SCOTUS defined the right even more TODAY in reference to a case regarding a law in another state.....that STILL wouldnt fix carry in CA till that precedent is used against CA in additional litigation. (and if no one ever challenged the CA law with that precedent......guess what.....the CA law would stand even though it was unconstitutional....and it would stand forever till someone challenged it.)

The only way a SCOTUS ruling will fix CA law overnight is if they are considering a case dealing specifically with a CA law.

SCOTUS can define the right, but their ruling will only effect the specific law before them being challenged.

People would prolly agree with you more if you'd drop the "only in the home" argument.

Another example would be what if the judge in Peruta had correctly applied Heller and ruled in Peruta's favor. Guess what....in San Diego at least we'd have the right to carry....W/O SCOTUS having "defined the right" as you contend they must for us to get carry.

Fact of the matter is that both the Peruta and Richards decisions found there IS a right to carry, but that UOC was sufficient to satisfy the 2A minimum.

What say you to that?

Untamed1972
06-02-2011, 3:23 PM
Same mistake in my words, same strawman

i said we can't carry yet, because the scotus hasn't told us what carry outside the home, means. they only told us what inside the home means. when they tell us, we will be able to exercise the right.

TO ME, and many others, a right incapable of being exercised, is no right at all. It's placation, and lip service. Even if that wasn't their intent.

the net result is we aren't carrying, but we know we have a individual right to keep a weapon ready to rock and roll in the home

Just for arguements sake...."Heller said only in the home"....SCOTUS didn't tell "us"...as in "everyone", they could carry in the home. Heller told residents of DC they could carry in the home. McDonald told residents of Chicago and Oak Park they could carry in the home (by applying precedent from Heller). They didn't tell EVERYONE they could carry in the home......what they gave everyone else was precendet to challenge other similar laws.

So again......if SCOTUS gave this magical definition of bear you say is required......unless that ruling is specfically on CA law....YOU STILL WONT HAVE BEAR IN CA....even though SCOTUS has ruled on it, defined it, etched in stone, tattooed on the face of every Sheriff in the country and so on. It is not some preceived lack of a SCOTUS ruling on carry outside the home that you dont have a right to carry in CA....YET!

AGAIN.....Your gripe is not with SCOTUS.....it's with our state .leg and the lower courts who have had ample opportunity since Heller and then McD to properly recognize your right.

sreiter
06-02-2011, 3:50 PM
Just for arguements sake...."Heller said only in the home"....SCOTUS didn't tell "us"...as in "everyone", they could carry in the home. Heller told residents of DC they could carry in the home. McDonald told residents of Chicago and Oak Park they could carry in the home (by applying precedent from Heller). They didn't tell EVERYONE they could carry in the home......what they gave everyone else was precendet to challenge other similar laws.

So again......if SCOTUS gave this magical definition of bear you say is required......unless that ruling is specfically on CA law....YOU STILL WONT HAVE BEAR IN CA....even though SCOTUS has ruled on it, defined it, etched in stone, tattooed on the face of every Sheriff in the country and so on. It is not some preceived lack of a SCOTUS ruling on carry outside the home that you dont have a right to carry in CA....YET!

AGAIN.....Your gripe is not with SCOTUS.....it's with our state .leg and the lower courts who have had ample opportunity since Heller and then McD to properly recognize your right.

McDonald was different in that it incorporated the 2a, that made it a right protected from the state

Let me ask you this.

When the 19th was enacted (for example), why didn't individuals have to sue to vote?

Why was it automatically the law of the land, yet the 2a isn't?

Why was the 13th automatically the law of the land, irrespective of states rights to have slavery.

If the SCOTUS gave us the magical definition, i believe most would step in line, barring fancy wrangling to pass laws the violate the spirit, but not letter of the law.

the difference is if they didn't, we'd win in much lower courts, imo

sreiter
06-02-2011, 3:58 PM
Yes....we know what you're saying.....and what you're saying is wrong.

Because if SCOTUS defined the right even more TODAY in reference to a case regarding a law in another state.....that STILL wouldnt fix carry in CA till that precedent is used against CA in additional litigation. (and if no one ever challenged the CA law with that precedent......guess what.....the CA law would stand even though it was unconstitutional....and it would stand forever till someone challenged it.)

The only way a SCOTUS ruling will fix CA law overnight is if they are considering a case dealing specifically with a CA law.

SCOTUS can define the right, but their ruling will only effect the specific law before them being challenged.

People would prolly agree with you more if you'd drop the "only in the home" argument.

Another example would be what if the judge in Peruta had correctly applied Heller and ruled in Peruta's favor. Guess what....in San Diego at least we'd have the right to carry....W/O SCOTUS having "defined the right" as you contend they must for us to get carry.

Fact of the matter is that both the Peruta and Richards decisions found there IS a right to carry, but that UOC was sufficient to satisfy the 2A minimum.

What say you to that?

I say you're back to speaking about relief based arguments. Which you've specifically said doesn't apply.

To extrapolate what you're saying here, if I sue in LA and win, its only binding on LA, and people in other counties would have to sue for relief.

sreiter
06-02-2011, 4:02 PM
Guess what......lets just say for argument that Heller has been a case about stiking down a carry in public law and Heller won.

Even with a specific ruling on a carry law.....you still wouldn't have carry in CA till that precedent was applied to the CA law.

No.....it doesn't take SCOTUS to tell us we have carry....they already did. It takes a lower court to properly apply what Heller said to any of the current carry rights cases....which still would have had to been done even if Heller has been a carry case.

Where you keep losing everyone is saying Heller said only in the home. What if CA had had a ban on guns in the home? Would Heller have instantly invalidated that law and given you a right to a gun in your home overnight? No.....the CA law would still have to been changed, repealed, or struck down even though Heller said a ban on guns in the home was invalid. Hmmm....sounds alot like what McD was about wasnt it? Even with incorporation in the Chicago case, THAT still wouldn't have stuck down a CA law.

SO your contention that you dont have the right because SCOTUS hasn't said so yet is wholly incorrect. You dont have it yet because the ruling they made just hasn't been properly applied to CA law yet.

Your gripe is not with SCOTUS.....it's with our state .leg and the lower courts.

you love straw man arguments.

apples and oranges my friend.

the difference is if Heller had been about carry outside the home, when we went to court, we would have SCOTUS precedent on our side, instead of courts say "SCOTUS didn't say anything about carry outside the home"

Maestro Pistolero
06-02-2011, 4:06 PM
jesus!! maybe i'll make it my tag line "i'm saying heller only defined the 2a in terms of the home. at some point they will define it in terms outside the home. Only at that point people not be subjected to criminal charges, and we will know the extent of what bear outside the home means.
You are overstating it. To call a narrow ruling on a broad constitutional right a definition of that right is quite a stretch. They didn't only define the 2A in terms of the home. Their definition is explained in dicta, not the ruling. The case was about one guy asking to have a gun in his home. That was the only question the ruling could address.

But to get to that, they had to define it, and define it, they did. It is a right exersizable anywhere but non-sensitive places, by anyone not prohibited from possession by earning dubious membership a category of prohibited persons, like mentally ill or felons.

Sure, it will take a ruling to implement their definition, but only due to the recalcitrance and obstinance of the lower courts, which was not unexpected. It does have to be ruled upon directly, but it is hardly a black hole of uncertainty. We will doubtlessly get a lot more than we have, but much less than we want.

sreiter
06-02-2011, 5:04 PM
To call a narrow ruling on a broad constitutional right a definition of that right is quite a stretch.

They didn't define the entire right and i never said they did, i said (in their words) they defined a aspect of the 2a in terms of the home. Which was right there in the ruling with regards to the relief sought.


Their definition is explained in dicta, not the ruling. The case was about one guy asking to have a gun in his home. That was the only question the ruling could address.

I'd say more their rational for the ruling they gave. And a case that went to the same jury which directly went to the rational they used, they vote according to the same rational.


But to get to that, they had to define it, and define it, they did. It is a right exersizable anywhere but non-sensitive places, by anyone not prohibited from possession by earning dubious membership a category of prohibited persons, like mentally ill or felons.

Not according to Scalia when he wrote "this is our first examination, more definitions to come as future cases present themselves"

Here is the crux or the issue. The only reason SCOTUS looked a what specific words meant in 1787 was because amicus briefs where presented to the court with those definitions. They wouldn't have commissioned lexicographers to do research on the meaning of wordings in the 18th Century

So I believe it was more a question "I have examined the definition of every word in the 2a, as well as read extensively on grammatical correctness, and i find based upon the definitions of the words 2a means XYZ, therefore, I find for the petitioner." based upon those definitions.

As opposed to "I'm going to codify exactly what the 2a means henceforth, set in stone"



Sure, it will take a ruling to implement their definition, but only due to the recalcitrance and obstinance of the lower courts, which was not unexpected. It does have to be ruled upon directly, but it is hardly a black hole of uncertainty. We will doubtlessly get a lot more than we have, but much less than we want.

I think with a 5/4 decision, and gun grabbing Obama, et. al., all it takes is the unfortunate, untimely demise of 1 of the 5, and we get "sensitive places are anywhere any local government wants them to be".

Don't count your chickens come to mind.

hoffmang
06-02-2011, 5:23 PM
Steve,

You didn't engage the Nordyke opinion. The specifically stated that if the gun show plaintiffs wanted the right to defend themselves in public it would be an even more scrutinized case.

You're wasting people's time.

-Gene

sreiter
06-02-2011, 5:50 PM
Steve,

You didn't engage the Nordyke opinion. The specifically stated that if the gun show plaintiffs wanted the right to defend themselves in public it would be an even more scrutinized case.

You're wasting people's time.

-Gene
Actually, I did, you must have missed my post. But I made the distinction that the case wasnt about Nordyke wanting to bear arms on county property. i realize the court said "you might want to revise your petition to be more 2a centric, as we are in a post heller/mcdonald world" - that doesn't mean they'd win.

I truly am sorry you feel i'm wasting peoples time by stating my opinions, through public discourse (as public as someones private website can be).

if people respond to my posts and they disagree with my assertions, and in turn,i disagree with their assertions, i feel it a moral imperative be defend my position.

If people feel their time is wasted, maybe they shouldn't respond / waste their time.

I feel my observations, and analysis is spot on based on the exact verbiage of the decisions, including Miller and Miller through Heller.

If one wants to argue the judges are speaking in parables, and their disciples will gleam a deeper understanding then mere mortals, fine. Since I'm basing my understandings through linguistics, and not a divining rod, I'm going with my interpretations unless someone has a compelling argument. such as when you explained things in the "simpler way", or however it was you framed your quip

choprzrul
06-02-2011, 6:11 PM
Actually, I did, you must have missed my post. But I made the distinction that the case wasnt about Nordyke wanting to bear arms on county property. i realize the court said "you might want to revise your petition to be more 2a centric, as we are in a post heller/mcdonald world" - that doesn't mean they'd win.

I truly am sorry you feel i'm wasting peoples time by stating my opinions, through public discourse (as public as someones private website can be).

if people respond to my posts and they disagree with my assertions, and in turn,i disagree with their assertions, i feel it a moral imperative be defend my position.

If people feel their time is wasted, maybe they shouldn't respond / waste their time.

I feel my observations, and analysis is spot on based on the exact verbiage of the decisions, including Miller and Miller through Heller.

If one wants to argue the judges are speaking in parables, and their disciples will gleam a deeper understanding then mere mortals, fine. Since I'm basing my understandings through linguistics, and not a divining rod, I'm going with my interpretations unless someone has a compelling argument. such as when you explained things in the "simpler way", or however it was you framed your quip

Guess what? Team Gura has been to USSC twice now and have won both times, so I think that they know what they are doing and saying. Gene, Brandon, CGF, SAF, et al work very closely with Team Gura in formulating strategy; so I am going to go out on a limb here and say the unified voice that I am reading here is the correct one.

The one voice, sreiter, that is telling everyone else that they are wrong is but one person with zero history of a winning USSC strategy. Guess what else? If you are standing up screaming at the world, and look around to find yourself alone, you might just pause for a moment and contemplate that your position is the wrong one.

Put all of that together with this snippet of Heller:

At the time of the founding, as now, to “bear” meant to
“carry.” See Johnson 161; Webster; T. Sheridan, A Complete
Dictionary of the English Language (1796); 2 Oxford
English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning
that refers to carrying for a particular purpose—
confrontation. In Muscarello v. United States, 524 U. S.
125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ”

c. Meaning of the Operative Clause.
Putting all of these textual elements together, we find that
they guarantee the individual right to possess and carry weapons
in case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.”

sreiter
06-02-2011, 6:33 PM
chopper -

Do you think your post is somehow a revelation to me?

Gura's a monster. Gene's a monster (although i disagree with him here) CGF are monsters, which is why I donate what I can, when I can.

Doesn't mean anyone is infallible.

I can match you snippet for snippet. Whats it prove.

While compelling, the analysis undertook in providing relief is not akin to proclamation, as others have pointed out (in direct agreement with statements I made). Because we still need to fight county by county, state by state.

How do you reconcile "The very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it “shall not be infringed.”"

With "oh by the way, you can infringe the right as much as you like as long as you think its reasonable" ?

Two diametrically opposed idea's given in the same analysis. So which do we take as binding proclamation, and which do we disregard as the rantings of mad man?

Wait I know, the one that doesn't coincide with our own personal wishes of the way we hope things are the incoherent musing of a lunatic.

Oh, and there's another who shares my point of view on this thread (curtisfong). So either I'm making sense to someone a little more open minded, or I'm Svengali and have mesmerized him into being a zombie like accomplice with no thoughts of his own.

curtisfong
06-02-2011, 6:54 PM
Oh, and there's another who shares my point of view on this thread (curtisfong).

For the record, I don't pretend to know to what extent Gura's various legal positions are valid; and I have no interest in debating (or making predictions) over their odds of success. I simply do not have the legal background to do that with any credibility.

All I know is, I have no (practical) right to carry in CA until the lawsuits are settled, and I am skeptical whenever somebody says a legal argument is a slam dunk, because we've consistently seen lower courts, LEO, DAs, the DOJ and legislators consistently ignore not only dicta, but also holdings with prejudice, and almost no consequences.

Obviously, I believe CGF is fighting the good fight, and I believe in the VERY long run we will succeed. I am just tired of being told "argument x is bulletproof" and "don't worry, the lower courts have to listen this time, for real!"

sreiter
06-02-2011, 7:39 PM
curtis - thats all i was trying to say (the extend of your agreement with me)

sreiter
06-02-2011, 8:08 PM
just wanted to publicly acknowledge and thank wildhawker for a most enjoyable, and informative phone call. Truly appreciate you took the time out to show me where i may have been slightly (heheh) short sighted in my analysis.

jwkincal
06-02-2011, 8:13 PM
Squeaky wheel gets the grease I guess?

Where's my personal intel phone call? What about everyone else on this thread?

J/K carry on...

Untamed1972
06-02-2011, 8:24 PM
For the record, I don't pretend to know to what extent Gura's various legal positions are valid; and I have no interest in debating (or making predictions) over their odds of success. I simply do not have the legal background to do that with any credibility.

All I know is, I have no (practical) right to carry in CA until the lawsuits are settled, and I am skeptical whenever somebody says a legal argument is a slam dunk,

Obviously, I believe CGF is fighting the good fight, and I believe in the VERY long run we will succeed. I am just tired of being told "argument x is bulletproof" and "don't worry, the lower courts have to listen this time, for real!"

To this day various levels of gov't attempt to violate well established 1A precedent and have to be reminded via threat or actual litigation that they can't do certain things. So gov't not falling immediately inline or later trying to cross the line again is nothing new and will likely always continue.

Dont you remember a certain president sending military forces to protect black children being sent to a anewly integrated school because the Gov. of that state openly stated he would block them from entering in violation of federal court order? Pretty bold dont you think? State resistence to new court rulings is nothing new.

wildhawker
06-02-2011, 8:25 PM
Thanks, also, to sreiter for taking the time to chat this evening. I do enjoy his contributions and appreciate his perspective - even when he's wrong. ;) :p

Just to be clear for the audience, we agree on virtually all counts and were simply weighting the value of effect differently. He's a true believer, but a very cautious and pragmatic one.

-Brandon

sreiter
06-02-2011, 10:21 PM
Thanks, also, to sreiter for taking the time to chat this evening. I do enjoy his contributions and appreciate his perspective - even when he's wrong. ;) :p



Ligit LOL

sreiter
06-02-2011, 10:25 PM
Dont you remember a certain president sending military forces to protect black children being sent to a anewly integrated school because the Gov. of that state openly stated he would block them from entering in violation of federal court order? Pretty bold dont you think? State resistence to new court rulings is nothing new.

To be fair, Wallace did back down when push came to shove.

mofugly13
06-03-2011, 6:12 AM
Steve,

You didn't engage the Nordyke opinion. The specifically stated that if the gun show plaintiffs wanted the right to defend themselves in public it would be an even more scrutinized case.

You're wasting people's time.

-Gene

Who's time is being wasted? I enjoyed reading this thread, and no one forced it on me. I find the above comment quite dismissive. Isn't this a forum for discussion?

Untamed1972
06-03-2011, 8:28 AM
To be fair, Wallace did back down when push came to shove.

But the point is it came to "push and shove" AFTER the court rulings to get it done.

My point was a court ruling doesn't just magically fix everything. It gives you a hammer with which to force the opposing party into submission.

sreiter
06-03-2011, 9:33 AM
But the point is it came to "push and shove" AFTER the court rulings to get it done.

My point was a court ruling doesn't just magically fix everything. It gives you a hammer with which to force the opposing party into submission.

I see your point, and its a fair one.

Tough call.
One one hand, the national guard did have to show up to enforce the civil rights act/ segregation was ilegal .
On the other hand, Wallace capitulated without having to be dragged into court and given a writ to force compliance. It just took a show of might.

sreiter
06-03-2011, 9:34 AM
Who's time is being wasted? I enjoyed reading this thread, and no one forced it on me. I find the above comment quite dismissive. Isn't this a forum for discussion?

thank you

sreiter
06-03-2011, 9:37 AM
Gene -

I asked Wildhawker this question in a inbox, but I'm curious of your take, if you feel it's not a waste of your time, if you do, feel free not to answer, I understand

It was said on this thread Heller was a case of first impression, because this is the first time we examine if the 2a is a fundamental/individual right. And I agree.

BUT

You, and whomever else (Gura?) say Miller gave us BEAR and we know that through the examination SCOTUS did of the 2a (i still have trouble with that, but not important for this discussion)

Here's the problem. The two are mutually exclusive.

Either Miller examined ones individual RKBA and concluded we have that right (meaning THAT was the first impression), thus giving us BEAR outside the home,

or

Heller was the first to examine a individuals RKBA, and Miller had nothing to do with giving us RKBA..and BEAR outside the house at all.

My contention is the latter, especially in lieu the fact the court consistently mentioned militia

Can you please clarify that?

thanks

wildhawker
06-03-2011, 10:11 AM
My reply, just for general discussion purposes:


We're actually about a different point.

We don't mean to say that Miller "gave" us bear, only that it wasn't immediately foreclosed, which, if in such case that there was no "bear" to analyze, the Court could have economically ended the case under the theory of total non-application of 2A.

The Miller court never went directly to "bear"; indeed, the court only went to 2A in the limited analysis of the criminalized possession of an unregistered short-barrel shotgun (that was found w/ Miller outside the home) - the Court found that the shotgun was not evidenced to be of any 'militia" purpose', and, therefore, reversed judgment and remanded the case back to the district court for further proceedings. They said, in essence: "this is no longer a 2A case in re the weapon because no one has convinced us that 2A covers short-barrel shotguns". Recall that neither Mr. Miller nor his attorney briefed the Court or attended the oral arguments.

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."

Our point is, in Miller, that the court didn't simply kill Mr. Miller's case on saying that Miller had no 2A right to keep or bear arms outside the home - only that they were unconvinced the SBS was a protected arm under 2A - and remanded the criminal proceedings to the lower court to proceed without the "weapon as protected by 2A" defense. He was still free to offer a 2A "bear" and "self-defense" crim. defense in the lower court.

Finally, note that the McDonald plurality doesn't limit the scope of incorporation to simply the holding of heller, "keep...in the home", but to the "right" as "recognized" (analyzed and defined) in Heller:

"We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."

-Brandon

Hey Brandon

1. thanks for your post, telling the community I was a already dude. very cool of you

2. something was keeping me awake last night. i'm having a hard time reconciling something you said (well really 2 as 2 things are needed to reconcile


You said Heller was a case of first impression, because this is the first time we examine if the 2a is a fundamental/individual right. And I agree.

BUT

You, and Gene, and whomever else (Gura?) say Miller gave us BEAR and we know that through the examination SCOTUS did of the 2a (i still have trouble with that, but not important for this discussion)

Here's the problem. The two are mutually exclusive.

Either Miller examined ones individual RKBA and concluded we have that right (meaning THAT was the first impression)

or

Heller was the first to examine a individuals RKBA, and Miller had nothing to do with giving us RKBA..and BEAR outside the house at all.

My contention is the latter, especially in lieu the fact the court consistently mentioned militia

Can you please clarify that?

thanks

sreiter
06-03-2011, 11:20 AM
Thank you for a clear, concise, and informative answer.

Gene did specifically say Miller gave us BEAR outside the home in this thread.

I think i understand your point of "if there was no such thing as keep and BEAR, there would be no reason to even examine it as the two are tied together.

My counter point, is they were only examining RKBA in the sole context of keeping and using (bear?) in terms of militia (providing for the common defense, as opposed individual defense)

Obviously, we had a 2a since ratification. I'm just saying, Miller had no effect on Heller or or individual RKBA other then for the courts to totally dismiss Miller as having a bearing

wildhawker
06-03-2011, 11:43 AM
Miller did not analyze 2A "keep", "and", "bear", or "arms" beyond the question of "was Mr. Miller's SBS an arm protected under 2A?" Since they were not evidenced of any "militia purpose" [of the shotgun] they remanded the case to District for further criminal proceedings consistent with their decision.

They performed no analysis of the right to arms from the perspective of the individual; the dicta in the decision was limited to discussing what the "Militia" was at the time of ratification. ("The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.")

So:

1. NFA does not violate state's reserved powers;
2. 2A has relationship (but not limited) to Militia; 'all abled-bodied' expected to "bear [personally-owned] arms" in common use when mustered;
3. Mr. Miller's SBS != 2A arm (lack of evidence offered to the court);
4. Mr. Miller's defense asserting U.S. NFA prosecution of unreg'd SBS violates 2A because SBS="arms" under 2A fails;
5. Reverse, remand, and proceed w/ further criminal proceedings based on above.

In another universe where "bear" didn't mean what we perceive it to, the decision could have been as simple as:

1. NFA does not violate state's reserved powers;
2. "keep and bear" not an individual right, and/or "bear" does not mean to possess arms outside one's home;
3. Mr. Miller's SBS != 2A arm (lack of evidence offered to the court);
4. Therefore 2A defense foreclosed in all respects;
5. Reverse, remand, and proceed w/ further criminal proceedings based on above.

I think there's still some things lost in translation between what we're writing and what you're interpreting it to say.

-Brandon

Thank you for a clear, concise, and informative answer.

Gene did specifically say Miller gave us BEAR outside the home in this thread.

I think i understand your point of "if there was no such thing as keep and BEAR, there would be no reason to even examine it as the two are tied together.

My counter point, is they were only examining RKBA in the sole context of keeping and using (bear?) in terms of militia (providing for the common defense, as opposed individual defense)

Obviously, we had a 2a since ratification. I'm just saying, Miller had no effect on Heller or or individual RKBA other then for the courts to totally dismiss Miller as having a bearing

sreiter
06-03-2011, 1:55 PM
Miller did not analyze 2A "keep", "and", "bear", or "arms" beyond the question of "was Mr. Miller's SBS an arm protected under 2A?" Since they were not evidenced of any "militia purpose" [of the shotgun] they remanded the case to District for further criminal proceedings consistent with their decision.

They performed no analysis of the right to arms from the perspective of the individual; the dicta in the decision was limited to discussing what the "Militia" was at the time of ratification. ("The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.")

So:

1. NFA does not violate state's reserved powers;
2. 2A has relationship (but not limited) to Militia; 'all abled-bodied' expected to "bear [personally-owned] arms" in common use when mustered;
3. Mr. Miller's SBS != 2A arm (lack of evidence offered to the court);
4. Mr. Miller's defense asserting U.S. NFA prosecution of unreg'd SBS violates 2A because SBS="arms" under 2A fails;
5. Reverse, remand, and proceed w/ further criminal proceedings based on above.

In another universe where "bear" didn't mean what we perceive it to, the decision could have been as simple as:

1. NFA does not violate state's reserved powers;
2. "keep and bear" not an individual right, and/or "bear" does not mean to possess arms outside one's home;
3. Mr. Miller's SBS != 2A arm (lack of evidence offered to the court);
4. Therefore 2A defense foreclosed in all respects;
5. Reverse, remand, and proceed w/ further criminal proceedings based on above.

I think there's still some things lost in translation between what we're writing and what you're interpreting it to say.

-Brandon

Maybe, because I agree with 99.9% of what you saying, except when you add words not in the text of the decision

I don't see how your coming to these conclusions

2. "keep and bear" not an individual right, and/or "bear" does not mean to possess arms outside one's home;

This context of the 2a was never considered. They specifically framed the analysis and decision on a "2a = militia" only POV in this case. Otherwise, it would never have even been a issue that it was a individual right and SCOTUS wouldn't have had to state so in Heller.

The fact that people were/are hunting for sustenance shows people keeping and bearing outside the home (not saying its limited to that).

Which brings up a interesting thought. One would guess in the late 18th c. people on the frontier were carrying weapons most, if not all the time. Were people in NY, Philly, Boston? Were there laws against carry in the cities during the time of ratification

And to that end:
3. Mr. Miller's SBS != 2A arm (lack of evidence offered to the court);

No, they found the SBS was NOT a 2a arm SPECIFICALLY because it failed the militia criteria.

So how are you going from "not a individuals right" to "it must a 2a arm".

The court specifically stated "Not a militia arm, therefore NOT a 2a arm."


4. Therefore 2A defense foreclosed in all respects;

Mr. Miller's defense asserting U.S. NFA prosecution of unreg'd SBS violates 2A because SBS="arms" under 2A fails; EQUALS Therefore 2A defense foreclosed in all respects in Miller


But that doesn't mean had someone with a .30-06 came before the same court with the same charges, that the court wouldn't find that the 30-06 could be used in the militia test, and hold the 30-06 to be 2a protected

Sorry to beat this dead horse, but I, me, myself, don't see any logical jumps from what the court actually said, to the scant few conclusions you came to which I disagree with.

i guess there is no need to continue this, you tried, i just don't get it, and don't think i will.

Have a gr8 weekend, and thanks for trying to help me understand it from your, and others POV

hoffmang
06-03-2011, 2:04 PM
1. Heller wasn't a case of first impression though it was the first time the Supreme Court directly answered the question of whether the right was individual. Any honest reading of Miller showed it was an individual right and the majority even pointed that out.

2. I didn't say that Miller gave us bear. I said it refuted the argument that the 2A was limited to the home.

Also note that Mr. Miller was dead when the Supreme Court was opining so the natural thing didn't happen next. Had he survived, he could have presented evidence that a short barrel shotgun did have militia utility.

-Gene

randian
06-03-2011, 2:42 PM
It gives you a hammer with which to force the opposing party into submission.
Sometimes not even then. Isn't LA County outright ignoring some court orders regarding its CCW practices?

wildhawker
06-03-2011, 2:43 PM
Sometimes not even then. Isn't LA County outright ignoring some court orders regarding its CCW practices?

Only with respect to Cal. Public Records Act. The LAPD is likely the agency you're thinking of in re their settlement.

sreiter
06-03-2011, 3:00 PM
1. Heller wasn't a case of first impression though it was the first time the Supreme Court directly answered the question of whether the right was individual. Any honest reading of Miller showed it was an individual right and the majority even pointed that out.

Thank you for that clarification.

In cases of First Impression** (and Heller was just that), what we would normally call "dicta" is now highly persuasive. Most especially if that dicta is from the Supreme Court itself.

Why? Because there is no other authority to turn to, in cases of first impression.

Sreiter, I can assure you Al Norris has not missed a thing.

Since Pistolero seems a esteemed member of the community (his 50k "challenge" prompt me to donate several times over the past month or two), i was relying on his reference of Al Norris, who he deems another esteemed member


2. I didn't say that Miller gave us bear. I said it refuted the argument that the 2A was limited to the home.

Also note that Mr. Miller was dead when the Supreme Court was opining so the natural thing didn't happen next. Had he survived, he could have presented evidence that a short barrel shotgun did have militia utility.

-Gene

I'm aware Miller was dead. I also agree 1000% that a SBS is absolutely a military weapon, or at least was during vietnam.

It's one of the carry cases where Brady is trying to make your point. In no way can Heller be read to only be in the home. It's a lie. There is dicta (about sensitive places) that confirms the non dicta analysis of the word "bear" which was required to refute DC's arguments that "keep and bear" was idiomatic.

Saying the ruling was limited to the home is a useful way for lower courts to attempt to obscure the meaning of Heller, but it's flat wrong. Also you ignore US v. Miller which is still binding and was most certainly not in the home.

-Gene

Your use of BEAR, Miller, and outside the home led me to draw the conclusion you were stating the Miller case is still binding in regards to BEAR outside the home, as opposed to the relief Heller received which was Bearing inside the home.

Apologize if i misinterpret the above from your post

Any honest reading of Miller showed it was an individual right and the majority even pointed that out.

I read Miller over 6 times in the past 2 days, and I must still be missing the plain text where they point out its a individual right. I only see them make mention of the 2a in the context of Militia.

If its not to much trouble, would you mind cutting and paste the exact section where the "point out" the 2a is a individual right?

thanks in advance, and thank you for spending time trying to further my education.

You have done so on many occasions, and i find discourse, even disharmonious discourse a excellent learning opportunity

wildhawker
06-03-2011, 3:23 PM
If its not to much trouble, would you mind cutting and paste the exact section where the "point out" the 2a is a individual right?

I did, above. :)

Here's the text:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Pray tell, how does a civilian (non-troop) citizen muster "bearing" (e.g. borne "on the way to", bearing prior to arrival) a personally-owned firearm - those in common use (signifying that there was, indeed, a non-militia "use" that was "common") - were one not afforded the right to keep and bear arms but for the specific use *in* militia service?

sreiter
06-03-2011, 3:44 PM
1. Heller wasn't a case of first impression though it was the first time the Supreme Court directly answered the question of whether the right was individual. Any honest reading of Miller showed it was an individual right and the majority even pointed that out.

Thank you for that clarification.

In cases of First Impression** (and Heller was just that), what we would normally call "dicta" is now highly persuasive. Most especially if that dicta is from the Supreme Court itself.

Why? Because there is no other authority to turn to, in cases of first impression.

Sreiter, I can assure you Al Norris has not missed a thing.

Since Pistolero seems a esteemed member of the community (his 50k "challenge" prompt me to donate several ts over the past month or two), i was relying on his reference of Al Norris, who he deems another esteemed member


2. I didn't say that Miller gave us bear. I said it refuted the argument that the 2A was limited to the home.

Also note that Mr. Miller was dead when the Supreme Court was opining so the natural thing didn't happen next. Had he survived, he could have presented evidence that a short barrel shotgun did have militia utility.

-Gene

I'm aware Miller was dead. I also agree 1000% that a SBS is absolutely a military weapon, or at least was during vietnam.

It's one of the carry cases where Brady is trying to make your point. In no way can Heller be read to only be in the home. It's a lie. There is dicta (about sensitive places) that confirms the non dicta analysis of the word "bear" which was required to refute DC's arguments that "keep and bear" was idiomatic.

Saying the ruling was limited to the home is a useful way for lower courts to attempt to obscure the meaning of Heller, but it's flat wrong. Also you ignore US v. Miller which is still binding and was most certainly not in the home.

-Gene

Your use of BEAR, Miller, and outside the home led me to draw the conclusion you were stating the Miller case is still binding in regards to BEAR outside the home, as opposed to the relief Heller received which was Bearing inside the home.

Apologize if i misinterpret the above from your post

Any honest reading of Miller showed it was an individual right and the majority even pointed that out.

I read Miller over 6 times in the past 2 days, and I must still be missing the plain text where they point out its a individual right. I only see them make mention of the 2a in the context of Militia.

If its not to much trouble, would you mind cutting and paste the exact section where the "point out" the 2a is a individual right?

thanks in advance, and thank you for spending time trying to further my education.

You have done so on many occasions, and i find discourse, even disharmonious discourse a excellent learning opportunity

Al Norris
06-03-2011, 4:46 PM
I suspect reasonable people can disagree on whether or not Heller was a case of first impression. meh! I'm not going to get my panties in a wad, one way or another, over it.

As for my being any kind of "esteemed member of the community," I'm an outsider to CalGuns (I'm from Idaho). I'm still a newbie, as things go here. I'm not in any form or style, part of the "inner circle" of CalGuns aficionados (although I did donate to the CGF, in Maestro's thread).

I find that your attempt to discredit either myself, Maestro Pistolero or both of us, is as infantile as Chris Cox's latest blurb over how the NRA won the right to get paid for the McDonald win (which he never mentions, btw).

sreiter
06-03-2011, 6:00 PM
I find that your attempt to discredit either myself, Maestro Pistolero or both of us, is as infantile as Chris Cox's latest blurb over how the NRA won the right to get paid for the McDonald win (which he never mentions, btw).



Ok, i'm not sure if you have a persecution complex, or you didn't take your meds, or what.

After I explain myself, I would ask you go back and re-read what I wrote, as I was portraying the both of you in the best possible light.

"Pistolero is a esteemed member of the community. His challenge incited me to donate several time to the CGF over the past few weeks"

His "challenge" has raised at least 25k for the CGF. I'm pretty sure that elevates him to esteem member status, not only from members, who believe him to be doing good for our cause, but certainly in the CGF estimation, and since we all hold them in high regard, he is held in high regard by extension.

"Since Pisolero gave such high praise/holds him in such high regards, I assume he is of equal standing/import to our cause"

So i took your assertion of "Heller is a case of first impression" and gave it authoritative credence

Lighten up Francis

goober
06-03-2011, 6:11 PM
Lighten up Francis

that's it, he's gonna hafta kill ya.... :chris:

sreiter
06-03-2011, 6:26 PM
I did, above. :)

Here's the text:



Pray tell, how does a civilian (non-troop) citizen muster "bearing" (e.g. borne "on the way to", bearing prior to arrival) a personally-owned firearm - those in common use (signifying that there was, indeed, a non-militia "use" that was "common") - were one not afforded the right to keep and bear arms but for the specific use *in* militia service?

for academic purposes, I'll bite

from Miller:

The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train...

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.(my note: what does "in common use" mean? In common use for military personal, is just as likely a answer as in common use for squirrel hunting)

Pray tell, how does a civilian (non-troop) citizen muster "bearing" (e.g. borne "on the way to", bearing prior to arrival) a personally-owned firearm - those in common use (signifying that there was, indeed, a non-militia "use" that was "common") - were one not afforded the right to keep and bear arms but for the specific use *in* militia service?

Perhaps the same way as the citizen marksmanship program expects those in their ranks to muster. Its ok to bear when called to muster not so much if they aren't called to muster.

As far as "common use arms", there are no less then 5 paragraphs detailing multiple states laws on how a militia is to be maintained, and most striking is they prescribe, exactly what type of musket should be use (dimensions) how much ammo, what gear they must have with them, how many spare parts, etc.

These laws were akin to being a quartermaster. So if a little kids .22 had a equivalent, and that was in common use, that didn't "cut the muster" and there was consequence for not having military grade equipment, and provisions

Lastly, as we spoke of over the phone, the brits where using the same weapons they did in the indian wars, some 50-100 years earlier. In many instances, private people had better arms then many standing armies of the world. If any disparity existed between military, and private arms, it was on the side of peoples personal hunting rifles (the rifle they used to place food on the table). Therefore, "in common use" was military grade. And as such looses context by the time Miller is heard. (again, as we discussed i believe we should be allowed military grade weapons today, tanks, fighter jets, stealth bombers, whatever the military has, so should we. Private ships were used a naval vessels, people had massive powder stores, and canon. BTW I was correct when i said the brits were moving to capture and/or destroy the Ma. militia's hidden cache' at concord. They were leaving empty handed when the militia caught them in the battles of lexington and concord )

sreiter
06-03-2011, 6:29 PM
that's it, he's gonna hafta kill ya.... :chris:

best line in a great movie

stag6.8
06-03-2011, 9:58 PM
quick question.... if the 9th circuit goes in our favor...does this just affect san diego county or all of california?

hoffmang
06-03-2011, 10:11 PM
quick question.... if the 9th circuit goes in our favor...does this just affect san diego county or all of california?

It affects HI, WA, OR, CA, NV, AK, AZ, ID, and MT so yes - all of California.

-Gene

randian
06-04-2011, 12:05 AM
It affects HI, WA, OR, CA, NV, AK, AZ, ID, and MT so yes - all of California.
I think the more operative question is whether a favorable ruling automatically enjoins the offending acts, or whether we have to suffer through more years of launching lawsuits in each different county demanding compliance, getting shot down, and appealing up the food chain back up to the 9th.

randian
06-04-2011, 12:08 AM
Only with respect to Cal. Public Records Act. The LAPD is likely the agency you're thinking of in re their settlement.
So what does it take to get compliance? Action by the state police? By the Feds?

Librarian
06-04-2011, 12:09 AM
I think the more operative question is whether a favorable ruling automatically enjoins the offending acts, or whether we have to suffer through more years of launching lawsuits in each different county demanding compliance, getting shot down, and appealing up the food chain back up to the 9th.

To some extent, law by law, agency by agency, until either the Federal courts get annoyed or the agencies are convinced they'll lose and choose to save taxpayer money for something useful.

Mulay El Raisuli
06-04-2011, 6:30 AM
best line in a great movie


Which movie?


The Raisuli

socal2310
06-04-2011, 7:08 AM
Which movie?


The Raisuli

Stripes: http://www.imdb.com/title/tt0083131/quotes?qt=qt0483074

I've seen the movie (and within the last few years) but didn't remember the quote. I had to google it.

Ryan

hoffmang
06-04-2011, 9:19 AM
So what does it take to get compliance? Action by the state police? By the Feds?

To some extent, law by law, agency by agency, until either the Federal courts get annoyed or the agencies are convinced they'll lose and choose to save taxpayer money for something useful.

Yes and no to Librarian. A ruling on a state law by a Federal Circuit court of appeals is binding everywhere in a state. Even when a ruling isn't directly on a statute you'll see lots of localities whose practices are wrong - just change. Witness the Chicago suburbs that didn't stand and fight - and there they had room to make an argument - something other sheriffs and chiefs will not have in California.

Will we have a hold out or two? Maybe. But CGF is excellent at enforcing compliance. Non compliant jurisdictions go immediately on the hook for legal fees. Also, the Ezell case in Chicago will likely give us the irreparable harm standard (http://definitions.uslegal.com/i/irreparable-harm/) meaning we can go for TRO's and preliminary injunctions (which speed up the legal process considerably.

-Gene

sreiter
06-04-2011, 1:08 PM
Which movie?


The Raisuli

http://youtu.be/LrllCZw8jiM

can't get it to embed

Gray Peterson
06-04-2011, 1:34 PM
Yes and no to Librarian. A ruling on a state law by a Federal Circuit court of appeals is binding everywhere in a state. Even when a ruling isn't directly on a statute you'll see lots of localities whose practices are wrong - just change. Witness the Chicago suburbs that didn't stand and fight - and there they had room to make an argument - something other sheriffs and chiefs will not have in California.

Will we have a hold out or two? Maybe. But CGF is excellent at enforcing compliance. Non compliant jurisdictions go immediately on the hook for legal fees. Also, the Ezell case in Chicago will likely give us the irreparable harm standard (http://definitions.uslegal.com/i/irreparable-harm/) meaning we can go for TRO's and preliminary injunctions (which speed up the legal process considerably.

-Gene

What was one of my famous quotes that grace certain sigs?

"Not following the law should be painful"

Librarian
06-04-2011, 11:57 PM
Yes and no to Librarian. A ruling on a state law by a Federal Circuit court of appeals is binding everywhere in a state. Even when a ruling isn't directly on a statute you'll see lots of localities whose practices are wrong - just change. Witness the Chicago suburbs that didn't stand and fight - and there they had room to make an argument - something other sheriffs and chiefs will not have in California.


I expect several instances (San Francisco, Alameda, Los Angeles) where governments/agencies look at any Federal Court ruling and conclude "that can't mean us - we're different!"

I expect most of the rest of the state to be smarter than that.

Anchors
06-05-2011, 4:38 AM
I expect several instances (San Francisco, Alameda, Los Angeles) where governments/agencies look at any Federal Court ruling and conclude "that can't mean us - we're different!"

I expect most of the rest of the state to be smarter than that.

I expect LA officials to fight tooth and nail until a federal judge holds them in contempt.

hoffmang
06-05-2011, 9:43 AM
I expect several instances (San Francisco, Alameda, Los Angeles) where governments/agencies look at any Federal Court ruling and conclude "that can't mean us - we're different!"

I expect most of the rest of the state to be smarter than that.

Just recall how fast SF ran away from both the Section 8 housing case and the MTA "firearms" ban. I don't disagree that someone will fail the natural selection test but I doubt it will be all that wide.

-Gene

Mulay El Raisuli
06-06-2011, 5:57 AM
Stripes: http://www.imdb.com/title/tt0083131/quotes?qt=qt0483074

I've seen the movie (and within the last few years) but didn't remember the quote. I had to google it.

Ryan


Thank you. But it wasn't really all that great a movie.


The Raisuli

Untamed1972
06-06-2011, 6:26 AM
Sometimes not even then. Isn't LA County outright ignoring some court orders regarding its CCW practices?

What can I say....some folks need to be hit more than once!

I think some of these police agencies just get to dang big and to powerful, to the point that they're not even afraid of outright defying a court order/settlement.

Perhaps some federal marshalls showing up to put the Mayor and the Chief in custody for awhile would get their attention.