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View Full Version : Solicitors permits Vs. Carry permits?


sfpcservice
06-09-2012, 8:12 AM
So in 2002 the Supreme Court ruled that door to door peddlers could not be required to obtain solicitors permits because the permit infringes on 1st amendment rights...

This was argued by Jehovas Witnesses and won. So in light of this ruling wouldn't the same hold true for a carry license which is required in many places to exercise a right that "shall not be infringed"?

pHredd9mm
06-09-2012, 8:36 AM
Can the OP or someone else post the case, please?

fizux
06-09-2012, 8:40 AM
Watchtower Bible and Tract Society of New York, Inc., et al., v. Village of Stratton, et al., 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002).

Wikipedia:
http://en.m.wikipedia.org/wiki/Watchtower_Society_v._Village_of_Stratton

OleCuss
06-09-2012, 8:50 AM
sfpcservice:

It might be a bridge too far right now, but I think that you are sort of right.

One of the difficulties is that historically one can argue that the RKBA is pretty much an Open Carry right.

But we tend to focus on Concealed Carry. This is especially true here in California where the only form of carry available to even a small fraction of the population is Concealed Carry.

So while one can make a very good argument that Open Carry is fundamentally protected against licensure, the historical fact that Concealed Carry was not clearly an accepted practice at the time of the crafting of the Constitution means that a state probably does not have to accept concealed carry at all and thus can license that form of carry with little fear of unconstitutionality as long as they allow Open Carry.

But here in California, Concealed Carry is clearly the choice of our state. What's more, concealed carry is already licensed and that fact is going to be difficult to rid ourselves of (bureaucracies are difficult to kill).

Right now the fight is to get the right to carry recognized universally.

Here in California the fight is to get concealed carry. Once we have concealed carry I am convinced we will be able to leverage that into open carry as well - and I think the courts may be inadvertently helping us with that.

Once we've got the right to carry both openly and concealed firmly established I think that the concept of the RKBA will be legally accorded the same rights status as the right to free speech.

When we are at that stage I think we can start making an argument like the one you are suggesting and succeed. Right now the courts are not ready for that and advancing the argument right now runs too high a risk of establishing bad case law.

FWIW from a non-lawyer.

sfpcservice
06-09-2012, 9:13 AM
Oldcuss, I get your point. One thing to consider is the court tossed out solicitor permits well after they werr an established practice. And I understand the concealed vs. Open carry issue. I was just talking about carry in general. I get frustrated with the courts legal sidesstepping of "shall not be infringed". Gene posted the video of Malcolm X and I agree with him.... a person committing a criminal act doesn't have the authority to stipulate how we ask them to stop committing the crime.... Rant complete! :-)

Untamed1972
06-09-2012, 9:31 AM
The problem is that case was built on plenty of previous case law establishing 1A rights in public places.

We first need to get the court to rule that you have a right to bear arms in public. Once that part is established the permit issues will fall apart pretty easily.

Paladin
06-09-2012, 9:35 AM
Chess, not checkers....

jdberger
06-09-2012, 9:44 AM
I think the OP is playing chess.

Some of the most devastating moves are completely unexpected.

Paladin
06-09-2012, 9:48 AM
I think the OP is playing chess.

Some of the most devastating moves are completely unexpected.No, he's suggesting chess. Our side is already playing chess....

All shall be revealed in.... ;)

fizux
06-09-2012, 9:49 AM
We first need to get the court to rule that you have a right to bear arms in public. Once that part is established the permit issues will fall apart pretty easily.

Agreed. After that, it becomes an unfettered discretion issue.

Oral arguments at the 7th circuit were yesterday.

OleCuss
06-09-2012, 12:50 PM
Oldcuss, I get your point. One thing to consider is the court tossed out solicitor permits well after they werr an established practice. And I understand the concealed vs. Open carry issue. I was just talking about carry in general. I get frustrated with the courts legal sidesstepping of "shall not be infringed". Gene posted the video of Malcolm X and I agree with him.... a person committing a criminal act doesn't have the authority to stipulate how we ask them to stop committing the crime.... Rant complete! :-)

'Tis a good rant. You probably already understand what I'm going to post, but there may be others who don't so I'm gonna post anyway. . .

The problem is that the courts have to be prepared for the argument.

Consider how many district courts are still ruling against the RKBA based on the silliest (or most despicable?) types of arguments. There is adequate direction from Heller and McDonald for them to insist on the RKBA in the same manner in which they defend the right to free speech. But at this time they'll actually allow infringement of free speech if it involves the RKBA (witness the ban on UOC).

I don't want to debate the merits of the "birther" and related arguments, but even if one were to assume that they went to federal district with an absolutely air-tight case with no room for any possible interpretation other than the one they are advancing - the odds that any federal court would rule in their favor is miniscule. That court may very well have members appointed by Obama and that means that every ruling the court has made which involved an Obama appointee as either judge or prosecutor can be challenged and thrown out. Every piece of legislation Obama signed can be challenged and thrown out. Every order Obama gave the military may have been illegal and those who carried them out could have issues (less likely, but possible). Every international agreement Obama signed onto could be invalid. Net effect is that it would throw immense confusion and disruption into our system at many levels and the courts will rule against the birthers even if the law is clearly on their side.

I think I've heard the "Habeus Corpus" described as meaning that you have to do the right thing. That may not be exactly what it means to a lawyer but something like that idea controls what many courts will do. If they figure the disruption and pain are a bad idea for them or the country they will give only lip service to the law and will rule in a fashion which clearly flouts the law.

Going back to FDR and his threat to pack the court helps to illustrate the point. Before his threats the court wouldn't bend the law to his will. Afterward FDR got what he wanted. And yes, I'm simplifying that situation just a bit. . .

So SAF/CGF are wisely working the system for minimal disruption at each stage of the game. Narrowly focused questions for the courts utilizing clean plaintiffs in civil cases whenever possible makes it much easier for a court to rule in a Constitutional fashion without dumping dangerous felons out on the street or otherwise causing havoc.

If we can just keep those who are not so skilled out of the game we can avoid bad case law and get our rights restored.

dantodd
06-09-2012, 1:21 PM
Oldcuss, I get your point. One thing to consider is the court tossed out solicitor permits well after they werr an established practice. And I understand the concealed vs. Open carry issue. I was just talking about carry in general. I get frustrated with the courts legal sidesstepping of "shall not be infringed". Gene posted the video of Malcolm X and I agree with him.... a person committing a criminal act doesn't have the authority to stipulate how we ask them to stop committing the crime.... Rant complete! :-)

"shall not be infringed" is not absolute any more than "shall make no law" is absolute.

wildhawker
06-09-2012, 2:18 PM
If one assumes that 2A will be 1:1 with 1A, then it's logical to assume we'll have an extraordinarily expansive 2A. I think we're going to get a functional 2A through the courts, but not the one we should get. The rest of the way is going to have to be political victories that follow the decades of re-enculturation, a byproduct of the Court decisions and a reinvigorated - and more inclusive - grassroots.

It's my view that, while some reasoning found in 1A jurisprudence will certainly be used for the purposes of analyzing 2A challenges [as we've already seen], the Court will also find it permissible to 'balance' that reasoning with their various social cost methodologies. It's going to be a real victory to get any post-Heller circuit court to say (and enforce) in a major 2A case with sweeping ramifications, that "strict scrutiny" or "historical/categorical scrutiny" applies. But, shouldn't [one of them], though, in every case brought by a law-abiding non-prohibited U.S. Citizen (setting aside the 14A People argument, even) for this, a fundamental right?

Ultimately, people (like Charles Nichols) will make errors because they are either naive or purposefully challenging the courts to put their intellectual dishonesty 'on the table', for all to see. They will. And since force is on the side of the government...

-Brandon

Kid Stanislaus
06-09-2012, 2:26 PM
No, he's suggesting chess. Our side is already playing chess....

All shall be revealed in.... ;)


:twoweeks:

YUK, YUK, YUK!!!

SilverTauron
06-09-2012, 2:32 PM
Courts move at the speed of glaciers. At this point the 'logjam', in my completely inexperienced opinion, is recognition of the RKBA in local courts.

It is excellent that the Supreme Court via Heller and McDonald has recognized the beleaguered 2nd Amendment for what it is;but lower courts are ruling like its 1995 . So long as local courts keep dodging recognition of the RKBA as the civil right it is, it will require the time and investments of individuals to push the cases to the next level. Such backwards behavior has an effect on the legislators opposed to the 2A also-since they know the local courts 'have their backs', they know a lawsuit by a someone affected by an unjust gun law isn't a serious threat to their futures. Heck by the time the case made it to a high enough court for a fair ruling the politicos will have changed jobs or have left the building.