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View Full Version : Does the Heller decision affirm the right to carry?


selfshrevident
07-30-2012, 1:19 AM
Forgive me if this has already been thoroughly discussed on this forum. I was skimming through the Heller decision and it seems as though the opinion of the court was that the 2A literally means to KEEP and CARRY... so what gives? I know that actual lawsuit was about possession, but why are we still having a hard time if the majority of the supreme court already addressed the meaning of carry? Also, when one of our carry cases gets there, how certain are we that the Heller 5 are all going to agree on carry?

phdo
07-30-2012, 1:28 AM
Tagged.

DonFerrando
07-30-2012, 2:38 AM
Also, when one of our carry cases gets there, how certain are we that the Heller 5 are all going to agree on carry?

This is what I am curious about as well. Say Obama gets to pick another anti-gun judge for SCOTUS do we have to expect Heller to get reversed or mooted in the future if a case like this comes around again? Sorry if this is a dumb question but I know nothing about the process...

vantec08
07-30-2012, 3:48 AM
This is what I am curious about as well. Say Obama gets to pick another anti-gun judge for SCOTUS do we have to expect Heller to get reversed or mooted in the future if a case like this comes around again? Sorry if this is a dumb question but I know nothing about the process...


The short answer is yes, though a bit more complicated. I can guarantee you if he does appoint one or more justices, it will be a tacit signal to bring on the 2nd challenges.

littlejake
07-30-2012, 4:16 AM
It's unusual for the SCOTUS to overturn previous rulings. Heller appears to uphold the right to keep and bear arms. But, it leaves a lot of wiggle room for regulation. Which Scalia just opined upon in a recent interview.

After the Chief Justice, John Roberts clearly politicized the court in the APCA decision; we cannot be sure of what the Robert's court might do. We have sort of a repeat of history with Roberts pulling an Earl Warren.

IMO -- the question of carry will be left to the states; and SCOTUS will not hear a carry case. Which for CA probably means the best we do is get to a 3 judge panel of the 9th circuit and lose.

wildhawker
07-30-2012, 4:20 AM
We've spoken about this before. Heller had a somewhat surprising volume of analysis on bear that goes directly to supporting the arguments we've made in our carry case (and its sister cases by SAF in other jurisdictions).

-Brandon

littlejake
07-30-2012, 8:57 AM
We've spoken about this before. Heller had a somewhat surprising volume of analysis on bear that goes directly to supporting the arguments we've made in our carry case (and its sister cases by SAF in other jurisdictions).

-Brandon

Brandon:

What's the name of our case? And where is it in the legal pipeline?

Kindest regards,

Jake

BTW -- I just joined calffl (as a Type 3 holder)

Gray Peterson
07-30-2012, 9:09 AM
Brandon:

What's the name of our case? And where is it in the legal pipeline?

Kindest regards,

Jake

BTW -- I just joined calffl (as a Type 3 holder)

Richards v Prieto

littlejake
07-30-2012, 9:43 AM
Richards v Prieto

Thanks Gary... Are you a transplant from CA to WA? I'm sort of surprised a person from WA knows so much about CA laws that I have to assume you have roots here.

Ah, you are the plaintiff in Peterson v. Martinez; and it's a Colorado case awaiting decision. I assume a win there could be used to leverage legal arguments in CA. And perhaps avoid the 9th circuit.
Kudos Gary.

Looks like we lost Richards v Prieto in the 9th in May.

"Under the statutory scheme, even if Plaintiffs are denied a concealed
weapon license for self-defense purposes from Yolo County, they are
still more than free to keep an unloaded weapon nearby their person,
load it, and use it for self-defense in circumstances that may occur
in a public setting. Yolo County’s policy does not substantially
burden Plaintiffs’ right to bear and keep arms. Therefore, rational
basis review applies."

Kindest Regards,

Jake

Untamed1972
07-30-2012, 9:48 AM
Short answer is "yes"....but all the lower courts since have been pulling the "LALALALALALA......I can't hear you" bit with eyes closed and fingers in their ears and saying "All I heard was 'in the home, in the home, in the home' LALALALALA."

Yugo
07-30-2012, 9:53 AM
Tagged

Untamed1972
07-30-2012, 10:15 AM
Thanks Gary... Are you a transplant from CA to WA? I'm sort of surprised a person from WA knows so much about CA laws that I have to assume you have roots here.

Ah, you are the plaintiff in Peterson v. Martinez; and it's a Colorado case awaiting decision. I assume a win there could be used to leverage legal arguments in CA. And perhaps avoid the 9th circuit.
Kudos Gary.

Looks like we lost Richards v Prieto in the 9th in May.

"Under the statutory scheme, even if Plaintiffs are denied a concealed
weapon license for self-defense purposes from Yolo County, they are
still more than free to keep an unloaded weapon nearby their person,
load it, and use it for self-defense in circumstances that may occur
in a public setting. Yolo County’s policy does not substantially
burden Plaintiffs’ right to bear and keep arms. Therefore, rational
basis review applies."

Kindest Regards,

Jake

Except that unloaded open carry (UOC) is now also illegal in CA. So that is not a viable option anymore....not that it ever really was to begin with.

sandman21
07-30-2012, 11:45 AM
UOC is not illegal, you can UOC a rifle or shotgun, if they make all UOC illegal this term. You can always LUCC, they have many ways to draw this out.

wildhawker
07-30-2012, 12:05 PM
Jake,

Gray's more knowledgable on CA carry law than most CA lawyers. The guy's truly amazing and we're damned lucky to have him on the team. (I'm also proud to call him a friend.)

Richards v. Prieto is an Alan Gura case crafted for the Ninth Circuit and SCOTUS, not for final disposition at district. It's currently at CA9 and fully briefed awaiting oral arguments.

-Brandon

p.s. Thanks for becoming part of the Cal-FFL family!

Thanks Gary... Are you a transplant from CA to WA? I'm sort of surprised a person from WA knows so much about CA laws that I have to assume you have roots here.

Ah, you are the plaintiff in Peterson v. Martinez; and it's a Colorado case awaiting decision. I assume a win there could be used to leverage legal arguments in CA. And perhaps avoid the 9th circuit.
Kudos Gary.

Looks like we lost Richards v Prieto in the 9th in May.

"Under the statutory scheme, even if Plaintiffs are denied a concealed
weapon license for self-defense purposes from Yolo County, they are
still more than free to keep an unloaded weapon nearby their person,
load it, and use it for self-defense in circumstances that may occur
in a public setting. Yolo County’s policy does not substantially
burden Plaintiffs’ right to bear and keep arms. Therefore, rational
basis review applies."

Kindest Regards,

Jake

nicki
07-30-2012, 12:34 PM
UOC is not illegal, you can UOC a rifle or shotgun, if they make all UOC illegal this term. You can always LUCC, they have many ways to draw this out.

Anti gun judges will try to pull bs stunts and we have many anti gun judges in the 9th circuit, so it is not an easy task.

Judges can get away with much garbage at the district level, it is when the cases start making there way up the "food chain" that we have any chance of justice.

The idea that they say we can UOC a rifle or shotgun is effectively a ban on a whole class of common arms that were specifically designed for and the best suited for personal defense.

The SCOTUS in HELLER said we had a right to have "functional" arms and "functional" means "loaded" and ready for "IMMEDIATE USE". LUCC requires a person to unlock a case and then load a firearm, thus the firearm is in a non functional mode.

The Richards case and the Peruta case got blindsided with "open carry", they were "concealed carry cases".

Open carry of handguns sometimes got people calling the police of man with a gun, open carry of people walking around with rifles or shotguns will get the police calling man with a gun, especially if people are carrying tactical type rifles and shotguns.

I believe the SCOTUS will take a carry case, they just won't take a criminal carry case. The SCOTUS will "cherry pick" a case and the critieria of the case they pick will have to be one that is "clean".

This means they will probably wait for till one of "Alan Gura's " cases is ready to go.

Not all the circuits are dragging their feet, we will have a SCOTUS ruling within the next 18 to 24 months.

Public opinion across the country strongly supports right to carry and it will be a recognized right in 42 states on Aug 7th.;)

As far as California, Alameda rolled over at the en banc hearing in the Nordyke case. I have a gut feeling that when a well crafted carry case is headed to en banc here in California, counties may try throw the case to avoid a ruling.

The question is will 9th circuit Chief Justice Kozinski let them get away with it again. He was pissed and I expect he will probably put his foot down ahead of time to avoid an encore performance by another county.

Nicki

hoffmang
07-30-2012, 4:18 PM
You can see Alan's argument that Heller means carry in the brief he filed in the Maryland Carry case today - http://www.hoffmang.com/firearms/woollard/Appellees-brief-20120730.pdf

-Gene

Gray Peterson
07-30-2012, 11:53 PM
Thanks Gary... Are you a transplant from CA to WA? I'm sort of surprised a person from WA knows so much about CA laws that I have to assume you have roots here.

Ah, you are the plaintiff in Peterson v. Martinez; and it's a Colorado case awaiting decision. I assume a win there could be used to leverage legal arguments in CA. And perhaps avoid the 9th circuit.

I have numerous friends in the bay area, both in the gun rights community and the gay communities.

I visit California on a semi-annual basis.

The purpose of my case is to open up a 2A front in a friendlier jurisdiction (the mountain west). Something CA9 can cite in Richards. It's also one of two carry cases awaiting decision in a Court of Appeals (the other being Moore in Illinois), and potentially within striking range of a SCOTUS 2012 term decision (terms last from October 2012 to June 2013) if a petition for certiorari is granted.

The secondary (and very important) purpose is to open up non-resident carry licensing in NY, SC, & CA. What good is living in Yuma AZ or Garnerville NV or Ashford OR if you can't go into California at all and carry a self defensive weapon?

Kudos Gary.

Not to pick nits, but it's gRAy. :p

Looks like we lost Richards v Prieto in the 9th in May.

"Under the statutory scheme, even if Plaintiffs are denied a concealed
weapon license for self-defense purposes from Yolo County, they are
still more than free to keep an unloaded weapon nearby their person,
load it, and use it for self-defense in circumstances that may occur
in a public setting. Yolo County’s policy does not substantially
burden Plaintiffs’ right to bear and keep arms. Therefore, rational
basis review applies."

Kindest Regards,

Jake

That was actually May 2011, in District Court. Not surprising giving the previous Nordyke decision which was vacated later and also the Peruta case. It was then stayed in the 9th Circuit for Nordyke, which was decided first of June this year.

NoJoke
07-31-2012, 6:03 AM
.

.

.
-Gene

We're lucky to have the whole lot of you superstars! With a world seemingly going to Hell in a Hand-basket, it gives me great hope to watch/read our rights fighters putting together brilliant battles.

Heros - all of you. :beer::beer:

Crom
07-31-2012, 6:30 AM
Multiple Supreme Court decisions are necessary to establish a robust right.

See this article (http://www.calgunlaws.com/index.php/articles-memoranda-and-commentary/78-commentary/471.html) for clarification.

Uxi
07-31-2012, 7:55 AM
I wish! Unfortunately they restricted themselves to the subject at hand, which was Keep and not Bear. In the arguments for Keep, they defined Bear and layed what should be the exact same argument in such a case... for which they have yet to grant cert.

Meplat1
07-31-2012, 1:55 PM
This is what I am curious about as well. Say Obama gets to pick another anti-gun judge for SCOTUS do we have to expect Heller to get reversed or mooted in the future if a case like this comes around again? Sorry if this is a dumb question but I know nothing about the process...

I think it depends on which justice Obummer replaces. If he gets to replace one of the Heller five we are screwed. On the other hand, if Romney is elected the older and less healthy justices are liberals and we could have a decent court for some time to come.

The right to bear, I think was clearly established as being protected by the 2A. But it, just as the right to keep, was not deemed to be absolute. It is subject to regulation of some sort. What regulation is reasonable and what level of scrutiny would be appropriate is a question for future visitation by the SCOTUS, not the states.

sandman21
07-31-2012, 6:54 PM
Anti gun judges will try to pull bs stunts and we have many anti gun judges in the 9th circuit, so it is not an easy task.

Judges can get away with much garbage at the district level, it is when the cases start making there way up the "food chain" that we have any chance of justice.

The idea that they say we can UOC a rifle or shotgun is effectively a ban on a whole class of common arms that were specifically designed for and the best suited for personal defense.

The SCOTUS in HELLER said we had a right to have "functional" arms and "functional" means "loaded" and ready for "IMMEDIATE USE". LUCC requires a person to unlock a case and then load a firearm, thus the firearm is in a non functional mode.

The Richards case and the Peruta case got blindsided with "open carry", they were "concealed carry cases".

Open carry of handguns sometimes got people calling the police of man with a gun, open carry of people walking around with rifles or shotguns will get the police calling man with a gun, especially if people are carrying tactical type rifles and shotguns.

I believe the SCOTUS will take a carry case, they just won't take a criminal carry case. The SCOTUS will "cherry pick" a case and the critieria of the case they pick will have to be one that is "clean".

This means they will probably wait for till one of "Alan Gura's " cases is ready to go.

Not all the circuits are dragging their feet, we will have a SCOTUS ruling within the next 18 to 24 months.

Public opinion across the country strongly supports right to carry and it will be a recognized right in 42 states on Aug 7th.;)

As far as California, Alameda rolled over at the en banc hearing in the Nordyke case. I have a gut feeling that when a well crafted carry case is headed to en banc here in California, counties may try throw the case to avoid a ruling.

The question is will 9th circuit Chief Justice Kozinski let them get away with it again. He was pissed and I expect he will probably put his foot down ahead of time to avoid an encore performance by another county.

Nicki

Both lower courts could have decided that UOC was not functional but they passed. LUCC is as functional as UOC. Nothing you have said changes how the 9th can rule; they have more than enough room to delay.

There is nothing in either Heller McDonald that can be read as not allowing a state to determine manner of carry. The state of CA has decided that UOC of rifle and shotguns is the manner with which they want citizens to bear arms.

Sincerely,
9th

When UOC ban came up the second time many people believe it to be a good thing, and did almost nothing to stop it. After all if they could not UOC a handgun there was no other means of having "...an unloaded weapon nearby their person, load it...", wait nothing in either decisions says it had to be UOC or even a handgun. I am just tired of people trying to rationalize their inaction on a bill.

I expect the SCOTUS to rule on a carry case, I think in the 14-15 term. I believe they are going to pass on Peterson and Moore.

selfshrevident
08-01-2012, 1:40 AM
Thanks for all the replies. So basically the groundwork has been laid out by this court already for a future "clean" carry case, and one that is specifically about carry. Got it.

vantec08
08-01-2012, 3:27 AM
Thanks for all the replies. So basically the groundwork has been laid out by this court already for a future "clean" carry case, and one that is specifically about carry. Got it.


Yes. The lower courts especially are being dragged screaming and kicking every freakin inch of the way.

1JimMarch
08-01-2012, 10:55 AM
The most important bit of Heller as it relates to carry rights is at footnote 9:

See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v.
Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155
(1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting
similar provision with “common defence” purpose); State v.
Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga.
243, 250–251 (1846) (construing Second Amendment); State v. Chandler,
5 La. Ann. 489, 489–490 (1850) (same).

Here's the context of that footnote:

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.’ ” Id., at 143 (dissenting opinion)
(quoting Black’s Law Dictionary 214 (6th ed. 1998)). We
think that JUSTICE GINSBURG accurately captured the
natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.

From our review of founding-era sources, we conclude
that this natural meaning was also the meaning that
“bear arms” had in the 18th century. In numerous instances,
“bear arms” was unambiguously used to refer to
the carrying of weapons outside of an organized militia.
The most prominent examples are those most relevant to
the Second Amendment: Nine state constitutional provisions
written in the 18th century or the first two decades
of the 19th, which enshrined a right of citizens to “bear
arms in defense of themselves and the state” or “bear arms
in defense of himself and the state.” 8 It is clear from those
formulations that “bear arms” did not refer only to carry-
ing a weapon in an organized military unit. Justice James
Wilson interpreted the Pennsylvania Constitution’s armsbearing
right, for example, as a recognition of the natural
right of defense “of one’s person or house”—what he called
the law of “self preservation.” 2 Collected Works of James
Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing
Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction
to American Law 198 (1837) (“Thus the right of
self-defence [is] guaranteed by the [Ohio] constitution”);
see also id., at 157 (equating Second Amendment with
that provision of the Ohio Constitution). That was also
the interpretation of those state constitutional provisions
adopted by pre-Civil War state courts.9 These provisions
demonstrate—again, in the most analogous linguistic
context—that “bear arms” was not limited to the carrying
of arms in a militia.

I've highlighted the footnote 9 link in boldface above, otherwise this is un-edited.

The reference to the Muscarello case is interesting because in her dissent, Ginsburg defined "bear arms" as "having a gun readily available for self defense". In that case, a drug dealer had been convicted for "gun carry" when in fact the gun was unloaded and buried deeply in a car where it wasn't quickly available.

But the footnote 9 cases are all interesting because they all agree with each other: states can ban concealed carry ONLY when loaded open carry is available as an option. Literally, that's what all of those state-supreme-court level cases said. For the US Supremes to quote so many of these cases with approval is a strong sign of where their heads are at.

We can tolerate that, no problem at all. If that standard is upheld, places like IL, HI, NJ, NY and of course California because instant open-carry-for-real states. We know what will happen then: we'll get concealed carry permits available very damn quick, esp. after we hold epic parties in places like Times Square :D. Same as we annoyed Ohio into a concealed carry system in about a year when the OH Supremes said open carry was legal in 2003...we annoyed our way into permit access even though we "lost" the concealed carry access case (Klein).

Peaceful John
08-01-2012, 12:04 PM
Jim, that posting was a blessing, and I'm grateful to you for the answer and to Selfshevident for bringing the question.

Cordially,
John

selfshrevident
08-01-2012, 12:33 PM
The most important bit of Heller as it relates to carry rights is at footnote 9:



Here's the context of that footnote:



I've highlighted the footnote 9 link in boldface above, otherwise this is un-edited.

The reference to the Muscarello case is interesting because in her dissent, Ginsburg defined "bear arms" as "having a gun readily available for self defense". In that case, a drug dealer had been convicted for "gun carry" when in fact the gun was unloaded and buried deeply in a car where it wasn't quickly available.

But the footnote 9 cases are all interesting because they all agree with each other: states can ban concealed carry ONLY when loaded open carry is available as an option. Literally, that's what all of those state-supreme-court level cases said. For the US Supremes to quote so many of these cases with approval is a strong sign of where their heads are at.

We can tolerate that, no problem at all. If that standard is upheld, places like IL, HI, NJ, NY and of course California because instant open-carry-for-real states. We know what will happen then: we'll get concealed carry permits available very damn quick, esp. after we hold epic parties in places like Times Square :D. Same as we annoyed Ohio into a concealed carry system in about a year when the OH Supremes said open carry was legal in 2003...we annoyed our way into permit access even though we "lost" the concealed carry access case (Klein).

Thanks for posting this. I think it's kinda funny how Scalia made Ginsburg eat her own words :D

IVC
08-01-2012, 12:57 PM
The right to bear, I think was clearly established as being protected by the 2A. But it, just as the right to keep, was not deemed to be absolute. It is subject to regulation of some sort. What regulation is reasonable and what level of scrutiny would be appropriate is a question for future visitation by the SCOTUS, not the states.

The "bear" part was clearly implied, but not established since the case was only a "keep" case. That's why we need another SCOTUS ruling explicitly on "bear."

Regulation is not a problem once the right is established since it's much easier to differentiate regulation from infringement once the framework is there.

1JimMarch
08-01-2012, 2:29 PM
A good gameplan if we get a carry case to the Supremes is to get LOADED open carry enshrined as a basic civil right...which is perfectly in line with two elements of Heller:

1) Unloaded carry is useless because an unloaded gun is useless for personal defense (as they ruled in Heller).

2) Concealed carry can be restricted so long as open carry is respected, in line with all of the "Heller footnote 9 cases".

If we get this, we get a near-immediate change in the no-open-carry states like Texas, Florida, Oklahoma, etc...because in those states, a carry permit costs big money ($200+) and there's no such thing as that kind of a dollar requirement for excercise of a basic civil right.

We then get to totally mess with the heads of the grabbers in the worst areas, open-carrying like bosses until they scream and cave in. And while that'll take a year or so, it'll be a FUN year :). I'd also argue that this last burst of activism needed to win will help energize us politically before we settle in to a long season of "political peace" post-win. (Yeah, there'll be mopping-up actions all over the place but the enemy lines will be shattered and the outcome obvious to all on all sides.)

Gray Peterson
08-01-2012, 2:32 PM
A good gameplan if we get a carry case to the Supremes is to get LOADED open carry enshrined as a basic civil right...which is perfectly in line with two elements of Heller:

1) Unloaded carry is useless because an unloaded gun is useless for personal defense (as they ruled in Heller).

2) Concealed carry can be restricted so long as open carry is respected, in line with all of the "Heller footnote 9 cases".

If we get this, we get a near-immediate change in the no-open-carry states like Texas, Florida, Oklahoma, etc...because in those states, a carry permit costs big money ($200+) and there's no such thing as that kind of a dollar requirement for excercise of a basic civil right.

We then get to totally mess with the heads of the grabbers in the worst areas, open-carrying like bosses until they scream and cave in. And while that'll take a year or so, it'll be a FUN year :). I'd also argue that this last burst of activism needed to win will help energize us politically before we settle in to a long season of "political peace" post-win. (Yeah, there'll be mopping-up actions all over the place but the enemy lines will be shattered and the outcome obvious to all on all sides.)

We need a "bear" case that is agnostic to the open versus concealed difference.

yellowfin
08-01-2012, 4:34 PM
It will probably take SCOTUS commanding each one of the non-carry states explicitly and individually to get compliance w/ open carry as an enforceable right. NY I know hates us bad enough to blatantly ignore anything other than a direct order and probably even a direct one itself--they'd probably prefer the consequences over actually allowing real liberty.

Meplat1
08-01-2012, 5:45 PM
It will probably take SCOTUS commanding each one of the non-carry states explicitly and individually to get compliance w/ open carry as an enforceable right. NY I know hates us bad enough to blatantly ignore anything other than a direct order and probably even a direct one itself--they'd probably prefer the consequences over actually allowing real liberty.


Hummmmmmm…….. What would those consequences actually look like? US Marshals arresting the state attorney general perhaps? Or district attorneys? Or police chiefs? Interesting possibilities!
:43:

yellowfin
08-01-2012, 6:23 PM
How quick would that REALLY happen in practice? Seriously. Would they REALLY value the individual rights of non-VIP's over their standing custom of "government is always right" to the point of actually doing something? They've let so much blatant corruption and abuse slide since the 30's it's disgraceful.