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hoffmang
01-08-2013, 4:37 PM
Earlier today, Alan Gura filed on behalf of individual plaintiffs and SAF this petition for cert to the US Supreme Court in the matter of Kachalsky v Cacace.

http://www.hoffmang.com/firearms/kachalsky/Kachalsky-Cert-Petition-2013-01-08.pdf

This is asking SCOTUS to take and decide whether discretionary issuance of carry licenses is unconstitutional. It points out the circuit split with Moore in the 7th Circuit.

Interestingly, IL filed for en-banc review in Moore arguing that that case did indeed create a circuit split. Filing: http://www.hoffmang.com/firearms/moore/Moore-en-banc-Petition-2013-01-08.pdf

This case has time to be granted this session (which ends in late June of 2013) but, if granted, would likely be orally argued at the beginning of the 2014 session which is fall of 2013.

-Gene

stix213
01-08-2013, 4:40 PM
Been waiting for this!!!!

Expect all CA9 carry cases to be put on hold pending this case if it gets cert though....

Moonshine
01-08-2013, 4:41 PM
The name Alan Gura must strike fear deep into the hearts of gun control advocates everywhere.

Tiberius
01-08-2013, 4:56 PM
I haven't been following all the cases closely, but to me it looks like a win here would result in nationwide shall-issue. Which would only be change in a few states - one of those, of course, being California.

Tiberius
01-08-2013, 4:56 PM
I haven't been following all the cases closely, but to me it looks like a win here would result in nationwide shall-issue. Which would only be change in a few states - one of those, of course, being California.

CCWFacts
01-08-2013, 5:03 PM
Been waiting for this!!!!

Yeah this needs to happen, the sooner the better. Some of our five justices are getting old, and anyone picked by Obama is going to be a progressive activist, and young, and deeply hostile to all individual rights, except for the right to free stuff and open borders.

If we don't get this win now it will never happen. Is this the first "bear" case that's at this stage?

Expect all CA9 carry cases to be put on hold pending this case if it gets cert though....

IANAL but I assume that's what would happen?

That's a good thing because one of the cases in CA9 is the Gorski case and it would be terrible if that went any further.

It's a bummer that we will have to wait until late 2014 for our right to carry here in California's hold-out areas, but better late than never. I knew it would take years for this issue to get to a decision point.

What are the odds of cert being granted on this case? I assume pretty high?

GunnerB
01-08-2013, 5:14 PM
You guys are simply Great Americans, thank you for all your hard work

Kopis
01-08-2013, 5:17 PM
That is......big. Thank you, everyone involved, for the hard work.

Connor P Price
01-08-2013, 5:17 PM
This is good to see. Guidance from SCOTUS on bear will be a big turning point.

decepticon6551
01-08-2013, 5:33 PM
WooHoo!!

Gura Gura Gura
:clap::clap::clap:

gregorylucas
01-08-2013, 5:41 PM
Thanks for this bright spot among dark news everywhere these days sir!

cvnhank
01-08-2013, 5:52 PM
Gene,
Thank you for posting. Hank

Hogstir
01-08-2013, 6:01 PM
How common is it for enbanc to reverse a panels decision?

VegasND
01-08-2013, 6:25 PM
Good news. I hope to see this one turn out well.

hoffmang
01-08-2013, 6:31 PM
If we don't get this win now it will never happen. Is this the first "bear" case that's at this stage?

...

What are the odds of cert being granted on this case? I assume pretty high?
This is the first case that we're in a place to appeal. We won Moore and it's a little further behind. It obviously appears that Hightower will not be asked for cert.

The split gives this case pretty decent odds.

How common is it for enbanc to reverse a panels decision?
Not very common and it's another common impetus that would drive a cert grant as well. Said another way - SCOTUS looks closely at cases that went en-banc at the cert stage. However, the fact that Moore is out there is good for the Kachalsky petition.

-Gene

CCWFacts
01-08-2013, 9:05 PM
This is the first case that we're in a place to appeal. We won Moore and it's a little further behind.

The split gives this case pretty decent odds.

That's great. This case was designed from the very beginning to go to SCOTUS, and the guy behind it is the guy who so far has the best track record with 2A SCOTUS cases, and that's what I want.

I like the tone of urgency in this brief, because it is urgent. This is the last shot. We may never again have a conservative majority on SCOTUS.

ddestruel
01-08-2013, 9:08 PM
Yeah this needs to happen, the sooner the better. Some of our five justices are getting old, and anyone picked by Obama is going to be a progressive activist, and young, and deeply hostile to all individual rights especially the second amendment

What are the odds of cert being granted on this case? I assume pretty high?

considering Moore is hot on its tail, i'll be interested to see if that is granted en banc by the 7th. If it isnt and illinois asks SCOTUS to take it up then you'd have two prime clean clear cut cases sitting there with both law abiding citizens :facepalm: which iirc has been the underlaying issue on previous SCOTUS 2nd ammendment challenges since Mcdonald.

lord knows the CA9 is a precursor of SCOTUS in the future if progressives and living document justices keep being nominated and approved.......

God's speed to this case. I'll put money on it thinking that its going to be accepted ....... in the form of a SAF / CG donation

eville
01-08-2013, 9:16 PM
Do we know how long they have to accept or deny the case? Is it still possible for a decision by June?

l8apex
01-08-2013, 9:31 PM
Thank you all for your hard work and effort. Glad to be associated with patriots.

kcbrown
01-08-2013, 9:58 PM
Gura is awesome here as usual.

This bit is pure gold:


The aversion to enforcing the Second Amendment manifested by some of the lower courts is difficult to overstate. The District of New Jersey, for example, faced with a challenge to that state’s identical law, simply declared the entire Second Amendment field outside the home a nuisance from which it would shield government lawyers. “Given the considerable uncertainty regarding if and when the Second Amendment rights should apply outside the home, this Court does not intend to place a burden on the government to endlessly litigate and justify every individual limitation on the right to carry a gun in any location for any purpose.” Piszczatoski v. Filko, 840 F. Supp. 2d 813, 829 (D.N.J. 2012), appeal pending, No. 12-1150 (3d Cir. filed Jan. 16, 2012).


(emphasis mine)

:rofl2:

Kid Stanislaus
01-08-2013, 11:20 PM
I'm an atheist but I think I'll get down on my knees and PRAY that no conservative member of the SCOTUS dies between now and then!!

Baja Daze
01-08-2013, 11:25 PM
:gura:

Thanks Gene, this is great news!

And I will admonish my fellow Calguns members here to please support the SAF (http://www.saf.org/) and if you have already done so, thank you and maybe do a little bit more!

Sorry, however I have to ask....how much influence will recent events (criminal, political, etc.) have on SCOTUS and specifically the Heller five in regards to granting cert here?

Baja Daze
01-08-2013, 11:26 PM
I'm an atheist but I think I'll get down on my knees and PRAY that no conservative member of the SCOTUS dies between now and then!!
Amen to that and God Bless you!

Sakiri
01-09-2013, 12:12 AM
God bless that man. Hopefully this gets through quick and is a win. Then maybe we can work on the extortion fees that is ccw permits after it goes shall issue. Seriously. My last three states of residence dont charge over 300 to get a permit.

stix213
01-09-2013, 12:41 AM
Do we know how long they have to accept or deny the case? Is it still possible for a decision by June?

I'd like to know the answer here as well. Is it too late for a 2013 decision?

chris
01-09-2013, 5:26 AM
WooHoo!!

Gura Gura Gura
:clap::clap::clap:

Go Alan go. I wonder if this would put another nail in the gun banners coffin if the ruling goes our way?

dc2integra
01-09-2013, 5:38 AM
Very nice good job alan!

ZNinerFan
01-09-2013, 6:15 AM
Gene, thanks for offering a ray of sunshine in the midst of the current storm for us gun owners.

Mulay El Raisuli
01-09-2013, 8:58 AM
Yeah this needs to happen, the sooner the better. Some of our five justices are getting old, and anyone picked by Obama is going to be a progressive activist, and young, and deeply hostile to all individual rights, except for the right to free stuff and open borders.

If we don't get this win now it will never happen. Is this the first "bear" case that's at this stage?



IANAL but I assume that's what would happen?

That's a good thing because one of the cases in CA9 is the Gorski case and it would be terrible if that went any further.

It's a bummer that we will have to wait until late 2014 for our right to carry here in California's hold-out areas, but better late than never. I knew it would take years for this issue to get to a decision point.

What are the odds of cert being granted on this case? I assume pretty high?


Oh, yes!


The Raisuli

LoadedM333
01-09-2013, 9:05 AM
Thank you Sir!

The Shadow
01-09-2013, 9:52 AM
Not gonna hold my breath. But if it should be decided in our favor, good.

Moving on now.

jar
01-09-2013, 10:05 AM
I'd like to know the answer here as well. Is it too late for a 2013 decision?

Most likely yes. It would take everything falling perfectly to even have a chance to be heard this term. However, we'll almost definitely have a decision on whether or not to hear the case before the end of this term.

smogcity
01-09-2013, 10:16 AM
Sweet Jesus :D

Every day the mainstream media is beating the 2A like a rented mule and it's starting to get me down. Thanks for sharing this great update!

phdo
01-09-2013, 10:34 AM
Finally, some good news!!

Coded-Dude
01-09-2013, 10:47 AM
Gura is awesome here as usual.

This bit is pure gold:



(emphasis mine)

:rofl2:

There are certainly some gems in this one.....and I am only about halfway done.

hoffmang
01-09-2013, 2:02 PM
Do we know how long they have to accept or deny the case? Is it still possible for a decision by June?
There will be some procedural machinations (like whether NY chooses to oppose or has to be ordered to respond by SCOTUS) that will mean we will not see it "in conference" for 60-90 days. It is highly likely that we will know if the case will be heard before the end of June (when SCOTUS recesses.) However, it is very unlikely that it would be orally argued before the start of next term (October 2013) and even less likely that we'd have a decision before the 2013-2014 term. If granted, the worst case timing is late June 2014 though it could be earlier in that term. History counsels that we'd see a decision, if granted, in June 2X, 2014.



Sorry, however I have to ask....how much influence will recent events (criminal, political, etc.) have on SCOTUS and specifically the Heller five in regards to granting cert here?
That's unknowable. On the one side, things are crazy. On the other side, the reason we have a constitution is to save us from majoritarian mad passion. Recall that either way, the key decisions on this case will get made quite a few weeks and months from the current news cycle.

-Gene

Gunlawyer
01-09-2013, 4:05 PM
Very good indeed. I see many reasons why cert should be granted and this case heard. Lets hope the current political climate doesnt play an important in deciding whether to take this case. Be very good to have this decided by SCOTUS as its nearly identical to CA CCW provisions.

Thanks Gene for the update.

kimber_ss
01-09-2013, 4:12 PM
Something with a glimmer of sunshine in the darkness is good. Awesome news from the Gura front. Thanks Gene

Davidwhitewolf
01-09-2013, 4:45 PM
Excellent!

However, anybody know how to properly pronounce Kachalsky v Cacace?

Gray Peterson
01-09-2013, 4:55 PM
Excellent!

However, anybody know how to properly pronounce Kachalsky v Cacace?

Kachalsky is easy. Cacace is pronounced "Ka-case".

FreshTapCoke
01-09-2013, 5:22 PM
Hmm, better start saving now for a trip to D.C.

Scarecrow Repair
01-09-2013, 6:10 PM
Kachalsky is easy. Cacace is pronounced "Ka-case".

That's easy for you to say :-)

EM2
01-09-2013, 6:44 PM
Good news indeed.

luvtolean
01-09-2013, 6:53 PM
Absolutely fantastic!

Libertarian71
01-09-2013, 11:17 PM
Lawyer here. (And I have argued in the U.S. Supreme Court (in a tax case)). I think this is a very risky move on the SAF's part. I agree, of course, on the merits, but question the strategy in petitioning for a writ of certiorari. Chief Justice Roberts, and even Justice Scalia, may go wobbly and not buy the argument that discretionary conceal carry regimes run afoul of the Second Amendment. An adverse ruling on this topic could set back the gun rights movement.

Scalia's dicta in Heller regarding 19th century prohibitions on conceal carry is poorly reasoned, even embarrassing for someone like himself who champions an "originalist" interpretive approach. See Nelson Lund's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757

hoffmang
01-09-2013, 11:21 PM
Lawyer here. (And I have argued in the U.S. Supreme Court (in a tax case)). I think this is a very risky move on the SAF's part. I agree, of course, on the merits, but question the strategy. Chief Justice Roberts, and even Justin Scalia, may go wobbly and not buy the argument that discretionary conceal carry regimes run afoul of the Second Amendment.

Scalia's dicta in Heller regarding 19th century prohibitions on conceal carry is poorly reasoned, even embarrassing for someone like himself who champions an "originalist" interpretive approach. See Nelson Lund's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757

New York bans all public carry - either openly or concealed. Discretionary concealed licensing is probably constitutional where open carry is legal. New York, California, Maryland, Illinois are not those places.

-Gene

Libertarian71
01-09-2013, 11:44 PM
I know the NRA was against Alan Gura litigating the Heller case, out of fear of an adverse ruling. My hats off to him for leading the fight. But he was dealing with a blanket ban of all firearms, and "mainstream" legal scholarship (Tribe, Levinson, Amar) had already been coming around to the individual rights model of the Second Amendment.

Public carry is an entirely new vista, and pressure will be brought to bear (no pun intended) by the media and Washington establishment, especially now, on Chief Justice Roberts, who by many accounts seemed preoccupied with public perception of the Court during the Affordable Care Act case, which prompted him to switch his vote.

I fear that cert will be granted, and the Court rules 5-4 (or even 6-3, given Scalia's rotten dicta in Heller) that the Second Amendment does not require the states to provide for some manner of public carry.

IVC
01-09-2013, 11:48 PM
An adverse ruling on this topic could set back the gun rights movement.

There is no way around this risk on any issue. Heller was an infinitely more risky proposition at the time, though.

It's like the olympics. You prepare rigorously and leave nothing to chance, then go out there and play your game.

kcbrown
01-09-2013, 11:57 PM
I know the NRA was against Alan Gura litigating the Heller case, out of fear of an adverse ruling. My hats off to him for leading the fight. But he was dealing with a blanket ban of all firearms, and "mainstream" legal scholarship (Tribe, Levinson, Amar) had already been coming around to the individual rights model of the Second Amendment.

Public carry is an entirely new vista, and pressure will be brought to bear (no pun intended) by the media and Washington establishment, especially now, on Chief Justice Roberts, who by many accounts seemed preoccupied with public perception of the Court during the Affordable Care Act case, which prompted him to switch his vote.

I fear that cert will be granted, and the Court rules 5-4 (or even 6-3, given Scalia's rotten dicta in Heller) that the Second Amendment does not require the states to provide for some manner of public carry.

Either the Supreme Court meant what it said about self-defense being at the core of the 2nd Amendment, or it didn't. Either it meant what it said about unbridled government discretion being fundamentally incompatible with fundamental Constitutional rights, or it didn't.

This case is a litmus test of both of those proclamations by the Supreme Court.


Those justices which recognized the 2nd Amendment for the individual right it is are not growing any younger. The national Republican party is self-destructing before our very eyes, and the Democrats have declared war on the right to keep and bear arms. In light of that, what would you suggest we do instead? Wait for the Court to accrue even more members who would shred the 2nd Amendment than it already has? Bend over and take it? Let state and local governments (and, yes, even the federal government, given the latest events) kill the right in its crib?

No. The Supreme Court is the place, and now is the time. Opportunities such as this are exceedingly rare, especially when they occur in the presence of people with the kind of talent that Gura brings to bear. We are not likely to get another.

IVC
01-09-2013, 11:58 PM
I know the NRA was against Alan Gura litigating the Heller case, out of fear of an adverse ruling. My hats off to him for leading the fight. But he was dealing with a blanket ban of all firearms, and "mainstream" legal scholarship (Tribe, Levinson, Amar) had already been coming around to the individual rights model of the Second Amendment.

The discretionary concealed carry is a blanket ban in jurisdictions that don't issue in the same way that the Chicago ban was a blanket ban (only police and select professionals were able to possess handguns).

We now have not only the "individual right," but there was a very clear "bucket" analogy in Heller as to why the "bear" part cannot be considered "to carry arms only in defense of the country," while the "keep" parts applies to individual ownership.

Public carry is an entirely new vista, and pressure will be brought to bear (no pun intended) by the media and Washington establishment, especially now, on Chief Justice Roberts, who by many accounts seemed preoccupied with public perception of the Court during the Affordable Care Act case, which prompted him to switch his vote.

Unless you have inside information on Chief Justice Roberts, his interpretation of ACA as a tax is consistent with his philosophy and an unbiased observer would be hard pressed to call it a "switch."

I fear that cert will be granted, and the Court rules 5-4 (or even 6-3, given Scalia's rotten dicta in Heller) that the Second Amendment does not require the states to provide for some manner of public carry.

This would contradict directly the interpretation of the "bear" part which was found to be an essential part of the right. Further, it would completely invalidate the whole concept of "armed self defense" since it would be denied in places where it's most needed and where it most frequently occurs.

Possible, but highly unlikely.

safewaysecurity
01-10-2013, 12:00 AM
Well hopefully we will have cert granted early in feb and arguments this sessions around march or april and a decision in june but I'm always worried about these gun cases because it's more politics than the constitution. I don't think anyone here honestly thinks that any of the non heller 5 gives a rats *** about Heller or McDonald and will rule their own personal feelings on the case.

stix213
01-10-2013, 12:12 AM
I know the NRA was against Alan Gura litigating the Heller case, out of fear of an adverse ruling. My hats off to him for leading the fight. But he was dealing with a blanket ban of all firearms, and "mainstream" legal scholarship (Tribe, Levinson, Amar) had already been coming around to the individual rights model of the Second Amendment.

Public carry is an entirely new vista, and pressure will be brought to bear (no pun intended) by the media and Washington establishment, especially now, on Chief Justice Roberts, who by many accounts seemed preoccupied with public perception of the Court during the Affordable Care Act case, which prompted him to switch his vote.

I fear that cert will be granted, and the Court rules 5-4 (or even 6-3, given Scalia's rotten dicta in Heller) that the Second Amendment does not require the states to provide for some manner of public carry.

The risk you mention is not fantasy, but the greatest risk is to lose one of the Heller 5 before a decision is made. Obama got reelected so it is go time, time to go all in with the cards we got.

Libertarian71
01-10-2013, 12:17 AM
There is no way around this risk on any issue. Heller was an infinitely more risky proposition at the time, though.

It's like the olympics. You prepare rigorously and leave nothing to chance, then go out there and play your game.

I do not think that is the right analogy. Filing a cert petition on this topic is not "leaving nothing to chance." It is inviting unnecessary risk, IMO. The risk is that the United States Supreme Court will grant cert and issue an adverse ruling, one that will permanently confine, is a fundamental aspect, the scope of the Second Amendment.

A key part of "preparing rigorously" is knowing who the referees are. If the Court consisted of a three-judge panel of Justices Thomas, Alito, and Kennedy, I'd say go for it. But there are nine Justices, and we need five votes. Four of them (Justices Breyer, Ginsburg, Sotomayor, and Kagan) are against us right off the bat. One one of them (Justice Scalia) has used vapid legal reasoning in dicta in the Heller decision on this topic, and thus cannot be trusted. And then there is Chief Justice Roberts, who has demonstrated that he places higher values on things like "maintaining the institutional integrity of the Court," and being held in high esteem by Linda Greenhouse and other members of the Washington Establishment, than in applying the Constitution, as in the Affordable Care Act case.

Libertarian71
01-10-2013, 12:32 AM
Unless you have inside information on Chief Justice Roberts, his interpretation of ACA as a tax is consistent with his philosophy and an unbiased observer would be hard pressed to call it a "switch."

See here: http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/

I do not think there is any doubt that Chief Justice Roberts truly believed that the ACA was unconstitutional, but nevertheless resorted to a "saving construction" to deem it a tax (notwithstanding that the individual mandate was not located in the revenue-raising provisions of the bill), because he did could not endure the criticism he would incur had he voted to invalidate the individual mandate.

And even assuming, for argument's sake, that Chief Justice Roberts truly believed the mandate was a "tax," he probably is the only person in the country who believes (1) the mandate was unconstitutional as an exercise of the commerce power, AND (2) the mandate was constitutional as an exercise of the taxing power.

Apocalypsenerd
01-10-2013, 12:38 AM
Libertarian71: As things stand now, there is momentum among the left with support from the Administration to curtail the 2A. Saying we should wait until there are more favorable conditions, when conditions are clearly in danger of getting worse than they are, could likely derail the progress the 2A has made over the last few years.

As far as Scalia's "vapid legal reasoning" goes: Lawyers in general have been spewing illogical, unconstitutional crap for quite some time. The SCOTUS is no stranger to this. It is quite clear there have been numerous rulings in the past that run contrary to other SCOTUS rulings and to plain English in general. "Dicta that cannot be trusted" is no worse for the cause than Breyer's dishonest read on history or Ginsburg's desire to use foreign legal guides in place of the US Constitution.

IVC
01-10-2013, 12:38 AM
I do not think that is the right analogy. Filing a cert petition on this topic is not "leaving nothing to chance." It is inviting unnecessary risk, IMO. The risk is that the United States Supreme Court will grant cert and issue an adverse ruling, one that will permanently confine, is a fundamental aspect, the scope of the Second Amendment.

I agree with you, but we don't get to choose who the referees are. Miller was in 1939, Heller was in 2008. That's a lot of water under the bridge.

From the practical point of view, even an adverse ruling would have limits on its effect. First, it wouldn't affect constitutional carry states. Second, it wouldn't affect states that can pass carry laws locally. Third, it wouldn't deteriorate the situation in places that are already hostile to the 2A and ban carry or make it highly restrictive.

Finally, even an adverse ruling could be challenged down the road when/if the composition of the court changes since it would be in contradiction with Heller and the "friendly court" would mean they would pull a Sotomayor/Kagan on the opposition to reverse the adverse ruling and revert back to Heller.

Besides hope for the best, I think that planning for the worst here is not too bad. Am I way out of line?

IVC
01-10-2013, 12:41 AM
And even assuming, for argument's sake, that Chief Justice Roberts truly believed the mandate was a "tax," he probably is the only person in the country who believes (1) the mandate was unconstitutional as an exercise of the commerce power, AND (2) the mandate was constitutional as an exercise of the taxing power.

That would make at least two of us since I believe it as well :).

nicki
01-10-2013, 12:44 AM
The health care act is a vastly different issue than carry, Justice Roberts did give Obama a "victory", but not the one he wanted.

He ruled that "Obamacare" was constitutional under the taxing authority, not the "commerce clause".

It is not Justice Robert's fault that Romney ran a lousy campaign and that other senate republican candidates couldn't keep their foots out of their mouths on rape and abortion.

Obama didn't win re election, the Republicans lost the election because they portrayed themselves as the party of "mean".

If you ask the average NON LAWYER American what does the second amendment mean, they will say it means the right to carry guns.

If the Supreme court rules that we don't have a right to bear arms, then the way the average American will interpret that is the second amendment just got gutted.

The Louisana Supreme court had effectively gutted their state constitution's right to keep and bear arms. The people of Louisana fixed that problem last election by voting yes for a new right to keep and bear arms constitutional amendment that is probably one of the strongest in the nation.

Gov Bobby Jindal is the current La Gov., he is strongly pro gun and he now is the head of the Republican Governor's association.

Should the US Supreme court rule the WRONG way, we have a model for a replacement 2nd amendment.

I think the SCOTUS is going to take the case and they are going to give us a great ruling because they want to send a real strong message to the North East that they are still part of the United States and that the Constitution is the Supreme law of the land.

A positive ruling for us will potentially give Mayor Bloomberg a massive stroke.

The Supreme court beat Chicago up pretty bad with MaDonald, now it is New York's turn.

Nicki

Gray Peterson
01-10-2013, 12:44 AM
Lawyer here. (And I have argued in the U.S. Supreme Court (in a tax case)). I think this is a very risky move on the SAF's part. I agree, of course, on the merits, but question the strategy in petitioning for a writ of certiorari. Chief Justice Roberts, and even Justice Scalia, may go wobbly and not buy the argument that discretionary conceal carry regimes run afoul of the Second Amendment. An adverse ruling on this topic could set back the gun rights movement.

Scalia's dicta in Heller regarding 19th century prohibitions on conceal carry is poorly reasoned, even embarrassing for someone like himself who champions an "originalist" interpretive approach. See Nelson Lund's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757

Ah, Professor Lund, where do I remember that guy:

In August 2002, Levy was contacted by a professor from his alma mater, George Mason law school. Nelson Lund was the Patrick Henry Professor of Constitutional Law and the Second Amendment—a professorship endowed by the NRA Foundation to advance the cause of the right to bear arms. Lund, Levy said, “was a wonderful teacher and I had him for a couple of courses.” Lund, after hearing through the grapevine that Levy was planning to file a Second Amendment case against the D.C.

government, wanted to meet with him. Later that month, Lund and Charles “Chuck” Cooper, a lawyer who often worked with the NRA, came to the offices of the Cato Institute in D.C. to dissuade the libertarian lawyers from bringing the lawsuit altogether.25 Lund and Cooper insisted that the lawsuit was too risky. In all likelihood, the case would not reach the Supreme Court. And if it did, the Court was probably going to rule against them.

Winkler, Adam (2011-09-12). Gunfight: The Battle over the Right to Bear Arms in America (p. 57-58). Norton. Kindle Edition.

I don't buy it. Just like Heller & McDonald, our legal movement must move forward with the best people. Would you rather our first carry case be a good guy like Kachalsky & Nikolov, or be "United States v. Crackhead" or "United States v. Bank Robber", where a future SCOTUS can put a nail in the coffin of the 2A Bear and then go after 2A Keep.

There is now a split in authority between the 2nd & 7th Circuits, and also with state supreme courts on the subject matter of "bear".

Supreme Court Rule 10:

Rule 10. Considerations Governing Review on
Certiorari
Review on a writ of certiorari is not a matter of right, but
of judicial discretion. A petition for a writ of certiorari will
be granted only for compelling reasons. The following, al*
though neither controlling nor fully measuring the Court’s
discretion, indicate the character of the reasons the Court
considers:
(a) a United States court of appeals has entered a deci*
sion in conflict with the decision of another United
States court of appeals on the same important matter;
has decided an important federal question in a way that
conflicts with a decision by a state court of last resort;
or has so far departed from the accepted and usual
course of judicial proceedings, or sanctioned such a de*
parture by a lower court, as to call for an exercise of
this Court’s supervisory power;
(b) a state court of last resort has decided an impor*
tant federal question in a way that conflicts with the
decision of another state court of last resort or of a
United States court of appeals;
(c) a state court or a United States court of appeals
has decided an important question of federal law that
has not been, but should be, settled by this Court, or
has decided an important federal question in a way that
conflicts with relevant decisions of this Court.

On another manner (the practicality rather than just legal reality) carrying of guns by the law abiding saves lives, both of the carriers & of the general public on the averages. Not pursuing it condemns 100 million people to the continued horror that lack of effective self defense causes.

I know the NRA was against Alan Gura litigating the Heller case, out of fear of an adverse ruling. My hats off to him for leading the fight. But he was dealing with a blanket ban of all firearms, and "mainstream" legal scholarship (Tribe, Levinson, Amar) had already been coming around to the individual rights model of the Second Amendment.

Public carry is an entirely new vista, and pressure will be brought to bear (no pun intended) by the media and Washington establishment, especially now, on Chief Justice Roberts, who by many accounts seemed preoccupied with public perception of the Court during the Affordable Care Act case, which prompted him to switch his vote.

I fear that cert will be granted, and the Court rules 5-4 (or even 6-3, given Scalia's rotten dicta in Heller) that the Second Amendment does not require the states to provide for some manner of public carry.

You're wrong, especially the underlined. The only state that has an RKBA provision in it's state constitution but has may-issue concealed carry is Delaware. Delaware allows open carry statewide, so it's state RKBA clause is satisfied.

The only three states which has an RKBA clause in it's state constitution but are may-issue/no-issue for all public carry is Massachusetts, Hawaii, and Illinois, and that's purely because their state courts interpreted their provisions to be a collective right (Mass Supreme Judicial Court did this in the 70's, the Hawaii state courts in the 1980's, Illinois State courts in the 1970's).

So we have two states which don't have an RKBA provision has shall-issue carry (Iowa & Minnesota). three states that have a state RKBA clause that is may-issue, and that's because they held to "collective right".

The remaining may-issue states have no RKBA clause (New Jersey, New York, California, Maryland).

Not a new vista at all. 41 states are shall-issue. If Illinois's en banc request at the 7th is declined (which it probably will be), Illinois will be state #42. Carrying of guns for personal protection is well-respected & well regarded in all of these states, covering a population of over 200 million people.

The Supreme Court does not like "outliers" who are abnormal in relation to the rest of the country, especially when there's a fundamental right involved.

IVC
01-10-2013, 12:48 AM
A positive ruling for us will potentially give Mayor Bloomberg a massive stroke.

Ahhh, the happy thoughts...

Libertarian71
01-10-2013, 12:59 AM
That would make at least two of us since I believe it as well :).

Really? I am not aware of anyone ever holding that position, other than Chief Justice Roberts. (None of the legal commentators supporting the mandate, and none opposing it, held that position. Nor did any other member of the Court).

In the legislation, Congress justified the individual mandate under the Commerce Clause:

“The individual responsibility requirement provided for in this section . . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” Patient Protection and Affordable Care Act (“PPACA”), Pub. L. No. 111-148, § 1501(a)(1), 124 Stat. 119 (2010).

Paragraph (2) then begins: “The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.” Id. § 1501(a)(2) (A).

In addition, the mandate was not located in the revenue-raising portions of the bill, or example, on “high cost” employer-sponsored insurance plans (the so-called “Cadillac plans”) and on “indoor tanning services.”

And even if it the mandate penalty is a "tax," it is not a constitutional one. Article I, Section 8: provides “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Constitution thus originally thus allowed only three types of taxes.

1. The first was a duty, which is a tax on imports.

2. The second was an excise tax, which is a tax for the privilege of doing something, such as buying alcohol or holding a professional license to practice law. Both duties and excise taxes are indirect taxes that can be passed on to consumers.

3. The third type of tax was a direct tax, which cannot be passed on to someone else. The only type of direct tax permitted by the Constitution was a "capitation tax," or head tax, which every person could be required to pay. The Constitution required that any capitation tax be apportioned, meaning that every person in a given state had to pay the same amount.

The mandate penalty is neither of these three taxes. Nor is the mandate penalty a tax on income, which is permitted by the Sixteenth Amendment.

Gray Peterson
01-10-2013, 1:01 AM
I do not think that is the right analogy. Filing a cert petition on this topic is not "leaving nothing to chance." It is inviting unnecessary risk, IMO. The risk is that the United States Supreme Court will grant cert and issue an adverse ruling, one that will permanently confine, is a fundamental aspect, the scope of the Second Amendment.

I'm not certain why you think it's perfectly OK to let the criminal defense bar take first crack at filing cert petitions for carry cases at SCOTUS. Also, if the court wanted to do what you were talking about, and rule against us, there were two perfectly good cases that they could have taken up to accomplish destroying 2A Bear:

State v. Williams (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1207.htm)

Sean Masciandaro v. United States (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm)

They denied cert in both cases, after asking for responses, which indicates an interest by the Supreme Court a particular interest in the subject matter considering they only request responses from the respondent in less than 10 percent of the cases.

A key part of "preparing rigorously" is knowing who the referees are. If the Court consisted of a three-judge panel of Justices Thomas, Alito, and Kennedy, I'd say go for it. But there are nine Justices, and we need five votes. Four of them (Justices Breyer, Ginsburg, Sotomayor, and Kagan) are against us right off the bat. One one of them (Justice Scalia) has used vapid legal reasoning in dicta in the Heller decision on this topic, and thus cannot be trusted. And then there is Chief Justice Roberts, who has demonstrated that he places higher values on things like "maintaining the institutional integrity of the Court," and being held in high esteem by Linda Greenhouse and other members of the Washington Establishment, than in applying the Constitution, as in the Affordable Care Act case.

You're speaking of the Greenhouse Effect (http://en.wikipedia.org/wiki/Greenhouse_effect_(judicial_drift)), a common complaint of social conservative legal theorists who didn't like the Warren/Burger court decisions on individual freedoms against state power, as well as Justice Kennedy's decisions to join the so-called liberal bloc in Planned Parenthood v. Casey, Romer v. Evans, Lawrence v. Texas, and United States v. Xavier Alvarez. All of these decisions were on behalf of ruling against governmental power, something that you supposedly as a libertarian would actually agree with.

I'm not certain why you think Mr. Gura is somehow not competent in determining his line of argument towards the two Justices you're concerned about.

Libertarian71
01-10-2013, 1:15 AM
You're wrong, especially the underlined.

* * *

Not a new vista at all. 41 states are shall-issue. If Illinois's en banc request at the 7th is declined (which it probably will be), Illinois will be state #42. Carrying of guns for personal protection is well-respected & well regarded in all of these states, covering a population of almost 200 million people.

The Supreme Court does not like "outliers" who are abnormal in relation to the rest of the country, especially when there's a fundamental right involved.

No, I am not wrong. Maybe you misunderstand my point. Public carry is indeed a new vista for the United States Supreme Court because it has never addressed the issued, except in Justice Scalia's poorly reasoned dicta in Heller.

41 states are shall issue. Excellent. That is Free America. But that does not mean five Justices on the current Court are going to rule that the Second Amendment in the federal Constitution requires the states to allow for some form of public carry.

Again, I wholeheartedly believe that public carry is a fundamental constitutional right. As a matter of fact, I believe that public carry is a constitutional right even in the absence of the Second Amendment. But Chief Justice Roberts is a faint-hearted originalist. (And I think, on this topic, Justice Scalia is confused, and cannot be trusted).

IVC
01-10-2013, 1:16 AM
Really? I am not aware of anyone ever holding that position, other than Chief Justice Roberts. (None of the legal commentators supporting the mandate, and none opposing it, held that position. Nor did any other member of the Court).

If we all agree that it's unconstitutional under the commerce clause (including Chief Justice Roberts), then we are on the same page.

The taxation aspect of ACA is completely different animal with completely different set of arguments. Whatever Roberts' position on taxation, I wouldn't correlate it to his position on commerce clause and I wouldn't find it inconsistent or somehow "switching."

Gray Peterson
01-10-2013, 1:33 AM
No, I am not wrong. Maybe you misunderstand my point. Public carry is indeed a new vista for the United States Supreme Court because it has never addressed the issued, except in Justice Scalia's poorly reasoned dicta in Heller.

You read confusion into Justice Scalia's dicta that isn't there, that confusion enunciated by a guy who opposed Parker/Heller in the first place. Two additional conservative judges in courts of appeal jumped on the bandwagon, who's complaining had more to do with whining about Roe v. Wade.

41 states are shall issue. Excellent. That is Free America. But that does not mean five Justices on the current Court are going to rule that the Second Amendment in the federal Constitution requires the states to allow for some form of public carry.

The ENTIRETY of America is Free America, not just 41 states, and until all 50 states are free, then "Free America" does not exist. Until I can travel through Colorado, or California, or New York with my loaded self defense pistol on my hip or glovebox, then America is not "free" to me.

Again, I wholeheartedly believe that public carry is a fundamental constitutional right. As a matter of fact, I believe that public carry is a constitutional right even in the absence of the Second Amendment. But Chief Justice Roberts is a faint-hearted originalist. (And I think, on this topic, Justice Scalia is confused, and cannot be trusted).

You read confusion into Heller & McDonald that is not there. US District Courts in Maryland, North Carolina, and West Virginia read the Heller/McDonald decisions correctly. The US Court of Appeals for the 7th Circuit read and interpreted the decisions correctly.

The so called "confusing dicta" doesn't eliminate public carry, but merely references 4 State Supreme Court cases in the 1830's to 1850's (State v. Reid in Alabama, Nunn v. State in Georgia being two of them).

For more, read: Hidden or on the Hip, James Bishop 97 Cornell L. Rev. 907 (2011-2012) (http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Bishop-final.pdf)

It's either Mr. Kachalsky & Miss Nikolov as the first carry case, or Mr. Crackhead 6 years from now as a vehicle to overturn Heller/McDonald too, or possibly some other crazy litigator who doesn't know how to litigate strategic civil rights litigation and a future court wants to overturn the entire thing. A reversal of a civil right after within 10 years of three positive previous decisions will cause all sorts of problems. I can't speak for Mr. Gura, but a positive carry case outcome is another good way to protect the right against future encroachment of the cases he's spent a tremendous amount of time for. Sistine Chapel took time & effort, and cannot be helped along by the water-colors of Crackheads with desperate criminal defense lawyers, crazed pro-se plaintiffs, and incompetent civil litigators.

Libertarian71
01-10-2013, 1:37 AM
I'm not certain why you think it's perfectly OK to let the criminal defense bar take first crack at filing cert petitions for carry cases at SCOTUS.

??? I never said that.

You're speaking of the Greenhouse Effect (http://en.wikipedia.org/wiki/Greenhouse_effect_(judicial_drift)), a common complaint of social conservative legal theorists who didn't like the Warren/Burger court decisions on individual freedoms against state power, as well as Justice Kennedy's decisions to join the so-called liberal bloc in Planned Parenthood v. Casey, Romer v. Evans, Lawrence v. Texas, and United States v. Xavier Alvarez. All of these decisions were on behalf of ruling against governmental power, something that you supposedly as a libertarian would actually agree with.

The Greenhouse effect does not work its magic merely in cases which strike a blow against government power. Ms. Greenhouse was quite pleased with Chief Justice Roberts's "evolution" in the ACA case, in the face of the "breathtaking radicalism of the other four conservative justices." http://opinionator.blogs.nytimes.com/2012/07/11/the-mystery-of-john-roberts/ In a Second Amendment case involving public carry, especially in today's environment, "respectable" Establishment opinion will not be on the side of the Constitution.

I'm not certain why you think Mr. Gura is somehow not competent in determining his line of argument towards the two Justices you're concerned about.

I never said that, either. Please refrain from attributing to me things that I never said. I have enormous respect for Mr. Gura, and think he is one of the all-time great legal heroes, a true champion of the Constitution. But I am skeptical he will be able to get five votes on the questions he is seeking certiorari upon. (Similarly, I think the greatest oral argument I ever heard by any lawyer in any case was Paul Clement's in the ACA case; but the individual mandate still survived by one vote).

GOEX FFF
01-10-2013, 2:10 AM
THANK YOU Gene!

And Godspeed Mr. Gura!

Gray Peterson
01-10-2013, 2:15 AM
I never said that, either. Please refrain from attributing to me things that I never said. I have enormous respect for Alan Gura, and think he is one of the all-time great legal heroes, a true champion of the Constitution. But I am skeptical he will be able to get five votes on the questions he is seeking certiorari upon. (Similarly, I think the greatest oral argument I ever heard by any lawyer in any case was Paul Clement's in the ACA case; but the individual mandate still survived by one vote).

I trust Mr. Gura knows how to count to 5 and marshal the arguments needed for the narrow win (he isn't attacking licensing, training requirements, or the requirement to pay a non-nominal administration fees....yet). I trust he understands strategic civil rights litigation better than you do as a tax lawyer. You know as I do why lawyers specialize. This is why Mr. Gura is a civil rights litigator, and you're a tax lawyer.

Mr. Gura owes his plaintiffs the best representation he can, and he is duty bound to his clients to pursue their interests, especially in light of the clear split between the 2nd Circuit (Kachalsky) and the 7th Circuit with Moore (Moore said flat out that Kachalsky is wrong). Do you really think SAF could "pull the plug" on the carry case?

Besides, the time for criticism of his decision to file cert is past.

Withdrawing cert would be damaging to his standing with the Supreme Court and perceptions of his competence. You as a lawyer on the Supreme Court bar are welcome to file an amicus brief asking SCOTUS to not take the case (amicus in support of neither party) though I don't think they'll accept, if I may totally paraphrase and butcher what you're saying: "Well, Chief Justice Roberts is a windsock & Justice Scalia wrote terrible dicta and can't be trusted" as a good legal reason not to take it.

mosinnagantm9130
01-10-2013, 2:18 AM
:thumbsup:

Baja Daze
01-10-2013, 2:25 AM
Either the Supreme Court meant what it said about self-defense being at the core of the 2nd Amendment, or it didn't. Either it meant what it said about unbridled government discretion being fundamentally incompatible with fundamental Constitutional rights, or it didn't.

This case is a litmus test of both of those proclamations by the Supreme Court.


Those justices which recognized the 2nd Amendment for the individual right it is are not growing any younger. The national Republican party is self-destructing before our very eyes, and the Democrats have declared war on the right to keep and bear arms. In light of that, what would you suggest we do instead? Wait for the Court to accrue even more members who would shred the 2nd Amendment than it already has? Bend over and take it? Let state and local governments (and, yes, even the federal government, given the latest events) kill the right in its crib?

No. The Supreme Court is the place, and now is the time. Opportunities such as this are exceedingly rare, especially when they occur in the presence of people with the kind of talent that Gura brings to bear. We are not likely to get another.

+1000

KC - I always enjoy your posts, they are well thought out and articulated, albeit a bit pessimistic at times, but I can live with that!

htjyang
01-10-2013, 3:17 AM
Lawyer here. (And I have argued in the U.S. Supreme Court (in a tax case)). I think this is a very risky move on the SAF's part. I agree, of course, on the merits, but question the strategy in petitioning for a writ of certiorari. Chief Justice Roberts, and even Justice Scalia, may go wobbly and not buy the argument that discretionary conceal carry regimes run afoul of the Second Amendment. An adverse ruling on this topic could set back the gun rights movement.

Scalia's dicta in Heller regarding 19th century prohibitions on conceal carry is poorly reasoned, even embarrassing for someone like himself who champions an "originalist" interpretive approach. See Nelson Lund's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757

It seems to me that Prof. Lund is one of those people who regrets that he wasn't the one who wrote the Heller majority opinion and therefore tries to make up for it by savaging the majority opinion. His piece does not persuade. Quibbling over an elastic term like "longstanding" is simply petty. Furthermore, the dicta that Lund was whining about is perfectly logical, in light of the limited nature of the case itself which did not challenge any of the restrictions that Lund finds so objectionable. That other courts may abuse such dicta is not the majority's fault. It is the fault of other courts. Leaving aside the possibility that Lund has no knowledge of any internal machinations that might have made such dicta necessary, the Court should not have done anything that cast confusion and chaos on every law that relates to firearms throughout the entire country. There may be libertarians who enjoy throwing bombs, but the Court should certainly not make that mistake. The majority opinion also specifically stated:

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.

htjyang
01-10-2013, 3:21 AM
Either the Supreme Court meant what it said about self-defense being at the core of the 2nd Amendment, or it didn't. Either it meant what it said about unbridled government discretion being fundamentally incompatible with fundamental Constitutional rights, or it didn't.

This case is a litmus test of both of those proclamations by the Supreme Court.


Those justices which recognized the 2nd Amendment for the individual right it is are not growing any younger. The national Republican party is self-destructing before our very eyes, and the Democrats have declared war on the right to keep and bear arms. In light of that, what would you suggest we do instead? Wait for the Court to accrue even more members who would shred the 2nd Amendment than it already has? Bend over and take it? Let state and local governments (and, yes, even the federal government, given the latest events) kill the right in its crib?

No. The Supreme Court is the place, and now is the time. Opportunities such as this are exceedingly rare, especially when they occur in the presence of people with the kind of talent that Gura brings to bear. We are not likely to get another.

Perhaps, but if things are as dire as you think they are (and I have to admit that your assessment is not necessarily false), then what's the point? A positive opinion now can always be overturned later. There is an entity in the US that is even more powerful than the Supreme Court, and that is a Supreme Court of a future session made up of new members.

kcbrown
01-10-2013, 4:54 AM
I'm not certain why you think it's perfectly OK to let the criminal defense bar take first crack at filing cert petitions for carry cases at SCOTUS.

??? I never said that.


No, you didn't. But it is the natural outcome of someone competent failing to challenge the Constitutionality of laws which place unbridled discretion in the hands of government officials to determine who can and cannot exercise the right to keep and bear arms.

If someone competent, such as Gura, does not act when the conditions are reasonably favorable, someone who is less competent will do so when they are less favorable.

So while you didn't explicitly say that you think it's perfectly OK for the 2nd Amendment's scope to be decided in US v Crackhead, your insistence that a more competent challenger in a more favorable climate refrain from such a challenge on the chance that it will yield an unfavorable ruling yields no other real world result.

Which is to say: your real-world choices are Kachalsky v Cacace now (or perhaps Moore v Madigan in the near future) or US v Crackhead sometime in the future. Which is it going to be?


Perhaps an even better question is this: under what circumstances do you believe a challenge such as that presented in Kachalsky should be brought to the Supreme Court, and when exactly do you believe such circumstances will present themselves?

Southwest Chuck
01-10-2013, 4:59 AM
Either the Supreme Court meant what it said about self-defense being at the core of the 2nd Amendment, or it didn't. Either it meant what it said about unbridled government discretion being fundamentally incompatible with fundamental Constitutional rights, or it didn't.

This case is a litmus test of both of those proclamations by the Supreme Court.


Those justices which recognized the 2nd Amendment for the individual right it is are not growing any younger. The national Republican party is self-destructing before our very eyes, and the Democrats have declared war on the right to keep and bear arms. In light of that, what would you suggest we do instead? Wait for the Court to accrue even more members who would shred the 2nd Amendment than it already has? Bend over and take it? Let state and local governments (and, yes, even the federal government, given the latest events) kill the right in its crib?

No. The Supreme Court is the place, and now is the time. Opportunities such as this are exceedingly rare, especially when they occur in the presence of people with the kind of talent that Gura brings to bear. We are not likely to get another.

Great post kc.
On a side note, I expect Chicago's enbanc request will be denied and will be forced to file for cert. too. Further, I think that SCOTUS will grant/combine both, (which I think is probable since they are both SAF/Gura cases) or will take Moore and then (given a positive ruling) GVR Kachalsky. Time will surely tell.

Interesting times !

kcbrown
01-10-2013, 7:24 AM
Perhaps, but if things are as dire as you think they are (and I have to admit that your assessment is not necessarily false), then what's the point? A positive opinion now can always be overturned later.


That's possible, yes.

But it is better to have a favorable ruling now, only to have it be overturned later, than to not ever have a favorable ruling at all.

Think of a favorable ruling now as a hedge, an attempt to maximize the right. Because that's what it really is. The future is rarely entirely certain, and most definitely is not certain here.



There is an entity in the US that is even more powerful than the Supreme Court, and that is a Supreme Court of a future session made up of new members.

That is true. And yet, Slaughterhouse remains standing and the 14th Amendment's PorI clause remains neutered even now.

Perhaps rulings which serve to diminish liberty are the ones that live the longest. That would fit with my general view of the world. But that is no reason to refrain from doing what we can to turn the tide so that it favors liberty, or at least to stem the anti-liberty tide.

Dr.Lou
01-10-2013, 7:32 AM
I'm an atheist but I think I'll get down on my knees and PRAY that no conservative member of the SCOTUS dies between now and then!!



That's cool, but to whom will you pray? :D

Mulay El Raisuli
01-10-2013, 7:35 AM
Either the Supreme Court meant what it said about self-defense being at the core of the 2nd Amendment, or it didn't. Either it meant what it said about unbridled government discretion being fundamentally incompatible with fundamental Constitutional rights, or it didn't.

This case is a litmus test of both of those proclamations by the Supreme Court.


Those justices which recognized the 2nd Amendment for the individual right it is are not growing any younger. The national Republican party is self-destructing before our very eyes, and the Democrats have declared war on the right to keep and bear arms. In light of that, what would you suggest we do instead? Wait for the Court to accrue even more members who would shred the 2nd Amendment than it already has? Bend over and take it? Let state and local governments (and, yes, even the federal government, given the latest events) kill the right in its crib?

No. The Supreme Court is the place, and now is the time. Opportunities such as this are exceedingly rare, especially when they occur in the presence of people with the kind of talent that Gura brings to bear. We are not likely to get another.


ALL of this is good, but especially the part in bold.


The Raisuli

luvtolean
01-10-2013, 7:42 AM
Lawyer here. (And I have argued in the U.S. Supreme Court (in a tax case)). I think this is a very risky move on the SAF's part. I agree, of course, on the merits, but question the strategy in petitioning for a writ of certiorari. Chief Justice Roberts, and even Justice Scalia, may go wobbly and not buy the argument that discretionary conceal carry regimes run afoul of the Second Amendment. An adverse ruling on this topic could set back the gun rights movement.

Scalia's dicta in Heller regarding 19th century prohibitions on conceal carry is poorly reasoned, even embarrassing for someone like himself who champions an "originalist" interpretive approach. See Nelson Lund's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757

The two questions posed on page 2 of the petition are inevitible at this point of the Second's legal path.

Do you want these questions answered with a case constructed in the best manner possible by the nation's leading Second Amendment SCOTUS advocate, under conditions of their choosing, or do you want it done by some public defender representing a criminal type a la Miller?

Californio
01-10-2013, 8:09 AM
Made my Day:)


I think the SCOTUS is going to take the case and they are going to give us a great ruling because they want to send a real strong message to the North East that they are still part of the United States and that the Constitution is the Supreme law of the land.

Calplinker
01-10-2013, 8:12 AM
Honest arguments on both sides of the issue.

It all seems to boil down to, is this the right time to roll the dice and ask SCOTUS to rule on the bear part of the 2nd amendment?

In my view, the stars have aligned for us. We have a circuit split, a world class advocate and perhaps the last chance for a generation of getting guidance from a SC that clearly views the 2nd in a way that a court with another Obama appointee would not.

Are there risks in advancing this issue? Yes. Is there a chance they will rule in a way unfavorable to us? Yes, though I think it highly unlikely. It is possible they may not advance the right to bear to the degree we would like, but I find it highly unlikely they would curtail it, let alone rule that no such right exists in public places. That would be in direct contradiction to the clearly written majority opinion in Heller and McDonald.

Even if they rule in our favor, but not quite use the language we would like, I think it highly likely they will not miss an opportunity like this to give some additional guidance on scrutiny, particularly since some lower courts have trotted out rational and called it intermediate. :rolleyes:

These snubs are not lost on them and I'm confident that if they take the case, they will include some language that advances this for us, even if we don't get all we want on the "bear" side.

At some point you have to cut bait or fish and in my humble opinion, now is the time to go fishing.

No SC Justice wants to leave the bench under an administration with opposing political views. Personally, I doubt any of the Heller 5 will choose to retire while Obama is in office. Unfortunately, they can't control their health any more than you or I can.

We have the right case, the right advocate, the best SCOTUS bench we can ask for, and the clock is ticking.

In my view, it would have been insane not to ask for cert.

jacques
01-10-2013, 8:13 AM
THis is all great news!

Uxi
01-10-2013, 8:16 AM
W00t

M. D. Van Norman
01-10-2013, 8:32 AM
An adverse ruling on this topic could set back the [right-to-arms] movement.

At this point in history, I would rather have an adverse ruling than no ruling.

We can respond to an adverse ruling in orderly, measured way. Continuing with no ruling risks frustrations boiling over into chaos or even violence. No ruling would also force people like me to eventually decide between becoming outlaws or refugees.

Gray Peterson
01-10-2013, 3:31 PM
Kachalsky SCOTUS docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-845.htm)

stix213
01-10-2013, 3:35 PM
Kachalsky SCOTUS docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-845.htm)

Is Gura adverse to fan mail sent to his e-mail address? I am a bit surprised his phone number and individual e-mail address are publicly listed there.

Looks like we find out on Feb 11th what is up.

postal
01-10-2013, 4:03 PM
Perhaps, but if things are as dire as you think they are (and I have to admit that your assessment is not necessarily false), then what's the point? A positive opinion now can always be overturned later. There is an entity in the US that is even more powerful than the Supreme Court, and that is a Supreme Court of a future session made up of new members.

KC has a great post.....

One thing to consider, is no matter the juggling, the SC always always tries to side step reversing its own rulings- no matter how knowingly wrong a previous ruling was. (slaughterhouse)

A future obama SC probably wouldnt even have the nuts to set that kind of precedent.

Agree. NOW IS THE TIME! Go get some GURA! FIGHT FIGHT FIGHT!!!!!!

htjyang
01-10-2013, 4:56 PM
That's possible, yes.

But it is better to have a favorable ruling now, only to have it be overturned later, than to not ever have a favorable ruling at all.

Think of a favorable ruling now as a hedge, an attempt to maximize the right. Because that's what it really is. The future is rarely entirely certain, and most definitely is not certain here.

Busily walking back your pessimistic assessment of the current situation?

That is true. And yet, Slaughterhouse remains standing and the 14th Amendment's PorI clause remains neutered even now.

Perhaps rulings which serve to diminish liberty are the ones that live the longest. That would fit with my general view of the world. But that is no reason to refrain from doing what we can to turn the tide so that it favors liberty, or at least to stem the anti-liberty tide.

Slaughterhouse has existed for more than 140 years. If your assessment of the current situation is true, Heller-McDonald won't last 20. The Dr. Miles (1911) precedent that was struck down in 2007 (Leegin) was 96 years old.

kcbrown
01-10-2013, 6:05 PM
Busily walking back your pessimistic assessment of the current situation?


No. You confuse my assessment of the necessity to fight with my outlook on the fight.

This is a fight that must be fought no matter the odds and no matter the expected outcome.



Slaughterhouse has existed for more than 140 years. If your assessment of the current situation is true, Heller-McDonald won't last 20. The Dr. Miles (1911) precedent that was struck down in 2007 (Leegin) was 96 years old.

I expect that Heller/McDonald won't last 20 years if the balance on the Supreme Court shifts significantly. But even if that is the case, it is no reason to do anything less than what we can do now.

There is always the chance that I'll be wrong in my outlook. So if we win Kachalsky and secure, even if only temporarily, the right to carry in public, there is a chance that it will stick. And it is surely better to have at least temporarily secured the right than to never have secured the right, no?

But there is no chance of getting the right to carry in public in places such as California if we do not win such a carry case at the Supreme Court.


So gaming theory alone says we should push forward here.

Sakiri
01-10-2013, 8:08 PM
That's cool, but to whom will you pray? :D

Joe Pesci.

Just like George Carlin.

Or the sun. He said he worshiped the sun, but prayed to Joe.

Davidwhitewolf
01-11-2013, 10:10 AM
Looks like we find out on Feb 11th what is up.

I'm marking it on the wall calendar as a red-letter day!

Is Gura adverse to fan mail sent to his e-mail address? I am a bit surprised his phone number and individual e-mail address are publicly listed there.

In my few encounters with Alan Gura, although he is certainly aware of his role in history, I have found him to be somewhat humble in public and always appreciative of fanboy-type comments. I would imagine he'd appreciate any nicely written, non-stalking sort of missive you might send. Doubt he's got time to respond, though.

Spaceghost
01-11-2013, 10:22 AM
Best news I have heard in a while!

Mitch
01-11-2013, 12:06 PM
I fear that cert will be granted, and the Court rules 5-4 (or even 6-3, given Scalia's rotten dicta in Heller) that the Second Amendment does not require the states to provide for some manner of public carry.

The upside is a SCOTUS decision affirming a right to public carry in every state in the union.

The downside is Gura loses and that small handful of states that don't have a non-discretionary path to public carry still won't. In other words, a loss doesn't change anything on the ground.

Aside from the cost in time, I don't see the problem here.

CCWFacts
01-11-2013, 12:41 PM
I agree with KC's analysis. He's right on.

This is a fight that must be fought no matter the odds and no matter the expected outcome.

Yes.

I expect that Heller/McDonald won't last 20 years if the balance on the Supreme Court shifts significantly.

Yes, and I expect the balance to shift permanently. We will never again have a conservative majority on the court within our lifetimes. America has gone from being a Northern European nation that values individual rights and personal responsibility to being a collectivist multi-cultural place with Third World values that emphasizes redistribution of wealth, reliance on big government, and fairness of outcome, all at the expense of individual rights. You can't hand out tens of millions of citizenships to people who have no concept of individual rights without that having some deep impact on the country.

But even if that is the case, it is no reason to do anything less than what we can do now.

Right.

But there is no chance of getting the right to carry in public in places such as California if we do not win such a carry case at the Supreme Court.

So gaming theory alone says we should push forward here.

My feelings exactly.

Sgt Raven
01-11-2013, 2:16 PM
At this point in history, I would rather have an adverse ruling than no ruling.

We can respond to an adverse ruling in orderly, measured way. Continuing with no ruling risks frustrations boiling over into chaos or even violence. No ruling would also force people like me to eventually decide between becoming outlaws or refugees.


An adverse ruling would set the pot to boiling right now. We've seen the heat turned up and down under the pot, but never as much as a adverse ruling would do. If we did get an adverse ruling then we'd see what three quarters of the States have to say on the matter. :oji:

press1280
01-11-2013, 2:45 PM
An adverse ruling would set the pot to boiling right now. We've seen the heat turned up and down under the pot, but never as much as a adverse ruling would do. If we did get an adverse ruling then we'd see what three quarters of the States have to say on the matter. :oji:

Bingo. And if some kind of AWB or other gun grab goes through, we'll see something happen.

M. D. Van Norman
01-11-2013, 2:55 PM
And that is exactly why we need polite, legalistic success now, not in a speculative future when conditions are ideal.

IVC
01-11-2013, 4:15 PM
Yes, and I expect the balance to shift permanently. We will never again have a conservative majority on the court within our lifetimes. America has gone from being a Northern European nation that values individual rights and personal responsibility to being a collectivist multi-cultural place with Third World values that emphasizes redistribution of wealth, reliance on big government, and fairness of outcome, all at the expense of individual rights. You can't hand out tens of millions of citizenships to people who have no concept of individual rights without that having some deep impact on the country.

KC is being challenged for the position of the undisputed pessimism leader. Go duke it out guys to see whose glass is less full. :).

kcbrown
01-11-2013, 5:25 PM
KC is being challenged for the position of the undisputed pessimism leader. Go duke it out guys to see whose glass is less full. :).

Well, normally I'd just say that my glass is empty and that would be the end of it (I win! Um, I mean, I lose! Er...), but that would mean that there's no place to go but up! Since that can't possibly be the case, I'll just say that my glass has one molecule (of whatever drink is most appropriate here) in it! :D

steve91104
01-11-2013, 7:15 PM
:popcorn:

hoffmang
01-11-2013, 7:37 PM
No, I am not wrong. Maybe you misunderstand my point. Public carry is indeed a new vista for the United States Supreme Court because it has never addressed the issued, except in Justice Scalia's poorly reasoned dicta in Heller.

41 states are shall issue. Excellent. That is Free America. But that does not mean five Justices on the current Court are going to rule that the Second Amendment in the federal Constitution requires the states to allow for some form of public carry.
5 justices signed on to the supposed dicta in Heller. It wasn't so unclear that Posner couldn't follow it in Moore. Yours is not a strong argument here.

-Gene

nicki
01-11-2013, 8:43 PM
[QUOTE=hoffmang;10184912]5 justices signed on to the supposed dicta in Heller. It wasn't so unclear that Posner couldn't follow it in Moore. Yours is not a strong argument here.

-Gene[/QUOTE

The fact that Obama, Biden and the Liberal media are going "rabid" pushing extreme "gun bans" after saying they support the second amendment in Heller and MacDonald means the court needs some case that they use to send a "message".

As a bonus, the Supreme Court gets to hit Bloomberg.

The Supreme court has declined to several second amendment cases so far, but for some reason I guess they like Alan Gura's work.

If Alan Gura does get cert, the only question will be will the NRA once again muscle their way into his orals?

Nicki

hoffmang
01-11-2013, 8:53 PM
[QUOTE=hoffmang;10184912]
If Alan Gura does get cert, the only question will be will the NRA once again muscle their way into his orals?

There is no opportunity for them to in Kachalsky.

-Gene

Gray Peterson
01-11-2013, 8:56 PM
5 justices signed on to the supposed dicta in Heller. It wasn't so unclear that Posner couldn't follow it in Moore. Yours is not a strong argument here.

-Gene

The fact that Obama, Biden and the Liberal media are going "rabid" pushing extreme "gun bans" after saying they support the second amendment in Heller and MacDonald means the court needs some case that they use to send a "message".

As a bonus, the Supreme Court gets to hit Bloomberg.

The Supreme court has declined to several second amendment cases so far, but for some reason I guess they like Alan Gura's work.

If Alan Gura does get cert, the only question will be will the NRA once again muscle their way into his orals?

Nicki

That's the one advantage the Kachalsky.case has against Moore.

sully007
01-11-2013, 9:31 PM
Wow, a four pete. This site is getting bad.

jpigeon
01-11-2013, 10:14 PM
I will say a prayer

Gunlawyer
01-11-2013, 10:30 PM
I agree with KC's analysis. He's right on.



Yes.



Yes, and I expect the balance to shift permanently. We will never again have a conservative majority on the court within our lifetimes. America has gone from being a Northern European nation that values individual rights and personal responsibility to being a collectivist multi-cultural place with Third World values that emphasizes redistribution of wealth, reliance on big government, and fairness of outcome, all at the expense of individual rights. You can't hand out tens of millions of citizenships to people who have no concept of individual rights without that having some deep impact on the country.



Right.



My feelings exactly.

I am not as pesamtistic as you because the framers in the utimate wisdom of checks and balances installed the fail safe doomsday provision known as an Article V Constitutional Convention whereby the states and people can retake back any and all power taken by either the President, Congress, or the Courts. Its never been used by the states to propse amendments and if groundswell happens whereby the states call for it then usually the big bad fed gov (Pres or Congress) crack onthe issue. I think a Const. Convention will probably happen in my great grandchildren's lifetime. The people will wake before their liberty is completely eroded I pray.

Gunlawyer
01-11-2013, 10:42 PM
An adverse ruling would set the pot to boiling right now. We've seen the heat turned up and down under the pot, but never as much as a adverse ruling would do. If we did get an adverse ruling then we'd see what three quarters of the States have to say on the matter. :oji:

I agree but not as clear as you think. In 2012 there are 26 states with Rep majorities, 15 states witn Dem majorities, and 8 states with split legislatures. For an Article V Convention you need 38 states so we would need 4 dem state legislatures to agree. Not sure it would happen right away but perhaps would make those Dem majorities turn red then we would have 38. Hmmmmm.

Kid Stanislaus
01-11-2013, 10:54 PM
KC is being challenged for the position of the undisputed pessimism leader. Go duke it out guys to see whose glass is less full. :).

Somewhere between being a blind pessimist and a naive fool is a middle ground with no guarantee that it'll serve you well!;)

kcbrown
01-11-2013, 11:29 PM
I am not as pesamtistic as you because the framers in the utimate wisdom of checks and balances installed the fail safe doomsday provision known as an Article V Constitutional Convention whereby the states and people can retake back any and all power taken by either the President, Congress, or the Courts. Its never been used by the states to propse amendments and if groundswell happens whereby the states call for it then usually the big bad fed gov (Pres or Congress) crack onthe issue. I think a Const. Convention will probably happen in my great grandchildren's lifetime. The people will wake before their liberty is completely eroded I pray.

The problem is that if a Constitutional Convention occurs, the resulting amendment will simply assert states rights over the entire RKBA domain, and those of us in California will therefore be screwed permanently. Just try and think of a single good reason the states wouldn't do that, particularly to attract enough votes for it. I can't.

curtisfong
01-12-2013, 12:07 AM
The problem is that if a Constitutional Convention occurs, the resulting amendment will simply assert states rights over the entire RKBA domain, and those of us in California will therefore be screwed permanently. Just try and think of a single good reason the states wouldn't do that, particularly to attract enough votes for it. I can't.

I'd argue the problem with having a constitutional convention is that we, as a nation, are provably much dumber than we were in 1787, and any changes are likely to be catastrophically stupid.

Gunlawyer
01-12-2013, 12:51 AM
I wonder if Mr. Gura will talk about tyranny with regards to the 2a in any case at SCOTUS. Probably not this case but I dont see any lawyers pounding this point much. I guess they think the court will say ohhh yea right like we have to worry about tyranny but this is the real reason behind why the founders put the 2a there IMHO.

Gunlawyer
01-12-2013, 12:54 AM
The problem is that if a Constitutional Convention occurs, the resulting amendment will simply assert states rights over the entire RKBA domain, and those of us in California will therefore be screwed permanently. Just try and think of a single good reason the states wouldn't do that, particularly to attract enough votes for it. I can't.


I think the red states would not take it away and make it a 10th amendment seperation by states issue IMHO. I think they would make it clearer.

Gunlawyer
01-12-2013, 12:57 AM
I'd argue the problem with having a constitutional convention is that we, as a nation, are provably much dumber than we were in 1787, and any changes are likely to be catastrophically stupid.


Now this is true true true and why it has never been done. Plus there is the legal issue and arguments of whether the entire constitution would be up for grabs or just a single issue or single amendment discussed. IMHO I think the entire constitution would be up for grabs and each state could propose whatever amendments/changes they wanted to make which make this very dangerous and a fail safe only IMHO when the SHTF past the point of no return.

Libertarian71
01-12-2013, 1:21 AM
5 justices signed on to the supposed dicta in Heller. It wasn't so unclear that Posner couldn't follow it in Moore. Yours is not a strong argument here.

-Gene

I am not making a legal argument. (Indeed, I have said repeatedly that, as to the merits, the Second Amendment recognizes (not "confers') a right to conceal carry. As a matter of fact, my view of the Second Amendment is more robust than most; I believe the amendment, properly understood, recognizes (not "confers") a right to keep fully automatic firearms, as those are the kinds of weapons one would bear if called into militia service). Rather, I am handicapping the outcome.

I am skeptical that Chief Justice Roberts (and maybe even Justice Scalia) is on our side regarding this issue. Chief Justice Roberts is sensitive to Establishment opinion and Establishment criticism, and the Establishment in the media will portray the pro-gun rights side as advocating an "extreme" "Wild West" view of the Second Amendment. Linda Greenhouse and Nina Totenberg will be appalled.

Chief Justice Roberts is Harvard Law, the Solicitor General's Office, Hogan Hartson, and the Affordable Care Act. He is not a libertarian. He is not a "gun guy." He probably thinks an AR-15 is an "assault rifle." He is not Stephen Halbrook. He is not David Hardy. He is not Dave Kopel. And he is not Clarence Thomas, who does not care what the Establishment Media writes about him.

As for Judge Posner, I am from Chicago, and am very familiar with him. I admit I was surprised by his opinion in Moore. Following Heller, Posner wrote a scathing attack on Justice Scalia in The New Republic. Anyway, I was pleased with the outcome. Let's hope the Seventh Circuit declines en banc review, and that the decision stands on the books.

And again, what it troubling with Scalia's dicta in Heller was his casual reference to 19th century restrictions on conceal carry: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008). Of course, what Scalia fails to comprehend is that in the 19th Century, open carry was far more socially acceptable, and conceal carry was considered underhanded. This basic oversight in the needless dicta suggests that Justice Scalia does not "get it" either.

In any event 41 states, I believe, have some variant of nondiscretionary conceal carry. Why risk a holding from the Supreme Court that the Second Amendment does not compel shall issue public carry? Do you not acknowledge the risk? Are you really prepared for a ruling from the Supreme Court placing a limit on the Second Amendment? Why cement in stone such a limit? If cert is granted, and we lose, we will have to endure twenty years of the refrain "not even the Second Amendment recognizes a right to carry a concealed firearm in public." Why are you so sure that Chief Justice Roberts and Scalia are on board?

Gray Peterson
01-12-2013, 5:23 AM
I am skeptical that Chief Justice Roberts (and maybe even Justice Scalia) is on our side regarding this issue. Chief Justice Roberts is sensitive to Establishment opinion and Establishment criticism, and the Establishment in the media will portray the pro-gun rights side as advocating an "extreme" "Wild West" view of the Second Amendment. Linda Greenhouse and Nina Totenberg will be appalled.

Except "Wild West" was about the open carrying of handguns, as concealed carry was not allowed. See the extreme fear that open carrying of handguns bring within California, which triggered a legislative response on both UOC & LGUOC being banned. Unfortunately, due to the current state of the "bear" in constitutional law, there is a lag time in getting the state's choice method of carry, concealed, to a constitutional standard, which is being addressed in the 9th with Richards.

Chief Justice Roberts is Harvard Law, the Solicitor General's Office, Hogan Hartson, and the Affordable Care Act. He is not a libertarian. He is not a "gun guy." He probably thinks an AR-15 is an "assault rifle." He is not Stephen Halbrook. He is not David Hardy. He is not Dave Kopel. And he is not Clarence Thomas, who does not care what the Establishment Media writes about him.

The entire focus of the current political situation currently with the massacres has been not with carry licenses or general carry, at all. No "blue state" that currently has a shall-issue carry law is even remotely considering going back to may-issue scheme. At all.

As for Judge Posner, I am from Chicago, and am very familiar with him. I admit I was surprised by his opinion in Moore.


He can write all of the scathing attacks he wants on the Heller decision and what's wrong with it, but the fact that he understands his place in the judicial totem pole speaks to an honest determination of him. I'm glad for that. I just wish his counterparts in the 1st & 2nd circuits followed suit.

The problem with Posner's opinion is that, towards the end, he subtly alters the actual holding in Heller and McDonald, which was that the Second Amendment protects the right to keep a handgun in the home for self-defense. See District of Columbia v. Heller, 128 S. Ct. 2783, 27821-22 (2008) (holding "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") (emphasis added); and McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (stating "In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. . . . We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller").

Judge Posner, however, in Moore, casts the holdings in Heller and McDonald as broader than they were when he states "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside." But the holdings in Heller and McDonald were not that the Second Amendment protects a right to bear arms for self-defense; the holdings were narrower, namely, that the Second Amendment, at minimum, protects the right to keep arms in the home for self-defense.
[quote]Moore, of course, is consistent with Heller and ]McDonald; but Moore is not compelled by Heller and McDonald. (To be sure, earlier in the decision, Judge Posner correctly describes the holding in Heller; but his later description of the holdings is sloppy.)

You see, this is where we greatly disagree. The definition of "bear" was borrowed from Judge Ginsberg's decision in Muscarello v. United States (http://en.wikipedia.org/wiki/Muscarello_v._United_States).

You unnecessarily narrow the Heller decision much like the Kachalsky panel did in the 2nd circuit, essentially adopting the Breyer dissent's holding as the binding on the court (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2050420).

And again, what it troubling with Scalia's dicta in Heller was his casual reference to 19th century restrictions on conceal carry: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." Heller, 128 S. Ct. 2816. Of course, what Scalia fails to comprehend is that in the 19th Century, open carry was far more socially acceptable, and conceal carry was considered underhanded. This basic oversight in the needless dicta suggests that Justice Scalia does not "get it" either.

Scalia had to get the basics of "bear" down because DC kept saying "bear arms" had some axiomatic military meaning. "To bear means to carry, on the person, or in the coat or pocket".

In any event 41 states, I believe, have some variant of shall-issue conceal carry. Why risk a holding from the Supreme Court that the Second Amendment does not compel shall issue public carry? Do you not acknowledge the risk? Are you really prepared for a ruling from the Supreme Court placing a limit on the Second Amendment?

There is no such thing is unlimited rights. If your understanding of the Second Amendment is informed by such a misunderstanding, then it's not surprising that you seem to fear a loss.

We have 100 million people in few high population states, with anywhere from 4% to 8% of them likely to get a carry license if they are told it is available. The horrors of lack of carry in these states are palpable. Allowing them to suffer without a chance to redress their injury is BS.

The risk of a loss is minimal, and even if a loss did occur, the states would not suddenly be compelled to adopt a may-issue law. The gun owners who want to carry in hopelessly anti-gun states will simply leave the state, causing more sifting in the population of surrounding pro-gun states.

If cert is granted, and we lose, we will have to endure at least one generation of handgun control advocates claiming that "not even the Second Amendment recognizes a right to carry a concealed firearm in public."

You see, you're arguing basically the same thing as the folks who keep saying "open carry is the right to bear, not concealed".

New York State, in 1963, banned the open carrying of licensed pistols outside of the home by what are called "Subsection F" pistol license holders. PL 400.00(f) licenses allowed one to have (home/keep) and carry concealed outside of the home. PL265 required one to have a home pistol license to possess in the home, but did not restrict open carry to allow such transport until '63 when PL265 was amended to ban carry generally rather than just concealed carry. Perhaps the NY Legislature didn't want people open carrying pistols in NYC midtown causing a scare (at that time, premise licenses were actually may-issue, it wasn't until the mid-1970's that it was re-codified to a generally shall-issue with a good moral character requirement, per Professor Kates)

The right we're asking here is not the "right to carry a concealed firearm in public". It is a "right to carry the quissential self defense weapon" in public.

The way it's being asked in Kachalsky (in questions presented) is in that fashion, and understands the modern context of issues with open carrying versus concealed carry. Time, place, manner.

State can choose manner, and there will likely be an oscillation between them. For example, last year Oklahoma changed their law from an concealed carry license (open carry was banned) to a carry license law. Texas, Florida, and South Carolina will likely follow suit. Arkansas would likely do it after a positive carry decision or a new Governor (who threatened to veto it).

I note that in your concerns, you keep switching back & forth between "Why risk a holding from the Supreme Court that the Second Amendment does not compel shall issue public carry?" and ""not even the Second Amendment recognizes a right to carry a concealed firearm in public."" Which is it? Is it "public carry of a handgun" or is it "concealed firearm"?

Why are you so sure that Chief Justice Roberts and Scalia are on board?

Better to find out the question now with a clean plaintiff, with a moderate question of whether or not one can carry, subject to "manner of carry" restrictions, than wait for United States v. Bank Robber to come to a court with a changed composition and a willingness to use such criminal defense case to point out why Heller supposedly "endangered the population for too long with frivolous lawsuits", causing an overturn.

If carry is tossed, then other lawsuits involving fees & unusually strict home licensing would probably not work out too well either, because it would be an indicator of a lack of faithfulness to the right.

See more here: Second Amendment Suicide (http://www.nramemberscouncils.com/kates/) by Professor Don Kates.

We must proceed. We have no choice, and the time for the discussion of whether or not we should proceed with asking the court to review is over, now that the petition has been filed.

Mulay El Raisuli
01-12-2013, 8:16 AM
The two questions posed on page 2 of the petition are inevitible at this point of the Second's legal path.

Do you want these questions answered with a case constructed in the best manner possible by the nation's leading Second Amendment SCOTUS advocate, under conditions of their choosing, or do you want it done by some public defender representing a criminal type a la Miller?


Correction here. Miller didn't even have a Public Defender. There was NO opposition to the US Attorney. At all.


At this point in history, I would rather have an adverse ruling than no ruling.

We can respond to an adverse ruling in orderly, measured way. Continuing with no ruling risks frustrations boiling over into chaos or even violence. No ruling would also force people like me to eventually decide between becoming outlaws or refugees.


Called Constitutional Convention II.

Which, disagreeing with Gunlawyer (I don't think it will take that long for a Convention if we lose Kachalsky), & with curtisfong (I don't think that the majority of people are that dumb), & with kcbrown ("...or we hang seperately" still works for a lot of people), I think would be a good thing. They The People of Louisiana just voted for a dandy RKBA Amendment to their Constitution. I see no reason why We The People couldn't achieve the same thing.


As for Judge Posner, I am from Chicago, and am very familiar with him. I admit I was surprised by his opinion in Moore. Following Heller, Posner wrote a scathing attack on Justice Scalia in The New Republic. Anyway, I was pleased with the outcome. Let's hope the Seventh Circuit declines en banc review, and that the decision stands on the books.


I agree with Gray Peterson; While Posner may not like his place on the judicial totem pole, he accepts it.


And again, what it troubling with Scalia's dicta in Heller was his casual reference to 19th century restrictions on conceal carry: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008). Of course, what Scalia fails to comprehend is that in the 19th Century, open carry was far more socially acceptable, and conceal carry was considered underhanded. This basic oversight in the needless dicta suggests that Justice Scalia does not "get it" either.


It isn't an oversight. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad" - Heller. Which is why I think that LOC will wind up being the Protected Right.


In any event 41 states, I believe, have some variant of nondiscretionary conceal carry. Why risk a holding from the Supreme Court that the Second Amendment does not compel shall issue public carry? Do you not acknowledge the risk? Are you really prepared for a ruling from the Supreme Court placing a limit on the Second Amendment? Why cement in stone such a limit? If cert is granted, and we lose, we will have to endure twenty years of the refrain "not even the Second Amendment recognizes a right to carry a concealed firearm in public." Why are you so sure that Chief Justice Roberts and Scalia are on board?


Because NOW is when we have a world class litigator. NOW is when the groundwork is favorable. NOW is when enough of WE The People are thinking about the subject & so are prepared (or preparing) to act if we lose this case.


The Raisuli

Dantedamean
01-12-2013, 8:30 AM
Any word on when/if SCOTUS will hear this?

NoNOS67
01-12-2013, 9:09 AM
Any word on when/if SCOTUS will hear this?

:twoweeks:

CCWFacts
01-12-2013, 9:38 AM
KC is being challenged for the position of the undisputed pessimism leader. Go duke it out guys to see whose glass is less full. :).

I'll win!

The demographic trends which have made California into a permanent one-party state are playing out in the rest of the US. In particular, Florida and Texas. Already there is no path to victory for a Republican that doesn't include winning Florida, and Florida is almost unwinnable now. Texas is likely to be a swing state as early as 2016. Once that happens, the Republican party is as relevant as the Whig party. Remember them? Remember President Henry Clay? No, neither do I.

Hispanics vote about 70% Democratic, and that stance is unwaivering, even for second and third generation Hispanics. No Republican outreach has ever changed that number. The only Hispanics who have ever reliabily voted Republican were the first wave of Cuban immigrants, who were the white professional class fleeing from Socialist Cuba. That wave is over. We do not have white Hispanic professionals, who might be persuaded to vote Republican, sneaking across our border.

Hispanic voters don't get more conservative as they get established here. It's the opposite in fact. Second and third generation Hispanics become more liberal, and are more likely to view themselves as victims of discrimination, than are first generation Hispanic immigrants. Obama is about to issue 10,000,000+ citizenships for Hispanics. Consider these, along with their higher birth rate, family reunification, and political power to make immigration even easier, and we will soon have millions more Hispanic voters (Democrats) in swing states. Add 500,000 Hispanics to Florida and then what? How can Republicans win in that landscape? Every effort to win Hispanic voters has failed, as has every effort to reach black voters.

Also add in some unknown but large number of new black citizens from Africa and the Caribbean, who will vote about 98% Democratic.

There is only one way that Republicans can ever win again, and that one way is something the Republicans do not want to even consider at this point, and may not realize until it's too late to matter. It is to openly embrace their identity as the party of whites. The only people who vote Republican are white, and yet the GOP is vigorously trying to brand itself as anything but the white party (http://www.politico.com/news/stories/1112/83446.html). This is why millions of white voters stayed home (http://www.dickmorris.com/whites-stayed-home-and-re-elected-obama/) in Ohio, etc, costing Romney the election. The GOP leadership would need a big change of mindset to start openly working for white issues, such as a stiff anti-immigration stance and open opposition to affirmative action. I don't see the GOP doing any of these things. If they don't (and I don't expect them to), they are doomed, and Bush Jr will be the last Republican president in any of our lifetimes, just like Schwarzenegger was the last Republican governor of California in any of our lifetimes.

Our conservative justices can't live forever. The Republican electoral strategy in 2012 (desperate, hopeless attempts to get non-whites to vote Republican, or, failing that, get non-whites to stay home (http://www.cnn.com/2012/11/09/opinion/martin-black-vote/index.html)) isn't going to work any better in 2016.

Am I winning the pessimism prize?

IVC
01-12-2013, 11:00 AM
I wonder if Mr. Guru will talk about...

You can call him either "guru" or "Mr. Gura," but "Mr. Guru" is a bit over the top...

IVC
01-12-2013, 11:02 AM
Am I winning the pessimism prize?

Among other much less prestigious awards you get for that post... :)

kcbrown
01-12-2013, 12:47 PM
I think the red states would not take it away and make it a 10th amendment seperation by states issue IMHO. I think they would make it clearer.

You're failing to answer the fundamental question: why should they merely clarify the 2nd Amendment, when the Constitutional Convention gives them the authority to wrest full control over the entire domain covered by the right from the federal government?

Indeed, I fully agree with you on the danger of large swaths of the Constitution being rewritten by such a Convention, because the states will see the Convention as a major opportunity for such after having suffered abuse after abuse at the hands of the federal government. That is a possibility I'd considered, but I intentionally limited my comments to the 2nd Amendment context. Taking full control of RKBA is but one of the changes the states would make in such a Convention.


In any case, my point stands: in the aftermath of a Constitutional Convention, residents of California will continue to lack the right to keep and bear arms. There is no way the states will force themselves to adhere to the right, not when they can actually declare power over it.

kcbrown
01-12-2013, 12:55 PM
Called Constitutional Convention II.

Which, disagreeing with Gunlawyer (I don't think it will take that long for a Convention if we lose Kachalsky), & with curtisfong (I don't think that the majority of people are that dumb), & with kcbrown ("...or we hang seperately" still works for a lot of people), I think would be a good thing. They The People of Louisiana just voted for a dandy RKBA Amendment to their Constitution. I see no reason why We The People couldn't achieve the same thing.


You are confused.

In Louisiana, the people took control of the situation directly.

In a Constitutional Convention, the state legislatures will be taking control of the situation.

That is a major difference, one that you are failing to account for. It is because of that difference that I claim that the states will wrest control of the RKBA domain for themselves in the event of a Constitutional Convention (indeed, as Gunlawyer so correctly observes, they're likely to change much more than that).


There is no incentive for the states to merely clarify the 2nd Amendment when they have the opportunity to seize control over the entire domain of the right to keep and bear arms.

kcbrown
01-12-2013, 1:24 PM
Am I winning the pessimism prize?

No. We're neck and neck. :D

I disagree with your assessment of where the Republican party needs to go, but I fully agree with your assessment of where it's headed. Like I said, it's self-destructing before our very eyes, and I don't think the neocons and ultra-religious are going to willingly cede the party to other, more liberty-minded people who could save the party.

Libertarian71
01-12-2013, 2:14 PM
Except "Wild West" was about the open carrying of handguns, as concealed carry was not allowed.

I do not disagree with you. Rather, I am merely explaining how the issue will be framed by the media.

No "blue state" that currently has a shall-issue carry law is even remotely considering going back to may-issue scheme. At all.

Great. I agree with you. Why then risk an adverse ruling in the Supreme Court narrowing the right as a matter of constitutional law?

There is no such thing is unlimited rights. If your understanding of the Second Amendment is informed by such a misunderstanding, then it's not surprising that you seem to fear a loss.

When did I say that the Second Amendment recognizes an unlimited right? Of course, rights are not absolute. The First Amendment is not absolute: defamation, libel, slander are not protected by the amendment, and commercial speech receives less protection than political speech. But again, why invite as ruling from the Supreme Court where there is a substantial risk that the Court will unduly limit the scope of the right recognized (not "conferred") by the Second Amendment, particularly when, as a matter of custom and practice, 41 of 50 states already have nondiscretionary conceal carry licensing?

You see, you're arguing basically the same thing as the folks who keep saying "open carry is the right to bear, not concealed".


There you go again. No I am not. If you would read my posts, I have said repeatedly that I agree, on the merits, that the Second Amendment recognizes a right to conceal carry. When you pick an argument, it's best to find an area where there's actually disagreement with your interlocutor.

I note that in your concerns, you keep switching back & forth between "Why risk a holding from the Supreme Court that the Second Amendment does not compel shall issue public carry?" and ""not even the Second Amendment recognizes a right to carry a concealed firearm in public."" Which is it? Is it "public carry of a handgun" or is it "concealed firearm"?

Regarding the bolded portion, I never said that. You fabricated that quote. I had asked you previously to stop misquoting me.

One more time: I agree with the merits of the Second Amendment Foundation's petition for a writ of certiorari. And my understanding of the Second Amendment is more robust than most. The amendment recognizes (not "confers") a right to keep arms in the home for self-defense and anti-tyranny purposes, and to bear them, in some fashion, in the public, whether it be conceal carry, open carry, or both. And as I have stated, supra, the amendment covers fully automatic weapons, such as M16s or AK-47s, as those are the kinds of weapons one would use if called into milita service to repel an invasion, put down an insurrection, or resist the government if it became usurpatious. (True, in fully automatic mode, M16s and AK-47s are not available to the general public; but i do not think a constitutional right is limited merely because the government has unduly restricted certain categories of weapons.)

And again, one more time, the rights I describe above exist with or without the Second Amendment, and with or without the Constitution. Out rights pre-exist government; the only legitimate purpose of government is to secure them. But the problem with government, and with constitutions, is that our rights are gradually eroded over time by predatory politicians, and lawyers (I am a lawyer, don't hold it against me) and judges under the guise of "interpretation."

My objection to the SAF's strategy in petitioning for a writ of certiorari is that there there is a substantial risk that there are not five votes on the Supreme Court for the proposition that the Second Amendment protects the right to public carry. Nothing you have written convinces me that either Chief Justice or Justice Scalia are on board. And if we get an adverse ruling, it could have horrendous, long-term consequences. The public will be force-fed the fallacious notion that the Second Amendment does not embrace conceal carry. 41 states have nondiscretionary conceal carry. Let's not do anything to impede the progress we have already made.

We must proceed. We have no choice, and the time for the discussion of whether or not we should proceed with asking the court to review is over, now that the petition has been filed.

The question is not over if the Court declines to issue a writ of certiorari. True, there is a Circuit split, but it is recent and shallow, and the Court may opt to let the issue develop throughout more of the circuits.

Apocalypsenerd
01-12-2013, 4:10 PM
I'm no lawyer, but I am thinking the SCOTUS takes this case and rules on scrutiny. The cynic in me says they rule against the people in favor of nanny state safety. But of course I never thought we'd get Heller or McDonald.

kcbrown
01-12-2013, 4:14 PM
Great. I agree with you. Why then risk an adverse ruling in the Supreme Court narrowing the right as a matter of constitutional law?


Compared to the current situation, how is that a risk?

Rights which are not explicitly recognized by the involved judiciary are rights which do not exist at all as regards their effect on government restrictions.

That means that the current situation is exactly the same as the one in which the Supreme Court explicitly rules against carry in public.

Such a ruling would have no detrimental effect on states which have an RKBA clause in their constitutions, for those states would be bound by their constitutions and their state jurisprudence just as they are now.

Such a ruling would have an effect only at the federal level. It would make it possible for the federal government to enact arbitrary restrictions on public RKBA. But that is already the case now.


No, the only thing such a ruling would do is to enshrine the current state of affairs. But there is no practical difference between that and simply leaving things alone, precisely because a right must be explicitly recognized by the judiciary before it has any real effect on government infringement of it.



My objection to the SAF's strategy in petitioning for a writ of certiorari is that there there is a substantial risk that there are not five votes on the Supreme Court for the proposition that the Second Amendment protects the right to public carry. Nothing you have written convinces me that either Chief Justice or Justice Scalia are on board. And if we get an adverse ruling, it could have horrendous, long-term consequences. The public will be force-fed the fallacious notion that the Second Amendment does not embrace conceal carry. 41 states have nondiscretionary conceal carry. Let's not do anything to impede the progress we have already made.


Per the above, such a ruling would have no effect on states that already recognize the right to keep and bear arms. It would only enshrine that which already exists.

And you still haven't answered my previous question: if now is not the time, then when is? When do you foresee us ever having this chance again? If you do not have a concrete answer to that, then you are just tilting at windmills here.



The question is not over if the Court declines to issue a writ of certiorari. True, there is a Circuit split, but it is recent and shallow,


Recent, yes. But shallow? I hardly think so. This is not a split on mere minutiae in how the right is treated. This split is about as fundamental as it gets, because the split is on whether or not the 2nd Amendment applies outside the home and whether it really is a right when government officials exercise unbridled discretion in deciding whether someone may or may not partake in that right.



and the Court may opt to let the issue develop throughout more of the circuits.

It may. And if it does, there are other carry cases which are likely to need Supreme Court guidance.

Gray Peterson
01-12-2013, 4:20 PM
My objection to the SAF's strategy in petitioning for a writ of certiorari is that there there is a substantial risk that there are not five votes on the Supreme Court for the proposition that the Second Amendment protects the right to public carry. Nothing you have written convinces me that either Chief Justice or Justice Scalia are on board. And if we get an adverse ruling, it could have horrendous, long-term consequences. The public will be force-fed the fallacious notion that the Second Amendment does not embrace conceal carry. 41 states have nondiscretionary conceal carry. Let's not do anything to impede the progress we have already made.



The name of the petitioning lawyer is Alan Gura, not SAF.

There is no further development we can make on the issue of carry in the states, other than removal of places off limits and lowering fees & eliminating multiplicative processes in the states that already have carry. There will be no further states that will pass shall-issue carry, with the exception of Illinois because the demographics of that state cannot be replicated in states like New York or California or Massachusetts.

Maybe you're one of the lucky ones with a carry license in California? Most Californians would not be so lucky. If you want to change the anti-gun culture of those states. Shall-issue carry kills further gun control laws dead because the carry cultures of those states won't tolerate it, and carry license holders will greatly defend their rights more so than any other demographics.

The question is not over if the Court declines to issue a writ of certiorari. True, there is a Circuit split, but it is recent and shallow, and the Court may opt to let the issue develop throughout more of the circuits.

When McDonald was taken up, there was no circuit split at all, because Nordyke was taken en banc by July of 2009 in the 9th Circuit and the split with the 7th Circuit was eliminated. SCOTUS still took the McDonald case.

You have Mr. Gura's email address right in the Kachalsky docket. You're welcome to email him directly and persuade him otherwise. Talking to the audience like you're doing now doesn't do you any good because myself and others don't have any sort of authority to tell him otherwise.

CCWFacts
01-12-2013, 4:32 PM
Among other much less prestigious awards you get for that post... :)

Hey, I'm being very politically incorrect, but I'm going based on facts: the only group that votes Republican are whites, and that's the group the Republican party is doing nothing to reach out to, and the US demographic trend is not looking good for a declining-size white party. If we don't have the courage to look at these facts directly, we deserve what's going to happen to us. The Democrats are very consciously aware of these facts, and are gleefully using immigration to create an unassailable voter bloc. We need to think about these facts just as clearly as they do.

No. We're neck and neck. :D

Must... try... harder...

I disagree with your assessment of where the Republican party needs to go,

There is nowhere else for it to go. I wish that were not the case but it is. I wish diversity outreach efforts worked but they do not. Remember Meg Whitman? She's socially liberal (pro-choice) and non-religious. She's fluent in Spanish and even had a debate in Spanish and campaigned in Spanish. She had a well-organized and generously funded campaign. She got stomped because Hispanics don't vote Republican. I can cite a long list of other examples. Outreach doesn't work. What does work is inreach, meaning getting solid support from the one and only group that supports the Republican party. Black voters have high turnout and close to 100% voting loyalty. If the Republican party could achieve even a shade of that level of loyalty with white voters, it would crush the Democratic party in almost every state except California. Think about that. Meanwhile the outreach efforts, no matter what policy accommodations or how much money, achieve basically nothing other than getting white voters to stay home. If we don't look at these facts squarely and directly, the Republican party is doomed and will never win another national-level election. Hate the message and the messenger if you want to, I don't care, but please address the facts.

but I fully agree with your assessment of where it's headed. Like I said, it's self-destructing before our very eyes, and I don't think the neocons and ultra-religious are going to willingly cede the party to other, more liberty-minded people who could save the party.

Those groups turn me off too. I'm neither a neo-con nor a Christian. Yes the Republican party would do well be broader than those two groups. It could especially get more women by moving away from those groups. But that, by itself, will not pick up any non-white voters and won't get more whites to come out on election day and will not stop the party from self-destructing.

Look again at Meg Whitman. She's non-religious, pro-choice, and quite liberal. Did that do anything for her in California? No. But... If she had managed to capture the white vote here to the same level that Obama captured the black and Hispanic vote, she would have won California! Think about that.

kcbrown
01-12-2013, 5:42 PM
Must... try... harder...


:D



There is nowhere else for it to go. I wish that were not the case but it is. I wish diversity outreach efforts worked but they do not.


That's because you, and the Republican party, are going at the problem all wrong.

You don't win by "reaching out" to specific demographic targets. You win by differentiating yourself from your competition in a way more generally compelling and attractive than theirs. You win by being better.

People gravitate towards the Democratic party not because its message is compelling, but because there is no other reasonable alternative. That is precisely because the neocons and the ultra-religious have turned the Republican party into a party that operates on fear, not hope.




Remember Meg Whitman? She's socially liberal (pro-choice) and non-religious. She's fluent in Spanish and even had a debate in Spanish and campaigned in Spanish. She had a well-organized and generously funded campaign. She got stomped because Hispanics don't vote Republican.


She got stomped because people didn't view her as one of their own. They didn't trust her. They viewed her as being an elitist. And they were probably right to do so.

Worse, she was backed by a party that has not changed its message.


The Republican party now finds itself in the position where it will have to overcome its own reputation as well as its internal politics in order to win. It will have to overcome the fact that it has consistently lied to the people about its desire for limited government, and that it has pushed for authoritarian legislation just the same as the Democrats have. That's why I believe it is finished, and this country is now, or will soon be, a single-party nation. Its only salvation will have to come from within, from people who truly value and promote the shining beacon of liberty for all.

It's time one of the major parties steps up to the job of promoting a return to the roots of the country, to its foundation, the very thing that makes the United States unique in the world. The Republican party is in a unique position to do that. I just wish I could believe it would recognize the immense opportunity in front of it.

hoffmang
01-13-2013, 12:20 AM
Why risk a holding from the Supreme Court that the Second Amendment does not compel shall issue public carry? Do you not acknowledge the risk?

This risk is different from Heller or McDonald how exactly?

Hint: The risk you outline is lower than it was in Heller because of the extreme amount of (unnecessary) carry in Heller. Said another way, Heller did not need nearly as much about bearing arms as it presented to find that keeping arms at home couldn't be so easily infringed.

Finally, and more directly, the national trend in the states is to honor the right to bear arms. The Supreme Court is, and always has been, a follower and this is an easy trend for it to follow.

Do you really think CGF and SAF have filed 10's of cases to not squarely put carry in front of the court?

-Gene

CABilly
01-13-2013, 2:20 AM
My biggest fear would be a Sitz-like ruling in which the "minor" infringement on "bear" in the name of public safety outweighs the right.

Libertarian71
01-13-2013, 3:26 AM
This risk is different from Heller or McDonald how exactly?

Because in Heller and McDonald we were dealing with blanket bans on the mere possession of firearms in one's own home. To the general public, those kinds of ordinances seem extreme. And the ordinances directly conflicted with a growing consensus among legal scholars regarding the Second Amendment.

Remember, beginning with Don Kates' article in the Michigan Law Review in 1983, we had a generation of scholarship explaining that the Second Amendment protected an individual right to firearms ownership. The individual rights model, over time, became the standard model among legal scholars, including those on the Left, such as Sandy Levinson at Texas, Akhil Amar at Yale, and Laurence Tribe at Harvard. So for the Court to rule that the Second Amendment protected an individual right to possess a firearm in the home for self-defense purposes was, by the time of Heller, a mainstream view with the general public and in academic circles.

But conceal carry is a different terrain. Coastal elites and the Establishment media, i.e., the kind of people Chief Justice Roberts is influenced by, scoff at the concept. Maybe I am wrong. I hope I am wrong. But what gives you such confidence that Chief Justice Roberts is on our side? Anyway, we need five votes, We obtained five, and only five, in Heller and McDonald. The SAF is pushing its luck with this cert petition.

Libertarian71
01-13-2013, 3:40 AM
The name of the petitioning lawyer is Alan Gura, not SAF.

Since you are being technical about it, parties, not lawyers, are the petitioners. (Read the cover page of the petition). And the Second Amendment Foundation is one of the petitioning parties.

There is no further development we can make on the issue of carry in the states, other than removal of places off limits and lowering fees & eliminating multiplicative processes in the states that already have carry. There will be no further states that will pass shall-issue carry, with the exception of Illinois because the demographics of that state cannot be replicated in states like New York or California or Massachusetts.

But we will regress if the United States Supreme Court goes against us on this one.

Maybe you're one of the lucky ones with a carry license in California? Most Californians would not be so lucky. If you want to change the anti-gun culture of those states. Shall-issue carry kills further gun control laws dead because the carry cultures of those states won't tolerate it, and carry license holders will greatly defend their rights more so than any other demographics.

No, unfortunately. I live in Los Angeles County. California is a state run by totalitarian control freaks, and our gun rights here will further erode over time. At some point, we are going to be forced to move to a Free State for gun purposes.

You have Mr. Gura's email address right in the Kachalsky docket. You're welcome to email him directly and persuade him otherwise. Talking to the audience like you're doing now doesn't do you any good because myself and others don't have any sort of authority to tell him otherwise.

He will surely do an outstanding job. It's just getting to the five votes is what concerns me.

Gray Peterson
01-13-2013, 4:44 AM
Since you are being technical about it, parties, not lawyers, are the petitioners. (Read the cover page of the petition). And the Second Amendment Foundation is one of the petitioning parties.

Sure, but you are not talking to SAF leadership here.

But we will regress if the United States Supreme Court goes against us on this one.

Even far left liberal states like Washington state would not go to may issue. Any attempt to do this would activate the carry license holders, plus we have our state constitution which protects carry. Renouncing shall issue would be political suicide, even in blue states. They have a good gun culture there, something that doesn't exist in the remaining 8 states.

There are only two states without a state RKBA clause with shall issue: Minnesota & Iowa. The rest have state RKBA clauses.

No, unfortunately. I live in Los Angeles County. California is a state run by totalitarian control freaks, and our gun rights here will further erode over time. At some point, we are going to be forced to move to a Free State for gun purposes.

So you'd sacrifice a possibility for you to be able to carry, because you're supposedly concerned about the well being of residents of other states?

Forgive me, but that seems against human nature, especially of someone who is part of a movement that deals with self defense.

He will surely do an outstanding job. It's just getting to the five votes is what concerns me.

And saying this on this forum & continuing to argue the point will do, what, to alleviate this concern?

Mulay El Raisuli
01-13-2013, 5:15 AM
You are confused.

In Louisiana, the people took control of the situation directly.

In a Constitutional Convention, the state legislatures will be taking control of the situation.

That is a major difference, one that you are failing to account for. It is because of that difference that I claim that the states will wrest control of the RKBA domain for themselves in the event of a Constitutional Convention (indeed, as Gunlawyer so correctly observes, they're likely to change much more than that).


There is no incentive for the states to merely clarify the 2nd Amendment when they have the opportunity to seize control over the entire domain of the right to keep and bear arms.


I accounted for it. I just haven't yet given up all hope of legislatures (Conventioneers) acting in response to the Will of The People.

Also, you ignored the part about "...or we hang separately." RKBA is good for ALL of us. My belief (my hope?) is that there will be enough recognition of this at the Convention (from Red-state Conventioneers at least) so that they enshrine (again) the Right for ALL of us.


This risk is different from Heller or McDonald how exactly?

Hint: The risk you outline is lower than it was in Heller because of the extreme amount of (unnecessary) carry in Heller. Said another way, Heller did not need nearly as much about bearing arms as it presented to find that keeping arms at home couldn't be so easily infringed.

Finally, and more directly, the national trend in the states is to honor the right to bear arms. The Supreme Court is, and always has been, a follower and this is an easy trend for it to follow.

Do you really think CGF and SAF have filed 10's of cases to not squarely put carry in front of the court?

-Gene


VERY good. I like what kcbrown & Gray Peterson have to say as well.


Must... try... harder...


But don't unleash the Fist of Death! :)

On the rest, I hope that kcbrown is right in his reply. But I fear that you may be correct.

"Fear" because I don't see how that approach can do anything but lead to the "Balkanization" of this country.


The Raisuli

VAReact
01-13-2013, 5:33 AM
But conceal carry is a different terrain. Coastal elites and the Establishment media, i.e., the kind of people Chief Justice Roberts is influenced by, scoff at the concept. Maybe I am wrong. I hope I am wrong. But what gives you such confidence that Chief Justice Roberts is on our side? Anyway, we need five votes, We obtained five, and only five, in Heller and McDonald. The SAF is pushing its luck with this cert petition.
My understanding is that Heller hinted that the right cannot be outright denied, but some restrictions will be permissible, i.e. -if open carry were allowed, concealed carry would be able to be disallowed, or vice versa. Concealed carry isn't then, necessarily, the protected "right".

Hogstir
01-13-2013, 6:14 AM
My understanding is that Heller hinted that the right cannot be outright denied, but some restrictions will be permissible, i.e. -if open carry were allowed, concealed carry would be able to be disallowed, or vice versa. Concealed carry isn't then, necessarily, the protected "right".

That is my understanding as well. 2nd amendment reiterates the right to bear arms in some manner ( open or concealed ) and it is up to the state legislature to decide what manner of carry is preferred in that state. Most states seem to prefer concealed carry over open carry.

Wrangler John
01-13-2013, 7:31 AM
All speculation is guesswork, all guesswork is fantasy based on incomplete knowledge, and like divination, nothing more than fortune telling based on the arrangement of chicken entrails. It is more profitable to review the actual results of court rulings and the trends as they develop, than to become disturbed at what may or may not happen. It is concerted action and steadfast adherence to principle that will drive the result, not endless what-if's.

I recall that a few colonies of farmers turned reluctant amateur soldiers took on the most powerful military in the world, and even with battlefield loss after loss, while facing incredibly disadvantageous conditions, were able to succeed because of the staunch unyielding leadership of a novice General George Washington. Do not doubt the righteousness of your cause, or the role of providence in favoring those who champion liberty. To flag and surrender to self-doubt is to loose.

Hogstir
01-13-2013, 7:40 AM
All speculation is guesswork, all guesswork is fantasy based on incomplete knowledge, and like divination, nothing more than fortune telling based on the arrangement of chicken entrails. It is more profitable to review the actual results of court rulings and the trends as they develop, than to become disturbed at what may or may not happen. It is concerted action and steadfast adherence to principle that will drive the result, not endless what-if's.

I recall that a few colonies of farmers turned reluctant amateur soldiers took on the most powerful military in the world, and even with battlefield loss after loss, while facing incredibly disadvantageous conditions, were able to succeed because of the staunch unyielding leadership of a novice General George Washington. Do not doubt the righteousness of your cause, or the role of providence in favoring those who champion liberty. To flag and surrender to self-doubt is to loose.

As in the revolution it often becomes a war of attrition. Which side can or is willing to suffer the most losses for their cause. In the case of a future revolution how many fellow americans are the US military willing to kill will be a big factor.

CCWFacts
01-13-2013, 8:42 AM
KC, getting the Republican party back to its original focus on individual liberty is going to help not at all. Yeah, I like individual liberty, and I do not like neocons and theocrats. But from a point of view of winning, adopting a libertarian type of message won't help with the Republicans' diversity problem.

No.

The reason the Democratic party is so successful with diversity is that it is the party of free stuff and racial grievances. Nothing the Republican party will ever do will make it beat the Democratic party in those two areas, so it shouldn't even try. The core mistake they are making right now is they are trying. My core point is they should stop trying and start reaching out to the one and only group they have any success with.

This problem is an existential problem for the Republican party. They are within one or two election cycles of going extinct, as they have in California.

But I fear that you may be correct.

"Fear" because I don't see how that approach can do anything but lead to the "Balkanization" of this country.

That is exactly the direction we are heading for, and that makes me sad, but my unhappiness doesn't mean it won't happen. We're heading for a country like Brazil: violent, segregated, stratified, and an endless drain of resources spent on security and social problems. There are some very bright and successful people in Brazil but nothing they do will ever make it into a first world and safe country I want to live in.

Balkanization can also mean secession. Secession threads come up here somewhat regularly. I don't believe that states leaving the union is on the table. The only way that could happen is like what happened in the USSR: the central government ran out of money and became powerless. Whenever and wherever that happens, secession is a given. But another kind of secession is happening right now: counties, school districts, and cities are trying to separate. Read about Milton County (http://www.atlantaprogressivenews.com/interspire/news/2011/01/31/2011-to-see-another-legislative-push-for-milton-county.html) to see a real-life example of Balkanization (http://saportareport.com/blog/2012/08/fulton-county-seeking-lobbyist-for-state-capitol-likely-to-fight-proposed-milton-county/) happening right here in the US.

This is not the kind of country I want to live in, but we have to deal with the situation we have. The Republican party has to deal with the fact that it has no ability to reach black and Hispanic voters, and take that as a starting point for its strategy. This is called Mississippi-style voting, where the vote is little more than a racial headcount. Mississippi-style is a degenerate democracy but it's the only democracy we're going to have here. This realization should also lead the Republican party to a hard anti-amnesty stance, because if you had 10mil+ Hispanic voters, that is suicide for the Republican party. I fear they will not understand this until after the amnesty is done.

I want to make clear, I'm a big fan of Mexico and Mexican culture. I celebrate Cinco de Mayo quite vigorously. I speak some Spanish, have many Mexican friends. They would agree with all that I am posting in this thread...

Mitch
01-13-2013, 9:09 AM
But we will regress if the United States Supreme Court goes against us on this one.

Explain how. Please describe the scenario you envision in which many or all of the 40+ states that already have Shall Issue suddenly revert to May Issue or outright bans as a result of a loss in this case.

hoffmang
01-13-2013, 10:08 AM
But what gives you such confidence that Chief Justice Roberts is on our side? Anyway, we need five votes, We obtained five, and only five, in Heller and McDonald.

He signed on to the majority in both Heller and McDonald that talked extensively about bearing meaning to carry in public. He really cares about his legacy and this is VERY different than making the ACA revocable by a simple majority. Undermining a fundamental right that clearly includes carry (see all the carry cases in Heller) would cause him much stronger blowback than the ACA.

Finally, here is one prediction that is much stronger than yours. If we do not attempt to get these 5 to rule, we face losing one of these 5 to health issues and a democratic president in 2016.

Would you prefer that Gary Gorski lead the cert process because that is the 100% chance otherwise.

Also, why has the Supreme Court called for a response in every single criminal carry case that's come before it since McDonald? A lack of interest? Heh.

Your argument comes down to your fear and nothing more. That was the same fear before Heller.

-Gene

nicki
01-13-2013, 11:09 AM
Both rulings could have been much shorter, instead they were extensive and IMHO laced with issues to encourage the filing of narrowly tailored cases on specific issues.

The court would not have brought up the 19th century cases regarding carry and the discussion of ability to carry nor would they have even brought up the issues of sensitive zones unless they planned to deal with the carry case.

The other issue was "common arms" versus dangerous and unusual.

The New York Sullivan law is not being completed challenged, rather what is being challenged is the subjective nature and how the law is handled.

It will be interesting to see if the SCOTUS addresses the difference in how ccw permits are handled in New York State versus New York City.

Nicki

Gray Peterson
01-13-2013, 11:42 AM
Both rulings could have been much shorter, instead they were extensive and IMHO laced with issues to encourage the filing of narrowly tailored cases on specific issues.

The court would not have brought up the 19th century cases regarding carry and the discussion of ability to carry nor would they have even brought up the issues of sensitive zones unless they planned to deal with the carry case.

The other issue was "common arms" versus dangerous and unusual.

The New York Sullivan law is not being completed challenged, rather what is being challenged is the subjective nature and how the law is handled.

It will be interesting to see if the SCOTUS addresses the difference in how ccw permits are handled in New York State versus New York City.

Nicki

It doesn't have to, so it won't. The state law on good cause is the same in the entire state. There are other lawsuits addressing the time it takes & the fees that are being charged.

kcbrown
01-13-2013, 11:53 AM
KC, getting the Republican party back to its original focus on individual liberty is going to help not at all. Yeah, I like individual liberty, and I do not like neocons and theocrats. But from a point of view of winning, adopting a libertarian type of message won't help with the Republicans' diversity problem.


And what, exactly, makes you believe that? Do you believe that most people actually want more government in their lives, that they want more restrictions on what they can do? That they want to give up some of the things they enjoy doing? That the people who came here (legally or otherwise) did so because they want less liberty than what they had where they came from? Seriously?

Do you believe the spirit of the nation is now gone? Because that is precisely what you're saying here.


No, if it has gone that far then there is no point in having anything other than a single party. If it is that bad then there is no point in saving the Republican party.

Much better to take the chance on liberty and be wrong about it than to dismiss it altogether, as you're suggesting the Republican party should do here.

Libertarian71
01-13-2013, 12:29 PM
He really cares about his legacy and this is VERY different than making the ACA revocable by a simple majority. Undermining a fundamental right that clearly includes carry (see all the carry cases in Heller) would cause him much stronger blowback than the ACA.

I disagree. Chief Justice Roberts places the highest value on what he perceives as the "institutional integrity of the Court," which to him means that the rulings of the Court be in sync, to some extent, with Establishment opinion, as in the Affordable Care Act case. If he truly placed a higher value on the Constitution, he would have voted to invalidate the ACA, and not come up with a contrived argument under the taxing power to save it.

And you beg the question regarding when you claim that public carry "clearly" is a "fundamental right." I agree with you on the merits. But that plainly is not something Establishment opinion agrees with, and Chief Justice Roberts is overly sensitive to Establishment opinion.

One "conservative" way out of this for him is to reaffirm Heller and McDonald that the Second Amendment recognizes a right to keep a handgun in the home for self-defense. But that conceal carry is a matter left to the States under our federalist system. As I have pointed out Justice Scalia in dicta in Heller, when describing the "limits" to the Second Amendment, referred to 19th century state decisions outlawing conceal carry: "Like most rights, the right secured by the Second Amendment is not unlimited. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008) (emphasis added).

What is your response to that? Why are you so certain Justice Scalia is on board, given the dicta I quote above?

Finally, here is one prediction that is much stronger than yours. If we do not attempt to get these 5 to rule, we face losing one of these 5 to health issues and a democratic president in 2016.

Let's assume you are correct, and that the current court sides with us, and upholds a right to conceal carry. If there is a Democrat president in 2017, and left-wing Justices replace conservative ones, any ruling now may be overturned then, including Heller and McDonald. The Supreme Court is not bound by its prior precedents.

Would you prefer that Gary Gorski lead the cert process because that is the 100% chance otherwise.

I doubt the Court would ever grant a cert petition from Mr. Gorski, now matter how important the issue, or how deep the circuit split. And Mr. Gorski, given his disciplinary issues with the State Bar of California, likely would not be permitted to become a member of the United States Supreme Court Bar, let alone be permitted to deliver oral argument.

, why has the Supreme Court called for a response in every single criminal carry case that's come before it since McDonald? A lack of interest? Heh.

That's a good point. But it does not mean we have five votes. (The "heh" is indicative of your overconfidence. The law can be very humbling).

Your argument comes down to your fear and nothing more. That was the same fear before Heller.

No, my argument is based on reality. Yours is based on the hope that Chief Justice Roberts and Justice Scalia are on board. I have given you reasons why they may not. I hope you are right. But your overconfidence is not warranted, as I believe even Mr. Gura would agree.

Al Norris
01-13-2013, 12:36 PM
Getting back to the Kachalsky case and why it may very well succeed...

Judge Posner rightly regarded the essential rulings in both Heller and McDonald, in as much as the core of the right is self-defense. Judge Posner was also correct in holding that while the right is most acute, in the home, it is not that much less acute outside the doorstep.

The CA2 panel held that the right existed outside the home, but said the States interest in "Public Safety," allowed the State to regulate the right to such an extent as to make the protected interests of the people, a nullity.

That is the heart of the split between Moore/Shepard (CA7) and Kachalsky (CA2).

The criticism that Judge Posner heaps upon the CA2 panel was well deserved, in as much as that panel did use Justice Breyers dissent as the controlling opinion.

Is this sufficient for the Court to grant the writ and answer the prime question? "Does the Second Amendment secure a right to carry handguns for self-defense outside the home?"

The answer, I believe, relies upon two things.

Will the petition for the rehearing, en banc, be successful;
Will Judge Posner's decision be affirmed or reversed.
How will the CA4 decide in the Woolard case.

It's a gamble, admitted. Yet IF the rehearing is denied or the hearing affirms Judge Posner's decision, AND the CA4 affirms Judge Legg's decision (the odds went up for this, right after Judge Posner published his opinion), this will create a very deep split and almost guarantees that the SCOTUS will grant cert.

Scarecrow Repair
01-13-2013, 12:36 PM
And what, exactly, makes you believe that? Do you believe that most people actually want more government in their lives, that they want more restrictions on what they can do? That they want to give up some of the things they enjoy doing? That the people who came here (legally or otherwise) did so because they want less liberty than what they had where they came from? Seriously?

Do you believe the spirit of the nation is now gone? Because that is precisely what you're saying here.


No, if it has gone that far then there is no point in having anything other than a single party. If it is that bad then there is no point in saving the Republican party.

Much better to take the chance on liberty and be wrong about it than to dismiss it altogether, as you're suggesting the Republican party should do here.

The Republican party is barely hanging on because no one knows what they really stand for. The Dems are predictable: nannies with somebody else's purse.

Republicans used to be anti-communist small government. Communism went away, and the small-government creed weakened with Eisenhower (interstate highways), Nixon (War on (Some) Drugs), Reagan (first president since WW II to increase the national debt), and was blown out of the water with Bush 43.

The end result is that the Republican Party has no predictable core. When people have two choices, they are inclined to go for the known evil rather than the unknown mystery.

Look how quickly the Republicans are suddenly making noises about doing a deal on immigration, or how they caved on the fiscal cliff, getting no spending cuts and retaining 50 crony tax exemptions. Look at the clowns they have had running for President since Reagan: Dole (it was his turn) Bush II (strategery, walking into doors, reading upside down books instead of handling the 9-11 emergency), and especially this last crop -- Santorum? Huckabee? Gingrich? and a zillion other freaks.

The Republican party stands for nothing, but does provide carloads of clowns. Why do you expect people to embrace them, when the Democrats are no worse and a known quantity?

kcbrown
01-13-2013, 12:36 PM
No, my argument is based on reality.


Is that so? The reality is that we're not going to get a better shot at this, however good or bad the current composition of the Supreme Court may be, for decades, if ever.

Further, you offer no alternative at all to what is now proceeding. Again, you have steadfastly refused to answer my question of when we should be doing this if not now, and why it is somehow preferable to let the issue be decided in US v Crackhead (or some upcoming Gorski case) instead of Kachalsky v Cacace.


No, reality or not, yours is an argument for paralysis, for freezing up in the face of danger. That almost always ends badly.

kcbrown
01-13-2013, 12:42 PM
The Republican party is barely hanging on because no one knows what they really stand for. The Dems are predictable: nannies with somebody else's purse.

...

The Republican party stands for nothing, but does provide carloads of clowns. Why do you expect people to embrace them, when the Democrats are no worse and a known quantity?

This is precisely what I was alluding to previously, but you said it much better. Thank you.

Yes, that is a major problem for the Republican party. They have destroyed their credibility and built a reputation that will be exceedingly difficult for them to overcome.

But overcome it they must if they are to survive. And liberty is the path they must walk if we as a nation are to survive. For the current path leads to the death of liberty for us all.

Libertarian71
01-13-2013, 1:22 PM
Further, you offer no alternative at all to what is now proceeding. Again, you have steadfastly refused to answer my question of when we should be doing this if not now, and why it is somehow preferable to let the issue be decided in US v Crackhead (or some upcoming Gorski case) instead of Kachalsky v Cacace.

No, reality or not, yours is an argument for paralysis, for freezing up in the face of danger. That almost always ends badly.

Your metaphors are not apt. It's not a matter of being aggressive or "freezing up in the face of danger." It's having a good idea whether you have five votes, and then proceeding accordingly.

The current status quo, namely, Heller and McDonald on the books, 41 states having nondiscretionary conceal carry, and no Supreme Court decision on conceal carry, while not optimal, is preferable to having an adverse Supreme Court ruling on conceal carry. Read Justice Scalia's dicta in Heller, and the reports about how Chief Justice Roberts folded in the ACA case.

Libertarian71
01-13-2013, 1:33 PM
So you'd sacrifice a possibility for you to be able to carry, because you're supposedly concerned about the well being of residents of other states?

Forgive me, but that seems against human nature, especially of someone who is part of a movement that deals with self defense.

No. The most import concern here to me is the Constitution and the Second Amendment, not the people of other States. The people in other states who carry under a nondiscretionary conceal carry will be able to carry regardless of how the Supreme Court rules on conceal carry.

What I do not want is an adverse ruling by the Supreme Court on the issue of conceal carry. There is undue risk, given Justice Scalia's dicta in Heller, and Chief Justice Roberts' tendency to cater to Establishment opinion. An adverse ruling will cement, for a long time, an undue limit on the proper scope of the amendment. Nobody in the forum has assuaged my concerns regarding Chief Justice Roberts or Justice Scalia.

kcbrown
01-13-2013, 2:09 PM
Your metaphors are not apt. It's not a matter of being aggressive or "freezing up in the face of danger." It's having a good idea whether you have five votes, and then proceeding accordingly.


No, it is not. The danger here is the certainty that the right will remain unsecured unless action is taken, combined with the possibility of a ruling against us, based on the uncertainty presented by Roberts on this issue. You are advocating freezing up (doing nothing) in the face of that danger.



The current status quo, namely, Heller and McDonald on the books, 41 states having nondiscretionary conceal carry, and no Supreme Court decision on conceal carry, while not optimal, is preferable to having an adverse Supreme Court ruling on conceal carry. Read Justice Scalia's dicta in Heller, and the reports about how Chief Justice Roberts folded in the ACA case.

I am fully aware of the situation. But you have yet to describe how a Supreme Court ruling against carry in public would yield a situation any different from the situation as it is now. Remember: the Court would be ruling against a public RKBA interpretation of the 2nd Amendment. That interpretation would have no impact on individual states' jurisprudence regarding their own RKBA clauses in their own constitutions, since that jurisprudence has already been built up.

And once again, you have failed to address the question I have repeatedly asked of you: if not now, when? At what time in the future do you envision us ever having enough people on the Supreme Court to give us even a chance of winning a carry case there?


The bottom line is that the situation as it is now is such that we have nothing to lose by trying and everything to gain, and we have the greatest probability of succeeding that we're ever going to get within any of our lifetimes, based on the totality of the circumstances (circuit split on fundamental issues, immensely talented counsel, a greater chance of a favorable ruling than we'll ever get within our lifetimes, and a self-destructing Republican party). To do nothing at this juncture would be a failing of monumental proportions. It would have the effect of enshrining the current state of affairs, just as a ruling against us would.

Why are you arguing in favor of enshrining the current state of affairs? Why are you arguing in favor of precisely that which you state you fear?

Libertarian71
01-13-2013, 2:40 PM
No, it is not. The danger here is a ruling against us, based on the uncertainty presented by Roberts on this issue, combined with the certainty that the right will remain unsecured unless action is taken. You are advocating freezing up (doing nothing) in the face of that danger.

If the danger is an adverse ruling, then you do not invite the danger by seeking cert.

I am fully aware of the situation. But you have yet to describe how a Supreme Court ruling against carry in public would yield a situation any different from the situation as it is now.

Yes I did. Repeatedly. An adverse ruling may stay on the books for a generation, maybe longer, and would unduly delimit the scope of the Second Amendment.[/QUOTE]

Remember: the Court would be ruling against a public RKBA interpretation of the 2nd Amendment. That interpretation would have no impact on individual states' jurisprudence regarding their own RKBA clauses in their own constitutions, since that jurisprudence has already been built up.

Yes, I understand that, and said the same thing above. It is an undue limitation being placed on the federal amendment that concerns me.

And once again, you have failed to address the question I have repeatedly asked of you: if not now, when? At what time in the future do you envision us ever having enough people on the Supreme Court to give us even a chance of winning a carry case there?

No I have not. You should read my posts. I have failed to address your question. Instead, I have repeatedly answered it. And I'll do so again one more time. You pursue the issue when you are certain you have five votes on your side.

The bottom line is that the situation as it is now is such that we have nothing to lose by trying and everything to gain, and we have the greatest probability of succeeding that we're ever going to get.

Your first clause is incorrect, and your second clause is speculation, merely. Regarding your first clause, we have everything to lose with an adverse ruling. I'll say it one more time: an adverse ruling may stay on the books for a generation, maybe longer, and would unduly delimit the scope of the Second Amendment.

As for there being "the greatest probability of succeeding" now, you, and Gene Hoffman, are making a lot of assumptions. You are assuming a Republican will not be elected in 2016. If one is, and Justices Breyer and Ginsburg have not retired by then, we could pick up a seat or two on the Court. Justice Scalia may retire, too, and as I've said I have concerns about his Second Amendment jurisprudence. Chief Justice Roberts, although younger, has had health issues, too. Of course, you could be right, and a Democrat may be elected in 2016. But there is no way to know now.

In addition is does not necessarily follow that, if we have" the have the greatest probability of succeeding that we're ever going to get" that we should therfeore seek cert now. First, as I have explained above, there is no way of knowing that we currently have "the greatest probability of succeeding that we're ever going to get." That is speculation, merely.
Second, given what is at stake, if we have a so-so, maybe less, chance of succeeding now, that does't mean we should take the risk now, given the disaster that could result from an adverse ruling. The better course, in my opinion, it to wait until we have five votes.

Here's another problem with seeking cert now. What if something happens in the interim to Chief Justice Roberts, or to Justices Scalia, Kennedy, Thomas or Alito. President Obama then would nominate and the Senate will confirm someone hostile to the Second Amendment. At that point, the Court, in addition to ruling on conceal carry, may also revisit Heller and McDonald, which is its prerogative.

In any event, you have not said anything to address my concerns regarding Chief Justice Roberts and Justice Scalia.

ddestruel
01-13-2013, 3:21 PM
No. The most import concern here to me is the Constitution and the Second Amendment, not the people of other States. The people in other states who carry under a nondiscretionary conceal carry will be able to carry regardless of how the Supreme Court rules on conceal carry.

What I do not want is an adverse ruling by the Supreme Court on the issue of conceal carry. There is undue risk, given Justice Scalia's dicta in Heller, and Chief Justice Roberts' tendency to cater to Establishment opinion. An adverse ruling will cement, for a long time, an undue limit on the proper scope of the amendment. Nobody in the forum has assuaged my concerns regarding Chief Justice Roberts or Justice Scalia.



Holy smokes resolution on this is heading our with or without this case proceeding. What you are failing to acknowledge in all of your comments concerning the risks involved is that if not this case then in the next 2-3 years it will be another and it will be more than likely be a case that is argued by a less than steller attorney and a case that is not as clear cut as this one. there are a plethera of cases rapidly racing towards the court and many of them involve criminal cases or poor plaintiffs argued by attorneys whos cases and briefs have been picked apart by multiple courts as riddled with flaws and poor arguements and supporting facts.......

So doing nothing is not a choice. the real choices are

3-6 month:
1. Pursue this case since it is currently first in line
2. Maybe hope that Kachalsky v Cacace is not brought up for en banc by the 7th and is appealed to SCOTUS
within next year
3. Hope that one of Gorskis case that have been picked apart isnt appealed because he is promising to do so.


What is key in this and illinois is that the appeal is asking for clearification on the right to carry something and where that can occur, it isnt asking for concealed carry to become law of the land just that outright bans or denying a request by a lawful individual to excercize a right. my basic understanding is that a right can be regulated but not eliminated as in these two cases, heller's line about bear, to wear, carry upon ones self ....etc seems to me to be a strong indication that the court will consider ruling on the existance of these quasi outright bans and outright bans


Doing nothing isnt an option, waiting for a better opportunity with more justices on our side isnt an option as there are a barage of loose cannon cases brought on by less experienced attorneys who have not been successful with litigating the 2nd ammendment all coming to a SCOTUS near you.

So pick the poison litigation by an attorney who was has succcessfully brought 2 second ammendment civil rights cases in SCOTUS as well has a pattern of litigating in circuit courts and predicting the outcomes (wins and losses) with pretty striking accuracy or take your chances waiting hoping for a few more better court appointments, and hoping that the court does not accept one of these many other cases that WILL be brought to them by other attorneys before this presidents term is done.

Your entitled to your opinions but i will put my money on Gura's strategy and litigation ability over hoping that none of the other poor cases on their way through the system are accepted and litigated by attorneys with less success. because regardless of ideal conditions and justices we have very little time 3-4 years before this will be litigated one way or another......

The same arguements and concerns were voiced before mcdonald and before heller.......

kcbrown
01-13-2013, 3:41 PM
If the danger is an adverse ruling, then you do not invite the danger by seeking cert.


My apologies, I misstated it. See the revised version (I edited it while you were apparently crafting your response).



Yes I did. Repeatedly. An adverse ruling may stay on the books for a generation, maybe longer, and would unduly delimit the scope of the Second Amendment.

And how would that be any different from no ruling at all?




Yes, I understand that, and said the same thing above. It is an undue limitation being placed on the federal amendment that concerns me.


But you're failing to account for the fact that a right not explicitly recognized by the judiciary gives no protection from government intrusion upon the right.

There is no situational difference between a judiciary which has ruled against a right and a judiciary which is silent on it. In both cases, laws which infringe upon the right remain standing. At the federal level right now, there is no public right to keep and bear arms in practice.



No I have not. You should read my posts. I have failed to address your question. Instead, I have repeatedly answered it. And I'll do so again one more time. You pursue the issue when you are certain you have five votes on your side.


I'm not asking for the circumstances under which you would pursue the issue, I am asking when you believe those circumstances will arise.



Your first clause is incorrect, and your second clause is speculation, merely. Regarding your first clause, we have everything to lose with an adverse ruling. I'll say it one more time: an adverse ruling may stay on the books for a generation, maybe longer, and would unduly delimit the scope of the Second Amendment.


And how is that any different than the situation as it already exists?



As for there being "the greatest probability of succeeding" now, you, and Gene Hoffman, are making a lot of assumptions. You are assuming a Republican will not be elected in 2016. If one is, and Justices Breyer and Ginsburg have not retired by then, we could pick up a seat or two on the Court. Justice Scalia may retire, too, and as I've said I have concerns about his Second Amendment jurisprudence. Chief Justice Roberts, although younger, has had health issues, too. Of course, you could be right, and a Democrat may be elected in 2016. But there is no way to know now.


You must be kidding. Haven't you been watching? The Republican party is self-destructing before our very eyes. Look at the candidates they have fielded not just in the past election, but in the past two. Look at where they're heading. Look at how consistently they insist on alienating some 50% (if not more!) of the voting population based on their stance on abortion and the rights of homosexuals.

No, I flatly state here and now that the chance of winning Kachalsky is much higher than the chance that we'll see a Republican president in 2016.

But worse, even if we get a Republican president, that only helps us if one of the liberal justices retires during his term.



In addition is does not necessarily follow that, if we have" the have the greatest probability of succeeding that we're ever going to get" that we should therfeore seek cert now. First, as I have explained above, there is no way of knowing that we currently have "the greatest probability of succeeding that we're ever going to get." That is speculation, merely.


Speculation? Perhaps. But then, it is informed speculation, no less grounded than your speculation that Scalia and/or Roberts will, in effect, reverse themselves on a carry ruling.



Second, given what is at stake, if we have a so-so, maybe less, chance of succeeding now, that does't mean we should take the risk now, given the disaster that could result from an adverse ruling. The better course, in my opinion, it to wait until we have five votes.


Then when do you expect we will have those five votes? More importantly, how do you propose to prevent US v Crackhead from hitting the Supreme Court before then (or at all, really, since such a case is likely to kill the right due to the Court's desire to keep said Crackhead behind bars)? How do you propose to prevent Gorski from petitioning for cert before then?



Here's another problem with seeking cert now. What if something happens in the interim to Chief Justice Roberts, or to Justices Scalia, Kennedy, Thomas or Alito. President Obama then would nominate and the Senate will confirm someone hostile to the Second Amendment. At that point, the Court, in addition to ruling on conceal carry, may also revisit Heller and McDonald, which is its prerogative.


That is true, but it is also a somewhat low probability event: around 13 (http://www.calguns.net/calgunforum/showpost.php?p=4700466&postcount=23)%.



In any event, you have not said anything to address my concerns regarding Chief Justice Roberts and Justice Scalia.

Nor do I intend to. I agree that there is the possibility that they will reverse themselves in this case. But I regard that risk as being substantially less than the risk that we will wind up with a Democrat president in 2016.

And in any case, I compute that there is very nearly a 50% probability that we lose one of the Heller 5 in the next 4 years, based on their ages and CDC mortality data. The sooner we can get a carry case in front of them, the better, because Obama will replace a Heller 5 member with someone who is hostile to the right.


Allow me to lay out the entire situation in front of you, so that the totality of circumstances involved is clear.

Your sole objection to going forward at this point is the possibility that Scalia and/or Roberts will reverse themselves in this case. There is some chance of that happening. But arrayed against that single chance is the sum total of:


The chance of getting another Democrat president in 2016 (significantly higher than 50%, but certainly no less than 50%).
The chance that none of the liberal justices will retire even if we get a Republican president in 2016 (about 53% if we assume both Ginsburg and Breyer remain on board. This is the best possible case for your argument).
The chance of losing one of the Heller 5 within the next 4 years (nearly 50% in and of itself).
The chance of Gorski petitioning for cert in one of his cases (a near certainty. Call it 80% to err heavily in your favor).
The chance of US v Crackhead going up to SCOTUS (call it 20%, to err heavily in your favor).


Since only one of the above things has to happen for us to lose by doing nothing, the total chance of losing if we refrain from going forward with our cases now is 98%, assuming a 50% chance of getting a non-Democrat president in 2016.


Because we cannot control when US v Crackhead goes up, nor can we control when Gorski petitions for cert, we must either act now or lose our place in line. Once we lose our place in line, the game is over. In the face of that, what is your suggestion?


No, the bottom line is that the odds arrayed against us strongly favor us carrying our cases forward now while we still have the opportunity and the reasonable chance of winning. Is it possible that we'll lose? Of course. But if we don't try, then someone else will lose for us, and in the unlikely event that doesn't happen, then it's quite likely that one of the Heller 5 will be replaced with someone who is hostile to the right, and we'll be right back to the very situation we'd face if we lost Kachalsky, with lack of public RKBA enshrined at the federal level for the foreseeable future.

Since the choice is between a chance of losing and a near certainty (98% chance!) of losing, why do you insist on choosing the latter?

Libertarian71
01-13-2013, 3:43 PM
Your entitled to your opinions but i will put my money on Gura's strategy and litigation ability over hoping that none of the other poor cases on their way through the system are accepted and litigated by attorneys with less success. because regardless of ideal conditions and justices we have very little time 3-4 years before this will be litigated one way or another......

The same arguements and concerns were voiced before mcdonald and before heller.......

Let me be clear on a few things:

1. Mr Gura is definitely the attorney I want handling the case.

2. Certiorari is discretionary and rarely granted. I believe there is little chance the Supreme Court will ever grant certiorari on a petition filed by the likes of Gary Gorski. The Court would never admit him to its bar, and would never let him deliver oral argument.

3. Regarding, "The same arguments and concerns were voiced before mcdonald and before heller," yes I know. The NRA was wrong. At the time, I did not agree with the NRA. The District of Columbia blanket ban was extreme, and by the early 2000's a consensus had emerged among legal scholars, left and right, that the "collective rights" view of the Second Amendment was wrong, and that the amendment recognized an individual right to own firearms.

I do not believe there is a similar consensus among the legal community on conceal carry, although Judge Posner's opinion in Moore is encouraging.

Justice Scalia's dicta in Heller about 19th Century state court rulings upholding conceal carry bans is troubling. True, we live in a different time, and 41 states have nondiscretionary conceal carry. But Scalia is an originalist, who looks at the original public understanding of an Amendment at the time of its enactment or shortly thereafter. If, by the 19th Century, the consensus was that the Second Amendment did not protect conceal carry, this is something important to an originalist like Scalia in deciding the case. Scalia may simply say, "As late as the mid-19th Century, the Second Amendment historically has been understood to not embrace a right to conceal carry. If, in 2013, 41 States have embraced the right as a matter of state law, that is their prerogative in our federalist system. But, as an original matter, the federal amendment does not compel that result."

Libertarian71
01-13-2013, 4:04 PM
You must be kidding. Haven't you been watching? The Republican party is self-destructing before our very eyes. Look at the candidates they have fielded not just in the past election, but in the past two. Look at where they're heading. Look at how consistently they insist on alienating some 50% (if not more!) of the voting population based on their stance on abortion and the rights of homosexuals.

Look, I agree with you. I am not a Republican, not after their last president, swayed by the neoconservatives, lied us into a war, ran up the national debt, pushed for the Patriot Act, created the TSA, and bailed out the banks. I am a Constitutionalist, and a hardcore libertarian. And I am a gun guy.

But I have followed the Court for a long time, have helped out on a few merits briefs, was the principal author of one merits brief, and argued before it once. I have practiced with several lawyers who have served as law clerks on the Court. I do not think the time is ripe to press this issue. At the very least, I hope Mr. Gura and the SAF has consulted with other Supreme Court litigators, and former members of the Solicitor General's Office regarding the likely outcome of the case given the current composition of the Court.

Regarding the Republican Party, yes it is unprincipled and self-destucting, particularly after folding in the "fiscal cliff" negotiations. I hope the party breaks up, because it is nearly useless.

But that does not mean the Democrat party has a lock on the 2016 presidential election. It is far too early to tell. President Obama is a charismatic leader with a loyal following. I doubt the Democrats, even with Hillary Clinton running, can match the turnout he was able to garner. Too many things can happen between now and 2016. Remember that four years after President Nixon carried 49 states, a Democrat won the White House. And after the first Iraq War, President George H.W. Bush had an approval rating of over 90%; less than two years later, he lost re-election. And maybe in 2016, the Republicans actually will run a conservative, instead of a Ford-Dole-Bush41-McCain-Romney type from the country club wing of the party.

M. D. Van Norman
01-13-2013, 4:09 PM
There is nowhere else for [the Republican Party] to go.…

The Republican Party may die. If we are lucky, its replacement will be robustly socially libertarian and modestly fiscally conservative. Offer the people their freedom without threatening to take away all their public “benefits,” and they might just elect you.

kcbrown
01-13-2013, 4:18 PM
Look, I agree with you. I am not a Republican, not after their last president, swayed by the neoconservatives, lied us into a war, ran up the national debt, pushed for the Patriot Act, created the TSA, and bailed out the banks. I am a Constitutionalist, and a hardcore libertarian. And I am a gun guy.


Then why in the world would you believe we'll wind up with anything other than a Democrat for president in 2016??


(By the way, I'm in the process of computing the probability that one of the liberal justices will retire during the 2016-2020 time frame, under the assumption that Ginsburg has already been replaced with a white male who will be age 60 by 2016. So expect my previous message to be updated with that and a total probability of losing based on the stated and computed probabilities).

Libertarian71
01-13-2013, 4:40 PM
Then why in the world would you believe we'll wind up with anything other than a Democrat for president in 2016??

I updated my last post with an explanation.

By the way, I'm in the process of computing the probability that one of the liberal justices will retire during the 2016-2020 time frame, under the assumption that Ginsburg has already been replaced with a white male who will be age 60 by 2016. So expect my previous message to be updated with that and a total probability of losing based on the stated and computed probabilities).

LOL. You had better run it by Nate Silver first.

My thinking is that Justice Ginsburg and/or Breyer will retire before 2016, to give President Obama an opportunity to nominate a successor. But sometimes Justices can be stubborn. For example, some believed that Chief Justice Rehnquist would retire before the 2004 presidential election, to give President George W. Bush an opportunity to nominate a conservative Justice. But he remained on the Court until his death, while he was suffering from terminal thyroid cancer. Justice Sandra Day O'Connor announced her retirement before he passed away.

Gray Peterson
01-13-2013, 4:57 PM
I do not believe there is a similar consensus among the legal community on conceal carry, although Judge Posner's opinion in Moore is encouraging.

Justice Scalia's dicta in Heller about 19th Century state court rulings upholding conceal carry bans is troubling. True, we live in a different time, and 41 states have nondiscretionary conceal carry. But Scalia is an originalist, who looks at the original public understanding of an Amendment at the time of its enactment or shortly thereafter. If, by the 19th Century, the consensus was that the Second Amendment did not protect conceal carry, this is something important to an originalist like Scalia in deciding the case. Scalia may simply say, "As late as the mid-19th Century, the Second Amendment historically has been understood to not embrace a right to conceal carry. If, in 2013, 41 States have embraced the right as a matter of state law, that is their prerogative in our federalist system. But, as an original matter, the federal amendment does not compel that result."

Here we go again with the changing of the goal posts. I called you out on it once, and you seemed to ignore it, so I'll call it out again: The right we're asking for is not for concealed carry. It is about the "right to carry". The prerogative of the states in our federalist system is for them to choose which manner of carry they want us to carry. That is actually a moderate belief, considering how much open carry scares the living hell out of so called "hard blue states".

An true originalist belief would have been that based on the understandings of the right in 1791 Ohio Territorial laws, government at any level could not choose the manner.

Remember that there's also Woollard v. Sheridan in the 4th Circuit, Piszczatoski v. Filko in the 3rd circuit, which both of those states prohibits both methods of carry without a discretionary may-issue license.

kcbrown
01-13-2013, 5:06 PM
I updated my last post with an explanation.


Well, I'm being generous and am assuming a 50% chance of a non-Democrat president in 2016.

I updated my message to include the computed probability of losing a liberal justice during a 2016 non-Democrat term, as well as an overall computation of the chance of losing by doing nothing at all based on some assumptions that are very favorable to your position. And even after being as favorable to your position as is reasonably possible, I still compute a 98% chance of effectively losing RKBA (either directly or as a result of never being in a position to successfully assert it) at SCOTUS.


So the bottom line is this: the totality of the situation is stupefyingly against the proposition of doing nothing at this point. You'd have to somehow convincingly argue that it is a near certainty that one of Roberts or Scalia will rule against Kachalsky or, if cert is not granted to it, one of the upcoming Gura-led carry cases.

It is no longer about whether or not there is even a reasonable chance of losing at SCOTUS. It is now about whether or not there is a near certainty (significantly greater than 98% chance!) of losing. Good luck convincing anyone that there is.



LOL. You had better run it by Nate Silver first.

My thinking is that Justice Ginsburg and/or Breyer will retire before 2016, to give President Obama an opportunity to nominate a successor. But sometimes Justices can be stubborn. For example, some believed that Chief Justice Rehnquist would retire before the 2004 election, to give President George W. Bush an opportunity to nominate a conservative Justice. But he remained on the Court until his death, while he was suffering from terminal thyroid cancer. Justice Sandra Day O'Connor announced her retirement before he passed away.

I started by assuming that Ginsburg retires before 2016 (to be replaced by a white male who will be age 60 by 2016), but that Breyer stays on. That seemed like a reasonable approach, and yielded a 70% chance that the liberal justices would stay on during a Republican term in 2016. But I recomputed on the basis of both of them staying on, to be as favorable to your position as possible. It didn't change the probabilities much: dropped the total chance of losing by doing nothing from 99% to 98%.

Libertarian71
01-13-2013, 6:01 PM
Here we go again with the changing of the goal posts. I called you out on it once, and you seemed to ignore it, so I'll call it out again: The right we're asking for is not for concealed carry. It is about the "right to carry". The prerogative of the states in our federalist system is for them to choose which manner of carry they want us to carry. That is actually a moderate belief, considering how much open carry scares the living hell out of so called "hard blue states".

Well, there you go again. I am not "changing the goal posts." If the Court grants cert on the issue, and decides the case, it most certainly will address conceal carry, particularly since conceal carry is the predominate manner of carry in this country, where public carry is permitted.

And you are begging the question with your remark, "The prerogative of the states in our federalist system is for them to choose which manner of carry they want us to carry." Again, I agree with you on the merits, but it is not likely we have five votes on the Court for that proposition. And I agree that the proposition is a "moderate" one, but not to the Establishment. And given Scalia's method of originalist interpretation (which I do not agree with), he is just as likely to say that the proposition is not a reflection of the original understanding of the Second Amendment, given that state courts in the 19th century consistently upheld state bans on conceal carry.

Libertarian71
01-13-2013, 6:22 PM
As well as an overall computation of the chance of losing by doing nothing.

I do not accept your premise that we "lose by doing nothing." Sometimes "doing something" for the sake of "doing something" is foolish and unwise. "Doing something" is usually the Pavlovian response of the Left, any time there is a tragedy.

If we "do nothing," Heller and McDonald stay on the books, 41 states maintain a nondiscretionary conceal carry, and we permit time for a consensus to build among the legal and scholarly community that the Second Amendment recognizes a right to carry. No such consensus exists now. Gun control advocates, are not able to claim now as one of their talking points that "not even the Second Amendment protects the right to public carry."

Remember that when Don Kates penned his seminal article in 1983 in the Michigan Law Review, it took a generation of further scholarship for a consensus to emerge that the individual rights interpretation was the "standard model" of the Second Amendment. And even when that consensus emerged, Heller and McDonald were decided by only one vote.

Where we "lose" is by "doing something" where it was questionable that we had five votes to begin with. I can guarantee you that, if cert is granted, and the case proceeds to oral argument, the Establishment media will keep running stories about the Newtown, CT massacre, in an attempt to sway Chief Justice Roberts. The Establishment media will paint our position as "radical, "extreme" and "dangerous," and attempt to appeal to Chief Justice Roberts to adopt a "minimalist" decisional criteria that "leaves the issue of public carry to the States," consistent with federalism. The Establishment media will run press conferences, with family members of the victims, where they appeal to Chief Justice Roberts to make a "common sense ruling."

Like I said, if we lose this now, it will be devastating. It will turn back the clock, for at least a generation, on all of the progress we've made. I do not want a decision on the books unduly delimiting the scope of the Second Amendment. We will never hear the end of if from the gun control crowd.

kcbrown
01-13-2013, 6:32 PM
And you are begging the question with your remark, "The prerogative of the states in our federalist system is for them to choose which manner of carry they want us to carry." Again, I agree with you on the merits, but it is not likely we have five votes on the Court for that proposition.


We are not arguing in the challenge that the states have the power to choose the manner of carry, we are not disputing that they may. That may seem like a subtle difference, but it is crucial.

We do not present the question of whether or not the states may regulate the manner of carry, or whether there is a Constitutional mandate for one form over another, or anything of that sort. Quite the opposite: we avoid that question entirely.

The only question we ask as regards carry in public itself is whether or not it is Constitutionally protected.




And I agree that the proposition is a "moderate" one, but not to the Establishment. And given Scalia's method of originalist interpretation (which I do not agree with), he is just as likely to say that the proposition is not a reflection of the original understanding of the Second Amendment, given that state courts in the 19th century consistently upheld state bans on conceal carry.

He might say that. And the rest of the Supreme Court might agree with him. Since we are neither asking about that nor raising a challenge to it, the resulting ruling that only one specific form of carry (probably open) is Constitutionally-protected would still be a win.

What would be a loss is if the Court rules that carry in public is not Constitutionally protected. But based on Scalia's own dicta in Heller, wherein he talks about "sensitive places" and other things that quite clearly mean that the right extends outside the home, exactly why would you expect him to rule that carry ("bear") outside the home is not protected?

Libertarian71
01-13-2013, 6:52 PM
We are not arguing in the challenge that the states have the power to choose the manner of carry, we are not disputing that they may. That may seem like a subtle difference, but it is crucial.

We do not present the question of whether or not the states may regulate the manner of carry, or whether there is a Constitutional mandate for one form over another, or anything of that sort. Quite the opposite: we avoid that question entirely.

The only question we ask as regards carry in public itself is whether or not it is Constitutionally protected.

I do not disagree with how you frame the issue. I was responding to how Gray Peterson has framed the issue.

But based on Scalia's own dicta in Heller, wherein he talks about "sensitive places" and other things that quite clearly mean that the right extends outside the home, exactly why would you expect him to rule that carry ("bear") outside the home is not protected?

(Italics added). You shouldn't be hasty in concluding that Justice Scalia's dicta "clearly" stands for the proposition that the right to carry extends outside the home. One of the other "limits' of the Second Amendment he mentioned, in addition to carrying in "sensitive places," is conceal carry. See District Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008) (stating, in dicta, "Like most rights, the right secured by the Second Amendment is not unlimited. . . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.").

Again, to an originalist like Scalia, in deciding the scope of a right, he looks to the the original understanding of the meaning of the right at the time of its enactment, or shortly thereafter. If, in the mid-19th Century, state courts understood that the Second Amendment did not protect conceal carry, that is something of interest to Scalia in determining the original meaning of the amendment. Originalists like Scalia are loathe to divine the meaning of a right from current practices, for example, the fact that 41 states now provide for some kind of nondiscretionary conceal carry. He is just as likely to chalk that up as one of the beneficial aspects of our federal system, but not something that defines the scope of a federal constitutional right. If, at the time of the enactment of the Second Amendment, or during the adoption of the 14th Amendment, there was not a consensus that the Second Amendment protected a right to carry, Scalia may be reluctant to hold that the Second Amendment protects such a right now. He might view the public carry side as embracing "living Constitutionalism," which is his bane. That is why I am concerned about him on this issue.

kcbrown
01-13-2013, 6:54 PM
I do not accept your premise that we "lose by doing nothing."


It is not a premise, it is a conclusion. A right which is not explicitly recognized by the judiciary has no power. Failure to act now, when we have a reasonable chance of succeeding, will enshrine the current situation for roughly as long as a contrary ruling would, with only a 2% chance of that not being the case.



Sometimes "doing something" for the sake of "doing something" is foolish and unwise. "Doing something" is usually the Pavlovian response of the Left, any time there is a tragedy.


That is true, but it is not the case here. The situation itself shows otherwise. This is not merely doing something for the sake of doing it, it is doing something when the odds of success now greatly outweigh the odds of success at any other point within our lifetimes.



If we "do nothing," Heller and McDonald stay on the books,


How would that change if we fail here? Are you seriously arguing that the current composition of the court would overturn either Heller or McDonald?

No. Failure here would limit the right to the home just as it is right now in practice.



41 states maintain a nondiscretionary conceal carry,


That would remain the case even in the face of a ruling against us here, because such a ruling has no effect on state jurisprudence!



and we permit time for a consensus to build among the legal and scholarly community that the Second Amendment recognizes a right to carry. No such consensus exists now.


Is that so? Please back up this assertion with facts.



Gun control advocates, are not able to claim now as one of their talking points that "not even the Second Amendment protects the right to public carry."


And how, exactly, would refraining from pursuing a SCOTUS opinion do anything but send precisely that message, that even the proponents of the 2nd Amendment believe it doesn't secure the right to carry in public?




Where we "lose" is by "doing something" where it was questionable that we had five votes to begin with. I can guarantee you that, if cert is granted, and the case proceeds to oral argument, the Establishment media will keep running stories about the Newtown, CT massacre, in an attempt to sway Chief Justice Roberts. The Establishment media will paint our position as "radical, "extreme" and "dangerous," and attempt to appeal to Chief Justice Roberts to adopt a "minimalist" decisional criteria that "leaves the issue of public carry to the States," consistent with federalism. The Establishment media will run press conferences, with family members of the victims, where they appeal to Chief Justice Roberts to make a "common sense ruling."

Like I said, if we lose this now, it will be devastating. It will turn back the clock, for at least a generation, on all of the progress we've made. I do not want a decision on the books unduly delimiting the scope of the Second Amendment. We will never hear the end of if from the gun control crowd.

No. A ruling against us here will do nothing to the states' jurisprudence. It affects the 2nd Amendment and only the 2nd Amendment. The antis may argue that "the 2nd Amendment doesn't even protect the right to keep and bear arms in public!" but they will not be able to say the same of state RKBA provisions.

If we do nothing now, we lose the only opportunity to address this we are likely to have in our lifetimes, and the end result will be an enshrinement of no right to keep and bear arms in public, either as a result of not having at least 5 people on the court who are not hostile to the right or as a result of a much worse case going to SCOTUS either with the current court composition or with a worse composition.


Which is to say, you have utterly failed to address the argument I put forth, that any one of the events I described will kill the right for at least a generation. It is precisely for that reason that I stated that we have a 98% chance of losing RKBA in public to at least the same degree that a ruling against us would be.

There are only two ways for us to win. Either we win at SCOTUS now, or we somehow manage to get lucky and win later despite only 2% odds of that happening. You are arguing that we should pursue the latter, when the former has much better odds. Why do you continue to argue in favor of the option that is least likely to succeed?

kcbrown
01-13-2013, 7:11 PM
I do not disagree with how you frame the issue. I was responding to how Gray Peterson has framed the issue.


But how I'm framing the issue is how it's being framed for the Supreme Court.

If you don't disagree with how I'm framing it, then what exactly do you disagree with as regards the case being presented to it?



(Italics added). You shouldn't be hasty in concluding that Justice Scalia's dicta "clearly" stands for the proposition that the right to carry extends outside the home. One of the other "limits' of the Second Amendment he mentioned, in addition to carrying in "sensitive places," is conceal carry.


So what? Concealed carry is not specifically what we're pursuing here. What we're pursuing is acknowledgement of the right to bear arms in public. No more (well, except we're also asking for affirmation that government officials cannot be allowed unbridled discretion over exercise of the fundamental Constitutional right presented here), no less.



See District Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008) (stating, in dicta, "Like most rights, the right secured by the Second Amendment is not unlimited. . . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.").

Again, to an originalist like Scalia, in deciding the scope of a right, he looks to the the original understanding of the meaning of the right at the time of its enactment, or shortly thereafter. If, in the mid-19th Century, state courts understood that the Second Amendment did not protect conceal carry, that is something of interest to Scalia in determining the original meaning of the amendment. Originalists like Scalia are loathe to divine the meaning of a right from current practices, for example, the fact that 41 states now provide for some kind of nondiscretionary conceal carry. He is just as likely to chalk that up as one of the beneficial aspects of our federal system, but not something that defines the scope of a federal constitutional right. If, at the time of the enactment of the Second Amendment, or during the adoption of the 14th Amendment, there was not a consensus that the Second Amendment protected a right to carry, Scalia may be reluctant to hold that the Second Amendment protects such a right now. He might view the public carry side as embracing "living Constitutionalism," which is his bane. That is why I am concerned about him on this issue.

You're failing to address the logic of my argument. The "sensitive places" doctrine has no meaning if there exists no right to bear arms in public. For Scalia to decide that there exists no such right in public is for him to logically contradict his own dicta.

As for whether or not there was a consensus on the right to carry in public at the time of the 2nd Amendment's ratification, the very existence of "and bear" in the 2nd Amendment, combined with the definition of "bear" put forth in Heller, is all you need for that. For Scalia to argue any other way would be for him to either ignore the very existence of the 2nd Amendment or to ignore the very definition he put forth in Heller. As for the 14th Amendment, since the very purpose of that Amendment was to address the treatment of the freedmen by the southern states, most especially as regards their need to bear arms in public for their own defense, no serious treatment would conclude that carry in public wasn't understood to be covered by the 2nd Amendment at the time. See Thomas' concurrence in McDonald for a thorough treatment of that subject.

So I'm not waxing poetic when I say that Roberts and Scalia would be reversing themselves by ruling against us in this case. It is the literal truth.

Libertarian71
01-13-2013, 7:33 PM
It is not a premise, it is a conclusion.

No, it is a premise the way you presented it. You presented a range of choices. One of them is "doing nothing," which you equate with "losing." I do not accept your premise that that is one of the choices we face.

Is that so? Please back up this assertion with facts.

Show me the law review articles, please, from the left, stating that the Second Amendment recognizes a right to public carry.

A ruling against us here will do nothing to the states' jurisprudence. It affects the 2nd Amendment and only the 2nd Amendment.

Yes, that is correct. I never suggested it was not correct. But you wrenched my quote out of its context. You did not quote my full sentence. I'd rather have current scenario A (Heller and McDonald, 41 states with nondiscretionary conceal carry, and no Supreme Court ruling addressing a public carry ban) than possiblle scenario B ((Heller and McDonald, 41 states with nondiscretionary conceal carry, and a Supreme Court upholding a public carry ban). Scenario A is not optimal, but it is better than Scenario B, and I do not believe, given the current composition of the Court, that we have five votes for optimal Scenario C (Heller and McDonald, 41 states with nondiscretionary conceal carry, and a Supreme Court ruling that the Second Amendment requires some form of public carry).

Which is to say, you have utterly failed to address the argument I put forth, that any one of the events I described will kill the right for at least a generation.

No, you are the one failing to address the arguments I put forth, because you refuse to discuss or engage on how Chief Roberts or Justice Scalia will vote on public carry. And it is the strategy that you advocate that invites the risk of an adverse ruling, one that will "kill the right for at least a generation."

Look, we need five votes. If we do not have five votes there is no point pursuing the matter in the Supreme Court. To get to five votes, we need Chief Justice Roberts and Justice Scalia. Why are you so certain they are on board? Because they are Republicans? Because they voted our way in Heller and McDonald? Is that the extent of your argument?

Believe me, I hope I am wrong about this.

hoffmang
01-13-2013, 7:40 PM
And you beg the question regarding when you claim that public carry "clearly" is a "fundamental right." I agree with you on the merits. But that plainly is not something Establishment opinion agrees with, and Chief Justice Roberts is overly sensitive to Establishment opinion.

One "conservative" way out of this for him is to reaffirm Heller and McDonald that the Second Amendment recognizes a right to keep a handgun in the home for self-defense. But that conceal carry is a matter left to the States under our federalist system. As I have pointed out Justice Scalia in dicta in Heller, when describing the "limits" to the Second Amendment, referred to 19th century state decisions outlawing conceal carry: "Like most rights, the right secured by the Second Amendment is not unlimited. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008) (emphasis added).

What is your response to that? Why are you so certain Justice Scalia is on board, given the dicta I quote above?
What is the entire "sensitive places" doctrine doing in Heller signed onto be all the 5 then? Do you have any schools or government buildings in your home?


Let's assume you are correct, and that the current court sides with us, and upholds a right to conceal carry. If there is a Democrat president in 2017, and left-wing Justices replace conservative ones, any ruling now may be overturned then, including Heller and McDonald. The Supreme Court is not bound by its prior precedents. Tends to not work that way on individual rights. See e.g. Roe v. Wade. There are 5 to overturn it but...

No, my argument is based on reality. Yours is based on the hope that Chief Justice Roberts and Justice Scalia are on board. I have given you reasons why they may not. I hope you are right. But your overconfidence is not warranted, as I believe even Mr. Gura would agree.
Reality is another way to say pessimism. I say this less to anger you (though it probably wiil) but to point out to others reading your fear expressed, but your "view" of popular/establishment public opinion is strongly undermined by being a Ron Paul for president supporter. That's not mainstream and was always pointless.

Your argument remains fear that John Roberts didn't really actually agree with what he signed on to in Heller. I'm sure he read the sensitive places doctrine and Nunn v. State of Georgia.

Finally, why do you keep trying to make this about concealed carry? It's about carry of any sort - even with a license for open only.

-Gene

Libertarian71
01-13-2013, 7:48 PM
But how I'm framing the issue is how it's being framed for the Supreme Court.

If you don't disagree with how I'm framing it, then what exactly do you disagree with as regards the case being presented to it?

I disagree that we have five votes on the merits!

You are failing to address the logic of my argument. The "sensitive places" doctrine has no meaning if there exists no right to bear arms in public. For Scalia to decide that there exists no such right in public is for him to logically contradict his own dicta.

No it does not. If that is the extent of your argument, we are in trouble. For one to accept the "sensitive places" doctrine does not necessarily mean they accept a right to public carry. One could believe there is no general right to public carry, and a fortiori, reject that there is a right to carry in sensitive places.

So I'm not waxing poetic when I say that Roberts and Scalia would be reversing themselves by ruling against us in this case. It is the literal truth.

And that does not follow either. One can logically hold in cases 1 and 2 that the Second Amendment protects a right to keep firearms in the home for self-defense, but, without "reversing" themselves, hold in case 3 that the right does not extend to bearing them in public. There is no contradiction, and the three outcomes would not be in conflict. (And remember, Chief Justice Roberts is the only person around who believes the individual mandate runs afoul of the commerce power, but a valid exercise of the taxing power.)

kcbrown
01-13-2013, 8:03 PM
No, it is a premise the way you presented it. You presented a range of choices. One of them is "doing nothing," which you equate with "losing." I do not accept your premise that that is one of the choices we face.


No, I did not present "doing nothing" as merely being equivalent of losing, I showed why it is: because a right not explicitly recognized by the judiciary has no power over government intrusion upon the right. There is no practical difference between a right which has not yet been ruled to be a right and a right which has been ruled against. The effect of both is the same, and if you don't believe me, then explain all the RKBA-infringing laws on the books in California. To not do anything is to either prevent the judiciary from being given the opportunity to recognize the right (because the judiciary cannot recognize the right until it is given a case which revolves around it) or to make it possible for worse cases to force the judiciary towards a decision on it. The latter case is much more likely to yield the very decision you fear than is the case being presented to the court now. The former case has a 98% chance of yielding the same effect as an adverse decision would.



Show me the law review articles, please, from the left, stating that the Second Amendment recognizes a right to public carry.


What substantial law review from the left recognized anything other than a collectivist interpretation of the 2nd Amendment at the time of Heller and McDonald? The scholarly consensus your question implies probably didn't exist when Heller went up. Most certainly there was scholarship disputing the individual rights interpretation of the 2nd Amendment when Heller went up. That much is evident in the amicus briefs filed by the opposition, some of which were from the very scholars who adhered to the collectivist interpretation at the time.



Yes, that is correct. I never suggested it was not correct. But you wrenched my quote out of its context. You did not quote my full sentence. I'd rather have current scenario A (Heller and McDonald, 41 states with nondiscretionary conceal carry, and no Supreme Court ruling addressing a public carry ban) than possiblle scenario B ((Heller and McDonald, 41 states with nondiscretionary conceal carry, and a Supreme Court upholding a public carry ban). Scenario A is not optimal, but it is better than Scenario B,


In what way is Scenario A better than Scenario B, when the circumstances are that you're not going to get the opportunity to get to Scenario C for at least a generation? How are those two scenarios any different in substance?



and I do not believe, given the current composition of the Court, that we have five votes for optimal Scenario C (Heller and McDonald, 41 states with nondiscretionary conceal carry, and a Supreme Court ruling that the Second Amendment requires some form of public carry).


Yes, I understand this. However, you have not made a compelling argument that the chance of a loss is anything approaching 98%. You have expressed doubts, yes. You have pointed at bits and pieces of dicta that, when taken out of context, suggest that Scalia might rule against us here. There is evidence that Roberts may rule against us, especially in the face of a media blitz.

But how does that risk come anywhere close to approaching the 98% risk of doing nothing?



No, you are the one failing to address the arguments I put forth, because you refuse to discuss or engage on how Chief Roberts or Justice Scalia will vote on public carry. And it is the strategy that you advocate that invites the risk of an adverse ruling, one that will "kill the right for at least a generation."


No, I acknowledge that there is a risk. What I dispute is that the risk is anything near what the risk of enshrining the current situation is if we take no action.



Look, we need five votes. If we do not have five votes there is no point pursuing the matter in the Supreme Court. To get to five votes, we need Chief Justice Roberts and Justice Scalia. Why are you so certain they are on board? Because they are Republicans? Because they voted our way in Heller and McDonald? Is that the extent of your argument?

Believe me, I hope I am wrong about this.

No, I am not certain they are on board. But I believe the chance that they are on board to be much greater than the 2% chance we have of getting a firmer pro-RKBA majority on the Court within our lifetimes.

Libertarian71
01-13-2013, 8:08 PM
Tends to not work that way on individual rights. See e.g. Roe v. Wade. There are 5 to overturn it but...

There were never five votes to overturn Roe v. Wade. See Webster v. Reproductive Health Services and Planned Parenthood v. Casey. And the analogy to Roe is inapt. One can, as Chief Justice Roberts may do, rule that the Second Amendment protects a right to keep arms in the home for self-defense, but not carry them in public. The second ruling wouldn't necessarily "overturn" the first.

Reality is another way to say pessimism. I say this less to anger you (though it probably wiil) but to point out to others reading your fear expressed, but your "view" of popular/establishment public opinion is strongly undermined by being a Ron Paul for president supporter. That's not mainstream and was always pointless.

I do not understand your point. It's not germane to the discussion, and I never brought it up, but I never claimed that Ron Paul is reflective of Establishment opinion. Quite the contrary, Mr. Hoffman. To be be sure, I do not follow or advocate that we follow Establishment opinion. To the contrary, my view of the Second Amendment is quite robust, perhaps stronger than yours.

But that does not mean that I do not have an idea of what constitutes Establishment opinion. Establishment opinion is the New York Times, Washington Post, CNN, Linda Greenhouse, and Nina Totenberg. And I can assure you that none of the those organs, and none of those individuals, are with us on the topic of public carry. Do you really disagree with me on that? If not, then my point about Establishment opinion holds.

As for Ron Paul being "pointless," it was not him or people who think like him that have spent the last few generations running up the public debt, lying us into wars, eroding our civil liberties, and debauching our currency, Sir.

kcbrown
01-13-2013, 8:51 PM
I disagree that we have five votes on the merits!


I'm not saying that we have 5 votes on the merits for sure, only that there is a reasonable chance we do.

We may disagree on what that chance is, but as long as it's greater than 2%, gaming theory alone says we should chance an adverse ruling.



No it does not. If that is the extent of your argument, we are in trouble. For one to accept the "sensitive places" doctrine does not necessarily mean they accept a right to public carry.


Really? What's the point of calling out "sensitive places" as being unprotected when those places are a subset of the places carry in public involves? More precisely, if carry in public is not a right, then "sensitive places" are automatically covered by that. That makes calling out "sensitive places" as somehow being special redundant and pointless.

You're not going to argue something as ridiculous as some location in your home being classified a "sensitive place", are you?



And that does not follow either. One can logically hold in cases 1 and 2 that the Second Amendment protects a right to keep firearms in the home for self-defense, but, without "reversing" themselves, hold in case 3 that the right does not extend to bearing them in public.


It is not the holding that they would be reversing themselves on, it is the dicta. My apologies for using the term "reversing" in an imprecise way. I wasn't able to think of a better term for "holding a position that contradicts one's previously held position".



There is no contradiction, and the three outcomes would not be in conflict. (And remember, Chief Justice Roberts is the only person around who believes the individual mandate runs afoul of the commerce power, but a valid exercise of the taxing power.)

The outcomes themselves would not be in conflict with each other, but the holding in case 3 would contradict the reasoning stated in cases 1 and 2.

kcbrown
01-13-2013, 9:52 PM
But that does not mean that I do not have an idea of what constitutes Establishment opinion. Establishment opinion is the New York Times, Washington Post, CNN, Linda Greenhouse, and Nina Totenberg. And I can assure you that none of the those organs, and none of those individuals, are with us on the topic of public carry. Do you really disagree with me on that? If not, then my point about Establishment opinion holds.


But how does your point about establishment opinion carry any more weight with respect to this case than it did with respect to Heller? Establishment opinion of the 2nd Amendment at that time was that it is not an individual right but a collective one. And yet, Roberts ruled in favor of the individual right anyway.

If Roberts ruled in a way contrary to the establishment with respect to 2A in the home, why do you believe there is any less reason to believe he'll rule in the same way with respect to 2A in public? Do you believe he regards government power as superseding fundamental Constitutional rights? It's notable that he stretched quite a bit to uphold Obamacare, but that was a case where there wasn't a fundamental Constitutional right squarely in his path. It's one thing to stretch one government power (taxation) a bit while holding back another (commerce clause) to uphold a law that doesn't intersect with a fundamental Constitutional right. It's quite another to uphold the elimination of the core exercise (bearing arms for self-defense) of a fundamental Constitutional right in the sphere in which it can easily be argued that said right is needed the most (in public, because the need for self defense in public outweighs, in terms of likelihood, the need for it in the home by at least a 2 to 1 ratio: "About 1 in 3 violent crimes occurred in or near the victim’s own home. (http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=44)").

Gunlawyer
01-13-2013, 9:52 PM
Scalia's dicta in Heller regarding 19th century prohibitions on conceal carry is poorly reasoned, even embarrassing for someone like himself who champions an "originalist" interpretive approach. See Nelson Lund's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757

Good law review article. Thank you.
I agree that Scalia's dicta is poorly reasoned and a case may set us back. However, I do not think this is the case and it is prudent and incumbent to file for cert as this is the right time (The Justices are not getting any younger and it is probable that we may not have a conservative majority for much longer). I think it would be prudent for the legal eagles and even Mr. Gura arguing these gun cases to read this article and instead of continuing to argue for means end tests instead argue that the proper test is to compare the 2a with the 7th and if there was not a common persistent law banning (insert whatever the restriction is here) then the law is unconstitutional before we even get to means end testing. Then if we have to look at it further then strict scrutiny is the appropriate standard because as the Court has said this right is fundamental.

Gray Peterson
01-13-2013, 10:18 PM
Yes, that is correct. I never suggested it was not correct. But you wrenched my quote out of its context. You did not quote my full sentence. I'd rather have current scenario A (Heller and McDonald, 41 states with nondiscretionary conceal carry, and no Supreme Court ruling addressing a public carry ban) than possiblle scenario B ((Heller and McDonald, 41 states with nondiscretionary conceal carry, and a Supreme Court upholding a public carry ban). Scenario A is not optimal, but it is better than Scenario B, and I do not believe, given the current composition of the Court, that we have five votes for optimal Scenario C (Heller and McDonald, 41 states with nondiscretionary conceal carry, and a Supreme Court ruling that the Second Amendment requires some form of public carry).

Please advise me of which states would revert to may-issue on the basis of Scenario B. You want us to use specifics in re Roberts & Scalia, which we have, which you reject.

I want to know which states are in danger of rolling back to may-issue from shall-issue, since you're so certain of it happening.

Libertarian71
01-13-2013, 10:40 PM
But how does your point about establishment opinion carry any more weight with respect to this case than it did with respect to Heller? Establishment opinion of the 2nd Amendment at that time was that it is not an individual right but a collective one. And yet, Roberts ruled in favor of the individual right anyway.

You are mistaken. And I am surprised you are making that claim. Between Don Kates' article in the Michigan Law Review in 1983, and the time Heller was decided in 2008, the standard model of the Second Amendment emerged that is was an individual right, not a collective right.

See here: http://www.guncite.com/journals/kmich.html

And here:
http://www.uclalawreview.org/pdf/56-5-5.pdf

During the 1990's, the standard model, individual rights interpretation came to be embraced by important legal scholars on the left, including Sanford Levinson of the University of Texas Law School, Akhil Amar of Yale Law School, and Laurence Tribe of Harvard Law School. I recommend this video on the topic, which was made before Heller: http://www.veoh.com/watch/v195361278yRGxHpN

By the time Heller was decided, the standard model, individual rights interpretation was the mainstream view. Yet we still prevailed only by one vote.

I do not think there is a similar consensus among the legal cognoscenti about public carry. As I stated, Posner's decision in Moore is encouraging (and pre-Moore, Posner was no fan of the Second Amendment). (There is still a chance, however, that the Seventh Circuit rehears Moore en banc, and reverses the 2-1 panel decision.) But I have my doubts, post-Newtown (Moore was decided four days before Newtown), in this environment, that we have five votes. I hope I am wrong. God help us if I am not.

IVC
01-13-2013, 11:13 PM
You are mistaken. And I am surprised you are making that claim.

You are quoting academic research to make the point about "establishment," while at the same time (in different posts) asserting that Chief Justice Roberts would be affected by media and public pressure.

Those are quite different authorities on the subject.

wildhawker
01-13-2013, 11:43 PM
This is the silliest, most uselessly-academic thread on CGN since... the last one.

-Brandon

wildhawker
01-13-2013, 11:44 PM
This is the silliest, most uselessly-academic thread on CGN since... the last one.

-Brandon

wildhawker
01-13-2013, 11:45 PM
This went from a legitimate conversation about an active case to the silliest, most uselessly-academic thread since... the last one.

-Brandon

wildhawker
01-13-2013, 11:46 PM
This went from a legitimate conversation about an active case to the silliest, most uselessly-academic thread since... the last one.

-Brandon

kcbrown
01-13-2013, 11:57 PM
You are mistaken. And I am surprised you are making that claim.


Really? You stated that:


Establishment opinion is the New York Times, Washington Post, CNN, Linda Greenhouse, and Nina Totenberg.


When prior to Heller did those sources begin to consistently state that the 2nd Amendment protected an individual right?



Between Don Kates' article in the Michigan Law Review in 1983, and the time Heller was decided in 2008, the standard model of the Second Amendment emerged that is was an individual right, not a collective right.

See here: http://www.guncite.com/journals/kmich.html

And here:
http://www.uclalawreview.org/pdf/56-5-5.pdf

During the 1990's, the standard model, individual rights interpretation came to be embraced by important legal scholars on the left, including Sanford Levinson of the University of Texas Law School, Akhil Amar of Yale Law School, and Laurence Tribe of Harvard Law School. I recommend this video on the topic, which was made before Heller: http://www.veoh.com/watch/v195361278yRGxHpN

By the time Heller was decided, the standard model, individual rights interpretation was the mainstream view.


That may be. If so, then such a view would be the one supported by the sources you cite as "establishment opinion". And yet, even as late as May, 2007, one of the very sources you claim represents "establishment opinion" disagreed with you on this (http://www.nytimes.com/2007/05/06/us/06firearms.html?pagewanted=all):


The individual rights view is far from universally accepted.


(emphasis mine. Above was followed directly by a quote from Dennis Hennigan of the Brady Center)


and again here (http://www.nytimes.com/2007/03/09/washington/09cnd-gun.html):


Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias — in modern terms, the National Guard. But in yesterday’s decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars.


(again, emphasis mine)


Those were found within the first 3 hits in a google search for New York Times articles on the 2nd Amendment in 2007.

Hardly seems a ringing endorsement of the individual rights interpretation by the "establishment" immediately prior to Heller to me...



In any case, if you're right, then explain this amicus brief: http://www.scotusblog.com/wp-content/uploads/2008/01/07-290_amicus_historians.pdf




I do not think there is a similar consensus among the legal cognoscenti about public carry. As I stated, Posner's decision in Moore is encouraging (and pre-Moore, Posner was no fan of the Second Amendment). (There is still a chance, however, that the Seventh Circuit rehears Moore en banc, and reverses the 2-1 panel decision.) But I have my doubts, post-Newtown (Moore was decided four days before Newtown), in this environment, that we have five votes. I hope I am wrong. God help us if I am not.

I hope you are wrong as well. Believe me, I do not want this case to be ruled against any more than you do. Where we disagree is not with respect to the consequences of that, but with respect to the consequences of doing nothing. Doing nothing means we merely hope to, someday, have at least 5 known votes on the Supreme Court in our favor (since clearly, anything less than certainty on those votes does not sit well with you) and that no other, worse case makes it to SCOTUS until then. And there is a mere 25% chance of gaining such a majority during the 2016 Presidential term, and a 10% chance during the 2020 Presidential term, and that matters only if a carry case isn't granted cert at SCOTUS before then. If we fail to get a non-Democrat President by 2020, the chance of losing one of the Heller 5 (who will then be replaced by a rights-hostile judge, at which point it's game over for us) before the 2024 term is 95%.

No, when you combine everything that can end the game for us if we hold here, the end result is a near-certainty that lack of RKBA in public will be enshrined for at least the next generation, if not much longer. Since those consequences are identical in every way that matters to the consequence of losing, and the chance of winning appears to be much higher than a mere 2%, there is no other logical option but to press forward. To argue, as you have been here, that we should hold back anyway in the face of that is irrational.

Gunlawyer
01-14-2013, 12:20 AM
This went from a legitimate conversation about an active case to the silliest, most uselessly-academic thread since... the last one.

-Brandon

Im finding it highly entertaining. :D:D:D

Also I did enjoy the law review article posted by Libertarian which I hadnt seen. For that alone I say :thumbsup:

Libertarian71
01-14-2013, 12:38 AM
Please advise me of which states would revert to may-issue on the basis of Scenario B.

I never said any states would revert to may issue in Scenario B. I would expect those states to maintain nondiscretionary conceal carry.

Libertarian71
01-14-2013, 12:48 AM
You are quoting academic research to make the point about "establishment," while at the same time (in different posts) asserting that Chief Justice Roberts would be affected by media and public pressure.

Those are quite different authorities on the subject.

My point is that by the time Heller was decided, the "standard model" among constitutional scholars, including several important scholars on the Left, was that the Second Amendment protects an individual right, not a collective one.

See here, from 1995: http://www.guncite.com/journals/reycrit.html

To be sure, the Establishment media never came around to that view, but the fact that the majority of legal scholars did helped lay the groundwork for our victory in Heller.

To my knowledge, I have not seen anything close to approaching a consensus regarding public carry compared to the individual v. collective right battle, which made the question in Heller easy to decide.

And one more time, to be crystal-clear: I firmly believe that the Second Amendment recognizes a right to public carry. Public carry, in my view, is a natural right, one that pre-exists government, and exists even if the Second Amendment did not exist. But I am uneasy about pushing the issue now before the Supreme Court.

Libertarian71
01-14-2013, 12:54 AM
This went from a legitimate conversation about an active case to the silliest, most uselessly-academic thread since... the last one.

-Brandon

The main reason Heller is on the books is because useless academics, beginning in the early 80's, and continuing throughout the early 90's, did a lot of research and writing on the topic. The research and writing helped displace the view that the Second Amendment respected a "collective" right. It was all of this useless research and writing that the Heller majority relied upon to invalidate the District of Columbia and Chicago handgun bans. For more on this, I refer you to the following sources:

http://www.uclalawreview.org/pdf/56-5-5.pdf

http://www.amazon.com/Gun-Control-Trial-Supreme-Amendment/dp/1933995254/ref=tmm_hrd_title_0?ie=UTF8&qid=1358157131&sr=8-1

Sakiri
01-14-2013, 1:37 AM
Nice four post there, Brandon. WTB fix for the forums. Stat.

IVC
01-14-2013, 1:39 AM
To my knowledge, I have not seen anything close to approaching a consensus regarding public carry compared to the individual v. collective right battle, which made the question in Heller easy to decide.

I would argue there was never a consensus on collective vs. individual right. For example, ACLU to this day doesn't recognize 2A as an individual right and they say so explicitly, claiming that the SCOTUS was wrong.

I would also argue that there is much more, if not consensus then support, for public carry than what you are suggesting. The majority in Heller used the word "bizarre" to describe an attempt to interpret "keep and bear" as a single phrase that doesn't confer "bear". Then, there is the whole "sensitive places" argument which implies "carry", not to mention that there has been a keen interest from SCOTUS in any carry case thus far that reached them.

While it's possible, I wouldn't expect SCOTUS to appear eager to consider a carry case just so that they can shut the door on public carry. Realistically, the worst possible outcome would be for SCOTUS to declare that "may issue" satisfies the "bear" part of the 2A, which is a net zero for us - states that are "may issue" stay that way, states that are "shall issue" stay that way.

Now, looking at the possibility that "may issue" satisfies the "bear" aspect of 2A, the current standard of "discretion of law enforcement," "good cause," and "good moral character" are still unacceptable for a civil right. In that respect, the worst would be to get a "virtual shall issue" where the "good moral character" means "not prohibited" and "good cause" means "self defense." This would be a complete victory for our side.

voiceofreason
01-14-2013, 1:49 AM
Brandon may be correct, but the entertainment value alone is worth the price of admission.

I'm learning a lot as well from reading this thread, academic as it may be.

I <3 this thread.

Gray Peterson
01-14-2013, 4:46 AM
I never said any states would revert to may issue in Scenario B. I would expect those states to maintain nondiscretionary conceal carry.

OK, now I'm really not understanding why you fear Scenario B.

"Hidden or on the Hip" (http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Bishop-final.pdf), cited by Judge Posner, states what the field currently is.

Rationally, there are only two states that will go shall-issue beyond this current point. Illinois, which has a strong gun owner lobby that doesn't exist in the other may-issue states and Rhode Island, which has a shall-issue town permit law which is currently being litigated in state courts with writ of mandamus cases.

This is as far as we can go politically & legislatively. There is no way the 7 remaining states & jurisdictions (CA, NY, HI, MA, MD, NJ, DC) will go shall-issue, any more than the deep south would have desegregated without judicial intervention in the 1950's. What are you actually afraid of?

I went through over a decade of anti-gunners saying wrongfully that there was no individual RKBA. Many of us went through over a generation of anti-gunners taunting us. Are you afraid of merely more taunting, or is there something else? Or are you just merely afraid?

Tarn_Helm
01-14-2013, 6:02 AM
This went from a legitimate conversation about an active case to the silliest, most uselessly-academic thread since... the last one.

-Brandon

True, but for now speculate is all we can do.

Im finding it highly entertaining. . . .

Also I did enjoy the law review article posted by Libertarian which I hadnt seen. For that alone I say :thumbsup:

Ditto.

I came across that article a while back and then lost track of it.

Glad to have it back in my hot little hands.
:cool:

Also, I like Gunlawyer's observation about how comparing the 2nd and the 7th could result in obviating the means/end test.

That comparison would cut right to the chase.
:thumbsup:

I would like to hear informed reflection on precisely that point: the likelihood of, and the likelihood of the outcome of, a comparison of the 2nd and the 7th Amendments.
:toetap05:

Thank you for the debate, gentlemen.
:online2long:

Mulay El Raisuli
01-14-2013, 6:03 AM
KC, getting the Republican party back to its original focus on individual liberty is going to help not at all. Yeah, I like individual liberty, and I do not like neocons and theocrats. But from a point of view of winning, adopting a libertarian type of message won't help with the Republicans' diversity problem.

No.

The reason the Democratic party is so successful with diversity is that it is the party of free stuff and racial grievances. Nothing the Republican party will ever do will make it beat the Democratic party in those two areas, so it shouldn't even try. The core mistake they are making right now is they are trying. My core point is they should stop trying and start reaching out to the one and only group they have any success with.

This problem is an existential problem for the Republican party. They are within one or two election cycles of going extinct, as they have in California.



That is exactly the direction we are heading for, and that makes me sad, but my unhappiness doesn't mean it won't happen. We're heading for a country like Brazil: violent, segregated, stratified, and an endless drain of resources spent on security and social problems. There are some very bright and successful people in Brazil but nothing they do will ever make it into a first world and safe country I want to live in.

Balkanization can also mean secession. Secession threads come up here somewhat regularly. I don't believe that states leaving the union is on the table. The only way that could happen is like what happened in the USSR: the central government ran out of money and became powerless. Whenever and wherever that happens, secession is a given. But another kind of secession is happening right now: counties, school districts, and cities are trying to separate. Read about Milton County (http://www.atlantaprogressivenews.com/interspire/news/2011/01/31/2011-to-see-another-legislative-push-for-milton-county.html) to see a real-life example of Balkanization (http://saportareport.com/blog/2012/08/fulton-county-seeking-lobbyist-for-state-capitol-likely-to-fight-proposed-milton-county/) happening right here in the US.

This is not the kind of country I want to live in, but we have to deal with the situation we have. The Republican party has to deal with the fact that it has no ability to reach black and Hispanic voters, and take that as a starting point for its strategy. This is called Mississippi-style voting, where the vote is little more than a racial headcount. Mississippi-style is a degenerate democracy but it's the only democracy we're going to have here. This realization should also lead the Republican party to a hard anti-amnesty stance, because if you had 10mil+ Hispanic voters, that is suicide for the Republican party. I fear they will not understand this until after the amnesty is done.

I want to make clear, I'm a big fan of Mexico and Mexican culture. I celebrate Cinco de Mayo quite vigorously. I speak some Spanish, have many Mexican friends. They would agree with all that I am posting in this thread...


Oh, God, I hope you are wrong. I am somewhat optimistic though because I think you are a touch too pessimistic here. The GOP lost the Presidential race, true. But only by a little. And they kept the House. I don't know that they will 'self destruct' any time soon.


<SNIP>

Justice Scalia's dicta in Heller about 19th Century state court rulings upholding conceal carry bans is troubling. True, we live in a different time, and 41 states have nondiscretionary conceal carry. But Scalia is an originalist, who looks at the original public understanding of an Amendment at the time of its enactment or shortly thereafter. If, by the 19th Century, the consensus was that the Second Amendment did not protect conceal carry, this is something important to an originalist like Scalia in deciding the case. Scalia may simply say, "As late as the mid-19th Century, the Second Amendment historically has been understood to not embrace a right to conceal carry. If, in 2013, 41 States have embraced the right as a matter of state law, that is their prerogative in our federalist system. But, as an original matter, the federal amendment does not compel that result."


You contradict yourself here. Yes, those cases did say that carrying concealed could be banned. BUT, they also said that carrying openly (which of course occurs outside of the home) could NOT be banned. So, if Scalia does go with the "originalist" meaning, he will CERTAINLY go for "and bear" outside of the home. Which changes your speculative quote to "As late as the mid-19th Century, the Second Amendment historically has been understood to not embrace a right to conceal carry. But it did embrace a right to carry openly, which necessarily includes outside of the home." And since a permit for that open carry was not part of any state law back then, he might even go all the way & vote for permitless LOC as the Protected Right.

The thought makes me just a bit giddy.

True, that wouldn't be the concealed carry that everyone here is hot for, but it would enshrine "outside of the home" & as pointed out by a few people here, that's STILL a win.


What would be a loss is if the Court rules that carry in public is not Constitutionally protected. But based on Scalia's own dicta in Heller, wherein he talks about "sensitive places" and other things that quite clearly mean that the right extends outside the home, exactly why would you expect him to rule that carry ("bear") outside the home is not protected?


And as this is the reasoning followed by the court in Woollard, I see no reason why Scalia wouldn't follow it as well. It IS his thought, isn't it?

And may I add that your analysis of why NOW is the time to litigate this issue is completely rock solid.


The Raisuli

wildhawker
01-14-2013, 8:18 AM
Please point me to the CGN thread cited in Heller. I've read it a few times and don't recall seeing one.

-Brandon

The main reason Heller is on the books is because useless academics, beginning in the early 80's, and continuing throughout the early 90's, did a lot of research and writing on the topic. The research and writing helped displace the view that the Second Amendment respected a "collective" right. It was all of this useless research and writing that the Heller majority relied upon to invalidate the District of Columbia and Chicago handgun bans. For more on this, I refer you to the following sources:

http://www.uclalawreview.org/pdf/56-5-5.pdf

http://www.amazon.com/Gun-Control-Trial-Supreme-Amendment/dp/1933995254/ref=tmm_hrd_title_0?ie=UTF8&qid=1358157131&sr=8-1

Libertarian71
01-14-2013, 12:56 PM
Please point me to the CGN thread cited in Heller. I've read it a few times and don't recall seeing one.

-Brandon

No CGN thread. But here is some of the useless academic prattle relied upon by the the Heller majority:

p. 2789 - Volokh, The Commonplace Second Amendment, 73 N.Y.U.L.Rev. 793, 814-821 (1998).

p. 2795 - Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L.Rev. 237, 261 (2004).

p. 2800 - Volokh, "Necessary to the Security of a Free State," 83 Notre Dame L.Rev. 1, 5 (2007).

p. 2803 - Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.Rev. 204, 244 (1983).

p. 2820 - Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)

CCWFacts
01-14-2013, 1:17 PM
Oh, God, I hope you are wrong.

I also hope I'm wrong.

I am somewhat optimistic though because I think you are a touch too pessimistic here. The GOP lost the Presidential race, true. But only by a little.

They lost the presidential race in Florida, and the lost it in 2008 also. By the time 2016 comes here, how many more Hispanic voters will there be in Florida? Is there any path to victory that doesn't include winning Florida?

And if the GOP becomes unable to win the presidency, they will lose their ability to attract strong candidates and funding for the house and senate races. The US will get to the position California is in. This could happen within one or two election cycles.

Going back to the original point of this thread, I hope cert is granted because this is probably the last time in our lifetimes we will have a conservative majority on SCOTUS, unless the GOP finds a major new strategy going forward (especially the strategy I suggested). It is now or never. If the case fails, we lose nothing, because it would also fail five or ten years from now.

press1280
01-14-2013, 2:21 PM
This is my answer to the Heller 5 not ruling with us because of concealed carry:

Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons).

Total ban on public carrying struck down, and cited with approval by the court.

wildhawker
01-14-2013, 2:47 PM
A silly rebuttal and an improper analogy.

Note that those posts are, irrespective of venue, the opinions and analysis of noted Constitutional scholars.

Closer, but still not quite right, would be if the decision cited an anonymous thread commenter. It did not.

Now, are you willing to be intellectually honest and admit that this thread nearly certainly will not affect the outcome of any SCOTUS decision on e.g. Kachalsky and has become Rush Limbaugh writ large on the internet or not?

-Brandon

No CGN thread. But here is some of the useless academic prattle relied upon by the the Heller majority:

p. 2789 - Volokh, The Commonplace Second Amendment, 73 N.Y.U.L.Rev. 793, 814-821 (1998).

p. 2795 - Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L.Rev. 237, 261 (2004).

p. 2800 - Volokh, "Necessary to the Security of a Free State," 83 Notre Dame L.Rev. 1, 5 (2007).

p. 2803 - Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.Rev. 204, 244 (1983).

p. 2820 - Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)

Libertarian71
01-14-2013, 3:43 PM
A silly rebuttal and an improper analogy.

Note that those posts are, irrespective of venue, the opinions and analysis of noted Constitutional scholars.

Closer, but still not quite right, would be if the decision cited an anonymous thread commenter. It did not.

Now, are you willing to be intellectually honest and admit that this thread nearly certainly will not affect the outcome of any SCOTUS decision on e.g. Kachalsky and has become Rush Limbaugh writ large on the internet or not?

-Brandon

That's a red herring. Nobody ever claimed a calguns.net thread was cited by the Heller court. The quote of mine that you previously objected to was as follows (in response to your previous claims that this thread contains "useless" academic prattle):

The main reason Heller is on the books is because useless academics, beginning in the early 80's, and continuing throughout the early 90's, did a lot of research and writing on the topic. The research and writing helped displace the view that the Second Amendment respected a "collective" right. It was all of this useless research and writing that the Heller majority relied upon to invalidate the District of Columbia and Chicago handgun bans. For more on this, I refer you to the following sources:

http://www.uclalawreview.org/pdf/56-5-5.pdf

http://www.amazon.com/Gun-Control-Tr...8157131&sr=8-1

This is a forum where some of us in the gun rights movement come together and share ideas. Sorry if you are not interested in all the "useless" academic prattle. Keep in mind, it was the "useless" academics at the Cato Institute, Bob Levy in particular, over the objections of the NRA, who were the architects of the Heller litigation. As a matter of fact, one of the Heller plaintiffs was Tom Palmer, a Senior Fellow at the Cato Institute.

wildhawker
01-14-2013, 4:34 PM
I'm well aware of the history and I'm not at all attempting to suppress the conversation here. I'm simply saying that it's amusing going to ludicrous to think or suggest that this thread might somehow be anything more than anonymous (and some non-anonymous) commentators talking about things which are going to happen as they will (not only because it's planned, but also because the lawyers have an ethical obligation to their client). The game is set.

-Brandon

ETA: I love how you keep trying to compare CGN commentary with CATO strategizing.

Libertarian71
01-14-2013, 4:43 PM
The game is set.

Not necessarily. Cert review is discretionary by the Supreme Court. True, there is now a split among the Circuits. But the Seventh Circuit may grant en banc review and overturn the 2-1 panel decision in Moore. And even it does not, the Supreme Court may still decline review on the basis that the circuit split is recent and shallow. Whatever the case, best of luck to the petitioners.

Drivedabizness
01-14-2013, 4:58 PM
I certainly think any thread where I pontificate is easily the equivalent of Cato ;)

curtisfong
01-14-2013, 5:41 PM
For crying out loud.

Brandon/Libertarian:

You're needlessly arguing past each other, and both of you two are too ridiculously stubborn and prideful to see it.

Libertarian: Brandon was not being anti-intellectual. You're a noob here so you don't know him, and you misunderstand his posts.

Brandon: Libertarian is suggesting that reasoned, academic arguments of constitutional law are valuable. His usage of the word "useless academics" was sarcasm. Libertarian is a noob here, so you are (unfairly) assuming he's clueless.

Both of you need to get over yourselves and stop freaking out over stupid crap.

kcbrown
01-14-2013, 5:58 PM
Not necessarily. Cert review is discretionary by the Supreme Court. True, there is now a split among the Circuits. But the Seventh Circuit may grant en banc review and overturn the 2-1 panel decision in Moore. And even it does not, the Supreme Court may still decline review on the basis that the circuit split is recent and shallow. Whatever the case, best of luck to the petitioners.

I think he meant that the game is set with respect to the actions of the petitioners, both because the cert petition has already been filed and because the petitioners' counsel has an obligation to attempt to win if at all possible, which essentially obligates counsel to file said petition are willing and able to go forward with it. This is another reason the chance of a Gorski cert petition is very, very high.


Also, if this circuit split is "shallow", one wonders what a "deep" split looks like...

Libertarian71
01-14-2013, 6:50 PM
For crying out loud.

Brandon/Libertarian:

You're needlessly arguing past each other, and both of you two are too ridiculously stubborn and prideful to see it.

You are correct, Curtis. Guilty as charged. Thanks for the reality check. At the end of the day, we are all on the same side. I really hope Alan Gura prevails here.

Libertarian71
01-14-2013, 6:57 PM
I think he meant that the game is set with respect to the actions of the petitioners, both because the cert petition has already been filed and because the petitioners' counsel has an obligation to attempt to win if at all possible, which essentially obligates counsel to file said petition are willing and able to go forward with it. This is another reason the chance of a Gorski cert petition is very, very high.

Also, if this circuit split is "shallow", one wonders what a "deep" split looks like...

About 99% of cert petitions are rejected. But because it's Alan Gura filing the petition, and because there currently is a circuit split, albeit shallow, you are correct the chances are pretty good cert will be granted. (By way of aside, anytime the Solicitor General's Office petitions for certiorari on behalf of the government, the odds that the law clerks that handle the cert pool will give it a second look, or more).

By shallow split, I meant that only two circuits, I believe, are in conflict. A "deep" circuit occurs when several circuits are on different sides of an issue.

One reason the Court could decline cert now is that it is not ready, for whatever reason, to address the issue, and thinks it should percolate more among the various circuits.

IVC
01-14-2013, 7:34 PM
One reason the Court could decline cert now is that it is not ready, for whatever reason, to address the issue, and thinks it should percolate more among the various circuits.

Percolate? It's at the boiling point already with lower courts making statements such as (approx.) "...if the Supreme Court meant that the right extended outside the home, they should have said so..."

Unfortunately, should they decide to decline cert, we'll never know the reason.

kcbrown
01-14-2013, 8:04 PM
About 99% of cert petitions are rejected. But because it's Alan Gura filing the petition, and because there currently is a circuit split, albeit shallow, you are correct the chances are pretty good cert will be granted. (By way of aside, anytime the Solicitor General's Office petitions for certiorari on behalf of the government, the odds that the law clerks that handle the cert pool will give it a second look, or more).


Interesting. Disturbing, but interesting (disturbing because it means the Supreme Court gives greater weight to the government wanting an issue resolved than to a private party wanting it resolved, and worse it means that the Supreme Court is inherently biased in favor of the government, which means it is inherently biased against liberty, since a government petition occurs when the government doesn't get its way at the appellate level, usually when it's attempting to restrict liberty).



By shallow split, I meant that only two circuits, I believe, are in conflict. A "deep" circuit occurs when several circuits are on different sides of an issue.


Ah, I thought that might be what you meant.

Does not the nature of the split matter more than how many circuits are split on the issue?



One reason the Court could decline cert now is that it is not ready, for whatever reason, to address the issue, and thinks it should percolate more among the various circuits.

Well, the problem with that is that the only circuits in which the issue of carry can come up are those circuits which have states that are "may issue" or worse. Those states are:


California (9th Circuit)
Hawaii (9th Circuit)
Illinois (7th Circuit)
Maryland (4th Circuit)
Massachusetts (1st Circuit)
New Jersey (3rd Circuit)
New York (2nd Circuit)


Of the circuits represented there, the 7th and 2nd circuits have weighed in (though the 7th may re-hear the case en banc), while the 3rd is in process (I'm not sure where Piszczatoski is in terms of the overall process), the 4th has been argued and a decision is now due, and the 9th has been argued and a decision is now due there as well. There is no case that I know of in the 1st Circuit that is relevant to this issue.

So it's possible for the split to be deeper than it is. However, the real question is: what purpose would be served by waiting for the other circuits to weigh in? How popular or unpopular the right is with the appellate judiciary is irrelevant as to the validity of the right, and the questions posed are of such a fundamental nature that there isn't a lot of appellate investigation that's required to resolve it.

Perhaps more importantly, the Heller 5 know they're on borrowed time. There's a nearly 50% chance that one of them will not survive to the end of the current term. They (especially Scalia and Kennedy) have a huge incentive to weigh in on this issue while they still can, irrespective of the depth of the circuit split.

hoffmang
01-14-2013, 9:56 PM
Establishment opinion is the New York Times, Washington Post, CNN, Linda Greenhouse, and Nina Totenberg. And I can assure you that none of the those organs, and none of those individuals, are with us on the topic of public carry. Do you really disagree with me on that? If not, then my point about Establishment opinion holds.
NYT, WP, Greenhouse and Totenberg all expected DC to prevail in Heller. Go look it up. I'll be waiting for you to ignore that like you ignore how the sensitive places doctrine utterly undermines your fear. Also, that list is one establishment - an establishment that Chief Roberts most certainly does not run with. I mean, are you really trying to suggest that? Citizens United much?
This is my answer to the Heller 5 not ruling with us because of concealed carry:

Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons).

Total ban on public carrying struck down, and cited with approval by the court.
But Libertarian71 swears that Roberts ignored that part!

Also, I love Lund, but some of his points are... academic... and I don't mean that flatteringly. And I say that as someone who has challenged him directly recently.

-Gene

themandylion
01-14-2013, 10:06 PM
Sickening. We have to beg a bunch of self-righteous kooks who are part of an exclusive club for our rights.

THIS is why America is in decline, probably a permanent decline.

Every court in this country should dismiss with prejudice every anti-constitutional assault to "shall not be infringed," and grant summary judgment to every petition in favor of that plain English. But alas, we have to play the lawyer game of sophistry and obfuscation.

I have very mixed feelings about this. If the SCOTUS rules in our favor, it would make things a lot easier. But, if the SCOTUS rules against us - some bovine excrement of "reasonable restrictions" for "public policy" (or some Orwellian equivalent) - maybe, just maybe, patriots will finally realize that "the System" needs to be "abolished" ala the third clause of the second paragraph of the Declaration of Independence.

The status quo of the swinging carrot - just in reach, just out of reach, just in reach, and on - is only going to eventually end in a fait accompli for the enemies of the Bill of Rights, and of America.

Libertarian71
01-14-2013, 10:33 PM
NYT, WP, Greenhouse and Totenberg all expected DC to prevail in Heller. Go look it up. I'll be waiting for you to ignore that like you ignore how the sensitive places doctrine utterly undermines your fear. Also, that list is one establishment - an establishment that Chief Roberts most certainly does not run with. I mean, are you really trying to suggest that? Citizens United much?

But Libertarian71 swears that Roberts ignored that part!


Bold added.

Were you around last June when Chief Justice Roberts succumbed to Establishment pressure and switched course in the Affordable Care Act case? You think his actions in that case are evidence of a stiff backbone?

The "sensitive places doctrine" "utterly undermines" my fear? For you to suggest that the "sensitive places doctrine" is somehow settled, and that Chief Justice Roberts' joining Scalia's cursory treatment in dicta in Heller on that topic therefore means, without question, that Chief Justice Roberts will vote to affirm a right of nondiscretionary carry under the Second Amendment. is a non sequitur. And if that is the extent of your argument for Chief Justice Roberts being on board, we have a lot to worry about. Simply put, your overconfidence is not warranted.

Libertarian71
01-14-2013, 10:38 PM
Sickening. We have to beg a bunch of self-righteous kooks who are part of an exclusive club for our rights.

THIS is why America is in decline, probably a permanent decline.


Amen. I agree with every word you said. Our rights pre-exist government, and the only legitimate purpose of government is to secure them. It is outrageous that the recognition and vindication of our rights depends upon nine lawyers in black robes. And how quickly people forget that our victory in Heller was by one vote.

kcbrown
01-14-2013, 11:37 PM
Amen. I agree with every word you said. Our rights pre-exist government, and the only legitimate purpose of government is to secure them. It is outrageous that the recognition and vindication of our rights depends upon nine lawyers in black robes.


There are changes I would make to the Constitution that would put the people back in the driver's seat and bring liberty to the fore once again. For instance, a clause in the Constitution that says that the people can directly vote to nullify any law at any time, that a vote of more than 10% of the participating voters would result in nullification of said law, and that said clause also applies directly to the states and localities with respect to their respective populations. The idea there is that the Constitution protects liberty, and that it is especially important to protect minority populations ("minority" here doesn't merely refer to race, but to any group of people composed of less than 50% of the population) from tyranny of the majority.

However, the very nature of government itself is inescapable here: it has power over the people, whether via the consent of the governed or not. That said power is with the consent of the governed does nothing to diminish the power in question.



And how quickly people forget that our victory in Heller was by one vote.

I don't think anyone's forgetting that. But what they realize is that it won't be long before we don't even have that, and therefore it is imperative to take advantage of the situation while it still exists at all.

robertmcm
01-15-2013, 5:15 AM
Interesting. Disturbing, but interesting (disturbing because it means the Supreme Court gives greater weight to the government wanting an issue resolved than to a private party wanting it resolved, and worse it means that the Supreme Court is inherently biased in favor of the government, which means it is inherently biased against liberty, since a government petition occurs when the government doesn't get its way at the appellate level, usually when it's attempting to restrict liberty).




Ah, I thought that might be what you meant.

Does not the nature of the split matter more than how many circuits are split on the issue?




Well, the problem with that is that the only circuits in which the issue of carry can come up are those circuits which have states that are "may issue" or worse. Those states are:


California (9th Circuit)
Hawaii (9th Circuit)
Illinois (7th Circuit)
Maryland (4th Circuit)
Massachusetts (1st Circuit)
New Jersey (3rd Circuit)
New York (2nd Circuit)


Of the circuits represented there, the 7th and 2nd circuits have weighed in (though the 7th may re-hear the case en banc), while the 3rd is in process (I'm not sure where Piszczatoski is in terms of the overall process), the 4th has been argued and a decision is now due, and the 9th has been argued and a decision is now due there as well. There is no case that I know of in the 1st Circuit that is relevant to this issue.

So it's possible for the split to be deeper than it is. However, the real question is: what purpose would be served by waiting for the other circuits to weigh in? How popular or unpopular the right is with the appellate judiciary is irrelevant as to the validity of the right, and the questions posed are of such a fundamental nature that there isn't a lot of appellate investigation that's required to resolve it.

Perhaps more importantly, the Heller 5 know they're on borrowed time. There's a nearly 50% chance that one of them will not survive to the end of the current term. They (especially Scalia and Kennedy) have a huge incentive to weigh in on this issue while they still can, irrespective of the depth of the circuit split.

You can add Alabama to that list. My wife was denied a permit based on the fact she is a permenant resident. Alabama is definitely a may issue state.

kcbrown
01-15-2013, 11:02 AM
You can add Alabama to that list. My wife was denied a permit based on the fact she is a permenant resident. Alabama is definitely a may issue state.

Alabama allows loaded open carry without a permit in the general case (there are some place exceptions, some of which are almost certainly Unconstitutional).

robertmcm
01-15-2013, 1:10 PM
Correct, but open carry I'd limited by the fact that you have to have a concealed carry permit as soon as you get in your vehicle. So if you want to walk everywhere, you are good to go.

kcbrown
01-15-2013, 2:10 PM
Correct, but open carry I'd limited by the fact that you have to have a concealed carry permit as soon as you get in your vehicle. So if you want to walk everywhere, you are good to go.

Yes, it does mean you have to unload and lock up your firearm before getting into your car (the trunk counts for the "locking it up" bit, it seems). That's one of the limitations that I suspect is vulnerable to a Constitutional challenge. I suspect the reason I wasn't able to find a challenge against it is that we have to get bear in public recognized as a right first.

Regardless, in general, carry in public is allowed in Alabama as long as it's open, and a permit is not even required for it. This is why there's no challenge to the "may issue" permit scheme there, at least as of yet. Indeed, such a challenge would probably fail, with Nunn citable as precedence, thanks to the favorable reference to it in Heller.

This means we won't see a fundamental "carry in public" challenge in the 11th circuit.

Mulay El Raisuli
01-15-2013, 2:39 PM
I also hope I'm wrong.



They lost the presidential race in Florida, and the lost it in 2008 also. By the time 2016 comes here, how many more Hispanic voters will there be in Florida? Is there any path to victory that doesn't include winning Florida?

And if the GOP becomes unable to win the presidency, they will lose their ability to attract strong candidates and funding for the house and senate races. The US will get to the position California is in. This could happen within one or two election cycles.

Going back to the original point of this thread, I hope cert is granted because this is probably the last time in our lifetimes we will have a conservative majority on SCOTUS, unless the GOP finds a major new strategy going forward (especially the strategy I suggested). It is now or never. If the case fails, we lose nothing, because it would also fail five or ten years from now.


I hadn't thought of that. My thinking was that Liberty could survive if the GOP could remain in charge of the House or the Senate. The thought that we could lose all at the same time (before securing the Right) is frightening.


This is my answer to the Heller 5 not ruling with us because of concealed carry:

Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons).

Total ban on public carrying struck down, and cited with approval by the court.(means of emphasis changed by me)


Yes! Ignored by far too many Federal Courts (and at least one member here), but YES!


I certainly think any thread where I pontificate is easily the equivalent of Cato ;)


Actually, its any thread *I* pontificate in. :D


The Raisuli

kcbrown
01-15-2013, 3:12 PM
I hadn't thought of that. My thinking was that Liberty could survive if the GOP could remain in charge of the House or the Senate. The thought that we could lose all at the same time (before securing the Right) is frightening.


And you guys think I'm pessimistic because I think this nation's done for...


Nope. I'm a realist. It's not my fault that the real world is much worse than most people think it is.

Gray Peterson
01-15-2013, 3:20 PM
Alabama allows loaded open carry without a permit in the general case (there are some place exceptions, some of which are almost certainly Unconstitutional).

Correct, but open carry I'd limited by the fact that you have to have a concealed carry permit as soon as you get in your vehicle. So if you want to walk everywhere, you are good to go.

None of that matters. A government cannot deprive you of access to a license or permit due to alienage. There is very restricted things, such as holding political office and certain public safety positions, which may require citizenship. The rest, however, cannot. There's been numerous district court decisions on the subject matter that say so, none of them have been overturned by a court of appeals.

-Gray

kcbrown
01-15-2013, 3:41 PM
None of that matters. A government cannot deprive you of access to a license or permit due to alienage.


That may be true as far as it goes.

However, it can deprive you of access to a license or permit due to whatever discretion is allowed by the controlling law.

Remember, we are talking about a "may issue" permit system. This is not a system in which a permit must be issued, it is one in which a permit can be issued if the issuing authority feels like it. Said authority may have erred in explicitly saying that the denial was due to the nature of the applicant's residency, but a challenge on that basis is nowhere near the equivalent of a challenge to the entire "may issue" regime there.



There is very restricted things, such as holding political office and certain public safety positions, which may require citizenship. The rest, however, cannot. There's been numerous district court decisions on the subject matter that say so, none of them have been overturned by a court of appeals.


That may be, but unless one of those districts was in Alabama, then those cases are persuasive only -- not binding.

CCWFacts
01-15-2013, 4:20 PM
I hadn't thought of that. My thinking was that Liberty could survive if the GOP could remain in charge of the House or the Senate. The thought that we could lose all at the same time (before securing the Right) is frightening.

Right, why would you want to run knowing you're going to be the minority party, going up against a hostile president, achieving nothing? Why would anyone want to finance that? Once the presidency becomes unwinable, the party might as well dissolve.

More news on the presidency becoming unwinnable:

Obama wants to grant citizenship to 11 million illegals (http://www.nytimes.com/2013/01/13/us/politics/obama-plans-to-push-congress-on-immigration-overhaul.html?_r=4&). Senator Marco Rubio doesn't want to be outdone and also wants a guest worker program (http://www.newsmax.com/Newsfront/rubio-immigration-plan-illegal/2013/01/13/id/471223). And usually when they estimate some number like 11 million, it's a gross underestimate, as the offer of amnesty will spur more people to show up here, and they will bring their families too.

If even one million of them are in Florida, how will any Republican be able to win the presidency? It is impossible, unless my strategy works: get whites to vote based on ethnicity, the same way blacks vote today. That is the only hope and I don't see it happening.

That's why I'm so glad this case is going up to SCOTUS now. This is our last chance. The SCOTUS of the future will apply liberal Marxism instead of our written constitution.

Edited to put it another way: Each Representative represents about 700,000 people in the US. These 11 million new citizens will therefore have about 15 representatives in the House. That's going to be a net gain of probably 10 Democratic representatives. Plus no hope for a Republican presidential candidate. We're up against math here.

Scarecrow Repair
01-15-2013, 4:52 PM
And if the GOP becomes unable to win the presidency, they will lose their ability to attract strong candidates and funding for the house and senate races. The US will get to the position California is in. This could happen within one or two election cycles.

You are making the same mistake so many prognosticators make -- you are extrapolating the current rate of change to infinity and beyond. Real life doesn't work that way. The Dems thought FDR gave them a permanent Democratic House -- Gingrich thought he had a permanent Republican House -- the 2006 Dems thought they had a permanent House.

The Dems will overreach and disgust voters, Republicans will start giving up on the Santorum, Gingrich, Cain, Huckabee losers and pick sane candidates, and Democrats will splinter from arguments over divvying up the permanent pie they think they have.

For the next year, not much will change, but come 2014, gunnies will not forget, especially with gloating Dems overreaching, and things will swing back. 2016 presidency depends on whether the losers have finally evaporated or not; too soon to tell. It could take another round of idiots to get the message across.

Drivedabizness
01-15-2013, 4:56 PM
The Dems had the House for almost 50 years before '94....the fears about 11 million new voters who have been actively bribed by one party are TOTALLY legit.

How about the rule of law, people?

If we can't / don't make that argument, we're screwed.

End of lesson. Please tip your waitress.

CCWFacts
01-15-2013, 4:57 PM
You are making the same mistake so many prognosticators make -- ...

For the next year, not much will change, but come 2014, gunnies will not forget, especially with gloating Dems overreaching, and things will swing back. 2016 presidency depends on whether the losers have finally evaporated or not; too soon to tell.

I hope I'm wrong! I would love to be wrong!

readysetgo
01-15-2013, 5:12 PM
Tag for the circuit split!

nicki
01-15-2013, 7:08 PM
IMHO, if the core of the second amendment is self-defense and handguns are commonly protected arms and we have the right to have "functional" arms, I have a few questions.

We know that arms have to be "functional" so that they are immediately ready in cases of "armed confrontation".

My question is this, would the definition of "functional" include "standard or common" magazine capacities.

New York just banned above 7 round magazines, yet most semi-auto handguns carry 8 plus rounds.

Are "normal capacity mags" dangerous and unusual?

Then there is the issue of types of "self-defense" arms.

How rare does a gun have to be before it becomes dangerous and unusal.

I would submit that while a AR or AK pistol is not as commmon as the rifle versions, they aren't exactly unusual. Since these pistols have the evil features, would this new New York law be a ban on a "constitutionally protected class" of arms?

Could New York have inadvertently given us a "gift", at least as far as magazine capacities?

Nicki

Paladin
01-15-2013, 7:08 PM
You are making the same mistake so many prognosticators make -- you are extrapolating the current rate of change to infinity and beyond. Real life doesn't work that way. The Dems thought FDR gave them a permanent Democratic House -- Gingrich thought he had a permanent Republican House -- the 2006 Dems thought they had a permanent House.

The Dems will overreach and disgust voters, Republicans will start giving up on the Santorum, Gingrich, Cain, Huckabee losers and pick sane candidates, and Democrats will splinter from arguments over divvying up the permanent pie they think they have.

For the next year, not much will change, but come 2014, gunnies will not forget, especially with gloating Dems overreaching, and things will swing back. 2016 presidency depends on whether the losers have finally evaporated or not; too soon to tell. It could take another round of idiots to get the message across.Have blacks ever en mass, switched from voting D to R??? Have Latinos/Hispanics??? Asians???

Don't have the stats to back it, but from what I can recall, it is only WHITES who switch between D and R and back again depending upon who is running against whom, and what they think is best for themselves and/or the country.

If you can show otherwise, please provide the info/link(s). I'm open to changing my gut-based opinion.

Rossi357
01-15-2013, 7:11 PM
If the Republicans would stop screwing with Medicare, Social Security and Medicade, they could win.

Scarecrow Repair
01-15-2013, 8:59 PM
Have blacks ever en mass, switched from voting D to R??? Have Latinos/Hispanics??? Asians???

Don't have the stats to back it, but from what I can recall, it is only WHITES who switch between D and R and back again depending upon who is running against whom, and what they think is best for themselves and/or the country.

If you can show otherwise, please provide the info/link(s). I'm open to changing my gut-based opinion.

Hispanics at least change enough to worry both parties. Bush II got a fair number of them, I think almost half, but the Republicans made up so many scare stories that the percentage dropped in 2008. This time, Romney went on and on about self-deportation and the real crazies were even worse, so even more voted for Obama. If the Republicans weren't such out and out screaming meanies about that stuff, even simple stuff like not deporting kids to Mexico whose parents brought them over at 3 months old and who can't even speak Spanish, they might bring the percentage back up.

I'm not going to google the links, I am sure they are easy to find since I keep on seeing the same kind of story every so often.

hoffmang
01-15-2013, 9:02 PM
Were you around last June when Chief Justice Roberts succumbed to Establishment pressure and switched course in the Affordable Care Act case? You think his actions in that case are evidence of a stiff backbone?


Can you quote me the text in the Bill of Rights that enumerates the right to be free from monetary penalties for not buying health care?

On the other hand, I can quote you the text in the Bill of Rights that guarantees the individual right to bear arms.

Mucking about and being wishy-washy on legislation that can easily be repealed by the legislature is one thing. Being wishy washy on things that start wars and are foundational to the Republic are another. You yourself understand (and have explained in posts above) why that difference means that Robert's doesn't want to be the chief of the next Dred Scott court.

-Gene

Scarecrow Repair
01-15-2013, 9:05 PM
If the Republicans would stop screwing with Medicare, Social Security and Medicade, they could win.

All they have to do is be a rational alternative, concentrating on what they used to claim was their core -- small government, fiscal responsibility, and leaving people alone, and accept that society has left them behind on abortion, gays, and evolution.

They rant and rant so much on yesterday's panics that they come off as hopelessly out of date and just plain nuts. They can't stop the odd nutball from opening his yap about how women can't get pregnant from rape, but they sure as heck could shout him down and make it clear no one else supports him.

Criminy, how hard is that concept? Just stop being idiots, be rational, be calm, and the public would flock to them like nobody's business.

Libertarian71
01-15-2013, 9:21 PM
Mucking about and being wishy-washy on legislation that can easily be repealed by the legislature is one thing. Being wishy washy on things that start wars and are foundational to the Republic are another. You yourself understand (and have explained in posts above) why that difference means that Robert's doesn't want to be the chief of the next Dred Scott court.

I hope and pray that you are right. I believe that a challenge to New York's seven round magazine capacity restriction should also be on the agenda.
http://www.calguns.net/calgunforum/showthread.php?t=679742

hoffmang
01-15-2013, 9:43 PM
I hope and pray that you are right. I believe that a challenge to New York's seven round magazine capacity restriction should also be on the agenda.
http://www.calguns.net/calgunforum/showthread.php?t=679742

What is amusing is that I have more short term worry about that than carry.

-Gene

Gray Peterson
01-15-2013, 10:05 PM
Alabama allows loaded open carry without a permit in the general case (there are some place exceptions, some of which are almost certainly Unconstitutional).

In both Say v. Adams & the South Dakota non-citizen case, the states there claimed that because of the dangerousness clauses of their licensing scheme, they could still deny a license. A federal court told them both to issue the license to him.

Paladin
01-15-2013, 10:20 PM
All they have to do is be a rational alternative, concentrating on what they used to claim was their core -- small government, fiscal responsibility....Sorry, but that requires them to keep "screwing with Medicare, Social Security and Medicaid," which is what Rossi357 doesn't want them to do. ALL libertarians should be against such gov't meddling in personal financial affairs and the health care and insurance markets.

kcbrown
01-15-2013, 10:32 PM
In both Say v. Adams & the South Dakota non-citizen case, the states there claimed that because of the dangerousness clauses of their licensing scheme, they could still deny a license. A federal court told them both to issue the license to him.

Again, persuasive but not binding. Those weren't even in the same circuit as Alabama, much less the same state. The "persuasiveness" of decisions by district courts that aren't even in the same circuit is, I expect, minimal at best. Such decisions will have no persuasive value whatsoever unless the district court judge has no opinion on the matter at hand whatsoever or already agrees with the decisions.

Libertarian71
01-15-2013, 10:47 PM
What is amusing is that I have more short term worry about that than carry.

The New York law, in effect, renders inoperable the vast majority, make that overwhelming majority, of semi-automatic pistols. This is backdoor confiscation, and runs afoul of Heller and McDonald, as semi-automatic pistols are the ones most "commonly is use" currently.

Other than 1911s, the Glock 36, the LC9, and maybe some Kahrs or Kel-Tecs, I am not even aware of semi-automatic pistols that use seven round magazines.

In addition, what effect will this have on the Second Amendment rights of women who want to defend themselves? Are they going to be forced to use heavier recoil 1911s, or revolvers, most of which have heavy trigger pulls? (My wife is petite, and she struggles with operating the 10-pound trigger pull on a S&W 60 J-Frame)

Merkava_4
01-15-2013, 10:48 PM
"The court below stands among those holding that the Second Amendment has no practical impact beyond the threshold of one’s home. Reasons for this conclusion vary – the right to bear arms outside the home is alleged to be non-adjudicable by lower courts, Heller is alleged to be limited to its facts, or as the lower court reasoned, the “core” self-defense interest identified in Heller is alleged to be limited to the home, such that rational basis review (styled as intermediate scrutiny, but rational basis review nonetheless) governs elsewhere."


What does non-adjudicable mean? I can't find its definition on the internet anywhere.

Paladin
01-15-2013, 10:52 PM
Hispanics at least change enough to worry both parties. Bush II got a fair number of them, I think almost half, but the Republicans made up so many scare stories that the percentage dropped in 2008. This time, Romney went on and on about self-deportation and the real crazies were even worse, so even more voted for Obama. If the Republicans weren't such out and out screaming meanies about that stuff, even simple stuff like not deporting kids to Mexico whose parents brought them over at 3 months old and who can't even speak Spanish, they might bring the percentage back up.Yeah, it is so cruel to force illegal aliens to export themselves and their progeny who have illegally benefited by being in the US, w/our FREE schooling, meals at schools, ER services, welfare, etc. and FORCE them to go back to where they came from and live in their own country. Yep, definitely "cruel and unusual punishment".... :rolleyes: Frankly, I think we should force them to reimburse us for their ill gotten gains!

With 57% of Mexican immigrants (both legal and illegal) on WELFARE, I don't see many of them EVER turning R unless R becomes RINO -- watered down D. That's the reason Dems LOVE Mexican immigrants -- over 1/2 are on welfare vs. <7% of immigrants from Great Britain. Those British people are self-sustaining and not government dependents and therefore might NOT vote for Democrats. (Actually, government dependents are dependents upon productive tax paying citizens which are disproportionately Repubs, so the Repubs are subsidizing their political destruction.:facepalm:)
http://www.examiner.com/article/fifty-seven-percent-of-mexican-immigrants-on-welfare

"Angry white guys" have been the main defenders of the RKBA around this country for the last 50 years. The "Protestant work ethic" made America what it was vis-a-vis Catholic Latin America.

Alas, it is almost too late to stem the tide, but SOME conservatives are now willing to stop being cowards and start talking about RACE (as AG Eric Holder wants us to, but not the way he intended).

This country is about to go belly up and there's no other worthwhile nation to move to.... :(

Ann Coulter on Demographics As Destiny
http://www.anncoulter.com/columns/2012-11-14.html

As for wooing those Hispanics/Latinos.... LOL! Even Catholic Pat Buchanan points out the futility of that.
http://townhall.com/columnists/patbuchanan/2012/07/27/in_the_long_run_is_the_gop_dead/page/full/
http://townhall.com/columnists/patbuchanan/2012/11/09/is_the_gop_headed_for_the_boneyard/page/2

And don't even start me about interracial crime stats! Just google "Jared Taylor c-span crime race" for an eye-opening C-SPAN video. :mad: Small wonder the racial composition of our prisons is what it is.

Libertarian71
01-15-2013, 11:34 PM
"The court below stands among those holding that the Second Amendment has no practical impact beyond the threshold of one’s home. Reasons for this conclusion vary – the right to bear arms outside the home is alleged to be non-adjudicable by lower courts, Heller is alleged to be limited to its facts, or as the lower court reasoned, the “core” self-defense interest identified in Heller is alleged to be limited to the home, such that rational basis review (styled as intermediate scrutiny, but rational basis review nonetheless) governs elsewhere."

What does non-adjudicable mean? I can't find its definition on the internet anywhere.

It means that the issue cannot be adjudicated, i.e., decided by a court. Another term meaning the same thing, which I prefer, is "nonjusticiable."

Merkava_4
01-16-2013, 12:25 AM
It means that the issue cannot be adjudicated, i.e., decided by a court. Another term meaning the same thing, which I prefer, is "nonjusticiable."


Thank you, I appreciate it.

Mulay El Raisuli
01-16-2013, 5:33 AM
And you guys think I'm pessimistic because I think this nation's done for...


Nope. I'm a realist. It's not my fault that the real world is much worse than most people think it is.


I dispute that we're "done for." Hope still remains. We won't be "done for" until hope leaves.

And there is still reason for hope.


You are making the same mistake so many prognosticators make -- you are extrapolating the current rate of change to infinity and beyond. Real life doesn't work that way. The Dems thought FDR gave them a permanent Democratic House -- Gingrich thought he had a permanent Republican House -- the 2006 Dems thought they had a permanent House.

The Dems will overreach and disgust voters, Republicans will start giving up on the Santorum, Gingrich, Cain, Huckabee losers and pick sane candidates, and Democrats will splinter from arguments over divvying up the permanent pie they think they have.

For the next year, not much will change, but come 2014, gunnies will not forget, especially with gloating Dems overreaching, and things will swing back. 2016 presidency depends on whether the losers have finally evaporated or not; too soon to tell. It could take another round of idiots to get the message across.


Never discount the ability of Dems to screw things up.

The most recent example....


IMHO, if the core of the second amendment is self-defense and handguns are commonly protected arms and we have the right to have "functional" arms, I have a few questions.

We know that arms have to be "functional" so that they are immediately ready in cases of "armed confrontation".

My question is this, would the definition of "functional" include "standard or common" magazine capacities.

New York just banned above 7 round magazines, yet most semi-auto handguns carry 8 plus rounds.

Are "normal capacity mags" dangerous and unusual?

Then there is the issue of types of "self-defense" arms.

How rare does a gun have to be before it becomes dangerous and unusal.

I would submit that while a AR or AK pistol is not as commmon as the rifle versions, they aren't exactly unusual. Since these pistols have the evil features, would this new New York law be a ban on a "constitutionally protected class" of arms?

Could New York have inadvertently given us a "gift", at least as far as magazine capacities?

Nicki


If you mean in the same way DC gave us a gift, & the same way that Chicago gave us a gift, yes, they did!


The Raisuli

Scarecrow Repair
01-16-2013, 6:21 AM
Yeah, it is so cruel to force illegal aliens to export themselves and their progeny who have illegally benefited by being in the US, w/our FREE schooling, meals at schools, ER services, welfare, etc. and FORCE them to go back to where they came from and live in their own country.

As a side note, you ignore that these illegals pay taxes, and most of them go out of their way to avoid any other illegal activity because they come here to work, not steal. Deny that all you want, but study after study has shown you are wrong.

But thanks for illustrating my argument so nicely. The idea of deporting some kid about to graduate from high school with straight As and a full boat scholarship simply because she was brought to this country when she was 3 months old ... or deporting parents but keeping the kids, then sending the kids to foster homes and orphanages ... can you not distinguish that from the drug cartel soldiers and bums? Are you seriously that blind to the difference, can you not see how just plain barbaric that is to most of the population?

Your attitude is typical of why the Republicans are losing appeal.

Chatterbox
01-16-2013, 6:44 AM
IMHO, if the core of the second amendment is self-defense and handguns are commonly protected arms and we have the right to have "functional" arms, I have a few questions.

We know that arms have to be "functional" so that they are immediately ready in cases of "armed confrontation".

My question is this, would the definition of "functional" include "standard or common" magazine capacities.

New York just banned above 7 round magazines, yet most semi-auto handguns carry 8 plus rounds.

Are "normal capacity mags" dangerous and unusual?

Could New York have inadvertently given us a "gift", at least as far as magazine capacities?

Nicki

My understanding that the law does not ban possession of 7+ round magazines, only 10+ round magazines. However, the 10 round magazines cannot be loaded with 8 or more rounds.

Paladin
01-16-2013, 3:06 PM
As a side note, you ignore that these illegals pay taxes, and most of them go out of their way to avoid any other illegal activity because they come here to work, not steal. Deny that all you want, but study after study has shown you are wrong.Um, I guess you missed it, so I'll repeat it for you: 57% of Mexican Immigrants (not just illegals), are on welfare! link here again:
http://www.examiner.com/article/fifty-seven-percent-of-mexican-immigrants-on-welfare

Do you actually believe that fewer than 1 out of 2 Mexican immigrants who does work pays enough taxes to pay for their own benefits (free public schools, free ER care, etc.) PLUS pay for the 57% of their countrymen who get all those FREE benefits PLUS WELFARE benefits???

But thanks for illustrating my argument so nicely. The idea of deporting some kid about to graduate from high school with straight As and a full boat scholarship simply because she was brought to this country when she was 3 months old ... or deporting parents but keeping the kids, then sending the kids to foster homes and orphanages ... Thanks for illustrating my argument so nicely -- "If it saves only one child....." LOL! Typical leftist argument. Send the kid back. The schooling she got while she was here was heads and shoulders above what her parents would have given her back in Mexico. If anything, we should charge Mexico for enriching their nation by teaching her and returning her to contribute to the Mexican economy.

can you not distinguish that from the drug cartel soldiers and bums? They are all criminals -- PERIOD! Of course, some criminals are worse than others.... and, as I reiterated above, 57% of them are BUMS on welfare! We've got enough of our own people, esp NAMs (non-Asian minorities), who are un/under employed and/or on welfare w/o taking on Mexico's "refusees" (refuse refugees).

Are you seriously that blind to the difference, can you not see how just plain barbaric that is to most of the population?Forcing Mexicans to live in Mexico is barbaric??? LOL! I love it!

You must be some sort of right-wing jingoist racist American supremacist to have such a low opinion of the "People of Color" to our south, their culture, and their country. :smilielol5:

Your attitude is typical of why the Republicans are losing appeal.Yeah, and your attitude is why both CA and America are financially broke and why there's such a thing as "career criminals" and multi-generational welfare and prison populations in the US. When this ship hits the iceberg w/in 5 years, and our "poor" get not only their cable TV and EBT cards cut off, but also their gas, electricity, and water they'll learn how spoiled they have been in this country. The blame will fall squarely on you and your fellow leftists, not those mean, old Republicans.

kcbrown
01-16-2013, 7:40 PM
Um, I guess you missed it, so I'll repeat it for you: 57% of Mexican Immigrants (not just illegals), are on welfare! link here again:
http://www.examiner.com/article/fifty-seven-percent-of-mexican-immigrants-on-welfare

Do you actually believe that fewer than 1 out of 2 Mexican immigrants who does work pays enough taxes to pay for their own benefits (free public schools, free ER care, etc.) PLUS pay for the 57% of their countrymen who get all those FREE benefits PLUS WELFARE benefits???

Thanks for illustrating my argument so nicely -- "If it saves only one child....." LOL! Typical leftist argument. Send the kid back. The schooling she got while she was here was heads and shoulders above what her parents would have given her back in Mexico. If anything, we should charge Mexico for enriching their nation by teaching her and returning her to contribute to the Mexican economy.


The solution to this is simple: if the parents are on welfare, then we deport them. Any of their kids that are doing really well in school (e.g., top 10%) can, at the parents discretion, be left here and foster parentage will be arranged. The kids that are left behind under foster parentage will be given citizenship (if they're doing really well in school, then they show promise and we'd be losing our investment in them by kicking them across the border).

This has the advantage of allowing the best and brightest to stay here and contribute to our society, while getting rid of the freeloaders.


So what of the illegal aliens that are working and paying taxes? Give them visas of some kind and make them go through the citizenship process. If they're serious about staying, they'll become citizens. If they're not, then we kick them back across the border.


That's not enough on its own, of course (among other things, you have to do something to incent people to go through the normal citizenship process rather than attempt to come here illegally, and there's probably some balance between carrot and stick that will strike the right chord), and there are probably some significant details that have to be worked through.


Keep in mind that the "detritus" that came to this country 100 years ago turned this country into the powerhouse that it is now (or was until recently).


Thoughts?