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fizux
11-12-2013, 11:38 AM
Drake v. Jerejian [New Jersey]

FKA: Drake v. Filko, Muller v. Maenza, Piszczatoski (WTF?!) v. Cook, or any combination thereof.

Issue: 2A Right to Bear Arms outside the home.

Question Presented: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

Status (as of 5/5/2014): Cert Denied.

5/5/2014 - Conference orders released: Cert Denied.
4/28/2014 - Distributed for 5/2/2014 Conference.
4/21/2014 - Distributed for 4/25/2014 Conference.
4/2/2014 - Distributed for 4/18/2014 Conference.
4/1/2014 - Reply Brief (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-827cert_reply_FILED.pdf) filed by Petitioners.
3/14/2014 - BIO (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/03/NJ_AG_Brief_Opposing_Sup_Ct_.pdf) filed by Respondents.
2/25/2014 - Supp. Brief (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/03/drake_supplemental_FILED.pdf) filed by Petitioners.
2/13/2014 - Side Note: Peruta published by 9CA.
2/12/2014 - Various Amici Briefs filed: GOF (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/GOAFoundationDrakeAmicus.PDF.pdf), NRA (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/SCOTUS-No.-13-827-Brief-of-Amicus-Curiae-National-Rifle-Association-of-America-Inc.-et-al.pdf), Members of Congress (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/CongressionalAmicusDrakeCert.pdf), Center for Constitutional Jurisprudence (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-827-Amicus-of-Center-for-Constitutional-Jurisprudence.pdf), Wyoming (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/Wyoming-Amicus-02-12-14.pdf), Judicial Education Project (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-827-Amicus-Brief-Judicial-Education.pdf), and Cato (http://object.cato.org/sites/cato.org/files/pubs/pdf/drake-final-brief-cert.pdf).
1/9/2014 - Petition (http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/drake_cert_petition_FILED1.pdf) for Writ of Certiorari filed.
11/5/2013 - Justice Alito grants application to extend time (thru 1/9/2014).
11/1/2013 - Application to extend time to file cert. petition.
9/4/2013 - Mandate issued.
8/27/2013 - Petition for rehearing en banc denied.
8/14/2013 - Petition for rehearing filed.
7/31/2013 - Judgment entered.
7/31/2013 - 3CA Panel Opinion (http://ia801703.us.archive.org/3/items/gov.uscourts.ca3.12-1150/gov.uscourts.ca3.12-1150.003011341807.0.pdf).
1/24/2012 - Appeal docketed.
1/16/2012 - Notice of Appeal.
1/12/2012 - Trial Court Opinion (http://www.archive.org/download/gov.uscourts.njd.249720/gov.uscourts.njd.249720.40.0.pdf) and Order granting Defendants' MTD & denying Plaintiffs' MSJ.
10/27/2011 - MSJ/MTD hx.
1/26/2011 - Defendants' MTD filed (P&A (http://www.archive.org/download/gov.uscourts.njd.249720/gov.uscourts.njd.249720.25.1.pdf)).
12/20/2010 - Plaintiffs' MSJ filed (P&A (http://www.archive.org/download/gov.uscourts.njd.249720/gov.uscourts.njd.249720.13.0.pdf)).
11/22/2010 - Complaint (http://www.archive.org/download/gov.uscourts.njd.249720/gov.uscourts.njd.249720.1.0.pdf) filed.

Trial Court - Dist. NJ
Case No.: 2-10-cv-06110.
Docket: http://ia600301.us.archive.org/16/items/gov.uscourts.njd.249720/gov.uscourts.njd.249720.docket.html

Appellate Court - 3CA
Case No.: 12-1150.
Docket: http://ia601703.us.archive.org/3/items/gov.uscourts.ca3.12-1150/gov.uscourts.ca3.12-1150.docket.html

SCOTUS
Case No.: 13-827
Docket: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-827.htm

Links:
SCOTUSblog case file: http://www.scotusblog.com/case-files/cases/drake-v-jerejian/

Paladin
12-13-2013, 8:56 PM
Drake v. Filko [New Jersey]
Issue: 2A Right to Bear Arms outside the home.

Status: Loss at 3CA, en banc denied; Cert. Petition due 1/9/2014.Gura has less than 1 month to file (or not)....

hoffmang
12-13-2013, 9:29 PM
Gura has less than 1 month to file (or not)....

He will file. Peña oral arguments are Monday which gives some insight into the timing here.

-Gene

Peaceful John
12-13-2013, 9:50 PM
Welcome back, Gene.

sholling
12-13-2013, 10:27 PM
It's good to see you back Gene!

John Galt
12-13-2013, 10:44 PM
It's good to see you back Gene!

agree

hoffmang
12-15-2013, 11:02 PM
Just been a bit busy. I think things will get to explain themselves shortly in a fun way.

-Gene

fizux
12-16-2013, 9:06 AM
Just been a bit busy. I think things will get to explain themselves shortly in a fun way.

-Gene
Did you have an exciting several month vacation in southeastern Cuba hosting several members of our state senate and assembly, each of which came back pro-2A ... ?

mikestesting
12-16-2013, 9:13 AM
Did you have an exciting several month vacation in southeastern Cuba hosting several members of our state senate and assembly, each of which came back pro-2A ... ?

I guess we can all have our dreams.

Paladin
01-03-2014, 12:18 AM
Gura has less than 1 month to file (or not)....

Gura now has less than 1 week to file (or not)....

(Why do lawyers always procrastinate? ;))

press1280
01-03-2014, 3:42 AM
Gura now has less than 1 week to file (or not)....

(Why do lawyers always procrastinate? ;))

He'll file, only question is whether he'll possibly ask for another extension. In this case it's clear he's hoping some other cases get decided(in our favor) to increase chances of a cert grant.

fizux
01-03-2014, 5:06 AM
Gura now has less than 1 week to file (or not)....
He'll file, only question is whether he'll possibly ask for another extension. In this case it's clear he's hoping some other cases get decided(in our favor) to increase chances of a cert grant.
On the few occasions it has actually happened to me, it is rather embarrassing to have a case come down that eviscerates major portions of one's argument between briefing and oral argument.

In this case, I think many of us are hoping that the 9CA Richards/Peruta/Baker panel renders an opinion soon ... during our lifetimes ... before Palmer.

(Why do lawyers always procrastinate? ;))For a $5,000.00 retainer, I'd be happy to provide a detailed explanation.

OleCuss
01-03-2014, 5:58 AM
.
.
.
For a $5,000.00 retainer, I'd be happy to provide a detailed explanation.

Just another delaying tactic. . .

:90: OK, OK, just kidding.

Paladin
01-03-2014, 7:28 PM
For a $5,000.00 retainer, I'd be happy to provide a detailed explanation.
Sorry, because of lawyers' habit of procrastinating, I only enter into unilateral contracts with them. :p

Paladin
01-09-2014, 1:18 PM
Drake v. Filko [New Jersey]
Issue: 2A Right to Bear Arms outside the home.

Status: Loss at 3CA, en banc denied; Cert. Petition due 1/9/2014.

11/5/2013 - Justice Alito grants application to extend time (thru 1/9/2014).
Well, it's not like he waited until the last minute or anything.... :rolleyes: ;)

U.S. SUPREME COURT ASKED TO CONSIDER SAF, ANJRPC RIGHT TO CARRY CASE

For Immediate Release: 1/9/2014

BELLEVUE, WA – The Second Amendment Foundation and Association of New Jersey Rifle & Pistol Clubs today asked the U.S. Supreme Court to hear the appeal in the challenge to New Jersey’s unconstitutional carry laws. The case is Drake v. Jerejian.

Prepared by attorneys Alan Gura (who won Second Amendment victories in the groundbreaking Heller and McDonald cases) and David Jensen, today’s petition is the latest effort to bring a right-to-carry case before the high court and is the next step in the process of resolving the differing opinions of lower courts on the right to bear arms for personal protection outside the home.

More at: http://www.saf.org/viewpr-new.asp?id=471

stag1500
01-09-2014, 3:52 PM
In the press release, the ANJRPC Executive Director said:

...this case may be different due to the extreme nature of New Jersey’s law...

How is New Jersey's law any more or less extreme than California's or New York's laws regarding the issuance of CCWs?

glockman19
01-09-2014, 4:10 PM
I'll be waiting. :sleep1:

M. D. Van Norman
01-09-2014, 4:33 PM
The differences are interesting, but I’m beyond getting my hopes up at this point. Nevertheless …

:lurk5:

Calzona
01-09-2014, 5:01 PM
Anybody have a link to the cert?

John Galt
01-09-2014, 5:13 PM
http://saf.org/legal.action/drake_cert_petition_filed.pdf

I don't know the normal tone of these but its as if they are challenging the court to take it.

Calzona
01-09-2014, 5:20 PM
And how long does the court have to grant or deny cert?

Paladin
01-09-2014, 5:27 PM
And how long does the court have to grant or deny cert?

The odds are we'll hear before this April.

fwiw I started a thread mainly to help myself to keep track of the Concealed Carry fight at:
http://www.calguns.net/calgunforum/showthread.php?t=812950

I update the OP as things happen. Feel free to bookmark it.

dawgcasa
01-10-2014, 6:08 PM
Seems to me that if SCOTUS denies cert on this case after all the previous denials, that it really would say they absolutely don't want to answer the question of whether the 2nd Ammendment right exists in any meaningful way outside the home. This argument for cert is pretty plainly stated for the Supreme Court to address a very basic question about how to interpret the scope of a fundamental right, and set clear boundaries of government's intrusion, in a clear yes/no fashion. If they deny it, it says they really are much more afraid of all the downstream consequences of affirming a right and the potential unwinding of regulations at both the federal and state level, than they are of fundamentally failing to uphold their ethical duty to protect the relevance of the Constitution in our form of government.

hoffmang
01-10-2014, 10:51 PM
If SCOTUS doesn't take this one, there are still Richards et al and Palmer in DC.

-Gene

taperxz
01-10-2014, 10:53 PM
Don't forget Peruta.

CCWFacts
01-10-2014, 11:27 PM
If SCOTUS doesn't take this one, there are still Richards et al and Palmer in DC.

The problem is, we only have five votes. Every year they delay dealing with this, one of those five votes could go away. At this point I believe that, due to demographic trends in Florida, we are very close to not being able to elect another Republican president for decades.

M. D. Van Norman
01-12-2014, 10:55 AM
If SCOTUS doesn’t take this one, there are still Richards et al and Palmer in DC.

At least Gene still has a sense of humor. :rofl:

In all seriousness, though, now that I’m actively fleeing California, we should start to see some progress in our favor. :o

Kharn
01-12-2014, 6:27 PM
I'm hoping the jab at Palmer catches the CJ's notice and another phone call is made to a certain judge's chambers in New York...

M. D. Van Norman
01-12-2014, 8:12 PM
You guys and your jokes! :rofl:

Palmer won’t be decided until President Obama or President Rodham Clinton has appointed a successor to the late Justice Scalia or the late Justice Kennedy.

On the other hand, if I take a job in Washington, you guys will probably have your virtual shall-issue LTCs before I can get my new driver license. I’ll pay that price, though, if it means averting civil war. :o

stix213
01-13-2014, 2:42 PM
If SCOTUS doesn't take this one, there are still Richards et al and Palmer in DC.

-Gene

The judge in Palmer has dragged his feet so much his shoes have all but worn through. I keep checking for CA9 to finally post their results for Richards though. Still wondering what kind of legal hoops CA9 will pull to get out of the lower court saying UOC satisfies the right to arms, then the state prompting banning UOC.... Going to be hilarious what they say.... unless of course they follow logic and decide in our favor for once.

press1280
01-14-2014, 12:54 AM
The judge in Palmer has dragged his feet so much his shoes have all but worn through. I keep checking for CA9 to finally post their results for Richards though. Still wondering what kind of legal hoops CA9 will pull to get out of the lower court saying UOC satisfies the right to arms, then the state prompting banning UOC.... Going to be hilarious what they say.... unless of course they follow logic and decide in our favor for once.

AFAIK they can probably just ignore that part of the lower court's ruling and cut/paste Kachalsky just to go along with the other courts. From the oral arguments I feel pretty good about our odds, I think it'll come down to how O'Scannilion votes. En banc I'd be worried more about.

Mulay El Raisuli
01-14-2014, 6:29 AM
The judge in Palmer has dragged his feet so much his shoes have all but worn through. I keep checking for CA9 to finally post their results for Richards though. Still wondering what kind of legal hoops CA9 will pull to get out of the lower court saying UOC satisfies the right to arms, then the state prompting banning UOC.... Going to be hilarious what they say.... unless of course they follow logic and decide in our favor for once.


Now who's joking?


The Raisuli

stix213
01-14-2014, 12:33 PM
AFAIK they can probably just ignore that part of the lower court's ruling and cut/paste Kachalsky just to go along with the other courts. From the oral arguments I feel pretty good about our odds, I think it'll come down to how O'Scannilion votes. En banc I'd be worried more about.

Yeah I'm more curious how they will justify screwing us, rather than if.

Now who's joking?


The Raisuli

There's still a slim chance they take the 7th circuit seriously though.... slim

Mulay El Raisuli
01-15-2014, 8:05 AM
Yeah I'm more curious how they will justify screwing us, rather than if.



There's still a slim chance they take the 7th circuit seriously though.... slim


"Slim" being the operative word. Still, it can't be ruled out entirely yet, I suppose.


The Raisuli

GoZoner
01-17-2014, 3:51 PM
Seems to me that if SCOTUS denies cert on this case after all the previous denials, that it really would say they absolutely don't want to answer the question of whether the 2nd Ammendment right exists in any meaningful way outside the home. This argument for cert is pretty plainly stated for the Supreme Court to address a very basic question about how to interpret the scope of a fundamental right, and set clear boundaries of government's intrusion, in a clear yes/no fashion. If they deny it, it says they really are much more afraid of all the downstream consequences of affirming a right and the potential unwinding of regulations at both the federal and state level, than they are of fundamentally failing to uphold their ethical duty to protect the relevance of the Constitution in our form of government.

Perfect.

wireless
01-31-2014, 9:08 PM
How do you (everyone) feel about this statement? Do we have any cases that are challenging the permit requirement?

"The SAF did not challenge the permit requirement, which was also likely a fatal flaw in its case," writes Charles Nichols, president of the California Right To Carry. "The SAF explicitly disavowed a challenge to the permit requirement and argued that states can ban Open Carry if they want to. Needless to say, the SAF did not seek to openly carry a handgun and this wasn't the first time the Supreme Court turned down a concealed carry appeal. The Supreme Court has turned down every concealed carry appeal."

Nichols said the SAF is making a similar mistake in Drake v. Filko. "The SAF does not challenge the permit requirement nor do they seek to carry a handgun openly," Nichols writes. "It, too, will be denied."

fizux
01-31-2014, 9:40 PM
How do you (everyone) feel about this statement? Do we have any cases that are challenging the permit requirement?
One word is all that is needed: Nichols.

Nichols keeps missing the point. At the beginning, it was sort of funny; now I think he just needs a brain transplant.

wireless
01-31-2014, 9:53 PM
Ya, see I have no idea what that means. I've just been reading about the drake case and came across this. An explanation for the less informed would be much appreciated.

sholling
01-31-2014, 11:07 PM
One word is all that is needed: Nichols.

Nichols keeps missing the point. At the beginning, it was sort of funny; now I think he just needs a brain transplant.
You may not like Nichols but his point is an excellent one. How many challenges to having to obtain a license to exercise an enumerated right does SAF have going right now? How many challenges does SAF have going against open carry bans? How many serious challenges to open carry bans and licensing of an enumerated right do they intend to file this year? The "Right People" throw the same spaghetti at the wall time and again in the hope that someday something will stick and then act shocked when it doesn't.

I want SAF to continue to challenge may-issue, but I also want them to get off their butts and lead a massive challenge to licensing constitutional rights, and several real challenges to open carry bans. Until they do then Nichols' point remains valid. Lead, follow, or get the #@!! out of the way!

fizux
02-01-2014, 12:12 AM
You may not like Nichols but his point is an excellent one. How many challenges to having to obtain a license to exercise an enumerated right does SAF have going right now? How many challenges does SAF have going against open carry bans? How many serious challenges to open carry bans and licensing of an enumerated right do they intend to file this year? The "Right People" throw the same spaghetti at the wall time and again in the hope that someday something will stick and then act shocked when it doesn't.

I want SAF to continue to challenge may-issue, but I also want them to get off their butts and lead a massive challenge to licensing constitutional rights, and several real challenges to open carry bans. Until they do then Nichols' point remains valid. Lead, follow, or get the #@!! out of the way!
There are a couple of Embody threads out there too, where I set forth a brief explanation of why I think (IMHO) it is a mistake to ignore the groundwork of solidifying "bear" as a right, and instead demand multiple controversial things at once.

To answer the question posed before, it is easier to lay a strong foundation. Nichols is demanding Permitless Loaded Open Carry be recognized as the one and only right, **to the exclusion** of any other form of carry as being constitutional. Basically, if Nichols and Embody don't get their way, then noone should be allowed to carry. Its like having the 9mm vs .45 debate -- people get irrational.

Permitless Loaded Open Carry is a subset of Carry. Let's work on Carry first, then screw around with open/concealed, licensed/permitless, paper/plastic. I'd love to see PLOC, but I don't want to flush everything else down the drain in the process.

fizux
02-01-2014, 12:20 AM
As far as SAF challenging carry restrictions -- all of them. That's exactly what Nichols keeps missing. Every single SAF plaintiff would be fine with PLOC, but in each and every case it is banned by state law. The plaintiffs are looking for the right to bear in public, and are willing to accept time, manner, and place restrictions, which is way easier to achieve than Nichols' "I want to bear wherever, whenever, and however I want, and I want my oompa loompa now!"

At least he's not running around patrolling playgrounds at the ready with an airsoft-orange painted barrel or a suppressor, and demanding to get taken downtown for booking.

sholling
02-01-2014, 12:39 AM
There are a couple of Embody threads out there too, where I set forth a brief explanation of why I think (IMHO) it is a mistake to ignore the groundwork of solidifying "bear" as a right, and instead demand multiple controversial things at once.
The problem with your reasoning is that you assume that shall-issue licensed concealed carry as a right is going to get SCOTUS' blessing. The fact is that they may have no intention of moving in that direction, but may have an interest in unlicensed carry 'in some form to be determined by the state'. Or they may have an interest in unlicensed open carry - which also solves the license to possess issue currently plaguing NYC and DC. The bottom line is that neither you nor I know for sure which of those directions, if any, that the court will adopt. All that we do know for sure is that so far most shall-issue licensed concealed carry cases have been spectacular losers. To limit ourselves to a single line of advance in carry and a single strategy is not only short sighted, but foolish. Frankly I suspect that the "Right People" secretly hope that Embody and Nichols' losses close off open carry and permitless carry for all time so that they can vindicate their strategy of 'shall-issue licensed concealed carry or bust' and cheap licensed possession in the home - even if neither ever succeeds. If they didn't want someone else to screw up permitless open carry then they would have preemptively filed cases of their own ahead of Embody.

Edit: The bright side (for some) is that the current strategy of micro-mini baby steps assures endless fodder for fundraisers and full employment for 2nd Amendment lawyers for the next century.

Paladin
02-01-2014, 6:20 AM
it is a mistake to ignore the groundwork of solidifying "bear" as a right, and instead demand multiple controversial things at once.Right now, all it takes is for 1 of the "Heller 5" to step down from the Court for us in CA, the rest of the nation to LOSE any actual RKBA for DECADES and our nation might not survive for decades (i.e., we might NEED our 2nd A rts for what they were intended for).

While I've said I won't get :TFH: until we get to 2015 July 04 w/o SCOTUS taking a Carry case, I don't think it is prudent to wait until then before getting other Carry cases (e.g., Open Carry) started in various federal district courts given how courts can needlessly delay cases they don't like (e.g., Palmer).

Mulay El Raisuli
02-01-2014, 7:47 AM
You may not like Nichols but his point is an excellent one. How many challenges to having to obtain a license to exercise an enumerated right does SAF have going right now? How many challenges does SAF have going against open carry bans? How many serious challenges to open carry bans and licensing of an enumerated right do they intend to file this year? The "Right People" throw the same spaghetti at the wall time and again in the hope that someday something will stick and then act shocked when it doesn't.

I want SAF to continue to challenge may-issue, but I also want them to get off their butts and lead a massive challenge to licensing constitutional rights, and several real challenges to open carry bans. Until they do then Nichols' point remains valid. Lead, follow, or get the #@!! out of the way!


Yup.


The Raisuli

press1280
02-01-2014, 8:28 AM
The problem with your reasoning is that you assume that shall-issue licensed concealed carry as a right is going to get SCOTUS' blessing. The fact is that they may have no intention of moving in that direction, but may have in interest in unlicensed carry 'in some form to be determined by the state'. Or they may have an interest in unlicensed open carry - which also solves the license to possess issue currently plaguing NYC and DC. The bottom line is that neither you nor I know for sure which of those directions, if any, that the court will adopt. All that we do know for sure is that so far most shall-issue licensed concealed carry cases have been spectacular losers. To limit ourselves to a single line of advance in carry and a single strategy is not only short sighted, but foolish. Frankly I suspect that the "Right People" secretly hope that Embody and Nichols' losses close off open carry and permitless carry for all time so that they can vindicate their strategy of 'shall-issue licensed concealed carry or bust' and cheap licensed possession in the home - even if neither ever succeeds. If they didn't want someone else to screw up permitless open carry then they would have preemptively filed cases of their own ahead of Embody.

Edit: The bright side (for some) is that the current strategy of micro-mini baby steps assures endless fodder for fundraisers and full employment for 2nd Amendment lawyers for the next century.

While I agree there should be open carry cases brought in the right circumstances (like Bonidy), I wouldn't throw shall-issue under the bus. I don't see why SCOTUS would just keep passing up CCW cases simply because there's a licensing aspect. The licensing itself isn't the main thrust of those cases and the court can simply pass on it-just like they did in Heller.

solanoslough
02-01-2014, 8:35 AM
As far as SAF challenging carry restrictions -- all of them. That's exactly what Nichols keeps missing. Every single SAF plaintiff would be fine with PLOC, but in each and every case it is banned by state law.

Long arms are allowed to be open carried in NY. The defendant is on record stating this and arguing in the Supreme Court reply that if kachalsky desired he could have open carried a rifle.

In MA the open carry of long arms is not prohibited. The plantiff in that suit could have open carried a rifle.

I know Peterson wasn't a SAF case, but Peterson could have challenged the open carry requirement, and the judges even say that in the opinion in denying relief to him.

I think that your claim that SAF plaintiffs are fine with PLOC is not based on the facts. If they were fine with PLOC they would have challenged it or they would be PLOCing.

solanoslough
02-01-2014, 8:37 AM
Frankly I suspect that the "Right People" secretly hope that Embody and Nichols' losses close off open carry and permitless carry for all time so that they can vindicate their strategy of 'shall-issue licensed concealed carry or bust' and cheap licensed possession in the home - even if neither ever succeeds.

I think this is right.

sholling
02-01-2014, 9:42 AM
While I agree there should be open carry cases brought in the right circumstances (like Bonidy), I wouldn't throw shall-issue under the bus.
Nowhere did I suggest giving up on shall-issue. What I've said was shall-issue cases have repeatedly proven unsuccessful so it's time to pursue unlicensed loaded open carry cases and unlicensed loaded carry 'in some form' cases in addition to shall-issue.

Edit: Personally I think SCOTUS is waiting for an opportunity to put a stop to license requirements, but want to leave it up to the states to decide if they prefer unlicensed loaded concealed carry or unlicensed loaded open carry. I don't have any evidence that this is what they want but it makes at least as much since as our "Right People's" theory that by cloning and filing the same case (under a different name) that they keep losing year after year that they will eventually wear SCOTUS down enough to get them to order shall-issue concealed carry.

I don't see why SCOTUS would just keep passing up CCW cases simply because there's a licensing aspect. The licensing itself isn't the main thrust of those cases and the court can simply pass on it-just like they did in Heller.
SCOTUS pointedly did not address licensing of an enumerated right in Heller because Gura chose not to challenge licensing. Pretty much every failed case so far has asked the courts to order the states to issue concealed carry licenses. Since courts at all levels are refusing to order states to issue concealed carry licenses then it's high time we challenge the constitutionality of having to ask permission to exercise an enumerated right. Successfully challenging the constitutionally of having to ask permission to exercise the right to bear arms also sets up the precedent that we need to quickly defeat license to possess arms laws in DC and NYC, and to eventually defeat registration.

Of course it may be that it's concealed carry that SCOTUS refuses to protect. If that's the case (and it's just possible) then refusing to go after open carry could very well mean no carry ever for the vast majority of us in California. The smart play is to go after shall-issue, and unlicensed open carry, and unlicensed carry 'in some form to be determined by the states' before one of the Heller 5 steps down or worse.

fizux
02-01-2014, 12:50 PM
Have you even bothered to read any of the briefs in Nichols v. Brown?

The scope of the requested injunction is limited to: the curtilage of one's home, one's motor vehicle and any attached camper or trailer, and public places in incorporated cities and unincorporated county territory where hunters are exempt from the bans.

Explicitly disavowed in Nichols v. Brown is any challenge to any other state or federal law including laws about carrying guns in gun free school zones and government buildings.

Unrestricted CCW permits, which Richards and Peruta presumably seek, would allow for the carrying of loaded handguns in gun free school zones and in many government buildings.

The scope of Nichols v. Brown has always been very narrow. It's purpose was to establish case law that the Second Amendment right does not end once one steps outside the door of one's home.

Case law which others could build upon.
My "1-post new account likely troll" alert is sounding, but I'll bite.
Yes, I've read them. That logic doesn't help anywhere where your vehicle drives within 1000' of a school; it also ignores California's concession in oral args @9CA 12/6/2012 that the 2A extends outside the home within the limited framework available in California.

taperxz
02-01-2014, 2:55 PM
Are Mulay El Raisuli and Sholling trolls? They have both made these same points.

You may not be Fabio but i was wondering Charles....

Tincon
02-01-2014, 3:57 PM
I have been lurking here for several months and one thing I have noticed in particular is that everyone who disagrees with the party line eventually gets accused of this.


No, just all the accounts you create Nichols. It's actually funny that you don't realize how obvious you are.

taperxz
02-01-2014, 5:55 PM
Is it that obvious because I am not in need of anti-psychotic medication, unlike those who attack anyone who disagrees with the failed cases brought by the "right people?"

In honor of your namesake i give you this Charles, :laugh:

fizux
02-01-2014, 11:57 PM
Actually it does help because one would be able to drive one's vehicle within 1,000 feet of a K-12 public or private school with a loaded firearm (openly or concealed) because PC 626.9 applies to "public places." Nichols v. Brown seeks a declaration that the inside of one's motor vehicle and any attached camper or trailer is not a "public place" and to carry loaded and unloaded firearms within a motor vehicle and any attached camper or trailer.
Try again. GFSZA is *Federal*; Cal. Penal Code is *State*.
Different laws, different rules. GFSZA specifically applies to the inside of your car, and provides certain exemptions for locked containers/trunk.
The "concession" by the state was the Second Amendment Right is a right to a right to Open Carry, not concealed carry and the concession was limited to private property, not public property in the Richards oral arguments.
Public hunting land; counties under 200k; trunk of your car; there was more to it than just private property. I agree it is nowhere near enough, but they conceded "outside the home," which is what you say Nichols is trying to establish.

Neither Richards nor Peruta challenged the constitutionality of any state statute. Richards challenge to the "good cause" and "moral character" was only in the alternative. The only challenge heard by the 9th CCA was to the Sheriff's policy.
Nope. Listen to the oral arguments. Alan Gura discusses serving the required notice to challenge the statute. Both cases are "as applied" (policy is unconstitutional) and facial (statute giving discretion is unconstitutional) challenges.

Are Mulay El Raisuli and Sholling trolls? They have both made these same points.
No. They've made real points without beating (too many) dead horses or rehashing points where answers can be found with a simple search. They have more posts than you, and Nichols has already been on here with quite a few different new accounts -- which is why you will receive a pretty hostile response for a few weeks until we figure out that you're not Nichols. Then, you'll just get the standard adversarial belittling that we engage in here.

Mulay El Raisuli
02-02-2014, 5:51 AM
No. They've made real points without beating (too many) dead horses or rehashing points where answers can be found with a simple search. They have more posts than you, and Nichols has already been on here with quite a few different new accounts -- which is why you will receive a pretty hostile response for a few weeks until we figure out that you're not Nichols. Then, you'll just get the standard adversarial belittling that we engage in here.


Thank you. :)


The Raisuli

fizux
02-03-2014, 8:50 AM
Thank you. :)
The Raisuli
Although we may differ on strategy, we both realize we are on the same side, and trying to get to the same place. We may "critique" each others' strategy without personal attacks or questioning the commitment to civil rights.

Mulay El Raisuli
02-04-2014, 2:52 PM
Although we may differ on strategy, we both realize we are on the same side, and trying to get to the same place. We may "critique" each others' strategy without personal attacks or questioning the commitment to civil rights.


Absolutely! Would that all of us here followed the same approach.


The Raisuli

squee116
02-04-2014, 3:39 PM
If anything, constant and intellectually honest critiques of one another can only strengthen or correct your respective positions over time.

Mulay El Raisuli
02-05-2014, 8:17 AM
If anything, constant and intellectually honest critiques of one another can only strengthen or correct your respective positions over time.


Absolutely. I am MUCH better with the grabberz because of what my critics do to me here.


The Raisuli

Paladin
03-13-2014, 8:48 AM
Good article re. the Drake case:

NRA, 19 States, 34 Congressmen Sue New Jersey Over Gun Law

(New American) – On February 12, 2014, the National Rifle Association (NRA), 19 states, and 34 members of the House of Representatives asked the Supreme Court to review a New Jersey court’s decision restricting Second Amendment rights of its citizens. Leading the requests is Attorney General of Wyoming, Peter Michael, who sees the danger in letting the decision by the 3rd District Court in New Jersey stand, as it could require that every other state with greater protections for its citizens reduce them substantially. In New Jersey, almost no one can obtain a concealed carry permit. In Wyoming, no one is required to have one.

More at:
http://www.teaparty.org/nra-19-states-34-congressmen-sue-new-jersey-gun-law-36710/

dantodd
03-13-2014, 10:13 AM
If open carry is specifically protected and concealed carry CAN be fully banned Richards or Peruta will bring this out if the get to SCOTUS. If the court accepts a carry case of any variety the first analysis they will have to pursue is whether or not the second amendment protects a right to self-defense outside the home. If the court finds such a right exists but that a ban or May issue regulatory scheme toward concealed carry is acceptable there is only one conclusion.

If, on the other hand, the court finds that a right exists to bear outside the home and that such a right extends to the issuance of concealed carry permits it does not preclude further litigation regarding open carry.

Concealed carry is the most common form of carry in states where both are allowed and it is the smallest step forward in the recovery of 2A rights.

Our rights were eroded by small steps; the foundation of those rights will also be rebuilt in small steps, one brick at a time.

ryan_j
03-14-2014, 2:07 PM
NJ replied today.

I want some of what they're smoking!

While Petitioners urge this Court to look to the recent decision from the Ninth
Circuit in Peruta v. County of San Diego,
___ F.3d ___,
2014 U.S. App. LEXIS 2786 (9th Cir. 2014), to find a conflict, this Court should reject Petitioners’ invitation because San Diego County’s permitting scheme is materially different from New Jersey’s, the Handgun Permit Law does not operate as a ban on the right to carry a handgun publicly for self-defense, and the justifiable need standard is not inconsistent with the Ninth Circuit’s conclusion that the Second Amendment requires that states permit some form of carry for self-defense outside the home.


An outright lie!!! NJ only issued 1195 permits and issues 500 a year with 2 year expiration.

safewaysecurity
03-14-2014, 2:12 PM
Lolol they are bat**** insane. I hope the judges see through their nonsense and call them out for lying and insulting their intelligence.

IVC
03-14-2014, 2:51 PM
NJ replied today.

I want some of what they're smoking!

While Petitioners urge this Court to look to the recent decision from the Ninth
Circuit in Peruta v. County of San Diego,
___ F.3d ___,
2014 U.S. App. LEXIS 2786 (9th Cir. 2014), to find a conflict, this Court should reject Petitioners’ invitation because San Diego County’s permitting scheme is materially different from New Jersey’s, the Handgun Permit Law does not operate as a ban on the right to carry a handgun publicly for self-defense, and the justifiable need standard is not inconsistent with the Ninth Circuit’s conclusion that the Second Amendment requires that states permit some form of carry for self-defense outside the home.


An outright lie!!! NJ only issued 1195 permits and issues 500 a year with 2 year expiration.

Concur. This is the most ridiculous argument that they could've come up with. Even funnier than when Feinstein starts a sentence with "I support 2A, but..."

Peaceful John
03-14-2014, 3:15 PM
More proof that the Court / legal system is broken and in the hands of liars and idiots.

As I see it, it's evidence that New Jersey's licensing program is not supportable. Only that, nothing more. But perhaps it's enough.

speedrrracer
03-14-2014, 3:21 PM
As I see it, it's evidence that New Jersey's licensing program is not supportable. Only that, nothing more. But perhaps it's enough.

Agreed -- I plead temp insanity :o

otteray
03-14-2014, 3:25 PM
Their population is about 8 1/2 million. So that's what, like almost 0.0001% have permission slips. If you hold your index and thumb out in front of you and try really, really hard to make them just almost, but not quite touch together, you can actually see it how small that is.

press1280
03-14-2014, 5:07 PM
NJ replied today.

I want some of what they're smoking!

While Petitioners urge this Court to look to the recent decision from the Ninth
Circuit in Peruta v. County of San Diego,
___ F.3d ___,
2014 U.S. App. LEXIS 2786 (9th Cir. 2014), to find a conflict, this Court should reject Petitioners’ invitation because San Diego County’s permitting scheme is materially different from New Jersey’s, the Handgun Permit Law does not operate as a ban on the right to carry a handgun publicly for self-defense, and the justifiable need standard is not inconsistent with the Ninth Circuit’s conclusion that the Second Amendment requires that states permit some form of carry for self-defense outside the home.


An outright lie!!! NJ only issued 1195 permits and issues 500 a year with 2 year expiration.

Yea I was really stunned by this brief. In New Jersey, on the other
hand, the Superior Court “shall issue” a permit to
carry if it is satisfied that the applicant is a person of
good moral character, is not subject to any enumerated
disability, is thoroughly familiar with the safe
handling and use of handguns, and has a justifiable
need to carry a handgun. N.J. Stat. Ann. § 2C:58-4(d).
Thus, California’s law gives the sheriff more discretion
to refuse to issue a permit than the New Jersey law.

I'd really like to ask this AG if she actually believes what she's writing is true, or whether this is simply a ploy to get a SCOTUS justice to blink and deny cert. The brief is full of flat out lies and complete distortions. O'Scannlain's opinion clearly calls out the CA3 Drake opinion. Judges don't simply call out another circuit if there's no real conflict.
There's also the pages and pages of NJ legislative "findings" from the 60's and 70's that are somehow supposed to be taken seriously some 40 years later with much more reliable data about public carry now available.
This AG will be absolutely hammered by SCOTUS. Only question is can the court see through the BS?

ryan_j
03-14-2014, 5:52 PM
Mind you I believe the deputy AG wrote this. You should hear her in the circuit court Orals. She was a complete disaster.

Rossi357
03-14-2014, 6:06 PM
Another rational basis decision requested.
Apparently, justifiable need is different than good cause.
This is a facial challenge and Peruta is an as applied challenge.

Kharn
03-14-2014, 6:59 PM
From that brief, NJ's only prayer is for cert to be denied. The merits stage would be a complete disaster without outside legal counsel.

Mulay El Raisuli
03-14-2014, 8:55 PM
If open carry is specifically protected and concealed carry CAN be fully banned Richards or Peruta will bring this out if the get to SCOTUS. If the court accepts a carry case of any variety the first analysis they will have to pursue is whether or not the second amendment protects a right to self-defense outside the home. If the court finds such a right exists but that a ban or May issue regulatory scheme toward concealed carry is acceptable there is only one conclusion.

If, on the other hand, the court finds that a right exists to bear outside the home and that such a right extends to the issuance of concealed carry permits it does not preclude further litigation regarding open carry.

Concealed carry is the most common form of carry in states where both are allowed and it is the smallest step forward in the recovery of 2A rights.

Our rights were eroded by small steps; the foundation of those rights will also be rebuilt in small steps, one brick at a time.


Why not? Peruta did.


The Raisuli

Peaceful John
03-14-2014, 9:18 PM
[QUOTE=press1280;13650480]Yea I was really stunned by this brief. In New Jersey, on the other hand, the Superior Court “shall issue” a permit to carry if it is satisfied that the applicant is a person of good moral character, is not subject to any enumerated disability, is thoroughly familiar with the safe handling and use of handguns, and has a justifiable need to carry a handgun. N.J. Stat. Ann. § 2C:58-4(d). Thus, California’s law gives the sheriff more discretion to refuse to issue a permit than the New Jersey law.

...............................

As a layman, would this not incentivize the Court to comment on GMC, disabilities, handling and use, and justifiable need? Seems to me -- again, as a layman -- that each of these filters must survive strict scrutiny.

Comments?

press1280
03-15-2014, 3:46 AM
[QUOTE=press1280;13650480]Yea I was really stunned by this brief. In New Jersey, on the other hand, the Superior Court “shall issue” a permit to carry if it is satisfied that the applicant is a person of good moral character, is not subject to any enumerated disability, is thoroughly familiar with the safe handling and use of handguns, and has a justifiable need to carry a handgun. N.J. Stat. Ann. § 2C:58-4(d). Thus, California’s law gives the sheriff more discretion to refuse to issue a permit than the New Jersey law.

...............................

As a layman, would this not incentivize the Court to comment on GMC, disabilities, handling and use, and justifiable need? Seems to me -- again, as a layman -- that each of these filters must survive strict scrutiny.

Comments?

I'd hope so! You have a circuit court opinion specifically calling out another's(CA9 calling out CA3), yet NJ says there's nothing to see here?
I was expecting them to perhaps try to deflect cert by telling SCOTUS that they ought to wait for the events at CA9 to unfold or to wait for a better case (like Palmer or Baker). They did no such thing, and just said their system wasn't a total ban because you can carry "openly or concealed" at select locations outside the home-range, gun shop,exc-basically the same locations allowed under CA law.

fizux
03-24-2014, 8:32 PM
OP updated with links to briefs of various amici , supp., and BIO.

ryan_j
03-25-2014, 8:58 AM
In conference for the 18th (of April)

http://www.scotusblog.com/case-files/petitions-were-watching/

fizux
03-25-2014, 11:19 AM
In conference for the 18th (of April)

http://www.scotusblog.com/case-files/petitions-were-watching/
Yup, that was included in yesterday's update.

dantodd
03-25-2014, 12:10 PM
What I don't know, is if cert is granted in Drake will they hear the case in time to get an opinion this session. I would love to hear the court's thoughts on "bear" within the next few months.

fizux
03-25-2014, 12:28 PM
What I don't know, is if cert is granted in Drake will they hear the case in time to get an opinion this session. I would love to hear the court's thoughts on "bear" within the next few months.
My guess --- assuming cert is granted --- between briefing schedules, followed by oral args, I do not expect this to be done by June. I have the feeling we will be setting our clocks back an hour before we get a SCOTUS opinion in Drake.

Edit:
IMHO, one thing that Appellants should note is that (except for DCCA), all Circuits are basically settled on this issue because the 5th, 6th, 8th, 10th, and 11th Circuits comprise of all "shall-issue" states (for all 21+ law abiding citizens). Sure, NRA v. McCraw and NRA v. BAFTE provide clues from 5CA, but those are muddied with other issues (18-20 year-olds).
1CA - Hightower (possibly a bad facts issue, but the standard is basically set).
2CA - Kachalsky.
3CA - Drake.
4CA - Woolard.
5CA - All Shall-issue.
6CA - All Shall-issue.
7CA - All Shall-issue; Moore.
8CA - All Shall-issue.
9CA - Peruta.
10CA - All Shall-issue.
11CA - All Shall-issue.
DCCA - Bueller? ... Bueller? ... oh yeah, Palmer.

dantodd
03-25-2014, 2:00 PM
My guess --- assuming cert is granted --- between briefing schedules, followed by oral args, I do not expect this to be done by June. I have the feeling we will be setting our clocks back an hour before we get a SCOTUS opinion in Drake.

Edit:
IMHO, one thing that Appellants should note is that (except for DCCA), all Circuits are basically settled on this issue because the 5th, 6th, 8th, 10th, and 11th Circuits comprise of all "shall-issue" states (for all 21+ law abiding citizens). Sure, NRA v. McCraw and NRA v. BAFTE provide clues from 5CA, but those are muddied with other issues (18-20 year-olds).
1CA - Hightower (possibly a bad facts issue, but the standard is basically set).
2CA - Kachalsky.
3CA - Drake.
4CA - Woolard.
5CA - All Shall-issue.
6CA - All Shall-issue.
7CA - All Shall-issue; Moore.
8CA - All Shall-issue.
9CA - Peruta.
10CA - All Shall-issue.
11CA - All Shall-issue.
DCCA - Bueller? ... Bueller? ... oh yeah, Palmer.

The fact that all states in some circuits elect to permit carry in no way should be construed to mean that they recognize carry as a right. I suspect you are right on the timing and it makes keeping Peruta/Richards rolling and keep them off the en banc schedule is so important. It would be a travesty to be denied the right to self-defense for another year.

IVC
03-25-2014, 2:13 PM
The fact that all states in some circuits elect to permit carry in no way should be construed to mean that they recognize carry as a right.

Correct, but those circuits *cannot* get a "carry" case in front of them since there is nothing to challenge. From that standpoint, they are as good as done when determining existence of circuit splits.

press1280
03-25-2014, 4:48 PM
The fact that all states in some circuits elect to permit carry in no way should be construed to mean that they recognize carry as a right. I suspect you are right on the timing and it makes keeping Peruta/Richards rolling and keep them off the en banc schedule is so important. It would be a travesty to be denied the right to self-defense for another year.

Some of those state courts haven't been tried yet, along with SC's circuit, because of SC's OC ban and CCW ban for many non-residents. CO (10th Circuit) may get tried again in Bonidy or at least should have an OC challenge to Denver to pick up off the Peterson case.
There certainly are other avenues but I suspect SAF was expecting to already have a case at SCOTUS.

dantodd
03-25-2014, 5:19 PM
Some of those state courts haven't been tried yet, along with SC's circuit, because of SC's OC ban and CCW ban for many non-residents. CO (10th Circuit) may get tried again in Bonidy or at least should have an OC challenge to Denver to pick up off the Peterson case.
There certainly are other avenues but I suspect SAF was expecting to already have a case at SCOTUS.

I think we all thought we'd have seen a bear case before SCOTUS already.

fizux
03-25-2014, 6:11 PM
I think we all thought we'd have seen a bear case before SCOTUS already.
Yeah, considering that the Palmer complaint was filed 8/6/2009.

thayne
03-25-2014, 6:11 PM
I think we all thought we'd have seen a bear case before SCOTUS already.

definitely over due

solanoslough
03-25-2014, 6:31 PM
Correct, but those circuits *cannot* get a "carry" case in front of them since there is nothing to challenge. From that standpoint, they are as good as done when determining existence of circuit splits.

How do you explain Embody v Cooper 13-8464 ? It is a state case coming from a "shall issue" Tennessee, where the state court says that the right to bear arms does not exist outside the home. Embody said fine don't issue a permit and asked for open carry. The Supreme court did not deny and said he could file as a paid case a couple of weeks ago. He might have a shot at a grant.

In his petition he explains that the state of Illinois in Aguilar v IL said that a law similar to the Tennessee law, which bans the carry of guns, is unconstitutional. That gives him a state court split he needs to be heard.

http://blog.californiarighttocarry.org/?page_id=1673

The Second Amendment to the United States Constitution “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). In Tennessee it is a crime to both conceal or openly carry, in public, any type of loaded firearm including a rifle, shotgun, handgun, and even antique black powder firearms. Tenn. Code Ann. § 39-17-1307(a)(1). Tennessee law is subject to only a few exceptions, none of which apply to appellant’s right to carry a loaded firearm in public for the purpose of self-defense. See Tenn. Code Ann. § 39-17-1308. Law abiding petitioner has never been convicted of any crime, and is not prohibited by any federal or state law from possessing a firearm. Petitioner is not eligible to obtain a Tennessee Handgun Carry Permit.
The questions presented are:

1. Whether the Second Amendment guarantees a right to carry a loaded firearm in public for the purpose of self-defense and if that includes an openly carried long arm or an openly carried handgun or pistol.

2. Whether the Second Amendment requires a permit or license in order to carry a loaded openly carried firearm outside the home for the purpose of self-defense.

3. Whether Tennessee may prohibit the bearing of firearms, outside the home for the purpose of self-defense, by operation of an overly broad statute, Tenn. Code Ann. § 39-17-1307(a)(1).

fizux
03-25-2014, 6:52 PM
How do you explain Embody v Cooper 13-8464 ? It is a state case ....(emphasis added)
1. Since we were talking about CIRCUIT SPLITS, you've answered your own question.

2. Embody is crazy. He is ineligible for a CCW, and his prior permit was revoked, because he is crazy. Between disguising an AK as an airsoft gun with an orange-painted tip and running around a playground, walking around town with an unholstered black powder revolver in his hand to prove a point, and wearing body armor with a suppressed AR in a vacuum-formed kydex "speedo" to get around "concealed means concealed," yeah, he's confirmed crazy.

3. Please let's not turn this into another Embody-Nichols-bromance, PLOC-vs.-CCW, The-NRA-SAF-and-CGF-hate-gun-rights-because-they-don't-worship-Nichols-and-Embody thread. There is plenty of that and/or start a new thread somewhere else to rehash that discussion.

solanoslough
03-25-2014, 7:01 PM
(emphasis added)
1. Since we were talking about CIRCUIT SPLITS, you've answered your own question.



My point was that a circuit split is effectively the same as a split in State Courts. I think Embody has identified a split and that may be one reason why his petition was allowed to live another day.

Since you started the discussion into his "craziness" why does he still have carry permits or licenses from Florida, Arizona, and Utah? Why does he still have firearms and silencers? If he were crazy wouldn't the state have taken those away? It isn't as though he is hiding he has a blog and posts on facebook.

fizux
03-25-2014, 7:22 PM
My point was that a circuit split is effectively the same as a split in State Courts.So, bringing this full circle back to the original point of what the Petitioners in Drake can do to frame the issue for SCOTUS... should the Petitioners suggest that SCOTUS deny the petition and wait to hear from other State courts?

Do you think SCOTUS should wait for all 50 State Courts of Last Resort to weigh in before taking a "bear" case? ... or is it enough that all Circuits that are likely to weigh in (this decade) have done so?

solanoslough
03-25-2014, 8:50 PM
Tennessee lies in the sixth circuit which, previous posts in this thread say, is a "shall issue" circuit. Tennessee is a "shall issue" state. Yet, Embody v Cooper is a challenge from Tennessee.

The fact that all states in some circuits elect to permit carry in no way should be construed to mean that they recognize carry as a right.

fizux
03-25-2014, 9:48 PM
The last person we want making any progress is freaking Embody......
Let's stop feeding the Embody legend... TrollGhost... whatever.

Solano posted the same stuff in the Embody thread. Let's respond there and avoid polluting this thread.

Nothing personal, but Embody and Nichols seem to take these litigation threads way off topic... Just like every lunchtime discussion with my coworkers always degenerates to b!tching about gun control, but in that case its okay because the rules for thee do not apply to mee.

IVC
03-25-2014, 9:52 PM
Tennessee lies in the sixth circuit which, previous posts in this thread say, is a "shall issue" circuit. Tennessee is a "shall issue" state. Yet, Embody v Cooper is a challenge from Tennessee.

We are dealing with the question of "whether carry outside the home in public is a right that must be accessible to average law abiding persons."

Tennessee is a "shall issue," which means that the answer in that state is "yes" and it also means that no question coming out of Tennessee will shed further light on the question we're trying to answer.

Embody is asking a completely different question and we are not even close to asking that at the national level. Besides, he is unlikely to like the answer.

kcbrown
03-25-2014, 10:36 PM
I think we all thought we'd have seen a bear case before SCOTUS already.

Well...most of us... :D

I expected the same, until SCOTUS denied cert to Kachalsky. That was the point at which I was forced to adjust my thinking about SCOTUS.

IVC
03-25-2014, 10:42 PM
I expected the same, until SCOTUS denied cert to Kachalsky. That was the point at which I was forced to adjust my thinking about SCOTUS.

I see it in baseball a lot. The other day a guy didn't swing on the first pitch of the first inning (it was a ball, too.)

And his team lost.

Conclusion: if one doesn't swing on the first pitch of the first inning, one will never hit the ball and his team will lose.

kcbrown
03-25-2014, 10:46 PM
I see it in baseball a lot. The other day a guy didn't swing on the first pitch of the first inning (it was a ball, too.)

And his team lost.

Conclusion: if one doesn't swing on the first pitch of the first inning, one will never hit the ball and his team will lose.

Except the baseball example is one where the conclusion is the result of a context-free evaluation.

Mine is the result of an evaluation done in the context of how SCOTUS has treated other civil rights. Additionally, my thinking didn't shift all the way to "SCOTUS is ignoring carry" immediately after Kachalsky. It shifted to "if SCOTUS denies cert to Woollard, then it's likely that SCOTUS is ignoring carry". Woollard was the litmus test. I posited the hypothesis that SCOTUS was ignoring carry, made the prediction that Woollard would be denied cert, and waited for the results. The results came in, and they lent validity to the hypothesis, since the hypothesis predicted the result. I then predicted that SCOTUS would deny cert to McCraw, which also happened.

BATFE is what convinced me that SCOTUS is ignoring the right in its entirety. Until that point, my hypothesis was limited to "outside the home". As of BATFE, that is no longer the case.

The hypothesis is disprovable at any point. SCOTUS need only grant cert to a carry case (or, to dispense with the "they're ignoring the entire right", any 2A case at all). But all the data to date is consistent with the hypothesis I'm operating under, and the hypothesis continues to make predictions. I'm not going to discard the hypothesis just because I don't like what it predicts. That's not the way to do proper science.


It's not quite the same thing. But feel free to keep thinking that my reasoning is context-free if it makes you feel better.


Tell me something: at what point would you be willing to concede that my hypothesis is correct? How many carry and/or 2A cases does SCOTUS have to deny cert to before you acknowledge that which the hypothesis I'm operating under posits?

If there exists no such point, then you are operating strictly on the basis of faith, and not fact.


My opinions are not guided by hope or faith. I leave that touchy-feely stuff to the antis. My opinions are guided by fact and logic alone. Nothing else matters, because the real world has shown no propensity to consider anyone's wishes when it comes to how it operates.

fizux
03-26-2014, 12:08 AM
My opinions are not guided by hope or faith. I leave that touchy-feely stuff to the antis. My opinions are guided by fact and logic alone. Nothing else matters, because the real world has shown no propensity to consider anyone's wishes when it comes to how it operates.
Suppose you repeatedly conduct a physics experiment, and expect a spectacular result exactly 1.2% of the time. The other 98.8% results in a boring outcome. How many times would you repeat the experiment? How many boring results in a row do you need to get before you start doubting your hypothesis of 1.2%, and adjust it to zero?

Is 4 times enough? (Kachalsky, Woolard, NRA v. BATFE, NRA v. McCraw)

Do you start to seriously doubt it while running the experiment a fifth time? (Drake)

How many times do you need to run the experiment and obtain the boring result before one can exclude the initial hypothesis of 1.2% with relative mathematical certainty?

The Michelson–Morley experiment is considered the most failed experiment of all time. They started in 1881 with an unexpected result of zero, and through a variety of incarnations with different experimental physicists working full-time, in 1930 they got a result of 0.0000. By then, folks had accepted Einstein's 1905 theory of special relativity as the more plausible alternative.

The SCOTUS cert grant rate is 1.2%.

Librarian
03-26-2014, 12:09 AM
A thread at THR suggests that Drake is on the April 14th 18th conference calendar.

HumGuns
03-26-2014, 12:13 AM
A thread at THR suggests that Drake is on the April 14th conference calendar.


http://www.scotusblog.com/case-files/cases/drake-v-jerejian/

fizux
03-26-2014, 12:15 AM
A thread at THR suggests that Drake is on the April 14th conference calendar.
According to the SCOTUS case distribution schedule (http://www.supremecourt.gov/casedistribution/casedistributionschedule2013.pdf), the only conference dates set in April are the 4th, 18th, and 25th.
(Last updated in October 2013, so it could have changed)

Librarian
03-26-2014, 12:43 AM
Oops - I mis-remembered - April 18th

IVC
03-26-2014, 1:56 AM
It's coming up in April, give or take a few days.

The least of our concern is those few days...

kcbrown
03-26-2014, 2:27 AM
Suppose you repeatedly conduct a physics experiment, and expect a spectacular result exactly 1.2% of the time. The other 98.8% results in a boring outcome. How many times would you repeat the experiment? How many boring results in a row do you need to get before you start doubting your hypothesis of 1.2%, and adjust it to zero?

...


The SCOTUS cert grant rate is 1.2%.

By your reasoning, SCOTUS should have taken roughly 1.2% of the civil rights cases that came up to it immediately after Brown v Board of Education. It should also have granted cert at a similar rate to abortion cases immediately following Roe v Wade.

But that didn't happen.


My baseline is not the normal cert grant rate of SCOTUS. It is the amount of time that elapsed between a seminal civil rights decision (e.g., Brown v Board of Education) and the arrival before the Court of the following case involving the same right to which it granted cert, combined with what I can glean of the number of cert denials to such cases between the issuance of the seminal decision and the following grant of cert to such a case.

By that baseline, we are quite far behind the curve. The first case to be granted cert after Brown v Board of Education was Brown II, which was decided less than one year after Brown v Board of Education. Similarly, only 3 years passed between Roe v Wade and the next abortion case that SCOTUS granted cert to: Planned Parenthood of Central Missouri v. Danforth. More importantly, I am unable to find any evidence that any abortion cases even made it to the Supreme Court to be denied cert prior to then. The same is true with respect to civil rights cases between Brown v Board of Education and Brown II.

Hence, the pattern the Supreme Court seems to follow with respect to newly-protected civil rights is that of immediate and aggressive defense. That is most certainly not the case with respect to the right to keep and bear arms, where it has granted cert to not one case since McDonald, and that's not due to a lack of such cases to choose from, as there have been 4 or 6 such cases (4 or 6 depending on whether or not you count criminal cases) that it has already denied cert to. And it's not like the cases in question were appealed by the governments -- they were appealed by those whose rights are being trampled upon.

Something is different here. My hypothesis at least gives an explanation of what is different and why: it stipulates that we've lost one of the Heller 5, most likely Kennedy, due to Sandy Hook.

It's a simple hypothesis (so it passes the Occam's Razor test). It is logical (the evidence is quite strong that one of the Heller 5 was reluctant to sign with the majority, based on the numerous compromises in the decision). It is consistent with the evidence, both in terms of the behavior pattern of SCOTUS and the timing (the Kachalsky petition for cert came a scant one month after Sandy Hook). And its predictions have thus far been correct.

What more could you possibly want from a predictive hypothesis??

Kharn
03-26-2014, 3:06 AM
But now it has been over a year since Sandy Hook, NJ isn't claims of OCing rifles/shotguns, and 18-20yos aren't involved. Plus there was a very nice dissent from the circuit panel, and there's Peruta calling them out for a bad decision.

Also consider if Kennedy's opinion has shifted drastically, why wouldn't the liberals vote for cert on a case so they could declare there is no right to carry?

To me, the refusals to grant mean that they're looking for the right case with the cleanest circumstances possible, because the other conservatives want to trap Kennedy into choosing between shall-issue or no carry at all while the liberals aren't going to touch a carry case with a 10-foot pole.

IVC
03-26-2014, 3:33 AM
...while the liberals aren't going to touch a carry case with a 10-foot pole.

I'm not so sure about that. If it *really* worked that way, we would see "conservatives" go against Roe v. Wade and gut it completely.

My guess is that "liberals" will go along with stare decisis and unless they can find a principled way to get out of it, they'll become routine supporters of the standing precedent.

While this is all just speculation, I think that facts beat conspiracy theory any day of the week. It's still too early to tell and we've had some setbacks, but I'm not seeing anything that would indicate rulings based on some hidden agenda (I don't agree with the "living document" doctrine, but at least we see it applied consistently.)

nicki
03-26-2014, 3:44 AM
Perhaps the Conservatives on the court are looking long term and want as many gun cases as absolutely possible filed in every cirucit to get as many judges as possible voting on some second amendment case so that way potential future appointees to highsr courts will have a track record on second amendment issues.

Both Kagan and Sotomayor were evasive on the second amendment, future Suprme court nominees wont be able to pull the "settled law" response.

The issue for us is caan we defend our gun rights until Jan 21,2017?

Nicki

kcbrown
03-26-2014, 4:11 AM
I'm not so sure about that. If it *really* worked that way, we would see "conservatives" go against Roe v. Wade and gut it completely.


Then you really need to look at the mess that was Planned Parenthood v Casey.

They very nearly did precisely that.

kcbrown
03-26-2014, 4:14 AM
But now it has been over a year since Sandy Hook, NJ isn't claims of OCing rifles/shotguns, and 18-20yos aren't involved. Plus there was a very nice dissent from the circuit panel, and there's Peruta calling them out for a bad decision.

Also consider if Kennedy's opinion has shifted drastically, why wouldn't the liberals vote for cert on a case so they could declare there is no right to carry?


Because there is no need for them to do so when the lower courts are accomplishing that very thing for them.

Sufficient inaction by the Court is going to be taken as tacit approval for the lower courts to rule as they please.



To me, the refusals to grant mean that they're looking for the right case with the cleanest circumstances possible, because the other conservatives want to trap Kennedy into choosing between shall-issue or no carry at all while the liberals aren't going to touch a carry case with a 10-foot pole.

And if such a case never materializes, then how does that differ in effect from my predictions?

ryan_j
03-26-2014, 6:10 AM
I think they were simply looking for a circuit split. They may have that with Peruta.

I'm cautiously optimistic. Emphasis on cautiously.

Big Ben
03-26-2014, 8:50 AM
A thread at THR suggests that Drake is on the April 14th 18th conference calendar.

Does anyone know the typical timeline between conference and cert?

Specifically, how long between the April 18th conference and when we might hear a decision on cert? My google-fu is failing me on this one.

ryan_j
03-26-2014, 8:54 AM
Does anyone know the typical timeline between conference and cert?

Specifically, how long between the April 18th conference and when we might hear a decision on cert? My google-fu is failing me on this one.

We may know the same day or the following Monday.

ryan_j
03-26-2014, 8:56 AM
A thread at THR suggests that Drake is on the April 14th 18th conference calendar.

Yep. (http://www.calguns.net/calgunforum/showpost.php?p=13722891&postcount=75)

dantodd
03-26-2014, 9:57 AM
We are dealing with the question of "whether carry outside the home in public is a right that must be accessible to average law abiding persons."

Tennessee is a "shall issue," which means that the answer in that state is "yes" and it also means that no question coming out of Tennessee will shed further light on the question we're trying to answer.

You are conflating "legislatively permissible" and "a protected right." Even if we are to presume that everything nit a right in Tennessee is prohibited as you seen to postulate we still wouldn't know if the right is protected and defined by the Tennessee or National Constitution.

fizux
03-26-2014, 10:03 AM
By your reasoning, SCOTUS should have taken roughly 1.2% of the civil rights cases that came up to it immediately after Brown v Board of Education. It should also have granted cert at a similar rate to abortion cases immediately following Roe v Wade.
But that didn't happen.
With 20/20 hindsight, the next major abortion case after Roe v. Wade (1973) was Planned Parenthood v. Casey (1992). The incidental stuff in between might be analogous to Castleman or Abramski.

I think McDonald (2010) is the 2A's second major case, just 2 years after Heller (2008). Using the Casey analogy, we should have expected a case like McDonald by 2027.

As I've pointed out, Occam's razor is likely satisfied by SCOTUS wanting to hear from the various may-issue circuits. With Peruta and ignoring Palmer, we are now there.

kcbrown
03-26-2014, 10:56 AM
With 20/20 hindsight, the next major abortion case after Roe v. Wade (1973) was Planned Parenthood v. Casey (1992). The incidental stuff in between might be analogous to Castleman or Abramski.

I think McDonald (2010) is the 2A's second major case, just 2 years after Heller (2008). Using the Casey analogy, we should have expected a case like McDonald by 2027.


Neither Castleman nor Abramski is a 2nd Amendment case. Hence, I cannot regard them as the same as, e.g., Brown II.

McDonald is actually the same as Bolling v Sharpe, except "in reverse" (McDonald extends protection to the states, whilst Bolling v Sharpe extends protection to the federal level).



As I've pointed out, Occam's razor is likely satisfied by SCOTUS wanting to hear from the various may-issue circuits. With Peruta and ignoring Palmer, we are now there.But saying that SCOTUS wants to hear from various may-issue circuits leaves you with scant predictive power, valid though it may be.

An hypothesis which makes no testable predictions is useless.

But presuming for the moment that the hypothesis you're proposing makes predictions...

How would you go about falsifying it (i.e., showing that it's false)? What events must happen that would disprove it?

IVC
03-26-2014, 11:51 AM
You are conflating "legislatively permissible" and "a protected right." Even if we are to presume that everything nit a right in Tennessee is prohibited as you seen to postulate we still wouldn't know if the right is protected and defined by the Tennessee or National Constitution.

Agreed, but you misread my point.

I'm not saying that those circuits support carry or that they have any contribution to add to the existing split. Only that there is no point in waiting for them to chime in before considering what we have today, a split.

So yes, they could rule either way should a case present itself and we have no idea how they would rule. However, there is a very low likelihood of them ever getting into position to be able to rule on such a case. Thus, when the SCOTUS looks at the current split, when all the circuits that *can realistically* end up making a "carry" ruling have done so, the split is complete.

kcbrown
03-26-2014, 12:03 PM
So yes, they could rule either way should a case present itself and we have no idea how they would rule. However, there is a very low likelihood of them ever getting into position to be able to rule on such a case. Thus, when the SCOTUS looks at the current split, when all the circuits that *can realistically* end up making a "carry" ruling have done so, the split is complete.

Okay, so let's suppose for a moment that the 9th Circuit reverses its current holding and falls in line with the other anti-rights circuits.

Do you expect SCOTUS to take a carry case at that point, or not?

fizux
03-26-2014, 12:06 PM
How would you go about falsifying it (i.e., showing that it's false)? What events must happen that would disprove it?
If SCOTUS denies cert in both Drake and Peruta, the "we are waiting for almost all circuits except shall-issue to weight in" theory is toast.

If SCOTUS denies cert in Palmer, the more stringent "we are waiting for all circuits except shall-issue to weight in" theory is toast. [You're right, this one may never be testable]

If SCOTUS makes it through the year 2029 and denies cert in at least 100 "real"/civil (not Embody-Right-to-be-a-Dbag, or US v. Bankrobber) 2A cases, then the "statistical bell curve" theory starts to look suspect.

fizux
03-26-2014, 12:09 PM
Okay, so let's suppose for a moment that the 9th Circuit reverses its current holding and falls in line with the other anti-rights circuits. Do you expect SCOTUS to take a carry case at that point, or not?I would roll the dice and say "yes." With the rarity of en banc reversals, that will be a significant signal flare to SCOTUS on the issue.

kcbrown
03-26-2014, 12:24 PM
I would roll the dice and say "yes." With the rarity of en banc reversals, that will be a significant signal flare to SCOTUS on the issue.

And if the 9th Circuit does not reverse itself, do you believe SCOTUS will then take a carry case?

kcbrown
03-26-2014, 12:51 PM
If SCOTUS denies cert in both Drake and Peruta, the "we are waiting for almost all circuits except shall-issue to weight in" theory is toast.

If SCOTUS denies cert in Palmer, the more stringent "we are waiting for all circuits except shall-issue to weight in" theory is toast. [You're right, this one may never be testable]


With respect to both of the above, did SCOTUS wait for all the circuit courts to weigh in prior to deciding McDonald?

IVC
03-26-2014, 1:24 PM
With respect to both of the above, did SCOTUS wait for all the circuit courts to weigh in prior to deciding McDonald?

Apples and oranges. McDonald addressed the same type of ban as Heller had already addressed at that time. We got incorporation as a freebie.

After we get confirmed carry, SCOTUS will NOT wait for any splits before taking cases that would strike complete carry bans. Let's see how long before SCOTUS makes NY and New England "shall issue" *after* we have, say, Drake or Peruta decided in our favor by the SCOTUS. That would be a fair comparison.

nicki
03-26-2014, 1:44 PM
The Supreme Court doesn't operate totslly clueless of what is going on outside the courtroom.

They know that their public approval ratings jumped 10 percent in one day after Heller came out. The judges are sly foxes, sometimes to sly for their own good.

If the Supreme court doesnt take any gun cases, then the second amendment will be a factor in the 2014 elections. After Heller, both sides on the gun issue were proclaiming that gun bans were off the table, and for the 2008 elections, gun issues were not a top layer issue in many political races. This year things are different and gun owners across the country are waking up to the fact that Federal Judges are ignoring Heller/Mac Donald and so far the Supreme court has refused to take anymore second amendment cases.

When taken together with Obamacare, then in close races, the Democrats will be in deep trouble and the Democrats may suffer staggering loses provided that the Republican party doesn't shoot itself in the head by running tin foil hat candidates.

We are running out of circuits to run a carry case from, if that happens, then perhaps we may see Congress push somekind of federal civil rights gun bill in 2016 and if Obama doesnt sign it, then reintroduce in 2017 after the election.

Nicki

kcbrown
03-26-2014, 1:51 PM
Apples and oranges. McDonald addressed the same type of ban as Heller had already addressed at that time. We got incorporation as a freebie.


Um, no.

The question asked in McDonald wasn't the same as the one asked in Heller. The former asked if the 2nd Amendment applies against the states. The latter asked if the 2nd Amendment protects an individual right to arms.

So it's not apples and oranges at all.

ccmc
03-26-2014, 1:51 PM
Apples and oranges. McDonald addressed the same type of ban as Heller had already addressed at that time. We got incorporation as a freebie.

After we get confirmed carry, SCOTUS will NOT wait for any splits before taking cases that would strike complete carry bans. Let's see how long before SCOTUS makes NY and New England "shall issue" *after* we have, say, Drake or Peruta decided in our favor by the SCOTUS. That would be a fair comparison.

A minor point - three of the six states in New England (ME, NH, VT) are either shall issue or constitutional carry. And the other three (CT, MA and RI) are somewhat easier may issue than CA (they also issue to nonresidents).

LostInSpace
03-26-2014, 2:00 PM
And the other three (CT, MA and RI) are somewhat easier may issue than CA (they also issue to nonresidents).

I've seen CT listed as "shall issue in practice".

IVC
03-26-2014, 2:41 PM
A minor point - three of the six states in New England (ME, NH, VT) are either shall issue or constitutional carry. And the other three (CT, MA and RI) are somewhat easier may issue than CA (they also issue to nonresidents).

It's a very good point and I shouldn't have used that example.

It was more along the lines of the type of gun control mentality that is being championed by the New England that will be affected by pro-gun rulings.

kcbrown
03-26-2014, 2:48 PM
The Supreme Court doesn't operate totslly clueless of what is going on outside the courtroom.

They know that their public approval ratings jumped 10 percent in one day after Heller came out. The judges are sly foxes, sometimes to sly for their own good.

If the Supreme court doesnt take any gun cases, then the second amendment will be a factor in the 2014 elections.


We would have to see the minor miracle of the Republicans actually fielding a good candidate for that to make any real difference.

I predict they'll do no such thing, that we'll get another barely warm body as a "candidate", and the Democrat candidate will therefore win by default. Just like what happened in 2012.


My prediction would be different if I'd seen evidence that the Republican Party was making a concerted effort to right itself and to concentrate on the issue of liberty, and thus to field a candidate that inspires the passion for liberty in others, but I've seen no such evidence and, therefore, I have no reason at all to expect a different outcome.

kcbrown
03-26-2014, 4:45 PM
With 20/20 hindsight, the next major abortion case after Roe v. Wade (1973) was Planned Parenthood v. Casey (1992).


No. The next major abortion case after Roe v Wade was Planned Parenthood of Central Missouri v. Danforth (1976).

Well, okay, I suppose it depends on what you mean by "major", but the fact of the matter is that in Planned Parenthood v Danforth, the district court found in favor of the government despite Roe v Wade and the plaintiffs appealed. Which is to say, the right in question was being infringed and SCOTUS stepped in to protect it. Just like it had during the civil rights cases.


My point in all this is that SCOTUS had developed a recognizable pattern of aggressively defending newly-recognized rights. Their handling of the right to keep and bear arms is a distinct and obvious break from that pattern, one that demands explanation. I have provided one that is consistent with every piece of evidence we have thus far (including things like Kennedy's denial of the emergency injunction in Fyock), and which has made predictions that have since come true. It is immediately and easily falsifiable, and yet it stands.

I want it to be incorrect. But the consistency of the evidence, combined with the fact that its predictions have thus far proven to be correct, force me to give it greater weight than any other hypothesis that has thus far been offered.


I will be the first to admit that there is great uncertainty here, and multiple plausible explanations. But plausibility is not sufficient, even though it's necessary. Whichever hypothesis is falsifiable, makes the most accurate predictions, and is most consistent with the evidence is the one that wins, period. To treat this any other way is to dispense with objectivity.


I do agree that we're likely to see within the next couple of years which explanation stands. I hope it's not mine.

ryan_j
03-26-2014, 4:49 PM
I've seen CT listed as "shall issue in practice".


It operates mostly like a shall issue state but there is a two step system to get a permit.

First you get a local permit via your first selectman. This is where most people who are denied are denied. People are denied for all sorts of petty BS. But if you have a clean record and take the NRA basic course (must be that specific course) you will get your permit.

Then you take that local temp permit and go to the state police and get your state permit.

Out of state residents just need to do the state paperwork plus submit a copy of any out of state permit.

If you are denied or they take too long (8 weeks) they have an appeal board. My friend goes there regularly to help people get their permits straightened out.

I have a CT permit since I go to CT often. In places like Bridgeport you will be glad you have it, and if you go there regularly it is more than likely you will need to draw your weapon sooner or later.

kcbrown
03-26-2014, 4:52 PM
It operates mostly like a shall issue state but there is a two step system to get a permit.

First you get a local permit via your first selectman. This is where most people who are denied are denied. People are denied for all sorts of petty BS. But if you have a clean record and take the NRA basic course (must be that specific course) you will get your permit.

Then you take that local temp permit and go to the state police and get your state permit.

Out of state residents just need to do the state paperwork plus submit a copy of any out of state permit.


So it's actually more burdensome if you're a resident than if you're not? That is most interesting.

LostInSpace
03-26-2014, 8:43 PM
So it's actually more burdensome if you're a resident than if you're not? That is most interesting.

As an aside, if one believes this link - http://wilton.patch.com/groups/thomas-paines-blog/p/wow-1-in-9-ct-voters-hold-a-pistol-permit - which does agree with what I've seen elsewhere, there are about 200,000 pistol permits in CT for 3.5 million population.

ryan_j
03-27-2014, 3:09 AM
So it's actually more burdensome if you're a resident than if you're not? That is most interesting.


That's correct. I have a CT state permit and my friends tell me how much more easier it is for nonresidents such as myself to obtain one.

ddestruel
03-27-2014, 8:01 AM
.......
We are running out of circuits to run a carry case from, if that happens, then perhaps we may see Congress push somekind of federal civil rights gun bill in 2016 and if Obama doesnt sign it, then reintroduce in 2017 after the election.

Nicki



similar to the religious freedom act instructing courts to apply strict scrutiny to any infringement of the right against a law abiding citizen or institution...... regulating states and commerce dictating that states can no longer create new frivilous classes of weapons and regulate them arbitrarily. use the language any weapon and weapon component in common use is protected from new regulations or being restricted or confiscated. protection to all travelers and law abiding FA owners from the persecution of the elite few. This could easily be written in and included in the reciprocicy law covering all the “loop holes” and felony traps that egregious state legislators have enacted.

hate to say it but thats kind of where this seems to be heading or needs to head but I’m not sure unless there is a serious swing in politics if this can be accomplished.

ryan_j
03-27-2014, 9:09 AM
As an aside, if one believes this link - http://wilton.patch.com/groups/thomas-paines-blog/p/wow-1-in-9-ct-voters-hold-a-pistol-permit - which does agree with what I've seen elsewhere, there are about 200,000 pistol permits in CT for 3.5 million population.

That's because you need one to purchase a pistol as well, and the state pistol permit is a (open or concealed) carry permit. So if you want to buy a pistol, you need a pistol permit. Now you also need it to buy ammo.

Mulay El Raisuli
03-27-2014, 9:47 AM
Correct, but those circuits *cannot* get a "carry" case in front of them since there is nothing to challenge. From that standpoint, they are as good as done when determining existence of circuit splits.


I think Bonidy (in the 10th) would be an exception to this.


The Raisuli

LostInSpace
03-27-2014, 10:32 AM
That's because you need one to purchase a pistol as well, and the state pistol permit is a (open or concealed) carry permit. So if you want to buy a pistol, you need a pistol permit. Now you also need it to buy ammo.

It is a similar situation in upstate New York (and possibly Massachusetts) - a permit to own/possess is also a permit to carry. There is, however, one big difference, permits can be and often are restricted to "hunting and target practice" or the like. That CT doesn't seem to put such restrictions on its permits is what makes it special - it would mean that those 200,000 permit holders can really all pack, even if not everyone gets their pistol permit with such activity in mind.

This situation likely has something to do with the following:

Connecticut 1818: “Every citizen has a right to bear arms in defense of himself and the state.”

(from STATE CONSTITUTIONAL RIGHTS TO KEEP AND BEAR ARMS by EUGENE VOLOKH)

dantodd
03-27-2014, 10:36 AM
As an aside, if one believes this link - http://wilton.patch.com/groups/thomas-paines-blog/p/wow-1-in-9-ct-voters-hold-a-pistol-permit - which does agree with what I've seen elsewhere, there are about 200,000 pistol permits in CT for 3.5 million population.

That's because you need one to purchase a pistol as well, and the state pistol permit is a (open or concealed) carry permit. So if you want to buy a pistol, you need a pistol permit. Now you also need it to buy ammo.

That makes the 200,000 number go from being pretty big to being very small. Less that 10% even own handguns in CT?

LostInSpace
03-27-2014, 10:43 AM
That makes the 200,000 number go from being pretty big to being very small. Less that 10% even own handguns in CT?

According to this data - http://usliberals.about.com/od/Election2012Factors/a/Gun-Owners-As-Percentage-Of-Each-States-Population.htm - CT overall gun ownership rate is only 16.7% of households. The handgun ownership rate has to be judged against that number, not forgetting that only one of the spouses in a household may choose to have a permit, so the percentage of handgun-owning households will generally be higher than the percentage of permits.

ryan_j
03-27-2014, 11:20 AM
The permit makes a big difference.

In NYC you need a permit to purchase and a permit to keep one at home, or in your business.

In NJ you need a permit to purchase a handgun, and that permit is valid for 90 days and in many cases takes about 3-6 months to issue. The permit to carry is a different permit.

These both help lower ownership numbers.

IVC
03-27-2014, 12:12 PM
I think Bonidy (in the 10th) would be an exception to this.

That's the USPS case where the question was about carrying in a specific place, not whether carry outside the home is part of 2A.

Mulay El Raisuli
03-27-2014, 9:19 PM
That's the USPS case where the question was about carrying in a specific place, not whether carry outside the home is part of 2A.


It's bigger than that since the District Court said flat-out that Open Carry is the manner of "and bear" that is protected by the 2A. Couple this with the dicta in Peterson (also in the 10th), and it could be HUGE.


The Raisuli

IVC
03-28-2014, 9:40 AM
It's bigger than that since the District Court said flat-out that Open Carry is the manner of "and bear" that is protected by the 2A. Couple this with the dicta in Peterson (also in the 10th), and it could be HUGE.

No question about that, but the current issue that is creating split is "whether 2A confirms an individual right to carry loaded firearm in public for the sole purpose of self defense."

The additional and different questions that can and will come out of shall-issue circuits will be resolved as they become ripe.

sholling
03-28-2014, 10:58 AM
The Supreme Court doesn't operate totslly clueless of what is going on outside the courtroom.
I'm not sure that I completely agree. The problem with your theory is the existence of media and social bubbles which seems likely to be the cause of Roberts' Obamacare ruling. The justices don't hang out at "Bubba's Bar & Grill" with we middle class types and probably don't get their news from The Daily Caller or Breitbart. It's a good bet that they get their news from ABC, CBS, CNN, NBC, the WaPo, and in a few cases - Fox News (Rupert Murdock is no friend of the 2nd Amendment), all of which are are either slightly anti to completely off the rails anti, which could make them (really Roberts) feel like maybe the great American "center" was for Obamacare and is for MA style gun regulation.

They know that their public approval ratings jumped 10 percent in one day after Heller came out. The judges are sly foxes, sometimes to sly for their own good.
No doubt they were shocked.

If the Supreme court doesnt take any gun cases, then the second amendment will be a factor in the 2014 elections.
The scary part of your theory is that once the 2014 elections are history the justices may decide to follow the same game plan for 2016, 2018, and 2022. :eek:

We are running out of circuits to run a carry case from
Too true.

hoffmang
03-28-2014, 7:09 PM
What I don't know, is if cert is granted in Drake will they hear the case in time to get an opinion this session.
A cert grant this late means oral argument is in the fall of 2014 and the opinion is in 2015 - probably June 2015 (June again.)

How do you explain Embody v Cooper 13-8464 ?

Embody can still open carry in TN.

-Gene

press1280
03-29-2014, 3:57 AM
Embody's stunt got his permit revoked, so now it's an unlicensed open carry since TN doesn't allow OC or CC without a permit.

Mulay El Raisuli
03-29-2014, 8:07 AM
No question about that, but the current issue that is creating split is "whether 2A confirms an individual right to carry loaded firearm in public for the sole purpose of self defense."

The additional and different questions that can and will come out of shall-issue circuits will be resolved as they become ripe.


I don't think it can be that neatly described. All efforts so far have been "contaminated" by the effort to make Shall Issue CCW the Right. The difference with Bonidy is that it arrives on the doorstep on the 10th Circuit with the legal presumption that Open Carry (presumably permitless) is the Constitutional Right.

That's quite a big difference.


The Raisuli

Peaceful John
03-29-2014, 9:44 AM
I don't think it can be that neatly described. All efforts so far have been "contaminated" by the effort to make Shall Issue CCW the Right. The difference with Bonidy is that it arrives on the doorstep on the 10th Circuit with the legal presumption that Open Carry (presumably permitless) is the Constitutional Right.

That's quite a big difference.

The Raisuli

Keeping track of the various cases and their permutations is getting to be quite a chore. Bonidy refresher below:

"A Colorado federal district court ruled today in favor of a Colorado man and a national gun rights group holding that a U.S. Postal Service regulation barring firearms in its parking lots violates their right to keep and bear arms under the Constitution. The district court ruled, “openly carrying a firearm outside the home is a liberty protected by the Second Amendment (emphasis added) [and the] parking lot adjacent to [Avon’s Post Office Building] is not a sensitive place [such that] an absolute ban on firearms is substantially related to [Defendants’] important public safety objective.”

IVC
03-29-2014, 1:57 PM
I don't think it can be that neatly described. All efforts so far have been "contaminated" by the effort to make Shall Issue CCW the Right. The difference with Bonidy is that it arrives on the doorstep on the 10th Circuit with the legal presumption that Open Carry (presumably permitless) is the Constitutional Right.

Many of these cases remind me of putting a triangular peg into a square hole. Every angle by itself can be made to fit, but the whole peg can never pass through.

The real problem we are facing in *every* "carry" case is that there is no guidance from the SCOTUS on how to approach it. Some courts are weaseling out by saying "open carry is the right," others by saying "core right is in the home," most of them say "guns are dangerous, therefore reducing number of guns advances important government interest" thus using rational basis instead of elevated scrutiny, etc. However, only Moore and now Peruta have looked at the whole carry scheme, rather than trying to answer isolated little questions taken out of context.

The overall picture is likely to be addressed by a *concealed carry* case that SCOTUS takes since we now have rulings from pretty much all circuits that are likely to address *concealed* carry (which was the point some of us made). It's not that I believe concealed carry is going to make a better case than open carry, it's just that the cases that are in front of courts are all about permits for concealed carry.

My guess is that we will get a ruling on a *concealed* carry case where the SCOTUS says that some form of carry must be available to the average law abiding citizens, but that the method of carry, including licensing, will be allowed to remain as long as it's not prohibitive. Such a ruling can come from either concealed or open carry case, but since we now have so many rulings on concealed carry and since we have a split, I would expect as a practical matter to get a ruling from a concealed carry case.

ryan_j
03-29-2014, 2:13 PM
Drake is not a concealed carry case.

NJ does not have concealed carry permits. NJ has a "permit to carry a handgun." Both open and concealed carry are completely banned except for the permit.

If you are an armed security officer or armored car personnel, you get the same permit. Many of them carry openly.

The lead plaintiff, John Drake, services ATMs. Many of those who do that sort of work have openly carried firearms. The visual deterrent is often enough to prevent thieves from trying to rob the ATM servicer.

Therefore Drake is pretty much about open carry as it is about concealed carry. In fact, it isn't even about the right to carry, because NJ bans possession of all firearms and then carves out very narrow exemptions. Evan Nappen in Pantano argued that NJ doesn't even recognize the right to possess a handgun in the home. That case is now before the NJ Supreme Court.

Judge Hardiman in the dissent in the 3rd circuit decision said that NJ completely banned open and concealed carry as well.

Drake is the perfect vehicle for this issue, and it almost exactly matches Peruta with the only difference really being who grants the permits. In NJ it is granted by the superior court, and in CA it is granted by the sheriffs. But the underlying scheme is still the exact same thing - discretionary issue of a permit to possess a handgun outside of one's home.

LostInSpace
03-29-2014, 3:03 PM
So, if in NJ the permit is for all modes of carry, on what basis did the circuit argue against issuing them?

wireless
03-29-2014, 3:08 PM
My guess is public safety

kcbrown
03-29-2014, 3:10 PM
Drake is not a concealed carry case.

NJ does not have concealed carry permits. NJ has a "permit to carry a handgun." Both open and concealed carry are completely banned except for the permit.


I think Mulay's argument is that, firstly, only open carry is protected and, secondly, SCOTUS is only interested in "pure" open carry cases and, thus, any carry case involving anything other than or in addition to open carry will be rejected by SCOTUS.

It's a plausible hypothesis, and is consistent with the rejection of the carry cases that have come up to SCOTUS thus far. I find it wanting somehow, but we simply have no evidence upon which to dismiss it.


It's less comprehensive than my hypothesis, as my hypothesis provides an explanation for rejection of BATFE as well (and is at least consistent with, if not an explanation for, Kennedy's latest denial of the emergency injunction in Fyock). Hence, one cannot legitimately use Occam's Razor to distinguish between the two because Occam's Razor is validly applicable only when all else is equal.


Less comprehensive though it may be, Mulay's hypothesis is still valid because it's not contradicted by any evidence as yet, is falsifiable, and it makes a testable prediction: that SCOTUS will grant cert to Bonidy and not any other carry case. If that prediction fails to come true, either because SCOTUS grants cert to some other carry case (which would contradict my hypothesis as well) or because SCOTUS denies cert to Bonidy, then it's sayonara to his hypothesis (hence why it's falsifiable).

kcbrown
03-29-2014, 3:14 PM
So, if in NJ the permit is for all modes of carry, on what basis did the circuit argue against issuing them?

Both on the basis of the "justifiable need" standard being a "longstanding" regulation and on the basis of "public safety". You can read the decision here: http://scholar.google.com/scholar_case?case=15778041435731592301

Per the 3rd Circuit's "reasoning", any law which infringes upon a Constitutional right and which has been in place sufficiently long to be considered "longstanding" by the court (in other words, longer than some arbitrary amount of time that the court will not elucidate nor justify, but will magically be short enough for the law under review to qualify) will automagically be "Constitutional". It's just another way of insisting that Constitutionally-protected rights are second class citizens in the world of law when the entire point of protecting them in the Constitution was to bring them to the front of the line.

wireless
03-29-2014, 3:17 PM
Bonidy is up at 10th circuit or is it being filed for cert to scotus?

M. D. Van Norman
03-29-2014, 3:23 PM
It’s not that I believe concealed carry is going to make a better case than open carry, it’s just that the cases that are in front of courts are all about permits for concealed carry.

My guess is that we will get a ruling on a *concealed* carry case where the SCOTUS says that some form of carry must be available to the average law abiding citizens, but that the method of carry, including licensing, will be allowed to remain as long as it’s not prohibitive.

I mostly agree, but I think that we had to start in states with licensing regimes, which means concealed carry for the most part. Otherwise, cases would simply have been dismissed since licenses or permits were available. While we can’t seem to avoid the prohibitionists’ delaying tactics, we almost have to back them into a corner on the concealed-carry issue (e.g., Peterson) first.

When they can no longer use the concealed-carry-isn’t-the-right defense, we can make progress on a different angle of attack … assuming we retain the advantage at the Supreme Court. Clearly, though, our advantage there is very slim, or the high court could have plucked any case thus far and issued an ACA-style ruling spelling out the legalistic right to bear arms in whatever terms it preferred. Of course, that brings us right back to the kcbrown hypothesis.

kcbrown
03-29-2014, 3:33 PM
Bonidy is up at 10th circuit or is it being filed for cert to scotus?

It's apparently at the 10th Circuit at the moment.

ryan_j
03-29-2014, 4:00 PM
Both on the basis of the "justifiable need" standard being a "longstanding" regulation and on the basis of "public safety". You can read the decision here: http://scholar.google.com/scholar_case?case=15778041435731592301

Per the 3rd Circuit's "reasoning", any law which infringes upon a Constitutional right and which has been in place sufficiently long to be considered "longstanding" by the court (in other words, longer than some arbitrary amount of time that the court will not elucidate nor justify, but will magically be short enough for the law under review to qualify) will automagically be "Constitutional". It's just another way of insisting that Constitutionally-protected rights are second class citizens in the world of law when the entire point of protecting them in the Constitution was to bring them to the front of the line.

This, and they also declined to answer whether 2A applies outside the home. The best they said was, "maybe it does, but we don't need to know that to reach our conclusion."

There is a huge problem with this though, namely that the definition of justifiable need is based on old, outdated case law, namely Burton v Sills, and Siccardi v State. The ruling in Burton found that NJ's gun control laws are valid because the 2A does not apply to the invidual and only to a militia. Siccardi was based on Burton and applied rational basis and not any form of heightened scrutiny.

The issues that let both of these decisions stand are now overruled by Heller and McDonald, because the US Supreme Court has found that the right to keep and bear arms is an individual one, and not restricted to a militia.

ryan_j
03-29-2014, 4:04 PM
I think Mulay's argument is that, firstly, only open carry is protected and, secondly, SCOTUS is only interested in "pure" open carry cases and, thus, any carry case involving anything other than or in addition to open carry will be rejected by SCOTUS.

It's a plausible hypothesis, and is consistent with the rejection of the carry cases that have come up to SCOTUS thus far. I find it wanting somehow, but we simply have no evidence upon which to dismiss it.


It's less comprehensive than my hypothesis, as my hypothesis provides an explanation for rejection of BATFE as well (and is at least consistent with, if not an explanation for, Kennedy's latest denial of the emergency injunction in Fyock). Hence, one cannot legitimately use Occam's Razor to distinguish between the two because Occam's Razor is validly applicable only when all else is equal.


Less comprehensive though it may be, Mulay's hypothesis is still valid because it's not contradicted by any evidence as yet, is falsifiable, and it makes a testable prediction: that SCOTUS will grant cert to Bonidy and not any other carry case. If that prediction fails to come true, either because SCOTUS grants cert to some other carry case (which would contradict my hypothesis as well) or because SCOTUS denies cert to Bonidy, then it's sayonara to his hypothesis (hence why it's falsifiable).

I don't believe Drake even mentions concealed. It is just assumed by people that it does, because the phrase "concealed carry" or the acronym "CCW" is now synonymous with carrying a loaded handgun in public. But it doesn't have to be. To be honest I would be fine if the ruling said that only open carry is protected, for very obvious reasons. I don't need to spell it out.

NJ's gun control scheme is so broad, that it simply bans possession of handguns everywhere without a carry permit. Your home, target ranges, hunting, training, gunsmithing, matches and other very limited purposes are carved out in narrow exemptions. This is a problem.

kcbrown
03-29-2014, 4:27 PM
I don't believe Drake even mentions concealed. It is just assumed by people that it does, because the phrase "concealed carry" or the acronym "CCW" is now synonymous with carrying a loaded handgun in public. But it doesn't have to be. To be honest I would be fine if the ruling said that only open carry is protected, for very obvious reasons. I don't need to spell it out.


Right. And the same was true of Woollard. However, his argument seems to be that if the case is not limited to open carry, SCOTUS will reject it. That open carry is infringed in a given case apparently isn't sufficient, according to his hypothesis, for SCOTUS to take the case in question. This is why I find his hypothesis wanting -- it presupposes a Supreme Court that is sufficiently disinterested in the right that it will not uphold it except when presented with a very specific case.

Indeed, that touches on why I find unpersuasive all the other hypotheses that have been offered up to explain SCOTUS' rejection of our carry cases to date. Essentially all of them presuppose a SCOTUS that is so disinterested in the right that it will refuse to protect it unless the case presented is "just right", or the circumstances are "just right", as if SCOTUS were Goldilocks or something.

But if you're going to propose a SCOTUS that is so disinterested in the right, why not go all the way and propose a SCOTUS that is no longer interested in protecting the right, as I have? After all, at that point, there is scant difference, the latter is simpler and more comprehensive, and also happens to explain more of the data available to date.

The next couple of years or so will reveal the truth, one way or the other. But if we are not now laying the groundwork for a Constitutional Convention, we damned well had better start, because our time window is limited thanks to the shifting political demographics in the country.



NJ's gun control scheme is so broad, that it simply bans possession of handguns everywhere without a carry permit. Your home, target ranges, hunting, training, gunsmithing, matches and other very limited purposes are carved out in narrow exemptions. This is a problem.It indeed is. Nevertheless, I expect SCOTUS will deny cert to it, independently of the merits of the case.

LostInSpace
03-29-2014, 4:52 PM
I expect SCOTUS will deny cert to it, independently of the merits of the case.

An optimist could then hope that SCOTUS simply wants no carry cases until the 9th circuit reaches its final verdict on Peruta.

kcbrown
03-29-2014, 5:13 PM
An optimist could then hope that SCOTUS simply wants no carry cases until the 9th circuit reaches its final verdict on Peruta.

One could, and indeed that's one of the hypotheses that has been offered.

However, it raises the question: why? What's the purpose of waiting for all the circuits to issue opinions on the issue?

Let me put it another way, via another question. Suppose all of the circuits issued essentially the same opinion which denied carry in public. Would that cause SCOTUS to subsequently refuse to protect the right?

ryan_j
03-29-2014, 5:24 PM
Right. And the same was true of Woollard. However, his argument seems to be that if the case is not limited to open carry, SCOTUS will reject it. That open carry is infringed in a given case apparently isn't sufficient, according to his hypothesis, for SCOTUS to take the case in question. This is why I find his hypothesis wanting -- it presupposes a Supreme Court that is sufficiently disinterested in the right that it will not uphold it except when presented with a very specific case.

But that's exactly what happened with Woollard - Maryland's argument was that open carry of long guns was protected under the 2A, and that you could in fact carry a loaded long gun in MD. That is not true in NJ.

ryan_j
03-29-2014, 5:26 PM
An optimist could then hope that SCOTUS simply wants no carry cases until the 9th circuit reaches its final verdict on Peruta.

They could, or they could also say that they didn't see any confusion in the lower courts. Now there is, even with the specter of an en banc hearing in Peruta. The courts are indeed hopelessly confused. The duty of the Supreme Court is to resolve this.

IVC
03-29-2014, 5:34 PM
What's the purpose of waiting for all the circuits to issue opinions on the issue?

We are still seeing Roe v. Wade related issues reach SCOTUS, we are still seeing 1A cases reach SCOTUS, we had recently a decision on equal opportunity in college admissions case in TX. How many years is this *after* the corresponding landmark decisions?

Now, what is your timeline for resolving *ALL* 2A-related issues? Three years? Any 2A issue that is not resolved in those three years means that SCOTUS doesn't want to address it?

kcbrown
03-29-2014, 5:45 PM
We are still seeing Roe v. Wade related issues reach SCOTUS, we are still seeing 1A cases reach SCOTUS, we had recently a decision on equal opportunity in college admissions case in TX. How many years is this *after* the corresponding landmark decisions?


Sure. But the difference between them is that in the case of right to abortion or right to free speech, the Supreme Court hasn't refused to protect those rights once those rights were initially recognized.



Now, what is your timeline for resolving *ALL* 2A-related issues? Three years? Any 2A issue that is not resolved in those three years means that SCOTUS doesn't want to address it?My litmus test isn't with respect to resolution of all 2A related issues, it's with respect to resolution of any 2A related issues.

There is a huge difference between not resolving an issue because it hasn't yet been raised (or repeatedly resolving the same issue, or variations thereof, as it is raised), and refusing to resolve an issue that has been raised. The RKBA problem falls squarely into the latter category, whilst the other rights fall squarely into the former.

LostInSpace
03-29-2014, 5:45 PM
Maryland's argument was that open carry of long guns was protected under the 2A, and that you could in fact carry a loaded long gun in MD.

If this applies even to urban areas, I am surprised the carry advocates in MD haven't taken up the carrying of long guns. This would seem like a pretty quick way to get the state to go shall issue. Unless there is a catch and you can't really carry a long gun there.

LostInSpace
03-29-2014, 5:58 PM
... and refusing to resolve an issue that has been raised.

Guns have a special place in American society, and they are, by design, pretty deadly, so one simply can't expect SCOTUS not to treat them in a special way.

For example, you read quite a bit into NRA vs BATFE, but my first reaction was, if I am not mixing up the cases, who ever thought SCOTUS would let itself be responsible for 18 year olds buying handguns when we as a society won't even let them enjoy a glass of wine with their dinner. And so it came to pass.

So, SCOTUS can be expected to handle RKBA more gingerly than other rights. It's not that your working hypothesis is not persuasive, but things may not yet be at a point where SCOTUS is clearly done with this right.

M. D. Van Norman
03-29-2014, 5:58 PM
If this applies even to urban areas, I am surprised the carry advocates in MD haven’t taken up the carrying of long guns.… Unless there is a catch and you can’t really carry a long gun there.

At oral arguments, the state allowed that you would likely be arrested.

Anyway, at this point, I’m surprised that the Supreme Court bothered to take up McDonald. :(

kcbrown
03-29-2014, 5:59 PM
At oral arguments, the state allowed that you would likely be arrested.

Anyway, at this point, I’m surprised that the Supreme Court bothered to take up McDonald. :(

Sandy Hook hadn't happened yet.

IVC
03-29-2014, 6:06 PM
Sure. But the difference between them is that in the case of right to abortion or right to free speech, the Supreme Court hasn't refused to protect those rights once those rights were initially recognized.

Every case that hasn't been picked up by SCOTUS appeared to plaintiffs as "refusal to protect the right" too. It's a matter of perspective.

IVC
03-29-2014, 6:09 PM
Anyway, at this point, I’m surprised that the Supreme Court bothered to take up McDonald. :(

Do you and KC get invited to any but goth parties?

hoffmang
03-29-2014, 6:12 PM
Embody's stunt got his permit revoked, so now it's an unlicensed open carry since TN doesn't allow OC or CC without a permit.

You are quite right. I had remembered that I could OC in TN but that was because I was licensed. My mistake.

-Gene

ryan_j
03-29-2014, 6:13 PM
At oral arguments, the state allowed that you would likely be arrested.


So how does this even compute?

You have a right to do something, but if you do it, you'll be arrested?

kcbrown
03-29-2014, 6:14 PM
Every case that hasn't been picked up by SCOTUS appeared to plaintiffs as "refusal to protect the right" too. It's a matter of perspective.

Yes, but the difference there is that for the other rights, SCOTUS has taken cases to protect those rights shortly after recognition of the right, while for RKBA, it hasn't.

That could change, yes. I really hope it does. But if we presume that SCOTUS would be logically consistent with its past if it were interested in protecting the right, then it won't.

Of course, nothing requires SCOTUS to be logically consistent with respect to anything, so there will always be hope no matter how much time has passed since the recognition of the right. But given your messages on the subject to date, I can't help but wonder if you would still be arguing "but they could still protect the right!" if 50 years had passed since McDonald without so much as a single grant of cert.

You still haven't answered what conditions would be required for you to decide that my hypothesis is the most likely explanation. :D

kcbrown
03-29-2014, 6:16 PM
Do you and KC get invited to any but goth parties?

What's a "party"? :D

LostInSpace
03-29-2014, 6:17 PM
You still haven't answered what conditions would be required for you to acknowledge that my hypothesis is the most likely explanation. :D

A new SCOTUS appointment? (Just kidding.)

kcbrown
03-29-2014, 6:21 PM
A new SCOTUS appointment? (Just kidding.)

Actually, that brings up another prong of my hypothesis, another bit of supporting logic.

If SCOTUS were interested in protecting the right, then it follows that there would be even more incentive than usual for it to grant cert to a case for that purpose. Why? Because the Heller 5 are on a clock. There's a roughly 40% chance that we'll lose one of them to death between now and 2016 (that figure is based on CDC mortality estimates).

And once we lose that majority, which is by a scant one person, it is over.

ryan_j
03-29-2014, 6:25 PM
If the senate flips in November, the change can be pushed back some.

LostInSpace
03-29-2014, 6:28 PM
And once we lose that majority, which is by a scant one person, it is over.

One should hope for a 6-3 decision. Otherwise, once there is a new appointment, even Heller and McDonald could start getting whittled away in some fashion. I keep wondering if the SF bizarre new handgun storage law isn't just such a trial balloon. But I guess this is getting off-topic.

dantodd
03-29-2014, 6:32 PM
Sandy Hook hadn't happened yet.

Wasn't Sandy Hook before Abramski?

IVC
03-29-2014, 6:41 PM
So how does this even compute?

You have a right to do something, but if you do it, you'll be arrested?

Same as "paying taxes is voluntary."

Except, in this case, we are waiting on SCOTUS to provide guidance and resolve circuit splits.

IVC
03-29-2014, 6:42 PM
And once we lose that majority, which is by a scant one person, it is over.

I thought your argument was that it is already over. No?

IVC
03-29-2014, 6:46 PM
You still haven't answered what conditions would be required for you to decide that my hypothesis is the most likely explanation. :D

Moore would have to be undone through either use of time travel or through a cert in another case that you claim will never happen.

Peruta would have to be reversed en banc and cert NOT granted, then another case in CA-7 would have to be decided in direct contradiction to Moore and cert NOT granted.

I'd say "time travel" has better odds, but that's just me.

IVC
03-29-2014, 6:49 PM
What's a "party"? :D

I figured as much :).

It's a gathering where people have fun while assuming that the nuclear apocalypse won't happen before the gathering is over. You wouldn't fit in. :)

kcbrown
03-29-2014, 6:51 PM
Wasn't Sandy Hook before Abramski?

Abramski wasn't a 2A case.

kcbrown
03-29-2014, 6:54 PM
I thought your argument was that it is already over. No?

My hypothesis stipulates that it is. But it is only an hypothesis that is predicated on the supposition that we've lost one of the Heller 5 to a change of heart arising from Sandy Hook.

But the loss of a Heller 5 member for real would be more than mere hypothesis. It would be observable fact.

So the difference is not in the predicted end result, but in the basis for that prediction. Currently, that basis is an hypothesis that has as its foundation something that can't be observed directly. The loss of a Heller 5 member would be a directly observable basis for the same predictions.

ryan_j
03-29-2014, 6:56 PM
Abramski wasn't a 2A case.

But it does have the potential to expand gun rights, specifically, making "straw purchases" of some kind legal. This is a pretty big deal to Brady and Bloomberg. Bloomberg in particular keeps wailing how his precious city keeps getting infested with straw purchased guns from out of state.

kcbrown
03-29-2014, 6:58 PM
Moore would have to be undone through either use of time travel or through a cert in another case that you claim will never happen.


My question is with respect to SCOTUS, which is what the hypothesis I asked you about is limited to.



Peruta would have to be reversed en banc and cert NOT granted, then another case in CA-7 would have to be decided in direct contradiction to Moore and cert NOT granted.
Why would another case in CA-7 need to be decided in contradiction to Moore for an hypothesis about SCOTUS to gain sufficient validity in your eyes?



I'd say "time travel" has better odds, but that's just me.So, in simpler terms, there are no reasonable conditions under which you'd consider my hypothesis to be the best explanation of the data.

I thought as much. Unfortunately for you, that makes your position as regards my hypothesis one based on something other than logic or evidence.

kcbrown
03-29-2014, 7:03 PM
I figured as much :).

It's a gathering where people have fun while assuming that the nuclear apocalypse won't happen before the gathering is over. You wouldn't fit in. :)

LOL!

I'm fortunate in that the parties I've been to weren't interrupted by a nuclear apocalypse. :D

M. D. Van Norman
03-29-2014, 7:03 PM
Sandy Hook hadn’t happened yet.

I’m not sure I buy that argument. There were mass shootings before Sandy Hook, and there will be more in the future. To assume that a Supreme Court justice can be swayed by an emotional but otherwise irrelevant event is also about the most damning accusation you could make.

IVC
03-29-2014, 7:07 PM
Why would another case in CA-7 need to be decided in contradiction to Moore for an hypothesis about SCOTUS to gain sufficient validity in your eyes?

Because SCOTUS has a duty to resolve circuit splits.

It's much more likely to assume that we are in the process of resolution waiting on a proper case, then to assume that we have a judicial rebellion where the court will leave the split in order to keep their personal agendas.

Besides, a change of heart by one Justice under your hypothesis of rebellion is very easy to handle: it only takes four justices to take a case, they take a case, rule against us, nullify Heller and McDonald, nullify Moore and Peruta and then at least decide that there is no right to "bear," if not reversing the right to "keep."

Probable? Not really.

CG of MP
03-29-2014, 7:10 PM
Per the 3rd Circuit's "reasoning", any law which infringes upon a Constitutional right and which has been in place sufficiently long to be considered "longstanding" by the court (in other words, longer than some arbitrary amount of time that the court will not elucidate nor justify, but will magically be short enough for the law under review to qualify) will automagically be "Constitutional"..

I guess this means they erred on 'separate but equal', 'abortion', and even slavery itself.

So when are we bringing back the triangle trade?

xKMgxuHBasI?

kcbrown
03-29-2014, 7:25 PM
I’m not sure I buy that argument. There were mass shootings before Sandy Hook,


Of a bunch of grade school kids in a school?

Even if that's the case, one should never underestimate the power of such an event happening while you're around to see the effects, if not the event itself. It adds palpability where it otherwise does not exist.



and there will be more in the future. To assume that a Supreme Court justice can be swayed by an emotional but otherwise irrelevant event is also about the most damning accusation you could make.It is. And we know that we have at least 4 such justices on the Court, no?

M. D. Van Norman
03-29-2014, 7:27 PM
Columbine? Jonesboro? Stockton?

kcbrown
03-29-2014, 7:45 PM
Because SCOTUS has a duty to resolve circuit splits.


If SCOTUS has such a duty, and it is faithful to that duty (as you are presuming here), then it follows that there exist no longstanding circuit splits, right?

And that presumes that such a duty exists. Where is such a duty encoded, such that the Court is commanded to resolve such splits?

In any case, if SCOTUS does indeed have such a duty, and fails to act on that duty for an extended period of time, would that not provide ample evidence that SCOTUS is intent on not upholding the right involved in the split?



It's much more likely to assume that we are in the process of resolution waiting on a proper case, then to assume that we have a judicial rebellion where the court will leave the split in order to keep their personal agendas.
But to presume this is to presume that there is something lacking in the cases that have thus gone before the court. And that presumes that counsel has not done its job properly, because it is the job of counsel to ensure that the case coming before the court has all of the elements and arguments required to, in this case, secure the fundamentals of the right in the public arena.

I mean, all we're looking for here, initially, is acknowledgement of the existence of the right outside the home. If it's this hard to get the Court to take a case for the purpose of securing something as simple and straightforward as that, then it clearly follows that something more complicated will be essentially impossible to secure, no?



Besides, a change of heart by one Justice under your hypothesis of rebellion is very easy to handle: it only takes four justices to take a case, they take a case, rule against us, nullify Heller and McDonald, nullify Moore and Peruta and then at least decide that there is no right to "bear," if not reversing the right to "keep."
You're utterly ignoring the game theoretical situation. That situation is that SCOTUS can choose between granting cert as you lay out above, or simply ignoring further 2A cases. Both yield the same practical result. If both yield the same practical result, then why would SCOTUS go to the extra effort when it doesn't have to?

The only situation in which SCOTUS would have to go through that extra effort under those conditions is if it looks likely that the composition of the Court is about to change in such a way that it will uphold the right. But right now, and for the foreseeable future, the opposite is the case.

dantodd
03-29-2014, 7:49 PM
Abramski wasn't a 2A case.

Of course it is....

The question before the court is:

ISSUES:
Does the Gun Control Act of 1968 prohibit a lawful gun-purchaser from stating that they are the actual buyer when they are purchasing the gun for another person?


If commerce in firearms isn't a 2A case what is?

dantodd
03-29-2014, 7:50 PM
Of a bunch of grade school kids in a school?

Even if that's the case, one should never underestimate the power of such an event happening while you're around to see the effects, if not the event itself. It adds palpability where it otherwise does not exist.


It is. And we know that we have at least 4 such justices on the Court, no?

I am surprised that you believe SCOTUS had such a different reaction to the shooting than the rest of the nation did.

kcbrown
03-29-2014, 7:53 PM
Columbine?


High school. A possible candidate, admittedly. Happened in 1998.


Jonesboro?


Same as Columbine in that respect, including the rough timing.



Stockton?

That one makes for a much better point, because it involved grade school children, but it was in 1989, nearly a quarter of a century before Sandy Hook.


You've got very good points here, but time has a way of causing the horror of past events to fade, so it's not clear to me that those events would have the emotional power of persuasion that Sandy Hook would.

kcbrown
03-29-2014, 7:59 PM
If commerce in firearms isn't a 2A case what is?

Um...a law applicability case?

Go ahead and search the Abramski cert petition (http://sblog.s3.amazonaws.com/wp-content/uploads/2013/09/Abramski-Petition-for-Writ-of-Certiorari.pdf) for any mention of the 2nd Amendment. You'll find nothing.

It can't be a 2nd Amendment case if the 2nd Amendment isn't even mentioned, much less made a staple of the arguments.

kcbrown
03-29-2014, 8:00 PM
I am surprised that you believe SCOTUS had such a different reaction to the shooting than the rest of the nation did.

I'm not claiming the entire Court had such a reaction. It takes only one person in the Heller 5 to have such a reaction.

Do you believe the Heller 5 member(s) who insisted on the "machine gun" language in the Heller decision are somehow not persuaded by emotional arguments on this subject? Why not, since emotional arguments are precisely the ones that are used to argue for why machine guns should not be protected by the 2nd Amendment?

ryan_j
03-29-2014, 8:38 PM
High school. A possible candidate, admittedly. Happened in 1998.



Same as Columbine in that respect, including the rough timing.




That one makes for a much better point, because it involved grade school children, but it was in 1989, nearly a quarter of a century before Sandy Hook.



You've got very good points here, but time has a way of causing the horror of past events to fade, so it's not clear to me that those events would have the emotional power of persuasion that Sandy Hook would.

What about Virginia Tech? That was about a year before Heller. It was right in the same vicinity as well (VA/DC). More bodies than Sandy Hook too, and the guns were legally purchased.

Besides, didn't Lanza use a Bushmaster AR style rifle for Sandy Hook? What would this have to do with concealed carry, especially since in Woollard the argument for keeping G&S in place was that people could "bear arms" by walking down the street with such a rifle?

ryan_j
03-29-2014, 8:43 PM
Um...a law applicability case?

Go ahead and search the Abramski cert petition (http://sblog.s3.amazonaws.com/wp-content/uploads/2013/09/Abramski-Petition-for-Writ-of-Certiorari.pdf) for any mention of the 2nd Amendment. You'll find nothing.

It can't be a 2nd Amendment case if the 2nd Amendment isn't even mentioned, much less made a staple of the arguments.

That's true, it was not a 2A case but it was still a case that had to do with the accessibility of guns and undermining gun control laws.

kcbrown
03-29-2014, 8:46 PM
What about Virginia Tech? That was about a year before Heller. It was right in the same vicinity as well (VA/DC). More bodies than Sandy Hook too, and the guns were legally purchased.


Yep.

But the loss of little school children has a much greater emotional impact than the loss of adults. The former are regarded as much more innocent and valuable than the latter.

Remember, this is at an emotional level, not a logical one.



Besides, didn't Lanza use a Bushmaster AR style rifle for Sandy Hook? What would this have to do with concealed carry, especially since in Woollard the argument for keeping G&S in place was that people could "bear arms" by walking down the street with such a rifle?The antis who made that argument in favor of G&S were doing so disingenuously. They were lying.

They know that if you deny the fundamental right to carry in public, then it follows that the "exceptions" (such as open carry of rifles) can be eliminated. They also knew when making that argument that the reality is that someone who tries to carry a rifle in public will be arrested for it.

Want proof? There have been arrests and confiscation for that very thing in Texas, where protection of such is explicit.

kcbrown
03-29-2014, 8:52 PM
That's true, it was not a 2A case but it was still a case that had to do with the accessibility of guns and undermining gun control laws.

Of course.

My claim is not that the Supreme Court is going to ignore all firearms cases, only those that revolve around 2nd Amendment protection. It is the latter for which the jurisprudence is new and for which recognition has far-reaching implications.

Not all firearms cases involve protection of the right to keep and bear arms, just like not all cases about pens involve protection of the right to free speech.

LostInSpace
03-29-2014, 9:33 PM
There have been arrests and confiscation for that very thing in Texas, where protection of such is explicit.

I would check their laws before assuming such legal protection. Most likely, the open carrying of handguns is explicitly banned, but the law is silent on long guns. Now, what's not banned is not in itself illegal of course, except people get arrested for disturbing peace when carrying a rifle.

I've read it has been like that in Salt Lake City with open carry of handguns. So, they now passed a bill saying that merely carrying a handgun in a holster is fine. If the governor of Utah signs it, they will be able to open carry there. Arizona already has an explicit provision like that, as far as I recall.

kcbrown
03-29-2014, 10:15 PM
I would check their laws before assuming such legal protection. Most likely, the open carrying of handguns is explicitly banned, but the law is silent on long guns. Now, what's not banned is not in itself illegal of course, except people get arrested for disturbing peace when carrying a rifle.


Ah, yes, I see you're right. My mistake. :(

Note, too, that Texas has a right to keep and bear arms encoded in its constitution.



I've read it has been like that in Salt Lake City with open carry of handguns. So, they now passed a bill saying that merely carrying a handgun in a holster is fine. If the governor of Utah signs it, they will be able to open carry there. Arizona already has an explicit provision like that, as far as I recall.Yeah, that's possible.

Now, all of this raises the important question: if you have to have a law explicitly allowing something for that something to be legal, was that something really a right prior to passage of said law?

I would argue that the answer to that must be "no", for a right is something that one can exercise despite the objections of the government.

LostInSpace
03-30-2014, 2:29 PM
... if you have to have a law explicitly allowing something for that something to be legal, was that something really a right prior to passage of said law?

Texas RKBA is the following:

“Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

so the bearing of arms is pretty murky there as a right to begin with. They like to talk big talk in Texas, but don't always walk the walk. This particular provision may have been in response to the emancipation of slaves after the civil war; the RKBA was stronger in Texas' earlier days. Here is the full history, after Volokh's article "State Constitutional Rights to Keep and Bear Arms":

Texas 1876: “Every citizen shall have the right to keep and
bear arms in the lawful defense of himself or the State; but the
Legislature shall have power, by law, to regulate the wearing of
arms, with a view to prevent crime.”

1868: “Every person shall have the right to keep and bear
arms, in the lawful defence of himself or the State, under such
regulations as the legislature may prescribe.”

1845: “Every citizen shall have the right to keep and bear
arms, in the lawful defence of himself or the State.”

1836: “Every citizen shall have the right to bear arms in
defence of himself and the republic. The military shall at all
times and in all cases be subordinate to the civil power.”

LostInSpace
03-30-2014, 2:37 PM
... if you have to have a law explicitly allowing something for that something to be legal, was that something really a right prior to passage of said law?

Even where "the right to bear" is not circumscribed, there is still going to be some latitude as to where, how, and what types of arms can be borne in practice. Where ambiguities arise, they can pretty much only be settled either by the legal system or by explicit legislative protection.

As an illustration of ambiguities of a less quantifiable kind, look at this article about a rifle on a city bus:

http://www.kvoa.com/news/gun-on-a-city-bus-is-it-legal-/

Given that his hand was on the handle, even in a state as tolerant as where this took place, a case could have been made that he bore his weapon in a menacing manner. I don't know that it was though, at least I haven't run into a follow-up story.

LostInSpace
03-30-2014, 2:48 PM
To assume that a Supreme Court justice can be swayed by an emotional but otherwise irrelevant event is also about the most damning accusation you could make.

I know of at least one case, where a former SCOTUS justice may have been so affected, or at least took notice of the shootings that had happened:

http://www.huffingtonpost.com/2013/01/29/sandra-day-oconnor_n_2577554.html

This was Sandra Day O'Connor sitting on a panel as a visiting judge. The case in question was about a part time upstate New York resident refused a pistol license there. Now the panel decision appears to have been sensible - to return the case to the State court for clarification whether NY State law really prevented a non-resident from obtaining a permit. Still, here's what she said,

"The regulation of firearms is a paramount issue of public safety, and recent events in this circuit are a sad reminder that firearms are dangerous in the wrong hands," she wrote. "Questions like the one before us require a delicate balance between individual rights and the public interest, and federal courts should avoid interfering with or evaluating that balance until it has been definitively struck." If I get this right, she is saying that if a judge can possibly avoid ruling on whether a gun control provision is actually unconstitutional, (s)he should definitely do so.

kcbrown
03-30-2014, 3:23 PM
Even where "the right to bear" is not circumscribed, there is still going to be some latitude as to where, how, and what types of arms can be borne in practice. Where ambiguities arise, they can pretty much only be settled either by the legal system or by explicit legislative protection.


Of course.

The Supreme Court did say, after all:


the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.


But that does not mean that the right is a right to only carry certain specific weapons in certain specific manners and for only certain specific purposes.

That what we're talking about is a right means that the restrictions must be narrowly carved out exceptions, not broad swaths of prohibition. To forbid all carry of long arms goes well beyond a narrowly carved out exception.


The question must be: would the founders of the country, who had just come out of a shooting war waged for the purpose of freeing themselves from tyranny, in which the ability to keep and bear many types of weapons was key to their victory, be comfortable with the restriction in question in that context? After all, the prefatory clause is part of the Constitution and, per Marbury v Madison, "It cannot be presumed that any clause in the constitution is intended to be without effect", so whatever other purpose the right to keep and bear arms may have, the purpose stated in the prefatory clause cannot be presumed to be inoperative. Thus, the right to keep and bear those arms which are necessary to meet the purpose stated in the prefatory clause shall not be infringed.

If we would not interpret the right to free speech in the manner that a prohibition on carrying of long arms in public would suggest we interpret the right to keep and bear arms, then we cannot interpret the right to keep and bear arms in that manner. And as long arms represents a large category of arms which certainly have use in preserving liberty against tyranny, and probably more so than any other category of weapon, the closest equivalent to a prohibition on carrying of those arms in public would be prohibition of political speech in public.


Of course, I don't believe we're ever going to get that interpretation of the 2nd Amendment out of the Supreme Court. They're too cowardly for that.

ryan_j
03-30-2014, 4:19 PM
That what we're talking about is a right means that the restrictions must be narrowly carved out exceptions, not broad swaths of prohibition. To forbid all carry of long arms goes well beyond a narrowly carved out exception.


Yup, and this is exactly what NJ has. A complete "out-right ban" (DiFi) and narrow exemptions to possess. It should be the other way round.

IVC
03-30-2014, 4:36 PM
"The regulation of firearms is a paramount issue of public safety, and recent events in this circuit are a sad reminder that firearms are dangerous in the wrong hands," she wrote. "Questions like the one before us require a delicate balance between individual rights and the public interest, and federal courts should avoid interfering with or evaluating that balance until it has been definitively struck."

Nothing wrong with that line of reasoning.

If I get this right, she is saying that if a judge can possibly avoid ruling on whether a gun control provision is actually unconstitutional, (s)he should definitely do so.

What she is saying is that the balance between individual right and public interest must be "struck" before courts can make rulings without fear of consequences if they don't get the balance right.

With the decisions in Heller and McDonald we now have a slightly better definition of this "balance," but we'll be there when the balance is defined as "strict scrutiny" or similar non-interest-balancing objective criterion.

In the meantime, it's good to keep track of what that balance is NOT: various "blood in the streets" and similar scenarios by *legal* carriers as predicted by antis.

kcbrown
03-30-2014, 5:32 PM
What she is saying is that the balance between individual right and public interest must be "struck" before courts can make rulings without fear of consequences if they don't get the balance right.


And in doing so, she (and you) fundamentally misunderstand the very nature and purpose of rights.

Rights by their nature trump "public interest" except when said "public interest" is some other right. The very purpose of something being a right is for the action in question to be allowed and protected despite the general public's opposition to it. Were that not the case, then there would be no point in calling it a right at all, as the public can otherwise always vote to get what it wants.

And the rights that are recognized in the Constitution are those that were intended to survive against the will of the public more than any others, such that only a Constitutional Amendment would remove or change the rights in question.


What O'Connor argues, and what you seem to buy here, is the notion that the balance involved is something that has to be decided today. But the very enumeration of the right means that the balance was already decided at the point in time of the right's enumeration.

Rossi357
03-30-2014, 7:36 PM
Which amendment is it that codifies the right to public safety?

LostInSpace
03-30-2014, 7:49 PM
What she is saying is that the balance between individual right and public interest must be "struck" before courts can make rulings without fear of consequences if they don't get the balance right.

Are you saying that the courts will never rule boldly? The problem with that is that upholding the right to bear would require a somewhat bold step - no "may issue" scheme that is not already shall issue in practice will strike the kind of "balance" where one can just tiptoe into proper "shall issue" - one has to take a bit of a leap to get from here to there.

Specifically in this case, it all ended well, but not as well as it could have. The federal appeals panel with Justice O'Connor as visiting judge sent the case back to NY State courts, hinting that if they don't let part-time residents get permits, it might raise constitutional issues:

http://www.scotusblog.com/2013/01/a-new-gun-rights-issue-arises/

And what do you know, both NY State and the state court saw light and realized that not being domiciled in NY State is not, after all, a reason not to be able to get a pistol license there. Here is the decision:

http://www.nycourts.gov/ctapps/Decisions/2013/Oct13/167opn13-Decision.pdf

which states,

"The United States Court of Appeals for the Second Circuit, by certified question, asks us to decide whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located. We answer the certified question in the affirmative, on the basis of the relevant statute. As we explain below, it is therefore unnecessary for us to decide the constitutional issues raised by appellant."

Of course, the appelant's lawyers wanted a 2nd Amendment based ruling, but the courts have gone out of their way to avoid it. Because guns.

IVC
03-30-2014, 10:11 PM
Rights by their nature trump "public interest" except when said "public interest" is some other right.

In this case it is.

If (note conditional) handguns spontaneously fired by themselves or were volatile and blew up in public randomly while *law abiding* were carrying them, then it would be clearly in public interest to prevent carrying in public because it would interfere with others' right to life.

Now, the "guns are bad and reducing their number is good" is clearly not legitimate. What we're fighting is an incorrect definition of public interest, not the concept of "collision of rights."

IVC
03-30-2014, 10:14 PM
Are you saying that the courts will never rule boldly?

Quite the opposite. Moore and Peruta are bold rulings. Heller was a very bold ruling.

What I'm saying is that just because we have some caution and reluctance by *lower* courts to make a bold ruling does not automatically imply "judicial rebellion." Let's see how all this pans out and then we can make a much better hypothesis.

kcbrown
03-30-2014, 10:58 PM
In this case it is.

If (note conditional) handguns spontaneously fired by themselves or were volatile and blew up in public randomly while *law abiding* were carrying them, then it would be clearly in public interest to prevent carrying in public because it would interfere with others' right to life.


But the fact is that firearms do not and have never behaved in that manner, and O'Connor's statement was made specifically with respect to firearms.

Even grenades don't behave that way. In fact, I know of no purposefully-designed weapon which does, as such a weapon would pose at least as much risk to the bearer as to the general public.



Now, the "guns are bad and reducing their number is good" is clearly not legitimate. What we're fighting is an incorrect definition of public interest, not the concept of "collision of rights."No, what we're fighting is far more fundamental than that. What we're fighting against is the notion that the general public is somehow not entitled to keep and bear items which are dangerous when used as designed, but which are not dangerous except when they are used/misused, despite the fact that the right to keep and bear such items is encoded in the very document that is the foundation of this country.

Arms are an entirely different class of items than any other, precisely because they are dangerous by design, and there is no escaping that dangerousness, for it is that dangerousness alone that makes them useful for their lawful and/or rightful purposes.


O'Connor insists that there is some sort of balance to be struck between that right and "public interest". But the plain fact of the matter is that the only interest the public can possibly have in regulating bearable arms without infringing upon that right has to be derived from the danger of accidental misuse of same, or to innocents when said weapons are used properly and accurately by peaceable people (the latter is valid foundation for forbidding carry of "area effect" weapons but not of direct effect weapons, and is not a valid foundation for forbidding keep of said weapons).


And, finally, like I said, the enumeration of the right automatically means that what balance there is has already been struck at the time of enumeration, and its enumeration clearly makes protection of the right of greater importance than "public interest", since otherwise it would not be the case that:


The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.

IVC
03-31-2014, 12:18 AM
But the plain fact of the matter is that the only interest the public can possibly have in regulating bearable arms without infringing upon that right has to be derived from the danger of accidental misuse of same, or to innocents when said weapons are used properly and accurately by peaceable people (the latter is reasonable foundation for forbidding carry of "area effect" weapons but not of direct effect weapons, and is not reasonable foundation for forbidding keep of said weapons).

Exactly.

The message we need to promote is that the regulation can only be about *safety* of the public from *accidents* and that in that light any scheme that merely minimizes access to firearms or availability of carry is an *infringement* even if it can correlate with the lower number of accidents.

kcbrown
03-31-2014, 4:26 AM
Exactly.

The message we need to promote is that the regulation can only be about *safety* of the public from *accidents* and that in that light any scheme that merely minimizes access to firearms or availability of carry is an *infringement* even if it can correlate with the lower number of accidents.

What?

We agree on something?? :eek:

:D


I've since changed "reasonable" to "valid" in the bit you quoted, but the intended meaning is the same ("valid" is closer to what I was really after -- "reasonable" is far too wishy-washy for these things), so I'm pretty sure you're still going to be in agreement. Whatever is this world coming to? :D

LostInSpace
03-31-2014, 9:27 AM
Quite the opposite. Moore and Peruta are bold rulings. Heller was a very bold ruling.

Heller was psychologically bold, but it had only limited impact on existing laws - a lift on a total handgun ban even in one's home in DC and, after McDonald, in Chicago.

Moore was bold. One can be snarky and say that, with all the off-limits places, all you can now do in Chicago as a result is carry a gun while walking your dog. Or one could remark that had Illinois not had a gun-friendly legislature to begin with, it would have passed a may issue law in response to the ruling. Still, on balance, Moore was bold.

Peruta is still up in the air. Moore would have looked a lot less "bold" now if it had been taken en banc and overturned, so we have to wait on Peruta for now.

Generally speaking, acknowledging the right to bear will take more boldness than Heller did, since it will impact some 80 million people living in may issue or no issue jurusdictions at the moment, and it involves bearing arms in public areas. If the 9th circuit upholds Peruta, it will leave only 40 million in may and no issue jurisdictions, reducing by half the amount of boldness SCOTUS would need to recognize the right to bear.

What I'm saying is that just because we have some caution and reluctance by *lower* courts to make a bold ruling does not automatically imply "judicial rebellion."

Some circuits have been rather disappointing.

Hanse Davion
03-31-2014, 10:30 AM
So I am curious, when is the last day this year the Court can decide whether or not to grant cert? I know it has something to do with the last Conference of the year, but is there a way to find out when that is?

ryan_j
03-31-2014, 11:19 AM
So I am curious, when is the last day this year the Court can decide whether or not to grant cert? I know it has something to do with the last Conference of the year, but is there a way to find out when that is?

The last conference for this term is on September 29. This is after the Summer so there is a gap from the end of July to September.

IVC
03-31-2014, 1:41 PM
Some circuits have been rather disappointing.

It's all perspective.

Assume you were asked to come up with a ruling on an issue that you know very little about, i.e., set up standards for safe water in an African village after an outbreak of ebola. Would you rush into the decision, especially if you knew that above you there were a governing body that not only was responsible and better equipped for making such a call, but was also responsible for a recent very significant change in how locals can manage their water supply?

In a way, I don't fault (much) circuit judges who don't know anything about guns for asking guidance from SCOTUS. I'd be worried if they were all ruling "right doesn't exist outside the home," but I'm not that worried for them merely finding a way to preserve status quo, while explicitly asking for guidance. The way it is, the few who either understand guns or are more inclined to make a bold ruling, are creating the split. However, I believe they are all waiting and asking SCOTUS to clarify the issue.

kcbrown
03-31-2014, 2:09 PM
It's all perspective.

Assume you were asked to come up with a ruling on an issue that you know very little about, i.e., set up standards for safe water in an African village after an outbreak of ebola. Would you rush into the decision, especially if you knew that above you there were a governing body that not only was responsible and better equipped for making such a call, but was also responsible for a recent very significant change in how locals can manage their water supply?


That's not a terribly good analogy, because the fact of the matter is that the 2nd Amendment has existed in its current form for over 200 years, as have firearms. Even full auto firearms have existed for over 100 years.

This is not a new issue. It is a very, very old one.

If there exists anything "longstanding", it's the Bill of Rights!



In a way, I don't fault (much) circuit judges who don't know anything about guns for asking guidance from SCOTUS. I'd be worried if they were all ruling "right doesn't exist outside the home," but I'm not that worried for them merely finding a way to preserve status quo, while explicitly asking for guidance. The way it is, the few who either understand guns or are more inclined to make a bold ruling, are creating the split. However, I believe they are all waiting and asking SCOTUS to clarify the issue.But issuing the proper decision here doesn't require an intimate understanding of firearms. It requires an understanding of rights. Furthermore, courts are deciding matters of law, not matters of fact.

The only question of fact that need concern the court is whether or not firearms pose a danger to innocent bystanders when used as intended. Since the answer to that is negative (they are directed damage weapons, not area effect weapons), it follows that there's really nothing unique about firearms that the court needs to know (save for the fact that they require ammunition to function, something that everyone already knows).

Strike the above. Even that question is not something the court needs to know about. Why? Because the codification of the right to arms means that the question of the weight of the danger of the right versus the weight of the right itself has already been decided in favor of the right.



Courts routinely deal with questions of fact when answering questions of law. It's why we have "trials" when there are disputes of fact.

If courts at this stage do not understand firearms sufficiently to issue proper decisions as regards the right to keep and bear, then they are either being briefed by utterly incompetent counsel, or they are ignoring the briefs. Which of those two options do you think applies here?

LostInSpace
03-31-2014, 2:19 PM
If courts at this stage do not understand firearms sufficiently to issue proper decisions as regards the right to keep and bear ...

It's not the design or functioning of firearms that weigh on their minds, it's human behavior. However, given that we have over 40 shall issue states now should be reason enough to conclude that it is not a problem overall. I recall Judge Posner may have looked at those data, although I am not positive on that.

The problem is that, while it will not be a problem overall, there will, without fail, be some incidents of misuse, and some judges won't take responsibility for any incidents, however few. Either that, or they just don't believe ordinary citizens should be able to carry guns around, and culture, it appears, has a way of trumping not only politics, but law as well.

press1280
03-31-2014, 2:25 PM
So I am curious, when is the last day this year the Court can decide whether or not to grant cert? I know it has something to do with the last Conference of the year, but is there a way to find out when that is?

It's usually mid-December, but that's not really significant. The cases granted right now at SCOTUS won't be heard and decided until next term.

kcbrown
03-31-2014, 3:09 PM
It's not the design or functioning of firearms that weigh on their minds, it's human behavior. However, given that we have over 40 shall issue states now should be reason enough to conclude that it is not a problem overall. I recall Judge Posner may have looked at those data, although I am not positive on that.


It's not just that experience, for that matter. We had over 100 years of a real right to keep and bear arms that was practiced throughout the country.

Carry restrictions enacted against the general population are a relatively recent thing, an invention of the 20th century.

LostInSpace
03-31-2014, 3:34 PM
It's not just that experience, for that matter. We had over 100 years of a real right to keep and bear arms that was practiced throughout the country.

As a practical matter, the judges who will care to do an honest analysis will look at the data for the last 30 years or so, when modern shall issue carry spread widely in the US.

IVC
03-31-2014, 4:03 PM
Because the codification of the right to arms means that the question of the weight of the danger of the right versus the weight of the right itself has already been decided in favor of the right.

We are not talking about the "danger of the right" - that issue is resolved.

What some justices are saying is that the line where the right to bear arms meets other civil rights of other people is what needs to be determined carefully, since if that line is set up incorrectly there is little recourse for those who are affected, being that dead people generally have hard time keeping court appointments.

Here is another example. Say that a group asks court to allow carrying a 1911 single action pistol in condition 0 with finger on the trigger and to wave it around in a crowd. Assuming that you and I know all the pitfalls of such a proposition, we'd argue against it. At the same time, the group in question could yell back "what part of "shall not be infringed" don't you understand."

How is the court with judges who don't understand firearms to know whether the request of the group above is legitimate or not? Because we tell them "it's dangerous?" Well, that's what Bradys and some LEA-s are telling the court too. Being reluctant in this case is rational.

LostInSpace
03-31-2014, 4:48 PM
How is the court with judges who don't understand firearms to know whether the request of the group above is legitimate or not? Because we tell them "it's dangerous?" Well, that's what Bradys and some LEA-s are telling the court too. Being reluctant in this case is rational.

It would be just as rational for SCOTUS to be reluctant too. What will make it take the leap where the lower courts won't?

Nick Justice
03-31-2014, 4:55 PM
It's not just that experience, for that matter. We had over 100 years of a real right to keep and bear arms that was practiced throughout the country.

Carry restrictions enacted against the general population are a relatively recent thing, an invention of the 20th century.

Actually, carry restrictions have been around since the early 1800's. Courts routinely said that states and localities could ban one form or another of carry: concealed vs. open, but never both. Most opted to allow open carry. Permits for concealed carry existed in CA before the 1920's, but they were local/county permits, not statewide.

IVC
03-31-2014, 4:59 PM
It would be just as rational for SCOTUS to be reluctant too. What will make it take the leap where the lower courts won't?

The duty to resolve the issue and provide the answers and guidance the lower courts are asking for.

Besides, SCOTUS is reluctant too - they provide very narrow rulings and take time to steer the ship. Remember, we are seeing the lack of rulings, not rulings against us.

LostInSpace
03-31-2014, 5:15 PM
Courts routinely said that states and localities could ban one form or another of carry: concealed vs. open, but never both.

They would actually say that in the 19th century? That's interesting, since just today I ran into an article arguing that antebellum state supreme court cases only point to the open carry being protected. (I haven't read it in detail yet.)

Link: http://www.yalelawjournal.org/article/open-carry-for-all-heller-and-our-nineteenth-century-second-amendment

LostInSpace
03-31-2014, 5:21 PM
The duty to resolve the issue and provide the answers and guidance the lower courts are asking for.

But if the 9th were to wipe out Peruta, it would leave only the 7th, which ruled on a no-issue rather than may issue case, and with only the 7th being the "outlier", what would indicate that "the lower courts are asking for" anything?

Is it not fair to say that unless Peruta survives in the 9th, there will be no real pressure on SCOTUS to get involved at all?

kcbrown
03-31-2014, 7:46 PM
Actually, carry restrictions have been around since the early 1800's. Courts routinely said that states and localities could ban one form or another of carry: concealed vs. open, but never both. Most opted to allow open carry.


Yes, but in all those cases, the right to carry remained in existence.

It is not until the 20th century that the right was actually foreclosed to the general population.



Permits for concealed carry existed in CA before the 1920's, but they were local/county permits, not statewide.

Right, and generally, the permit systems were targeted at minorities, not the population at large.

kcbrown
03-31-2014, 8:03 PM
We are not talking about the "danger of the right" - that issue is resolved.


If that were the case, we wouldn't now be having to ask the courts to recognize our right to bear arms outside the home, would we?



What some justices are saying is that the line where the right to bear arms meets other civil rights of other people is what needs to be determined carefully, since if that line is set up incorrectly there is little recourse for those who are affected, being that dead people generally have hard time keeping court appointments.
Well, there may be some validity to that, but the plain fact of the matter is that firearms have been around since the founding of the country, and the only new major development in firearms technology that's less than a century old that could possibly legitimately raise the question you're talking about is hollow point bullets, and even those are more than 30 years old.

No, the questions the judiciary needs answers to have already been answered for a very long time. There is nothing new here.



Here is another example. Say that a group asks court to allow carrying a 1911 single action pistol in condition 0 with finger on the trigger and to wave it around in a crowd. Assuming that you and I know all the pitfalls of such a proposition, we'd argue against it. At the same time, the group in question could yell back "what part of "shall not be infringed" don't you understand."
There are two very simple answers to such a question. The first is one that we for some reason seem to be reluctant to take. It may be a novel concept to some, but how about actually making the person who is taking an action responsible for the consequences of his action? If someone is injured or killed as a result of that action, the guy goes to jail for it.

The second is that "affray", which is an old and well-understood concept, is something that has always been recognized as legitimate grounds to build laws on top of, and waving any arm around like that in a crowd most certainly qualifies as "affray".



How is the court with judges who don't understand firearms to know whether the request of the group above is legitimate or not? Because we tell them "it's dangerous?" Well, that's what Bradys and some LEA-s are telling the court too. Being reluctant in this case is rational.How is it that state courts well over a century ago had no such troubles as this, but now our courts do?

I suppose it may be that those who manned the courts back then actually understood firearms, and we've lost that. So I have to concede that you do have a reasonable point here -- within limits. But courts are ignorant of all sorts of things. They have procedures they use for their own education on matters which are generally beyond them, but which they must make decisions upon nonetheless. What prevents them from using those same procedures here?

IVC
03-31-2014, 9:40 PM
But if the 9th were to wipe out Peruta, it would leave only the 7th, which ruled on a no-issue rather than may issue case, and with only the 7th being the "outlier", what would indicate that "the lower courts are asking for" anything?

There is no such thing as "little bit pregnant" and there is no such thing as "little bit of a split."

We already DO have a split regardless of Peruta. Besides, both Peruta and Moore are about no-issue. Half of reasoning in Peruta is to build a case for why it's addressing no-issue.

When lower courts use language such as "if the Supreme Court meant to extend the right outside the home they should have said so" (approximately), that's a call for guidance.

IVC
03-31-2014, 9:45 PM
Well, there may be some validity to that, but the plain fact of the matter is that firearms have been around since the founding of the country, and the only new major development in firearms technology that's less than a century old...

Collision of rights involves two parties. One carrying and the other being around carriers.

As you correctly point out, there hasn't been much change in the former, but it's the latter that has changed a lot. The urban population density has changed a lot and the overall society has changed a lot.

I'm not remotely saying that urbanization in any shape or form is a valid argument to preclude responsible carry, but it sure is a valid argument to why the "line" needs to be evaluated carefully in the light of recent paradigm shifting rulings on 2A.

kcbrown
03-31-2014, 11:14 PM
Collision of rights involves two parties. One carrying and the other being around carriers.

As you correctly point out, there hasn't been much change in the former, but it's the latter that has changed a lot. The urban population density has changed a lot and the overall society has changed a lot.


There has been some change in the urban population density, but the main difference is that urban areas are simply bigger. Densely populated areas have existed for a very long time, but their size wasn't as large.

So again, this is not a new problem.


Society certainly has changed, but rights don't change just because society does. That's one of the things that makes them rights. Rights are supposed to be immune to the vagaries of social acceptability.



I'm not remotely saying that urbanization in any shape or form is a valid argument to preclude responsible carry, but it sure is a valid argument to why the "line" needs to be evaluated carefully in the light of recent paradigm shifting rulings on 2A.I would argue that the line had already been evaluated at the time of the ratification of the 2nd Amendment and, again, at the ratification of the 14th Amendment. It was well understood at both points in time that to forbid carry of firearms in public was an infringement of the right, plain and simple.

I'm not saying that there can't be a case where the court would actually have to determine whether there is a collision of rights such that the answer is not already known. I'm saying that such cases should be very rare in the context of firearms, because our experience with firearms is long.

And yet, here we are, pleading with the courts to simply recognize the mere existence of the right in public. And despite the fact that protection of this right is demanded by the Constitution, and was strongly protected for the first 100 years or so of the country's history, the courts are still insistent on throwing it under the bus. That goes well beyond the "balancing" you're speaking of.


Had the founders been alive today, they would have taken the bulk of the judges on the judiciary in the contested areas out back and shot them all for treason. :mad:

ryan_j
04-01-2014, 6:35 AM
Collision of rights involves two parties. One carrying and the other being around carriers.

As you correctly point out, there hasn't been much change in the former, but it's the latter that has changed a lot. The urban population density has changed a lot and the overall society has changed a lot.

I'm not remotely saying that urbanization in any shape or form is a valid argument to preclude responsible carry, but it sure is a valid argument to why the "line" needs to be evaluated carefully in the light of recent paradigm shifting rulings on 2A.

The problem is that the "line" is arbitrary.

NJ argues that "the line" is the entire state of NJ, even up where I live where each house lot must be 5 acres minimum (you can get a variance).

But if you look at the rest of the country, you have large metro areas in states like Georgia, Texas, Florida, Michigan, Pennsylvania, Illinois. These places have legal concealed carry and while there is gun crime and shootings, they happen with illegal guns. In Chicago in particular, where there was a total ban, they had 500+ murders in one year. So the whole "blood in the streets" argument really doesn't hold water.

LostInSpace
04-01-2014, 7:50 AM
... there is no such thing as "little bit of a split."

We already DO have a split regardless of Peruta.

I used to think that too, since I could see no practical difference between the (formerly) non-issue Illinois and the statutorily may issue, but in practice hardly any issue Hawaii and New Jersey. Yet, I've seen a number of people with legal backgrounds claim that there is somehow a big legal difference between a true non-issue statute and a may issue one, despite the similarities in the actual outcome, i.e., no regular person ever getting a permit.

So, I've heard contradictory opinions on whether the 7th circuit on its own would be regarded as a true split by SCOTUS.

Mulay El Raisuli
04-01-2014, 9:29 AM
They would actually say that in the 19th century? That's interesting, since just today I ran into an article arguing that antebellum state supreme court cases only point to the open carry being protected. (I haven't read it in detail yet.)

Link: http://www.yalelawjournal.org/article/open-carry-for-all-heller-and-our-nineteenth-century-second-amendment


When you do read it in detail, you will find that it was written by a grabber; and that he is correct. What matters most is what was quoted and commented upon in Heller, and what was quoted and commented upon clearly shows is that concealed carry is NOT Constitutionally protected.

Which is why IVC is wrong. We DO have guidance from SCOTUS. The problem is that we've been ignoring it. As the article points out:

"...fidelity to Heller requires that courts protect the open carry of firearms but allow for restrictions on concealed carry. This theory has not been advanced in the Second Amendment scholarship, but it most accurately captures the understanding of the right to keep and bear arms in the only sources used in Heller that contain any significant discussion of the right to carry. This interpretation may prove unpopular with most camps in the Second Amendment discussion, but that does not alter its descriptive force." (emphasis mine)

And of course, while this theory has not been advanced in 2A scholarship, it has been advanced by me for the last 5 years now.


I think Mulay's argument is that, firstly, only open carry is protected and, secondly, SCOTUS is only interested in "pure" open carry cases and, thus, any carry case involving anything other than or in addition to open carry will be rejected by SCOTUS.

It's a plausible hypothesis, and is consistent with the rejection of the carry cases that have come up to SCOTUS thus far. I find it wanting somehow, but we simply have no evidence upon which to dismiss it.


It's less comprehensive than my hypothesis, as my hypothesis provides an explanation for rejection of BATFE as well (and is at least consistent with, if not an explanation for, Kennedy's latest denial of the emergency injunction in Fyock). Hence, one cannot legitimately use Occam's Razor to distinguish between the two because Occam's Razor is validly applicable only when all else is equal.


Less comprehensive though it may be, Mulay's hypothesis is still valid because it's not contradicted by any evidence as yet, is falsifiable, and it makes a testable prediction: that SCOTUS will grant cert to Bonidy and not any other carry case. If that prediction fails to come true, either because SCOTUS grants cert to some other carry case (which would contradict my hypothesis as well) or because SCOTUS denies cert to Bonidy, then it's sayonara to his hypothesis (hence why it's falsifiable).


Bonidy is THE case to watch because Peruta is going en banc, AND will be depublished and rendered uncitable. Bonidy, OTOH, is a real game-changer. It is the only case in the pipeline that actually pays attention to the words of Heller. Being appealed to a Circuit Court that showed (in Peterson) that showed that it, too, paid attention to the actual words of Heller.

It isn't a matter of (taking from another post of yours) that SCOTUS is "disinterested" (sic) in an "and bear" case (or that they're uninterested in furthering the Right at all). Nor is it a matter of them seeking "Goldilockian" (to take from another post) perfection. Its a matter of they're looking for a case that heeds their words. A case that took the hint that concealed carry simply isn't the Constitutional Right. That CCW can be restricted, even to the point of being banned. They're looking to Rule on a case where the plaintiff makes the argument that to ban open carry offends the Constitution. NONE of the cases presented for cert have made that argument and so it's no surprise (to me, anyway) that ALL of them have been denied cert.

As the grabber from Yale points out, such a Ruling would bother BOTH sides of the aisle. But it should bother us a LOT less. As I've also been pointing out for the last 5 years, a Ruling from SCOTUS that established PLOC as the Right would not be a bad thing. While CCW could be outlawed, precedent (the "Ohio Experience") tells us that decent CCW regs would follow quickly.

I'm of the opinion that the greater the exercise of the Right, the more lives will be saved. PLOC would give this country THE greatest exercise of the Right. Therefore, we should heed the words of Yale (since no one is paying attention to me) and change our stance to acceptance of the actual words of Heller.


The Raisuli

IVC
04-01-2014, 10:03 AM
The problem is that the "line" is arbitrary.

We completely agree - you are misreading my posts.

All I'm saying is that the line exists since any civil right is expansive in nature, but is limited by civil rights of others. If the line exists, it needs to be defined. If it needs to be defined, we should be thinking about where it is and how to define it.

Read above where KC talks about line being "preventing accidents by legal carriers." That's a good example of where the line is.

IVC
04-01-2014, 10:22 AM
Which is why IVC is wrong. We DO have guidance from SCOTUS. The problem is that we've been ignoring it. As the article points out:

There are "suggestions," but we need an explicit ruling such that courts can point to it and apply it without having to go through the extensive analysis that Peruta panel did.

As for open carry being the core protected right, Heller left doors open for several interpretations (another reason we need clarification.) I actually also read it that the open carry is indeed protected, but I can see a strong enough case to make "choice of method of carry" a legislative discretion that would fall under permissible regulation. To put it differently, I wouldn't be surprised with any ruling/outcome as far as open carry goes and I would certainly want to have open carry as the core right, if nothing else then to avoid prosecution for printing and to allow much more comfortable carrying of choice while in the nature.

Another aspect is that while we indeed lost several cases by courts saying "concealed carry can be regulated," we haven't seen any court say "open carry is the right" until Bonidy. I cannot claim with any honesty that CA-2, CA-3, CA-4 and CA-10 would have stricken down open carry bans, when they were clearly just reluctant to "upset the licensing scheme." Setting up open carry as standard would be "upsetting and a half."

I hope you are right and we get the open carry as the standard. We should know relatively soon.

dantodd
04-01-2014, 1:51 PM
I used to think that too, since I could see no practical difference between the (formerly) non-issue Illinois and the statutorily may issue, but in practice hardly any issue Hawaii and New Jersey. Yet, I've seen a number of people with legal backgrounds claim that there is somehow a big legal difference between a true non-issue statute and a may issue one, despite the similarities in the actual outcome, i.e., no regular person ever getting a permit.

So, I've heard contradictory opinions on whether the 7th circuit on its own would be regarded as a true split by SCOTUS.

It is a split. One circuit says that carry is a constitutional right available to all and other circuits say that not every law abiding resident has the right to carry.

If an elevated standard for issuing a license to carry was acceptable don't you think Illinois would have tried that route first?

LostInSpace
04-01-2014, 2:06 PM
If an elevated standard for issuing a license to carry was acceptable don't you think Illinois would have tried that route first?

The way I understand it, Illinois has a somewhat pro-gun legislature, but not a super-majority pro-gun one, which would be needed to pass a gun law that would override home rule by individual cities.

So, the court order meant they had to pass something, and the pro-gun faction was big enough to block any chance at a may issue law, but not big enough to get a great shall issue law, so they ended up with a shall issue law with a lot of caveats.

So, the fact that a may issue law was not passed there may have had to do with politics, not the court order. They would have quite possibly taken their chances with further litigation if they had had the votes to pass a may issue law.

dantodd
04-01-2014, 2:25 PM
The way I understand it, Illinois has a somewhat pro-gun legislature, but not a super-majority pro-gun one, which would be needed to pass a gun law that would override home rule by individual cities.

So, the court order meant they had to pass something, and the pro-gun faction was big enough to block any chance at a may issue law, but not big enough to get a great shall issue law, so they ended up with a shall issue law with a lot of caveats.

So, the fact that a may issue law was not passed there may have had to do with politics, not the court order. They would have quite possibly taken their chances with further litigation if they had had the votes to pass a may issue law.

Were that the case the governor would have vetoed as he is in the pocket of the Chicago machine.

thayne
04-01-2014, 2:28 PM
There are "suggestions," but we need an explicit ruling such that courts can point to it and apply it without having to go through the extensive analysis that Peruta panel did.

As for open carry being the core protected right, Heller left doors open for several interpretations (another reason we need clarification.) I actually also read it that the open carry is indeed protected, but I can see a strong enough case to make "choice of method of carry" a legislative discretion that would fall under permissible regulation. To put it differently, I wouldn't be surprised with any ruling/outcome as far as open carry goes and I would certainly want to have open carry as the core right, if nothing else then to avoid prosecution for printing and to allow much more comfortable carrying of choice while in the nature.

Another aspect is that while we indeed lost several cases by courts saying "concealed carry can be regulated," we haven't seen any court say "open carry is the right" until Bonidy. I cannot claim with any honesty that CA-2, CA-3, CA-4 and CA-10 would have stricken down open carry bans, when they were clearly just reluctant to "upset the licensing scheme." Setting up open carry as standard would be "upsetting and a half."

I hope you are right and we get the open carry as the standard. We should know relatively soon.

Open carry as the standard would be excellent. CA would be handing out CCW's like candy.

LostInSpace
04-01-2014, 2:43 PM
Were that the case the governor would have vetoed as he is in the pocket of the Chicago machine.

He used an amendatory veto which was overridden by the legislature. I imagine a plain veto would have been overridden too. The legislature wasn't going to chance having no law in place after the court-imposed deadline, and the votes for a may issue law were just not there.

wireless
04-01-2014, 2:45 PM
The way I understand it, Illinois has a somewhat pro-gun legislature, but not a super-majority pro-gun one, which would be needed to pass a gun law that would override home rule by individual cities.

So, the court order meant they had to pass something, and the pro-gun faction was big enough to block any chance at a may issue law, but not big enough to get a great shall issue law, so they ended up with a shall issue law with a lot of caveats.

So, the fact that a may issue law was not passed there may have had to do with politics, not the court order. They would have quite possibly taken their chances with further litigation if they had had the votes to pass a may issue law.

This is correct