[wildhawker]

Here's a start:

Protected class
From Wikipedia, the free encyclopedia
Protected class is a term used in United States anti-discrimination law. The term describes groups of people who are protected from discrimination and harassment. The following characteristics are considered "Protected Classes" and persons cannot be discriminated against based on these characteristics:
Race - Federal: Civil Rights Act of 1964 and the Civil Rights Act of 1866
Ethnicity
Religion or sect - Federal: Civil Rights Act of 1964
Color - Federal: Civil Rights Act of 1964
National origin - Federal: Civil Rights Act of 1964
Age (40 and over) - Federal: Age Discrimination in Employment Act of 1967
Sex - Federal: Equal Pay Act of 1963 & Civil Rights Act of 1964
Familial status (Housing, cannot discriminate for having children, exception for senior housing)
Sexual orientation (in some jurisdictions and not in others)
Gender identity (in some jurisdictions and not in others)
Disability status - Federal: Vocational Rehabilitation and Other Rehabilitation Services of 1973 & Americans with Disabilities Act of 1990
Veteran status - Federal Vietnam Era Veterans Readjustment Assistance Act of 1974
Genetic Information - Federal: Genetic Information Nondiscrimination Act

See also:

Equal Employment Opportunity Commission
Civil Rights Act of 1968 -- In particular, Title VIII of the Act, also known as the Fair Housing Act
Affirmative action
Protected group

14th Amendment of the United States Constitution

Originally Posted by kcbrown

Protected classes haven't always been protected classes.

What does it take to make a given class "protected"?

Not expecting anything at all from that, but it might be something to consider for the very long term...

[kcbrown]

Originally Posted by Lex Arma

IMHO LOC can be banned if CCW is shall issue. Just as LOC has to be allowed if CCW is anything less than shall issue. Incorporation of the Second Amendment is what should make this happen.

The right is to "keep and bear." The argument (which I wish would not carry the day, but I don't bet on wishes) will be: "as long as you CAN bear, the state can regulate how.

I think it'll be very interesting to see how this ends up playing out.

The CA legislature and judiciary are both malevolent with respect to RKBA. With that in mind, I fully expect the legislature to enact whichever combination of measures will yield the most restricted RKBA they can get.

So: what's the most restricted combination of such measures? Seems to me that it would be shall-issue permit-based LOC: lots of complaints from the population, yielding lots of law enforcement harassment of OCers, combined with targeted legislation such as severe restrictions on businesses that do not forbid firearms on their premises, results in a right that is all but useless -- exactly what a malevolent legislature would like.

CCW would, under the above, remain as it is: discretionary. It will pass "equal protection" muster just like it does right now. The "important" people will get it, the rest of us won't. The fact that LOC is available at all will eliminate the retort that self-defense isn't available, since under the law it will be -- but in practice it won't be.


Please poke holes in the above.

[hoffmang]

Permit based LOC will run into the political power of local sheriffs as they will want the ability to retain the ability to issue concealed carry licenses - even if they are shall issue.

I expect there to be two classes of shall issue carry licenses in California. The one that we all can get in 30 days or so and the one that you get in 24 hours or less because you donated to the campaign. The permit will be no different - just the processing. Proving that favoritism is hard too but I mostly just worry about making the usual process reasonable for everyone.

-Gene

[nobody_special]

Originally Posted by Lex Arma

IMHO LOC can be banned if CCW is shall issue. Just as LOC has to be allowed if CCW is anything less than shall issue. Incorporation of the Second Amendment is what should make this happen.

The right is to "keep and bear." The argument (which I wish would not carry the day, but I don't bet on wishes) will be: "as long as you CAN bear, the state can regulate how.

It sets a bad -- no, terrible -- precedent if we abdicate a core element of an enumerated right to a licensing requirement without protest. I'll quote from my post here:

Originally Posted by nobody_special

I do not believe that the scope of the right to bear arms was limited to the home at the time it was adopted.

I've repeatedly pointed out that there is no other enumerated right where a license or permit is required to exercise any aspect of that right. In fact, I can't think of any enumerated right where a license is required for an individual exercise of a protected activity. So in my view, asking for some unlicensed right to bear arms is not "absolutist" -- it is minimalist, because a licensing requirement is an abrogation of the right by definition.

I mean, seriously... do you think it would be reasonable to require a permit in order to walk down the street? Or post to calguns? I think (maybe it's just a hope?) that Kennedy has more intellectual honesty than you give him credit for.

You never know what SCOTUS will give you if you don't ask. (Obviously there's every reason to expect that the lower courts, especially those in California, won't give an inch.) But looking at Heller (quoting another source) it seems like an argument that has yet to be made.

“As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873)
[...]
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).
[...]

I submit that the precedent which allows prohibition of open carry when concealed carry permits are shall-issue may be vulnerable.

[kcbrown]

Originally Posted by hoffmang

Permit based LOC will run into the political power of local sheriffs as they will want the ability to retain the ability to issue concealed carry licenses - even if they are shall issue.

But wouldn't they rather retain discretion for CCW issuance? Shall-issue removes most of their discretion, does it not?

As long as some minimum Constitutional standard is maintained (i.e., something is shall-issue, whether it's LOC or CCW), it doesn't matter if anything above and beyond that is discretionary, right?

I fully expect that all permit processing will remain with the local sheriffs, whether or not any given permit is "shall-issue". I expect "shall-issue" will be anything but for quite a long time even after incorporation, but perhaps I'm being too pessimistic.

I expect there to be two classes of shall issue carry licenses in California. The one that we all can get in 30 days or so and the one that you get in 24 hours or less because you donated to the campaign. The permit will be no different - just the processing. Proving that favoritism is hard too but I mostly just worry about making the usual process reasonable for everyone.

I would think there are all sorts of games they could play with that, too, right? Such as: what if the permit "for the rest of us" expires in a relatively short period of time, such that the time it takes to get the permit is a large fraction of the time the permit is good for?

Does shall-issue carry permit expiration even pass Constitutional muster?

[nobody_special]

Originally Posted by hoffmang

Speech is either speech or obscenity. You're talking about whether its obscene or not. Playboy is speech and isn't obscene in any jurisdiction but yet there are all sorts of time place and manner restrictions on it all over the US. I'm sorry you don't like the jurisprudential truth, but there it is.
-Gene

The obscenity standard is based on the "contemporary community standards" and so it varies by community. There is no single standard of what constitutes obscenity, so I think you're almost certainly wrong here. There are some pretty conservative communities (thinking Amish etc.).

But consider also what I posted above, quoting from our previous discussion. If the courts in this country are intellectually dishonest to the point where the simplest possible individual exercise of a core enumerated right must be licensed, then I submit that we have no rights, and the third box has failed to protect liberty.

[nobody_special]

Originally Posted by wildhawker

The codified law pertaining to carry clearly favors CCW, and was made more clear by the recent legislation I mentioned in my previous post. They don't dare take the power of carry permit issuance away from CLEOs, and are fully aware that issuance limitations by subjective and discriminatory GC will die via Sykes/Palmer. Once all CLEOs are forced to accept self-defense as GC, maybe they ask DOJ to take the program over... but don't count on it, as some counties have a fair amount of revenue by permitting volume.

That revenue will dry up if the licensing fees become reasonable (which they must).

Do you really believe that the legislature will just throw up their hands and say "oh well, we lost, nothing to do now" if Sykes forces shall-issue in CA? Do you think the big (and very anti) CLEO's are going to be content with having discretion removed?

[Gray Peterson]

Originally Posted by nobody_special

That revenue will dry up if the licensing fees become reasonable (which they must).

Do you really believe that the legislature will just throw up their hands and say "oh well, we lost, nothing to do now" if Sykes forces shall-issue in CA? Do you think the big (and very anti) CLEO's are going to be content with having discretion removed?

Don't know about the Legislature, but you're of the mistaken belief that sheriffs as a general rule want to be put into jail for contempt of court. Even Governor George Wallace, after being confronted by US marshals and the US military, finally stood aside when he was told that refusing to comply would mean the loss of his freedom, and this was a guy that supposedly believed in his segregation (he didn't, in reality, because it was the only way that he would get elected in early 1960's Alabama). These sheriffs are no different.

From the wiki entry on contempt of court:

The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required.

The Legislature is limited by one factor you are not thinking of.

9th Circuit Court of Appeals rules California Ultra-Violent Video Game Law Unconstitutional

By December 2005, both bills had been struck down as unconstitutional, by Ronald M. Whyte, District Judge, Presiding in the United States District Court for the Northern District of California in San Jose, thereby preventing either from going into effect on January 1, 2006.

We would have the ability to go to a federal court and ask for a preliminary injunction against any gun control law which the Legislature passes, thereby keeping it from going into effect until a federal judge can rule on the law's constitutionality. If it's an attempt to raise the fees into the stratosphere, or to create so many off limits places as to make the license completely ineffective, we can put a stop to it before it even takes effect. We don't have that capability now pre-McDonald.

Also, never ever underestimate having your lead counsel as the guy who argued two of the most important civil rights cases in over one hundred years (Heller and now McDonald), and is perfectly willing to embarrass you by appealing a dumb ruling you wrote. This point was accentuated by the recent Palmer oral arguments in DC, where the federal district judge asked point blank at the end, if he was the lawyer who argued the Heller case. This should denote an understanding that their opinions will be watched and reviewed by the Court of Appeals or the Supreme Court. Federal District judges don't generally like being overruled and ridiculed by their higher ups.

[nobody_special]

Originally Posted by Gray Peterson

Don't know about the Legislature, but you're of the mistaken belief that sheriffs as a general rule want to be put into jail for contempt of court. Even Governor George Wallace, after being confronted by US marshals and the US military, finally stood aside when he was told that refusing to comply would mean the loss of his freedom, and this was a guy that supposedly believed in his segregation (he didn't, in reality, because it was the only way that he would get elected in early 1960's Alabama). These sheriffs are no different.

I think you've mistaken my point here. I'm not suggesting that the CLEO's would balk in the face of a court order, but rather that they have considerable political clout in Sacramento.

[hoffmang]

Originally Posted by nobody_special

I think you've mistaken my point here. I'm not suggesting that the CLEO's would balk in the face of a court order, but rather that they have considerable political clout in Sacramento.

The Sheriff's political clout means that there will be concealed carry licenses. Federal courts will mean that there will be shall issue as the legislature can't override such a Federal court ruling. Even in a post Sykes world, sheriffs want to retain the ability to issue carry licenses - even if they have to give them to everyone.

Your right to sell magazines can be permitted. Your right to assemble on the National Mall can be permitted. You need to get past your knee jerk reaction. This argument about permitting is about prior restraint under the speech. There are lots of places where permits are required. Try posting a sign anywhere in Redwood City without a permit. You have a right to an attorney but all attorneys require a permit from the state to practice. You have the right to practice a religion, but a local government can require you meet most zoning rules and get a building permit for your church. A judge can issue a permit to a police officer to look through your underwear drawer. Rights, can, are, and always have been subject to permits. A lack of knowledge of the law does not mean that your knowledge of the law is correct.

What rights do, however, is make sure that the permit doesn't stop the right from being used. And when those permits are not fairly given, then courts enforce fairness.

-Gene

[corrupt]

Damn, you guys are too pointed-headed for me!

[kcbrown]

Originally Posted by Gray Peterson

Federal District judges don't generally like being overruled and ridiculed by their higher ups.

What are the consequences to those judges if they don't have any aspirations to serve on a higher court?

Embarrassment only gets you so far in the general case. If the District judge being overruled and ridiculed simply doesn't care, then what leverage do the courts above him have over him?

The 9th Circuit court has a reputation (perhaps undeserved) of being the most overruled Circuit court in the land. If that hasn't caused them to change their general approach to things, then why would a District court that earned the same status change theirs?

[Gray Peterson]

Originally Posted by kcbrown

The 9th Circuit court has a reputation (perhaps undeserved) of being the most overruled Circuit court in the land. If that hasn't caused them to change their general approach to things, then why would a District court that earned the same status change theirs?

It is, for the most part, pretty much undeserved.

[nobody_special]

Originally Posted by hoffmang

Your right to sell magazines can be permitted. Your right to assemble on the National Mall can be permitted. You need to get past your knee jerk reaction. This argument about permitting is about prior restraint under the speech. There are lots of places where permits are required. Try posting a sign anywhere in Redwood City without a permit. You have a right to an attorney but all attorneys require a permit from the state to practice. You have the right to practice a religion, but a local government can require you meet most zoning rules and get a building permit for your church. A judge can issue a permit to a police officer to look through your underwear drawer. Rights, can, are, and always have been subject to permits. A lack of knowledge of the law does not mean that your knowledge of the law is correct.

It's not a knee-jerk reaction, Gene. I will give up this argument as soon as someone gives an example of a single enumerated right (aside from the right to bear arms) which cannot be exercised in any way without a permit in the state of California.

And no, my right to assemble on the national mall cannot be absolutely limited by a permit requirement. See Forsyth County v. Nationalist Movement -- the permits requirement is a balancing act between the right to assemble and the government interest of public order. It passes strict scrutiny if you're going to hold a parade or demonstration; however, a basic exercise of my right of assembly and association such as meeting a few friends can not be subject to a permit.

Those protected adult magazines are still subject to regulations that pass strict scrutiny, i.e. "do it for the children" generally works. But again, this is a fringe aspect of first amendment rights, not a core element. The first amendment does not say "Congress shall pass no law respecting pornography" but the second does say something about a right to bear arms that shall not be infringed.

It's one thing to say "permits are required for distributing pornography which is a fringe element of the first amendment, therefore it's reasonable to require permits to carry concealed, which is a fringe element of the second amendment." It's quite another to say "permits are required for a particular exercise of the first amendment, therefore permits may be required for any exercise of a core 2nd amendment right."

Zoning rules for churches, business licenses or permits for attorneys, etc. are completely irrelevant, and I'm surprised you'd raise them in this context. Freedom of religion does not imply that you have the right to build a church wherever you choose. The right to counsel does not imply that anyone can practice law regardless of qualification. These arguments are specious.

What rights do, however, is make sure that the permit doesn't stop the right from being used. And when those permits are not fairly given, then courts enforce fairness.

Look from another perspective: let's assume that the 2nd amendment is incorporated and the core element of self defense has strict scrutiny protection; this much seems possible. Does a permit requirement for carry pass strict scrutiny, when that requirement makes the right impossible to otherwise exercise? Is that really a narrowly tailored, minimally restrictive way of serving a compelling government interest? (And note that the compelling interest cannot violate the right...)

I think that would be difficult to argue.

Originally Posted by hoffmang

In those counties, yes.

Have any of these ordinances been subject to a challenge in a federal court, where the challenge in question was for non-commercial distribution between consenting adults?

[Mulay El Raisuli]

Originally Posted by nobody_special

It's not a knee-jerk reaction, Gene. I will give up this argument as soon as someone gives an example of a single enumerated right (aside from the right to bear arms) which cannot be exercised in any way without a permit in the state of California.

And no, my right to assemble on the national mall cannot be absolutely limited by a permit requirement. See Forsyth County v. Nationalist Movement -- the permits requirement is a balancing act between the right to assemble and the government interest of public order. It passes strict scrutiny if you're going to hold a parade or demonstration; however, a basic exercise of my right of assembly and association such as meeting a few friends can not be subject to a permit.

Those protected adult magazines are still subject to regulations that pass strict scrutiny, i.e. "do it for the children" generally works. But again, this is a fringe aspect of first amendment rights, not a core element. The first amendment does not say "Congress shall pass no law respecting pornography" but the second does say something about a right to bear arms that shall not be infringed.

It's one thing to say "permits are required for distributing pornography which is a fringe element of the first amendment, therefore it's reasonable to require permits to carry concealed, which is a fringe element of the second amendment." It's quite another to say "permits are required for a particular exercise of the first amendment, therefore permits may be required for any exercise of a core 2nd amendment right."

ALL of this is VERY good.

Originally Posted by nobody_special

Zoning rules for churches, business licenses or permits for attorneys, etc. are completely irrelevant, and I'm surprised you'd raise them in this context. Freedom of religion does not imply that you have the right to build a church wherever you choose. The right to counsel does not imply that anyone can practice law regardless of qualification. These arguments are specious.

All I can add to this is that Gene's reference to "A judge can issue a permit to a police officer to look through your underwear drawer. Rights, can, are, and always have been subject to permits." is especially specious because it turns the Constitution on its head. I don't need a "Mother May I?" slip to be secure in my home & so keep the cops out. The cops need one to come in.

Originally Posted by nobody_special

Look from another perspective: let's assume that the 2nd amendment is incorporated and the core element of self defense has strict scrutiny protection; this much seems possible. Does a permit requirement for carry pass strict scrutiny, when that requirement makes the right impossible to otherwise exercise? Is that really a narrowly tailored, minimally restrictive way of serving a compelling government interest? (And note that the compelling interest cannot violate the right...)

I think that would be difficult to argue.

My fear is that the successful argument might just be made. So, think about this;
We're about to get the greatest advance in Civil Rights this country has seen in decades. But, thanks to Sykes/Palmer, that advance is going to add the tiny little requirement that a "Mother May I?" slip can be Constitutionally required for a core, enumerated Right. So, it might come to pass some day that your local preacher might not only have to get a building permit, but he could be required to get a preaching permit as well. Ridiculous? Think no one thought of that after Jonestown? Think they'll never think of it again? The comment was made that we should think long-term. Maybe we should think very long-term & consider what Constitutionalizing a "Mother May I?" slip for this Right will do to all our other Rights?

Originally Posted by kcbrown

I think it'll be very interesting to see how this ends up playing out.

The CA legislature and judiciary are both malevolent with respect to RKBA. With that in mind, I fully expect the legislature to enact whichever combination of measures will yield the most restricted RKBA they can get.

So: what's the most restricted combination of such measures? Seems to me that it would be shall-issue permit-based LOC: lots of complaints from the population, yielding lots of law enforcement harassment of OCers, combined with targeted legislation such as severe restrictions on businesses that do not forbid firearms on their premises, results in a right that is all but useless -- exactly what a malevolent legislature would like.

CCW would, under the above, remain as it is: discretionary. It will pass "equal protection" muster just like it does right now. The "important" people will get it, the rest of us won't. The fact that LOC is available at all will eliminate the retort that self-defense isn't available, since under the law it will be -- but in practice it won't be.


Please poke holes in the above.

I'm not seeing anyone poke holes in that yet. I also see it as yet another reason to fight for a method of "and bear" that doesn't require a permit.

Originally Posted by dbldblu

Half of all peace officers killed in the line of duty are killed with their own weapon. The thug(s) take it away from them. You are not safe while LOC.

That over-simplifies things. You also have to look into why cops have their guns taken away from them & what they're doing at the time this happens.

Originally Posted by artherd

How about we do this:
1) Remove the legislature's ability to infringe upon our rights (McDonald)
2) Secure the rights we can get today including Shall-Issue CCW.
3) Fight for permit-less LOC*.

Can we all grasp that order of operations is critical to overall success?

Actually, no. By "Fighting" for LOC you mean in the PRK legislature. Where, for the reasons I've already mentioned, we will lose. That means that LOC is being thrown under the bus. That would be fine (7X57's wise words about some squads being sent forth while others run being kept in mind) if it resulted in greater freedom. But that isn't the case, for the reasons mentioned above.

One more thing. I've been in libraries across the land. Not a single one has a policy of not talking. But each & every one of them has a policy against talking loudly. They at least recognize the difference between the two.


The Raisuli

[Lex Arma]

Originally Posted by kcbrown

Isn't the above true even if you substitute "open carry" for "CCW" in the above?

In what way is the means of carry relevant?

This wouldn't surprise me.

Question: would a law making it a felony to expose your concealed gun (even if it's by "printing") be Constitutional? What about making it a misdemeanor that causes you to lose your CCW privileges when LOC is outlawed?

You are correct. Constitutionally, the issue isn't LOC v CCW, as long as one form is permitted by the law of the state, county, city, etc... The political issue should be, what is the better policy to insure maximum exercise of the right for the maximum number of people. Again, I wish (but if wishes were wings,...) that the Second Amendment would be given the same dignity as the First, but that is not a political reality at this time. That is why CCW is the "rational choice" here for the policy maker. It puts the maximum number of weapons into the hands of known virtuous citizens, without offending (the often times irrational) sensibilities of people who hate guns and/or don't care about guns.

Police officers are allowed to carry off duty; most do, many are required to carry by their department policy. They don't open carry. Why?

Partial answer: Because police departments are an urban phenomenon. A man walking around town in plain clothes with a gun on his hip, is going to draw police attention. Thousands of people walking around town with guns is going to have a lot of uniformed police officers responding to a lot of useless calls.

Another partial answer: LOC is a dumb idea in an urban environment for tactical reasons. Who is the first guy the bank robbers are going to shoot when they rob a bank. Answer: anybody standing there who is an obvious threat. (e.g., security guard with a side arm) Your chances of being effective, saving lives and getting out of an active shooter situation alive go up if your weapons is concealed at the beginning of the encounter.

Now switch to rural Montana. I am privy to scenarios in which ordinary citizens walk into banks and stores with their LOC weapons. The only response they get from a security guard or sheriff: Hey Albert, is that a new gun?

Put yourself in the shopkeepers place. If you own a feedstore in Bozeman, you don't care if your customer is LOC. But if you own Macy's in downtown Manhattan, you probably would prefer that the only hardware on display in your store consists of jewelry, watches and toasters. The urban environment probably compels -- exclusively -- CCW as a rational alternative to LOC.

It is a great fantasy to have Angelina Jolie on your arm, as you walk with her down 5th Avenue in New York. You both walk into Macy's while she picks out a PPK that goes with her handbag and shoes. And because there was no waiting period, she was able to use the .380 to save both your lives that night when you were attacked by armed thugs after a night at the theater. (sigh) But alternate universe discussions are probably off topic.

As for a law criminalizing the negligent display of a CCW permitted weapon; proportionality probably compels that it be treated like an infraction (fine) if it happens, like making an illegal left hand turn. And yes, repeat offenders should lose their permit for a while. If you can't keep your CCW weapon hidden on your person, then maybe you should carry a purse.

[Window_Seat]

Originally Posted by hoffmang

...Even in a post Sykes world, sheriffs want to retain the ability to issue carry licenses - even if they have to give them to everyone. ...

This is fine with me (I could get flamed for saying that), but it could backfire on them...

Remember when cell phones started becoming a big thing, the issue with 911 calls placed from cell phones were being directly routed to the CHP. There was a reason for that, and it was because the CHP wanted those calls routed to the CHP (I'm sure for some valid reason). Now you get a recorded message saying "Please wait for the next operator", and a message in Spanish, & blah blah, and years later, the CHP comes out and says "oh...".

If the Sheriff wants all the applications, that's fine with me, but if they are given a time limit to issue, they could run into a problem, no? Maybe they should take some lessons from the CHP.

Erik; watching.

[hoffmang]

Originally Posted by nobody_special

It's not a knee-jerk reaction, Gene. I will give up this argument as soon as someone gives an example of a single enumerated right (aside from the right to bear arms) which cannot be exercised in any way without a permit in the state of California.

And no, my right to assemble on the national mall cannot be absolutely limited by a permit requirement. See Forsyth County v. Nationalist Movement -- the permits requirement is a balancing act between the right to assemble and the government interest of public order. It passes strict scrutiny if you're going to hold a parade or demonstration; however, a basic exercise of my right of assembly and association such as meeting a few friends can not be subject to a permit.

Those protected adult magazines are still subject to regulations that pass strict scrutiny, i.e. "do it for the children" generally works. But again, this is a fringe aspect of first amendment rights, not a core element. The first amendment does not say "Congress shall pass no law respecting pornography" but the second does say something about a right to bear arms that shall not be infringed.

You make my point for me. In California carry permits will be done for the children to balance the people's right not to get shot by us fringe people. A court in DC just ruled that the allowed number of assemblers at the Jefferson Memorial without a permit is 0 and permits to assemble are not available for the Jefferson Memorial. This approaches the "permits absolutely ban" the right to assembly which shouldn't be Constitutional but it's going to be a fight.

Post a sign in Redwood City without a permit (Chapter 3 (3.61) of the Redwood City Municipal Code.) Show me where in the Constitution it says commercial speech isn't included in "the freedom of speech."

I'm not telling you what I want. I'm trying to explain to you what we're going to be able to get over the short term. We might get lucky and get something more broad, but I seriously doubt that based simply on the State Court cases interpreting their 2A analogues or the federal 2A.

-Gene

[hoffmang]

Also, you wish to try to argue my underlying assumption that we can't get unlicensed open carry as a right. Granted that TX's constitution allows the legislature more latitude on carry than the 2A does, but then you need to explain to me why the TX legislature doesn't change the law. If the TX legislature can't be persuaded that unlicensed open carry is a fine idea, why do you think we can convince the Federal judiciary of that?

Now, please respond to my point about stores banning carry. What value is a right that can't be effectively used at malls/stores/restaurants? Do you really want to have to constantly leave your gun in the car?

-Gene

[7x57]

Originally Posted by Mulay El Raisuli

That means that LOC is being thrown under the bus. That would be fine (7X57's wise words about some squads being sent forth while others run being kept in mind) if it resulted in greater freedom. But that isn't the case, for the reasons mentioned above.

I ran with another's "thrown under the bus" phrase. My own feeling is that LOC was thrown under the bus by OCers insisting on doing it at the wrong time. We simply have to do triage and save what is still on the table.

And I do think if we have to choose CCW results in greater freedom than LOC, because it lets us extend the franchise without forcing newcomers to the social front line instantly.

I am extremely sorry that we have to do the triage, but I repeat it was OCers that decided to stand defiantly in front of the bus at the wrong time.

7x57

[MudCamper]

Originally Posted by Lex Arma

... That is why CCW is the "rational choice" here for the policy maker. It puts the maximum number of weapons into the hands of known virtuous citizens, without offending (the often times irrational) sensibilities of people who hate guns and/or don't care about guns.

...Put yourself in the shopkeepers place. If you own a feedstore in Bozeman, you don't care if your customer is LOC. But if you own Macy's in downtown Manhattan, you probably would prefer that the only hardware on display in your store consists of jewelry, watches and toasters. The urban environment probably compels -- exclusively -- CCW as a rational alternative to LOC.

The problem you describe is a cultural one. Yes, today's culture in America is one that fears guns. But that will never change unless people are exposed to the use of guns by normal peaceful people around them. With that exposure the culture can change. That is a great benefit of OC IMO.

Originally Posted by Lex Arma

Another partial answer: LOC is a dumb idea in an urban environment for tactical reasons. Who is the first guy the bank robbers are going to shoot when they rob a bank. Answer: anybody standing there who is an obvious threat. (e.g., security guard with a side arm) Your chances of being effective, saving lives and getting out of an active shooter situation alive go up if your weapons is concealed at the beginning of the encounter.

That is an inaccurate argument IMO. And I'm tired of repeating the argument against it, so I will post a link to an article on this by a person more eloquent than I: The Open Carry Argument It's a short article and worth the read, even if you disagree with it.

[7x57]

Originally Posted by Lex Arma

Now switch to rural Montana. I am privy to scenarios in which ordinary citizens walk into banks and stores with their LOC weapons. The only response they get from a security guard or sheriff: Hey Albert, is that a new gun?

Rub it in, willya Don? Now I'm so homesick....

Put yourself in the shopkeepers place. If you own a feedstore in Bozeman, you don't care if your customer is LOC.

Actually, I'm afraid that Bozemen may go toward being the "People's Republic of Boulder" equivalent for Montana because of the university. The growth has been outrageous since I left.

I think Missoula is probably still the winner in that category because UofM is the better school for the majors that most attract the hard-core antigunners--when I was at MSU in Bozeman you weren't supposed to keep your deer rifle in your dorm but you could carry it in from your car and check it in at the front desk without campus security getting the screaming heebie-jeebies. It is the better ag. college of the two universities, and ag. colleges in Montana are hunter friendly or else they quit having students.

Remember, Californians, Montana is a pluto-like icy hell on earth with liquid nitrogen rain every winter and carbon dioxide snow kilometers deep. NASA uses it to simulate the environment of iceball mini-planets in deep space. Go move to Boulder where you've already created your little paradise-away-from-California.

Not entirely a threadjack--notice how the urban prejudice Don is talking about gets imported into places that tend toward the rural mindset. Colorado is generally OC friendly, but not in Boulder and Denver. You can't keep the right while destroying the culture. The core difference between LOC and CCW is that LOC *requires* a culture that accepts it to be generally effective and let you carry on private property and so on. CCW can invade the anti-gun culture and undermine it, and it can preserve the practice of the right in places where it is under seige.

Which do we need to do in California?

7x57

[nobody_special]

There is another reason why I believe it is imperative to have an unlicensed right to carry. Recall the two recent court decisions (anyone have links? I didn't boookmark them...) back east which held it legal for an LEO to detain, probably at gunpoint, someone who was seen to be legally carrying concealed. In one of those cases the gun was confiscated. This was all fine according to the courts because carrying a concealed weapon is illegal by default.

What sort of "right to bear" do you have when you can be detained if you are seen to be exercising that right, and have your gun confiscated?

Let me also add that I am not a proponent of open carry at this time in California, and I have never practiced open carry.

You make my point for me. In California carry permits will be done for the children to balance the people's right not to get shot by us fringe people.

State courts would certainly rule that way at the least. But an interesting question to ask would be, how does a license -- a piece of paper -- prevent someone from being shot? An even better argument would be an analogy to prior restraint.

A court in DC just ruled that the allowed number of assemblers at the Jefferson Memorial without a permit is 0 and permits to assemble are not available for the Jefferson Memorial.

If that were the case, then nobody would be allowed at the Jefferson memorial. The court actually ruled that permits for demonstrations were not available... another time/place/manner restriction, upon location in this case. And I recall reading that Gura might appeal.

This approaches the "permits absolutely ban" the right to assembly which shouldn't be Constitutional but it's going to be a fight.

How is a ban to demonstrate in the Jefferson memorial an absolute ban upon all demonstrations? It isn't. Rather, it's similar to the bans on carrying in "sensitive places" so long as those are not over-broadly defined.

Post a sign in Redwood City without a permit (Chapter 3 (3.61) of the Redwood City Municipal Code.) Show me where in the Constitution it says commercial speech isn't included in "the freedom of speech."

Commercial speech isn't granted the same protection. Neither are machine guns protected under Heller. Your point?

If the statutes ban any signs, including e.g. political signs on your front lawn, I expect they would likely be overturned upon challenge.

I'm not telling you what I want. I'm trying to explain to you what we're going to be able to get over the short term. We might get lucky and get something more broad, but I seriously doubt that based simply on the State Court cases interpreting their 2A analogues or the federal 2A.

I'm not limiting myself to what we can get in the short term. I fully expect that an unlicensed right to carry will require a SCOTUS decision, and obviously that is not a short term proposition.

Also, you wish to try to argue my underlying assumption that we can't get unlicensed open carry as a right. Granted that TX's constitution allows the legislature more latitude on carry than the 2A does, but then you need to explain to me why the TX legislature doesn't change the law. If the TX legislature can't be persuaded that unlicensed open carry is a fine idea, why do you think we can convince the Federal judiciary of that?

I'm unsure to what level the Texas statute has been challenged, but as I noted above I expect it would have to go to SCOTUS and I'm quite certain that has not yet occurred.

Here, you're talking about legislative politics while I'm discussing the definition of a right to bear under original intent. I'm assuming a hostile legislature, so any gain we make must be done via the courts. What is politically possible in the legislature clearly differs from what is supposed to be legally protected by the judiciary. I'm not at all familiar with Texas politics.

Now, please respond to my point about stores banning carry. What value is a right that can't be effectively used at malls/stores/restaurants? Do you really want to have to constantly leave your gun in the car?

I agree with you, Gene. I don't OC. But this concern remains if we have shall-issue CCW and no open carry.

[hoffmang]

The TX statute hasn't been challenged but OC proponents have attempted to get the legislature to change the law. They have not been able to.

A right to carry that is shall issue will create plenty of protection for underlying 4A rights. It's a red hearing to worry otherwise. In the case you mention the court actively avoided the 2A issues.

Commercial speech is an enumerated right that has been judicially narrowed which proves my point. It just got a little less narrow in Citizen's United.

This all comes down to a very simple calculus - Can your argument for unlicensed open carry keep the Heller 5 together. I'm suspicious it can keep both Kennedy and Roberts in the majority. I'm much more confident that a case that states that the right to carry can be subject to time/place/manner restrictions but that those manner have to meet Constitutional requirements will command a majority. That is the short term. We might be able to expand that later, but that will require a few more trips to SCOTUS after Palmer/Sykes.

nobody - the basic issue is that the jurisprudence doesn't agree with your desired stance and you keep spending a lot of breath arguing with me about the underlying jurisprudence. It's frankly a pointless argument since I started this thread to talk about the practical impact - something which you seem to agree. Concealed carry doesn't cause the same direct social reaction because, by definition, no one sees that you're carrying next to them or in their store.

Why would gunowners not want to factor in the practical when setting a strategy to expand the recognition of the right to keep and bear arms?

-Gene

[Lex Arma]

Nobody wants to comment on my Angelina Jolie fantasy?

[nobody_special]

I've seen far more "no guns" signs on store windows in New Mexico and Arizona than I've seen here. Yes I agree we should tread carefully, but that might make little difference. The true repercussions of Heller won't be felt for some time yet. If we get incorporation and the courts force shall-issue in urban liberal areas, there may be some backlash.

Originally Posted by hoffmang

A right to carry that is shall issue will create plenty of protection for underlying 4A rights. It's a red hearing to worry otherwise. In the case you mention the court actively avoided the 2A issues.

Maybe I haven't thought about it enough, but I don't see this.

Originally Posted by Lex Arma

Nobody wants to comment on my Angelina Jolie fantasy?

I presume that you're suggesting that any expectation of an unlicensed right to bear is on par with an Angelina Jolie fantasy. Hey, you're the expert... but I'm still waiting for an answer to these two questions:

1. What other enumerated right cannot be exercised in any way without a permit in the state of California?

2. How is there a right to carry if it is by default illegal to carry?

[N6ATF]

Originally Posted by artherd

If a library can enforce "no loud talking" you better believe a store can enforce "no guns"

Library rules seem related to PC 415(2):
(2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.

So disturbing people's reading is one thing, helping to keep them alive by 1) deterring crime 2) stopping crimes in progress is another.

Originally Posted by Ron-Solo

I visit my daughter in Arizona frequently. Every visit I see more businesses posting "NO GUN" signs.

Let the free market and tort system decide. If they want to go out of business by rejecting the non-suicidal, and having the remaining customers be massacred, whose relatives sue them into bankruptcy...

[nobody_special]

nobody - the basic issue is that the jurisprudence doesn't agree with your desired stance

That's not strictly true either, is it? I can think of a couple cases in Kentucky just from this morning's required Gura reading, for starters...

[7x57]

Originally Posted by Lex Arma

Nobody wants to comment on my Angelina Jolie fantasy?

I was going to say something about how *your* version has all this boring irrelevant shopping stuff, then decided it was far too much information.

Not that there's anything wrong with that if you reeeaaallly like shopping.

7x57

[MudCamper]

Originally Posted by Lex Arma

Nobody wants to comment on my Angelina Jolie fantasy?

I specifically avoided it when quoting you! She's over-rated anyway.

[kcbrown]

I will ask this as plainly as I can:

Is it the belief of Gene, Don, Ben, and our other legal experts here that if we do not argue for a shall-issue permit-based carry system in front of the Supreme Court, we will lose McDonald??

Because if that is not the case, then it follows that there is no harm to attempting to get permit-less carry as the minimum Constitutional standard.

Put another way: what's the downside for attempting to argue for a permit-less based carry system as the minimum Constitutional standard?

Note that I'm not talking about LOC or CCW specifically -- I'm talking about the permit system itself.

If we attempt to argue for a permit-less based standard and are overruled by the Court and given a permit-based system as a minimum Constitutional standard, that would be unfortunate but not altogether unexpected. And we can say that we tried our absolute best.

But to actually argue in favor of a permit-based system for all public exercise of the core right is something that should be done only when loss of the core right itself is a real possibility, wouldn't you say?

[kcbrown]

Originally Posted by hoffmang

Now, please respond to my point about stores banning carry. What value is a right that can't be effectively used at malls/stores/restaurants? Do you really want to have to constantly leave your gun in the car?

I don't understand why you don't think that will happen regardless (i.e., even with shall-issue CCW as the only means of carry). It's not like there isn't precedence. See Texas, for instance.

[MudCamper]

Another thing that I've always wondered about this is how Palmer/Sykes will change anything anywhere but in the counties in question. Won't all the other county sheriffs just keep on issuing at their discretion until each and every one of them is sued?

[kcbrown]

Originally Posted by hoffmang

I'm not telling you what I want. I'm trying to explain to you what we're going to be able to get over the short term. We might get lucky and get something more broad, but I seriously doubt that based simply on the State Court cases interpreting their 2A analogues or the federal 2A.

Gene, I think the reason there is such debate is that there is belief on the part of at least some people that what you're explaining isn't just what we're likely to be able to get but what we are actually going to argue for in the courts.

Well, if that's what we're actually going to argue for then of course it's the most we're likely to be able to get.


If we get shall-issue CCW as a minimum Constitutional standard despite attempting to get permitless CCW then so be it. But if we are actually going to limit ourselves through our arguments to requiring permission from the state to exercise a core right in public, then there needs to be an astonishingly good reason for it, because requiring permission from the state to exercise a core right is an affront to the very concept of a right.

[Hopi]

Originally Posted by MudCamper

The problem you describe is a cultural one. Yes, today's culture in America is one that fears guns. But that will never change unless people are exposed to the use of guns by normal peaceful people around them. With that exposure the culture can change. That is a great benefit of OC IMO.

I completely agree here. I think the timing is really the issue *right now*.

[wildhawker]

Originally Posted by Lex Arma

Nobody wants to comment on my Angelina Jolie fantasy?

I'll only say that up until this morning I thought I was the only one. I can now tell my wife that it's a rational desire proved by the memorialized account of another rational man. Did I ever tell you about the time I took Ms. Jolie and Catherine Zeta Jones dancing?

[Hopi]

Originally Posted by wildhawker

I'll only say that up until this morning I thought I was the only one. I can now tell my wife that it's a rational desire proved by the memorialized account of another rational man. Did I ever tell you about the time I took Ms. Jolie and Catherine Zeta Jones dancing?

Just keep your hands off of my Salma.

[wildhawker]

Originally Posted by MudCamper

Another thing that I've always wondered about this is how Palmer/Sykes will change anything anywhere but in the counties in question. Won't all the other county sheriffs just keep on issuing at their discretion until each and every one of them is sued?

Either/both will be appealed; the appellate decision is persuasive (if Palmer) and binding (if Sykes). One is likely to go on to SCOTUS, given the players.

[wildhawker]

Originally Posted by Hopi

Just keep your hands off of my Salma.

<sigh> Damn you for reminding me of FDTD.

[wildhawker]

Originally Posted by kcbrown

I will ask this as plainly as I can:

Is it the belief of Gene, Don, Ben, and our other legal experts here that if we do not argue for a shall-issue permit-based carry system in front of the Supreme Court, we will lose McDonald??

Bear will be argued in Palmer or Sykes, not McDonald. McDonald is a 14A/2A Incorporation case; manner of carry will not be directly addressed in the case.

Put another way: what's the downside for attempting to argue for a permit-less based carry system as the minimum Constitutional standard?

1. Bad precedent, likely from both the civil suits and the criminal appeals based on a 2A right to bear grounds
2. Millions of people will not have any right to carry for years to come until a successful CCW case is brought (like, say, Sykes/Palmer - again).

Why wouldn't we want to win the right to carry to the courthouse first first and argue for the margin later?

Note that I'm not talking about LOC or CCW specifically -- I'm talking about the permit system itself.

If we attempt to argue for a permit-less based standard and are overruled by the Court and given a permit-based system as a minimum Constitutional standard, that would be unfortunate but not altogether unexpected. And we can say that we tried our absolute best.

We can try our absolute best while we have a permit to carry in our wallet and the precedent from a strong right to carry(s) case behind us. I believe, if you look closely, this is the same approach we'll see on a number of issues. Anal sex, anyone?

But to actually argue in favor of a permit-based system for all public exercise of the core right is something that should be done only when loss of the core right itself is a real possibility, wouldn't you say?

See above. This reminds me of conversations I've had with junior engineers (intelligent, but lacking some perspective) trying to re-sequence and re-plan a large project.

Originally Posted by kcbrown

Gene, I think the reason there is such debate is that there is belief on the part of at least some people that what you're explaining isn't just what we're likely to be able to get but what we are actually going to argue for in the courts.

Well, if that's what we're actually going to argue for then of course it's the most we're likely to be able to get.

If we get shall-issue CCW as a minimum Constitutional standard despite attempting to get permitless CCW then so be it. But if we are actually going to limit ourselves through our arguments to requiring permission from the state to exercise a core right in public, then there needs to be an astonishingly good reason for it, because requiring permission from the state to exercise a core right is an affront to the very concept of a right.

What you're missing is that there's a difference between what we may want to argue vs. what can be argued for. Choosing the latter doesn't mean it's a preference. Choosing the former does mean that we lose. I'm not sure I can understand why we cannot just accept Shall Issue CCW licensing for now (which opens the right to overwhelmingly more people than LOC) and appreciate its utility as an interim foundation by which to propagate the gun culture and move towards other, better, outcomes later?

Did anyone here have a new Ferrari as a first car? A 3 acre Plantation estate for their first home?