[kcbrown]

Originally Posted by Lex Arma

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.

And that is why it won't happen.

The typical CA policy maker is not interested in putting the maximum number of weapons into the hands of known virtuous citizens, he is interested in putting the minimum possible number in their hands. The only people he wants to have weapons are the "important people" and LEOs.

The typical CA policy maker wants to make carry as worthless as possible in order to achieve the goal of minimizing the number of weapons wielded by law-abiding citizens. This means you will see all kinds of time, place, and manner restrictions on carry for those lacking "special" CCW permits (or, if that gets tossed out, LEOs). They will attempt to restrict it to the maximum degree possible. You can bank on that.

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.

Yes, that is how it will happen initially. Do you think the calls will continue month after month, year after year, when thousands of people walking around with guns has become a typical thing to see?

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.

And yet, if you're walking around outside, LOC is a better tactical choice to make, because a criminal who decides he is going to attack someone will go for the prey with the weakest appearance. Someone who is carrying concealed appears to be unarmed and therefore appears to be weaker. There is the chance that the person who appears to be unarmed isn't, but a chance that he is unarmed is better than no chance from the criminal's point of view.

The combination of the scenario you state and the scenario I state is why we need the choice.

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 of 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.

"Off-topic" doesn't imply "not worthwhile".

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.

Ah, so this is an uncertain area of the law? Then it means it has to be litigated. That means you can bet your bottom dollar that the legislature will pass such a law if shall-issue CCW is what they wind up deciding on.

[hoffmang]

Originally Posted by nobody_special

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

If permits to carry concealed are available to all comers then no police officer can use reasonable suspicion or probable cause to detain a person who he just happens to notice is carrying. If you read the mayor's amicus against us in McDonald, you'll see that the reason NY cops can stop people they see carrying concealed is because the permit is a unicorn.

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

The right to post a sign (speech.) The right to vote. The right to sell certain kinds of protected speech. The right to peaceably assemble on open public property.

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

It's not illegal to carry - it will be illegal to carry without getting an easily available permit.

Originally Posted by nobody_special

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...

Those cases in KY say that you can't fully ban carry. There has to be a viable mode. Why do you think we cite them?

Originally Posted by kcbrown

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??

..

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

This has nothing to do with McDonald and everything to do with Sykes and Palmer. Here are the downsides of starting with unlicensed open carry.

1. If we win, then there is no lever to force shall issue concealed carry in the anti-gun urban areas. Say we won. California could claim that "may issue" is just fine since anyone can carry LOC now.

2. If we carry LOC, stores and patrons will notice and ban the practice practically - mooting the right.

3. We can't win carry on LOC in SCOTUS. A loss in SCOTUS after two wins is far worse for gun rights than 3 straight wins. In a post 3-0 environment, we can start making far more expansive arguments. We may well be able to get LOC after we secure shall issue permits, but I know we can't go the other direction.

Originally Posted by kcbrown

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.

You can not open carry in Texas. You can obtain a shall issue concealed carry permit and carry to your hearts content. Very few places ban carry in TX. Also note that California open carry has limited TX establishments more than Texans at this rate.

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.

See above. What you will not see is Gura/SAF/CGF argue cases we can't win. The way you expand a right is to keep taking on the lowest hanging fruit. That way you constantly extend the width of the decisional base so that you have less and less chance of losing as you stray further and further from the heart of the right.

The civil rights movement basically started in interstate commerce on interstate buses because that was their strongest argument. They didn't start with interracial marriage for a reason.

-Gene

[kcbrown]

Originally Posted by wildhawker

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?

It's because I, at least, am skeptical that doing so will move the gun culture forward, as opposed to merely slowing the backwards slide.

See Texas, for instance. The number of signs at establishments forbidding guns is reportedly growing, not shrinking. They have shall-issue CCW. That is evidence that shall-issue CCW does not do what you think it will.


Furthermore, on what basis can we later claim that the minimum Constitutional system is a permit-less based system when we argued earlier that a shall-issue permit system is that? I fail to see how arguing for a permit-based system now does anything other than lock it into place permanently.

[wildhawker]

If accessible CCW isn't useful to advance the gun culture in CA, rest assured that LOC-only will all but reduce it to the realms and levels we see today.

Originally Posted by kcbrown

It's because I, at least, am skeptical that doing so will move the gun culture forward, as opposed to merely slowing the backwards slide.

See Texas, for instance. The number of signs at establishments forbidding guns is reportedly growing, not shrinking. They have shall-issue CCW. That is evidence that shall-issue CCW does not do what you think it will.

Furthermore, on what basis can we later claim that the minimum Constitutional system is a permit-less based system when we argued earlier that a shall-issue permit system is that? I fail to see how arguing for a permit-based system now does anything other than lock it into place permanently.

Re-read Sykes/Palmer; the core of the argument is that we have a *right to carry*, not that we have a *right to carry with a permit*.

[kcbrown]

Originally Posted by hoffmang

If permits to carry concealed are available to all comers then no police officer can use reasonable suspicion or probable cause to detain a person who he just happens to notice is carrying. If you read the mayor's amicus against us in McDonald, you'll see that the reason NY cops can stop people they see carrying concealed is because the permit is a unicorn.

Really?

Permits are available to all comers in Texas, but police officers can detain a person who he happens to notice is carrying. What is the specific difference in the law there (or the constitution upon which it's based) and the law we anticipate getting that makes the difference here?

It's not illegal to carry - it will be illegal to carry without getting an easily available permit.

Yes. That means it will be illegal by default. That is what a permit system means by definition.

And you assume that it will be "easily available". "Easily" may be a relative term here. The powers-that-be will make it as difficult to get as they possibly can, and they will place as many restrictions on it as they possibly can.

This has nothing to do with McDonald and everything to do with Sykes and Palmer.

I'm confused.

Are you saying that after 2A is incorporated against the states, it's still possible that we'll get no legal means of carrying in public???

Here are the downsides of starting with unlicensed open carry.

1. If we win, then there is no lever to force shall issue concealed carry in the anti-gun urban areas. Say we won. California could claim that "may issue" is just fine since anyone can carry LOC now.

What makes you think CA won't do precisely this anyway, with the exception that LOC will be permit-based as well?

2. If we carry LOC, stores and patrons will notice and ban the practice practically - mooting the right.

See Texas. This will happen regardless. The rate at which it happens may differ but our opposition will do all they can to make sure it happens fast.

3. We can't win carry on LOC in SCOTUS. A loss in SCOTUS after two wins is far worse for gun rights than 3 straight wins. In a post 3-0 environment, we can start making far more expansive arguments. We may well be able to get LOC after we secure shall issue permits, but I know we can't go the other direction.

Okay, this is the real meat of the argument.

But based on your prior arguments, I'm frankly extremely skeptical that we'll even try to get LOC at all after we secure shall-issue CCW, for reasons that you previously enumerated. Why would we, when we believe that doing so will damage the usefulness of shall-issue CCW?

ETA: And is your argument that we can't get LOC or that we can't get a permit-less based system? In other words, what of trying to get permit-less CCW?

You can not open carry in Texas. You can obtain a shall issue concealed carry permit and carry to your hearts content. Very few places ban carry in TX. Also note that California open carry has limited TX establishments more than Texans at this rate.

That's interesting and something I hadn't considered before.

See above. What you will not see is Gura/SAF/CGF argue cases we can't win. The way you expand a right is to keep taking on the lowest hanging fruit. That way you constantly extend the width of the decisional base so that you have less and less chance of losing as you stray further and further from the heart of the right.

So proactively arguing in favor of restricting a right doesn't serve to take arguments against such restrictions off the table later??

The civil rights movement basically started in interstate commerce on interstate buses because that was their strongest argument. They didn't start with interracial marriage for a reason.

Fair enough, but did they proactively argue in favor of restricted versions of the rights early on?

[Lex Arma]

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.

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.

Wait a minute. Gun ownership is not a rare phenomenon in USA. Most people are not afraid of guns per se, they are afraid of people they don't trust having guns. Situational awareness requires that I monitor multiple known threats in an urban LOC environment, while I still try to maintain a state of readiness for unknown threats. You are just asking for operator overload. LOC in an urban environment practically requires me to treat every shopping errand and public outing like a reconnaissance in force. (i.e., I need a team member guarding my back, while I guard theirs.)

Another reason crowded urban environments are a bad place for LOC: Do you want to stand in line for a theater or restaurant having to keep your hand on the grip of our pistol the whole time? People usually maintain their distance from Police officers. In fact one of the lessons police learn during weapon retention training is guarding your personal perimeter to avoid giving the BG an opportunity for a take away. Can you control every person who stands in line behind you, sits next to you on a bus, at a theater, etc...

I read the article. I still disagree. The same deterrent effect could be achieved by wearing a jacket with an NRA logo that says " Hi, I am a CCW instructor." "Call 1-800-CCW-RKBA for lessons." The fine print could say: "Do you feel lucky punk. Huh, do you?"

Sidenote: This is an interesting conundrum. CCW law says you have to keep your gun concealed. But the First Amendment probably protects someone who wants to make a political statement that says, in effect: "I exercise the right to keep and bear, do you?" A variation would the Second Amendment version of "Got Milk?"

Bad guys who are going to use violence to commit crimes in public places break down into:

(1) Opportunistic cowards, who will run away when confronted. In this case, LOC may be a deterrent without actually using deadly force. But in that case, mere brandishing is also a deterrent, and an affirmative defense to the threat of death or GBI. [I have experience defending cases like this.] If the guy is going to rob you, he will expect you to have to reach for your wallet (whether its in your vest pocket or purse), so you still get to make the call of paying him to avoid the threat or going for the gun. If he gets the drop on you while you are in a status of LOC, you just gave him your gun too.

(2) Active shooters who intend to commit murder without regard to confrontation. In this situation, I need the element of surprise to survive.

[nick]

Originally Posted by Lex Arma

Nobody wants to comment on my Angelina Jolie fantasy?

You don't have a good taste in women

Or were you looking for some other kind of comment?

[hoffmang]

Originally Posted by kcbrown

Permits are available to all comers in Texas, but police officers can detain a person who he happens to notice is carrying. What is the specific difference in the law there (or the constitution upon which it's based) and the law we anticipate getting that makes the difference here?

Show me the case. A police officer can not base 4A reasonable suspicion on someone doing something that's constitutionally protected. In a state where carry permits are common, someone concealed carrying does not create reasonable suspicion absent something else significant.

And you assume that it will be "easily available". "Easily" may be a relative term here. The powers-that-be will make it as difficult to get as they possibly can, and they will place as many restrictions on it as they possibly can.

For a host of political reasons, the CA legislature is likely to leave the system as it stands alone. And if they do mess with it in any way that makes it worse, we'll sue. That kind of suit has a high likelihood of winning. All counties in California will be bound by even a Federal district court ruling, not to mention a 9th Circuit court of appeals decision. At that point all states and counties in the 9th Circuit are bound.

I'm confused.

Are you saying that after 2A is incorporated against the states, it's still possible that we'll get no legal means of carrying in public???

Argh! McDonald only means that the Second Amendment applies to the states. It does not change any law in California. Sykes, which relies upon McDonald, seeks to change the California law/practice. Please understand that I get skeptical of those disagreeing with me when they don't understand the base rules of how Federal courts and state courts interact.

See Texas. This will happen regardless. The rate at which it happens may differ but our opposition will do all they can to make sure it happens fast.

No obvious guns in the store, no video for newscasters to run scary reports, much less popular support for stores to ban guns in them. 44 states have shall issue concealed carry. There are very few "no guns" signs. Absent the public noticing the change, then 760,000 Californians concealed carrying (2% is the amount of population that will even go get a CCW in states where they can) will not be noticed themselves.

Why would we, when we believe that doing so will damage the usefulness of shall-issue CCW?

Once the practice and the jurisprudence is that carry permits must be shall issue, it is highly unlikely and almost foreclosed that the state can go back on that. However, nothing forecloses us from them moving on to a more expansive argument.

ETA: And is your argument that we can't get LOC or that we can't get a permit-less based system? In other words, what of trying to get permit-less CCW?

A federal right to permitless CCW isn't going to happen - Scalia said that plainly in Heller. States are free to pass laws that allow it like VT and AK, but it's not going to be something Federal courts are going to require.

So proactively arguing in favor of restricting a right doesn't serve to take arguments against such restrictions off the table later??

Fair enough, but did they proactively argue in favor of restricted versions of the rights early on?

Saying that we aren't challenging governments ability to do something in this case doesn't mean we can't challenge it later. Yes, the civil rights litigators did exactly that. In Heller, Gura didn't challenge registration at all. In McDonald he squarely challenged Chicago's re-registration requirement.

-Gene

[hoffmang]

Originally Posted by Lex Arma

The same deterrent effect could be achieved by wearing a jacket with an NRA logo that says " Hi, I am a CCW instructor." "Call 1-800-CCW-RKBA for lessons." The fine print could say: "Do you feel lucky punk. Huh, do you?"

Does everyone get that if we have shall issue carry permits you can wear a T-shirt over your firearm that has a screen print of your firearm that says "I'm armed and you should be too!" on its front?

-Gene

[kcbrown]

Originally Posted by wildhawker

If accessible CCW isn't useful to advance the gun culture in CA, rest assured that LOC-only will all but reduce it to the realms and levels we see today.

As much of a cynic as I might be, I'm actually quite unsure about how LOC-only would play out. I expect we'll initially see a lot of establishments putting up "no guns" signs, but I expect that to happen with accessible CCW as well. I see relatively little difference between the two cases in that respect.

But that's the immediate term. The longer term is where I think things will start to diverge. In the case of CCW, the rate of carry will remain relatively small. Why? Because there will be no significant force counteracting the fear of guns on the part of the population. The fact that the guns are out of sight means the population will never get used to them.

With LOC:

• Businesses will probably initially put up a bunch of signs saying "no guns" but while in public, people will be able to wear guns openly and some will most certainly do so.
• The sight of guns will become more common as more people do it and, more importantly, the rest of the people will get used to it. There will be an initial spate of "man with a gun" calls but they will subside over time.
• As people get used to seeing guns in their midst and discover that their environment hasn't turned into a shooting gallery, their fear of guns will naturally drop. And as their fear drops, their interest will (statistically) increase.
• As their interest increases, the demand of the population for removal of the "no guns" signs will increase, and businesses will cave to that because they want to remain in business.

Additionally, how can an unarmed individual protect themselves from an armed individual? That's hard to do, right? The easiest way to do that is by the unarmed individual arming himself, right?

So some of the unarmed people who are in public, walking amongst people who are armed, will feel vulnerable, and will be motivated to arm themselves for that reason alone. And as the number of people who are armed increases, the people who aren't will feel more and more uncomfortable, and their only recourse will be to arm themselves. Taken to its logical conclusion, it follows that in the end, most people will wind up being armed if LOC is the only widely-available means of carry.


So shall-issue CCW changes nothing for the population as a whole, even long-term, because there is no psychological reason for it to. It only changes the situation for those of us who already wish to be armed. LOC, on the other hand, can change the entire dynamic, but it will take time.

So: which of those two possibilities do you regard as being better for us long term?

Re-read Sykes/Palmer; the core of the argument is that we have a *right to carry*, not that we have a *right to carry with a permit*.

OK, very good! I was under the impression that we've been arguing here that a permit-based system is what we'd be arguing for in front of the Court. I'm ecstatic that this is not the case!

[Lex Arma]

Originally Posted by nobody_special

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?

Response to Question #1.

You have a Sixth Amendment right to counsel when you are charged with a crime that could land you in jail. You don't have a right to an unlicensed lawyer.

You have a Fifth Amendment right to own/possess real and personal property, that the government cannot take away from you without due process of law and/or just compensation. Ownership includes use. Do you have the "right" to drive an unlicensed, uninsured automobile on public streets, even though you own the car? You don't have a right to erect a building without appropriate permits and standards.

If you make money exercising your "right of speech and/or press" can you legally avoid the income tax on that income?

The government cannot discriminate against your right to vote on the basis of age, race, sex, etc., Can you vote without being a registered voter? (no ACORN jokes)

You have a right to peaceably assemble, do you have a right to hold a parade on a public street without a permit?

Response to #2.

You are confusing ordered liberty and anarchy.

The libertarian in me might not like all these permits, licenses, permissions, but as long as they are rational and permit the exercise of fundamental rights, I have to decide if the burden of living in a society with these rules outweighs the burden of living on a desert island or self-sustaining farm.

[wildhawker]

Originally Posted by kcbrown

So: which of those two possibilities do you regard as being better for us long term?

The options you presented are not those from which we have to choose. This is beginning to become a CCW vs. LOC discussion; reasonable men can disagree on this. My point is simply that, as an initial milestone, CCW presents more people in California with the legal ability and socially-acceptable conditions to carry often during the course of normal life. This is a substantial net positive for us. LOC is, at least currently, extraordinarily limiting in many respects and would preclude many less-vigorous advocates from bearing arms, thereby reducing the effectiveness of the right to carry.

OK, very good! I was under the impression that we've been arguing here that a permit-based system is what we'd be arguing for in front of the Court. I'm ecstatic that this is not the case!

The current bear cases basically say that "self defense is good cause, so licence issuance should be accessible and shall-issue to otherwise non-prohibited persons". Remember that Sykes/Palmer is challenging the discriminatory language and application of the current statute here, not creating new statute. However, as Gene points out above, there's nothing to say that further litigation could not be initiated as strategically prudent. First one foot, then the other...

[Lex Arma]

Originally Posted by nick

You don't have a good taste in women

Or were you looking for some other kind of comment?

I was referring more to the archetype she has come to represent. A sexy woman who smokes a bad guy before you even clear your holster is a flavor of foreplay that I will probably never experience. And it is so unrealistic as to fall into the category of fantasy.

[7x57]

I want to make an observation that struck me, because I have not seen it discussed. Calgunners have gotten used to the fact that California is one of the lead dogs in the fight to restore legal protection to the RKBA. Something to be proud of.

But consider one of the reasons why. If CA wants to be in the game at all it has to work the legal angles precisely because it is at the back of the pack in terms of restoring the culture. This is reflected in the fact that more than eighty percent of the states went shall-issue through the legislature, which is a reflection of the strength of the culture. They go there through the soap box and the ballot box. We're going through the jury box because we are unable to work the first two in CA. It is a tool to break the stubborn hold-out states where the standard route is unavailable.

In terms of getting both OC and CCW and getting permitless carry, most of the other states haven't managed that yet. Is it logical to assume that we can do *everything* through one branch of government, in an exceptionally hostile state? Notice that for a long time only VT had permitless CC--Alaska finally followed suit, and I gather there is a decently strong attempt now in AZ.

It is my opinion that CA cannot lead the way on these particular issues, because of the failure to preserve a positive gun culture. We're leading the way for the assault on the other bastions of gun control, yes. But I think the only hope left for permitless and/or open carry, now that OC has essentially destroyed itself, is for the movement to take hold and spread in other states just as CCW did. I see signs of that happening--I believe that while Montana is usually described as shall-issue CCW, in fact it is permitless in rural areas (which is a lot more significant in such a rural state than it may sound to you city boys). If the movement can break out beyond VT and AK, MT may be a domino that is relatively easy to topple as well. But we're not likely to be the leaders.

In short, I don't like the mindset that I see happening: we're going to do it all alone, and we're going to do it all through the jury box. It isn't going to work. We already know the courts will simply ignore the full meaning of the 2A, for example. What we need to have is a mindset that we are going to take on the battles that we're best suited to fight, and leave alone the ones we are not, so that the entire nationwide movement is more than the sum of the parts.

Perhaps I see this because I come from elsewhere, and so I remember that doing things without regard for the rest of the country is part of the coastal mindset. But it isn't going to work, and trying it will lose us battles we could have won.

In short--with a few other lead dogs, we can really spearhead the legal fight. But we need to rely on our brothers in gun-friendly states to do things like spread LOC and permitless carry if they can, so we can benefit from it later. I'd love to have more than forty states witnessing the fact that unpermitted citizens and citizens with openly carried firearms are safe, just as we already have them witnessing the fact that citizens with CCWs are safe.

That was the part I hadn't worked out about my analogy with fighting a war. Not only could I be ordered into a bad spot for the good of the entire war effort, my unit can't win the battle by ourselves. We have to depend on others to keep our flanks from being enveloped, just as they depend on us for the same thing.

As proof, notice that Gene and Gray both believe that we'll get CCW reciprocity from congress within the next eighteen months. Do you think *we're* going to do that? No, legislators from pro-gun states will do that while ours whine and sob. But those other guys are depending on us to fight the court fight for them while they're covering us in congress.

To continue the analogy, remember that for a terrifying span of time Great Britain fought the Battle of Britain alone for us and every free man, because no one could manage an intercontinental invasion to free Europe even if they had the will. But they could give us little but goodwill in the Pacific. We depended on each other to win in our own respective theaters.

7x57

[dantodd]

Originally Posted by Lex Arma

Some of you are missing the point. We use constitutions to limit the power of government, not private citizens.

You were right up to 1868.

[IrishPirate]

Maybe it's just me, but it seems that every new UOC story i hear is actually a little less of a step backward than the last. I think the people of the "UOC movement" have finally let their emotions cool down and they are starting to think things through a little better. Less people seem to be getting pissed off and more people seem to be getting informed. Don't get me wrong, I'm sure it still pisses people off pretty good, but I think (and i could be wrong) that it's starting to be less damaging than when the movement first started. It's obviously not quite a step forward yet, but at least they are trying to step in the right direction rather than just square dance all over the place and confuse the hell out of people.

Like anything these days, if you don't advertise, people wont know. If you don't make it known to people that not all gun owners are thugs and red necks, they are going to keep the same old assumptions and always be scared of guns. UOC has been good for getting the message out, but I don't think we've been able to perfect or unify that message into the most constructive one possible yet.

If only everyone with a gun was on Calguns........

[N6ATF]

Originally Posted by wildhawker

Anal sex, anyone?

No, thanks!

Originally Posted by IrishPirate

Like anything these days, if you don't advertise, people wont know. If you don't make it known to people that not all gun owners are thugs and red necks, they are going to keep the same old assumptions and always be scared of guns. UOC has been good for getting the message out, but I don't think we've been able to perfect or unify that message into the most constructive one possible yet.

If only everyone with a gun was on Calguns........

Short of a mass mailing to all CA residences, begging all law-abiding adult white males to LUCC, and all other law-abiding adults to UOC (and how)... not sure how the message is going to be clear enough; that self-defense is a basic human right, regardless of gender, color, creed, or sexual orientation.

[hoffmang]

Originally Posted by dantodd

You were right up to 1868.

He's correct up to 2010. The 14th made the change that the Federal goverment could intervene against some private individuals interfering with some constitutional rights.

Remember that part of Cruikshank may be correct in that the blacks murdered were the rightful agents of the state who were massacred by the election usurpers.

-Gene

[Mad Scotsman]

Originally Posted by IrishPirate

Maybe it's just me, but it seems that every new UOC story i hear is actually a little less of a step backward than the last. I think the people of the "UOC movement" have finally let their emotions cool down and they are starting to think things through a little better. Less people seem to be getting pissed off and more people seem to be getting informed. Don't get me wrong, I'm sure it still pisses people off pretty good, but I think (and i could be wrong) that it's starting to be less damaging than when the movement first started. It's obviously not quite a step forward yet, but at least they are trying to step in the right direction rather than just square dance all over the place and confuse the hell out of people.

Like anything these days, if you don't advertise, people wont know. If you don't make it known to people that not all gun owners are thugs and red necks, they are going to keep the same old assumptions and always be scared of guns. UOC has been good for getting the message out, but I don't think we've been able to perfect or unify that message into the most constructive one possible yet.

If only everyone with a gun was on Calguns........

I tend to agree and would like to hear of ACTUAL instances where people UOC and what kind of responses they got from the public( mass pandemonium and SWAT response), not the anti-rhetoric of the media.

[N6ATF]

Originally Posted by hoffmang

I had predicted that if California went open carry only, it would become a moot right in practice as stores all over California would move to ban OC. So far I'm 3 for 4 on that prediction with two coffee houses and CPK banning U/LOC in their stores. I'm pleased with Starbucks (who came from WA where carry has been LOC and shall issue CCW for a while) so far holding back from Brady/LCAV pressure.

3 for 5.

Starbucks - go
Buckhorn Grill - go

California Pizza Kitchen - no go
Peet's Coffee & Tea - no go
*Sacred Grounds Coffee - no go

*Not sure if this is the second coffee house you are referring to.

[kcbrown]

Originally Posted by wildhawker

The options you presented are not those from which we have to choose. This is beginning to become a CCW vs. LOC discussion; reasonable men can disagree on this. My point is simply that, as an initial milestone, CCW presents more people in California with the legal ability and socially-acceptable conditions to carry often during the course of normal life. This is a substantial net positive for us.

I have no disagreement with the above whatsoever. Of the two (LOC versus CCW), CCW is more immediately useful. The question in my mind is whether or not it will prove a better long term choice. I have very serious doubts that it will.

LOC is, at least currently, extraordinarily limiting in many respects and would preclude many less-vigorous advocates from bearing arms, thereby reducing the effectiveness of the right to carry.

Agreed for the short and intermediate term.

The current bear cases basically say that "self defense is good cause, so licence issuance should be accessible and shall-issue to otherwise non-prohibited persons". Remember that Sykes/Palmer is challenging the discriminatory language and application of the current statute here, not creating new statute. However, as Gene points out above, there's nothing to say that further litigation could not be initiated as strategically prudent. First one foot, then the other...

OK, so basically, we're not saying anything at all one way or the other on the issue of permits -- we're leaving that for later. Fair enough.

I was under the impression that we were going to explicitly argue in favor of permits in order to secure a more general victory, and I'm pleased to see that it appears we don't have to do that.

[kcbrown]

Originally Posted by hoffmang

Show me the case. A police officer can not base 4A reasonable suspicion on someone doing something that's constitutionally protected. In a state where carry permits are common, someone concealed carrying does not create reasonable suspicion absent something else significant.

"Intentional" failure to conceal is a misdemeanor under PC 46.035. "Concealed handgun" is defined in GC 411.171(3) as "a handgun, the presence of which is not openly discernable to the ordinary observation of a reasonable person".

So if the officer has a reasonable suspicion that PC 46.035 is being violated, can he not detain the individual for that violation? How else is that law to be enforced?

Argh! McDonald only means that the Second Amendment applies to the states. It does not change any law in California. Sykes, which relies upon McDonald, seeks to change the California law/practice. Please understand that I get skeptical of those disagreeing with me when they don't understand the base rules of how Federal courts and state courts interact.

Okay, I follow now.

No obvious guns in the store, no video for newscasters to run scary reports, much less popular support for stores to ban guns in them. 44 states have shall issue concealed carry. There are very few "no guns" signs. Absent the public noticing the change, then 760,000 Californians concealed carrying (2% is the amount of population that will even go get a CCW in states where they can) will not be noticed themselves.

I suppose only time will tell, but I'm willing to concede this point absent further evidence one way or the other.

Once the practice and the jurisprudence is that carry permits must be shall issue, it is highly unlikely and almost foreclosed that the state can go back on that.

True, but I believe they will nevertheless try.

A federal right to permitless CCW isn't going to happen - Scalia said that plainly in Heller. States are free to pass laws that allow it like VT and AK, but it's not going to be something Federal courts are going to require.

So the only permitless form of carry possible, then, is OC?

And that's off the table. Which means a permitless form of carry is off the table.

Saying that we aren't challenging governments ability to do something in this case doesn't mean we can't challenge it later. Yes, the civil rights litigators did exactly that. In Heller, Gura didn't challenge registration at all. In McDonald he squarely challenged Chicago's re-registration requirement.

This was my misunderstanding. Again, I was under the impression that we were explicitly arguing for a permit-based system. I see that we are not. Please pardon me for that error -- the zeal with which you seemed to be arguing in favor of it led me to the erroneous conclusion that we were going to actually argue in favor of a permit-based system in court.

[Mitch]

Originally Posted by nobody_special

It sets a bad -- no, terrible -- precedent if we abdicate a core element of an enumerated right to a licensing requirement without protest.

Good luck getting Vermont/Alaska style CCW (or LOC) in all fifty states.

Let us know how that works out for you.

[Gray Peterson]

Originally Posted by kcbrown

I have no disagreement with the above whatsoever. Of the two (LOC versus CCW), CCW is more immediately useful. The question in my mind is whether or not it will prove a better long term choice. I have very serious doubts that it will.




Agreed for the short and intermediate term.




OK, so basically, we're not saying anything at all one way or the other on the issue of permits -- we're leaving that for later. Fair enough.

I was under the impression that we were going to explicitly argue in favor of permits in order to secure a more general victory, and I'm pleased to see that it appears we don't have to do that.

In the Heller case, there is a telling passage from Justice Scalia you may want to read:

the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

In DC, there were two different licenses: a license to carry in public, and a license to carry in one's home. The reason for the concession is so that you don't involve too many "issues" to brief in the court. By conceding something for the purposes of prayer for relief, you preserve your argument later.

There were three laws challenged in DC: The handgun registration ban, the refusal to issue a carry license to carry in one's home, and the "locking device" requirement. The prayer for relief was: Strike down the registration ban, issue him a permit to carry in his home, and the "locking device" requirement. DC had to repeal the registration requirement, DC chose to repeal the carry license in one's home requirement, and the locking device requirement was generally required to repeal it. DC passed several emergency amendments to it's laws. Though they were not required to by the strict reading of the supreme court ruling, they repealed the "any semi-auto which can handle more than 12 rounds=machine gun" after a few months of legal prodding after they realized it was legally indefensible given the wording of the SCOTUS decision.

If you read the McDonald complaint, you'll see that plaintiffs (represented by Gura), are challenging 4 points of Chicago's municipal ordinances: The re-registration requirement, the "if it becomes not registered in term, it becomes unregisterable" requirement/punishment, and "you must register it before it arrives in Chicago or it becomes unregisterable".

Future litigation (such as strongly hinted at litigation against New York) will focus on other unacceptable requirements, such as the high fee rate in NYC (over 1000 dollars to be able to possess a handgun in one's home over a 10 year period is unacceptably high, but the possess and carry licenses are the same price).

By litigating the stuff around the margins (re-registration, high fee requirements rather than attacking the underlying licensing itself), we preserve our ability to challenge the licensing requirements after we win on the core issues.

[kcbrown]

This is the best explanation for the overall strategy that I've seen to date. Thanks very much for this -- it clears my mind of nearly all questions on how we are proceeding and why we're proceeding that way.

Well done sir!

Originally Posted by Gray Peterson

In the Heller case, there is a telling passage from Justice Scalia you may want to read:



In DC, there were two different licenses: a license to carry in public, and a license to carry in one's home. The reason for the concession is so that you don't involve too many "issues" to brief in the court. By conceding something for the purposes of prayer for relief, you preserve your argument later.

There were three laws challenged in DC: The handgun registration ban, the refusal to issue a carry license to carry in one's home, and the "locking device" requirement. The prayer for relief was: Strike down the registration ban, issue him a permit to carry in his home, and the "locking device" requirement. DC had to repeal the registration requirement, DC chose to repeal the carry license in one's home requirement, and the locking device requirement was generally required to repeal it. DC passed several emergency amendments to it's laws. Though they were not required to by the strict reading of the supreme court ruling, they repealed the "any semi-auto which can handle more than 12 rounds=machine gun" after a few months of legal prodding after they realized it was legally indefensible given the wording of the SCOTUS decision.

If you read the McDonald complaint, you'll see that plaintiffs (represented by Gura), are challenging 4 points of Chicago's municipal ordinances: The re-registration requirement, the "if it becomes not registered in term, it becomes unregisterable" requirement/punishment, and "you must register it before it arrives in Chicago or it becomes unregisterable".

Future litigation (such as strongly hinted at litigation against New York) will focus on other unacceptable requirements, such as the high fee rate in NYC (over 1000 dollars to be able to possess a handgun in one's home over a 10 year period is unacceptably high, but the possess and carry licenses are the same price).

By litigating the stuff around the margins (re-registration, high fee requirements rather than attacking the underlying licensing itself), we preserve our ability to challenge the licensing requirements after we win on the core issues.

[wildhawker]

Gray FTW.

[Sgt Raven]

Originally Posted by kcbrown

Reportedly, they are extremely common in Texas, a state that people for some reason consider to be one of the most gun-friendly states.

Most of those signs don't mean squat in Texas because they aren't posted according to Texas Penal Code Section 30.06(c)(3)(B).

[Sgt Raven]

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.

The state may decide they need the revenue more than the counties do and take issuing over for the money.

[hoffmang]

Originally Posted by kcbrown

"Intentional" failure to conceal is a misdemeanor under PC 46.035. "Concealed handgun" is defined in GC 411.171(3) as "a handgun, the presence of which is not openly discernable to the ordinary observation of a reasonable person".

So if the officer has a reasonable suspicion that PC 46.035 is being violated, can he not detain the individual for that violation? How else is that law to be enforced?

What's missing from your analysis is all of the California state court rulings that partially concealed == concealed. The courts can't have the precedents both ways.

-Gene

[kcbrown]

Originally Posted by hoffmang

What's missing from your analysis is all of the California state court rulings that partially concealed == concealed. The courts can't have the precedents both ways.

Interesting. So if some of the weapon is covered (more than some percentage, or whatever standard they've decided upon), it's "concealed"? Sounds like we don't have to worry about "printing" or other such matters as long as those precedents stand. I must say I like the idea of our CCW laws actually being more permissive than those in Texas.

Also, do such court rulings regarding definitions apply when the law is rewritten to explicitly define what is meant? I know you don't anticipate that happening, but this is a 2A-hostile legislative body we're talking about here, and they are almost certainly going to want to enact some sort of "retribution" for having 2A shoved down their throats via incorporation.

[nobody_special]

Responses in bold.

Originally Posted by Lex Arma

Response to Question #1.

You have a Sixth Amendment right to counsel when you are charged with a crime that could land you in jail. You don't have a right to an unlicensed lawyer.
Not the same thing at all. There is a difference between a right to have counsel and a right to be counsel.

You have a Fifth Amendment right to own/possess real and personal property, that the government cannot take away from you without due process of law and/or just compensation. Ownership includes use. Do you have the "right" to drive an unlicensed, uninsured automobile on public streets, even though you own the car? You don't have a right to erect a building without appropriate permits and standards.
That doesn't impact the entirety of the fifth amendment.

If you make money exercising your "right of speech and/or press" can you legally avoid the income tax on that income?
Agan, a disconnect: income tax has nothing specifically to do with free speech; neither is it a license on the first amendment.

The government cannot discriminate against your right to vote on the basis of age, race, sex, etc., Can you vote without being a registered voter? (no ACORN jokes)
The right to vote is not enumerated, and voter registration is not a license. There are no fees or tests involved either.

You have a right to peaceably assemble, do you have a right to hold a parade on a public street without a permit?
As I said before, one can certainly meet friends on a public street without a permit. Permits for demonstrations are the result of a balancing act between the right to assemble, the public's access to a space, and the government's interest in maintaining order. Certainly the right to assemble in it's entirety is not subject to licensing.

Response to #2.

You are confusing ordered liberty and anarchy.

The libertarian in me might not like all these permits, licenses, permissions, but as long as they are rational and permit the exercise of fundamental rights, I have to decide if the burden of living in a society with these rules outweighs the burden of living on a desert island or self-sustaining farm.

So, it's anarchy in the many other states in which unlicensed open carry is legal? Those states lack ordered liberty? Maybe the anti's are right after all!

I don't think so. SCOTUS would certainly not allow any jurisdiction to require a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel. Is a permit needed to exercise avoid self-incrimination, or to be secure against unreasonable search or seizure? No.

All of Gene's examples are similarly specious. None are situations where an entire right is licensed, i.e. the enumerated right may not be exercised in any way without a license.

[7x57]

Originally Posted by nobody_special

SCOTUS would certainly not allow

Who in their right mind can use that phrase in a sentence after studying the history of Second Amendment jurisprudence?

I guess it's in-con-CEIV-able.

Has anyone noticed the remarkable unanimity of the judgement of the lawyers and semi-hemi-demi-lawyers (hi Gene!) on this thread? Coincidence?

7x57

[kcbrown]

Originally Posted by 7x57

Who in their right mind can use that phrase in a sentence after studying the history of Second Amendment jurisprudence?

I guess it's in-con-CEIV-able.

Well, then, why hasn't some government (state or federal) attempted to pass a law requiring a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel?

I mean, if there's a reasonable chance the Supreme Court will uphold it, such a thing would be a big win for government power, would it not?

Has anyone noticed the remarkable unanimity of the judgement of the lawyers and semi-hemi-demi-lawyers (hi Gene!) on this thread? Coincidence?

Inconceivable!

[nobody_special]

Originally Posted by hoffmang

If permits to carry concealed are available to all comers then no police officer can use reasonable suspicion or probable cause to detain a person who he just happens to notice is carrying. If you read the mayor's amicus against us in McDonald, you'll see that the reason NY cops can stop people they see carrying concealed is because the permit is a unicorn.
[and...]
Show me the case. A police officer can not base 4A reasonable suspicion on someone doing something that's constitutionally protected. In a state where carry permits are common, someone concealed carrying does not create reasonable suspicion absent something else significant.

Gene, you're wrong here. If licenses are shall-issue but unlicensed carry is illegal, then there is certainly reasonable suspicion for police detention. One of the cases was in Florida, which is shall-issue. I'll post a link when I find it (looking now).

Those cases in KY say that you can't fully ban carry. There has to be a viable mode. Why do you think we cite them?

As I recall, the first KY case from the early 19th century struck a ban on concealed carry. The constitution was later amended, and then another case held for unlicensed open carry while allowing licensed concealed carry. It seems to support my point, but after I find the cite for the two recent cases I'll go and review these.

3. We can't win carry on LOC in SCOTUS. A loss in SCOTUS after two wins is far worse for gun rights than 3 straight wins. In a post 3-0 environment, we can start making far more expansive arguments. We may well be able to get LOC after we secure shall issue permits, but I know we can't go the other direction.

If that's the goal, fine. I'm not sure why the Ohio model won't work here; certainly the legislature wouldn't be happy about a crowd of people open carrying down the street in San Francisco. But I'll defer to your judgment here.

I'll also defer to your judgment on SCOTUS, as you obviously know more about what the justices are likely to do. My argument depends upon Heller and "original public meaning," but if the justices are inconsistent and unwilling to carry that through to it's logical conclusion, that's a different story.

I'm arguing this with you because (1) I believe you are wrong regarding licenses and the right to bear -- and this seems clear from reading Heller and thinking about original public meaning; (2) I'm afraid that further loss of liberties might follow from a permit requirement, and (3) I'm trying to make these concerns known to CGF.

What I hope for is an assurance that CGF will, as a long-term goal, aim for judicial protection of some kind of unlicensed carry; or at least not foreclose the possibility. It doesn't matter to me if this is pretty far down the road; but based on what I've heard from you and Mr. Kilmer, it sometimes sounds like there is no hope for this goal and it has been abandoned.

[nobody_special]

Originally Posted by 7x57

Who in their right mind can use that phrase in a sentence after studying the history of Second Amendment jurisprudence?

I'm afraid I must call you out on this.

Originally Posted by nobody_special

SCOTUS would certainly not allow any jurisdiction to require a permit to meet a couple of friends for lunch, or to possess a printing press, or to retain counsel

Which of those do you think can be subject to a license or permit which would be upheld by SCOTUS?

Lower courts make all kinds of bad decisions, as 2nd Amendment jurisprudence demonstrates. That's why I prefixed my statement with "SCOTUS." If you really think that SCOTUS would allow such things, then I'll expect you to be leading the revolution.

[Lex Arma]

Originally Posted by nobody_special

All of Gene's examples are similarly specious. None are situations where an entire right is licensed, i.e. the enumerated right may not be exercised in any way without a license.

Your argument is specious on its own terms. The entire "right to keep and bear arms" is not being licensed/permitted. Just public bearing.

[nobody_special]

Originally Posted by Lex Arma

Your argument is specious on its own terms. The entire "right to keep and bear arms" is not being licensed/permitted. Just public bearing.

The right in question is the bearing of arms. As we've seen with Theseus and elsewhere, the private property / public space wording essentially means that the right to 'bear' is restricted to inside the home. Requiring a license to exercise the right to bear arms anywhere outside of the home is an extraordinary and unprecedented restriction of an enumerated right. No other enumerated right (assembly, religion, speech, counsel, jury trial, search/seizure, etc.) is so limited that one must obtain a permit to exercise it upon walking out your front door!

All of these rights can be exercised in public without a permit or license. I can pray in public. I can speak in public, I can meet friends in public. I can retain an attorney, plead the 5th, and petition Congress in public. And all of these can be done without a permit. That's virtually every enumerated right which involves an individual's actions... except the right to keep and bear arms, which apparently is special.

And I could be wrong, but I'm not sure that carrying a gun within the home would actually fall under the original public meaning of "bearing arms." If I were to speak of it in that context to a person from the late 18th century, I'd expect to see an odd and quizzical expression.

[yellowfin]

^ Lack of right to bear in public makes the 2nd amendment practically useless to everyone except invalids, home office workers, and agoraphobes.

[kcbrown]

Originally Posted by Lex Arma

Your argument is specious on its own terms. The entire "right to keep and bear arms" is not being licensed/permitted. Just public bearing.

That's probably what he meant, but I'll let him speak for himself.

But I must reiterate his point: there is no other fundamental core enumerated right of which all forms of exercise in public are prohibited by default and require a permit prior to exercise.

Do you disagree with that statement? If so, please cite an example of an enumerated fundamental right, exercise in public of which is prohibited by default (i.e., without the permission of the state) in its entirety, and which requires a permit prior to any exercise in public.


In any case, it looks like (and I sincerely hope I'm right) the permit requirement will be challenged in a future court case, but is something that needs to be done strategically along with the other various things we're after.

So here's a question for the legal guys: where does a challenge to the permit requirement fit in with the rest of the strategy? If it's unwise for you to say, I certainly understand, but would ask that you at least say that much.

(And feel free to PM me if you feel comfortable telling me "off the record" -- I will certainly say nothing to anyone else about it if you do so)

[bwiese]

Originally Posted by kcbrown

So here's a question for the legal guys: where does a challenge to the permit requirement fit in with the rest of the strategy?

Probably far down the list if the permit essentially is trivial in terms of cost or threshold of pain and is near shall-ssue.

Remember that Heller did not kill registration: registration is legally supportable (and we might not win a challenge to that!). The permit concept can be conflated with registration + background check and/or basic safety competence testing, all which likely would receive court support if not onerous. And the gov't can make a case for these, esp for "first purchase gating".

Basic competency test like the HSC questionnaire likely will pass muster. Waiting period for first gun will likely past muster given there are some legit quality studies indicating it can affect suicide, though waiting periods for "folks with guns" won't pass muster given there's no need and it infringes a right.

The part about permitting that would (will) go is the part where if a permit expires you then lose the gun (and worse, lose the right). The permit might be used as a (or conflated with) gateway for basic competence testing and/or registration, both of which will likely get court support.

Fears of registration post-incorporation-plus-a-few-cases will diminish when it's seen as trivial, a fundamental right can't be taken away (without reason: felony, mental health, etc.) and the data available on police MDT units indicating "owns a gun" becomes so common that 'familiarity breeds contempt'.