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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 12-07-2017, 9:30 AM
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Default California Prohibitive Misdemeanor and HR38

Presuming HR38 is passed and signed, apparently if one is not Federally precluded from possessing a firearm and acquires a permit from a state then that person is supposedly protected from the local and State laws pertaining to concealed carry or related offenses. How does that square with the fact of being prohibited in the State of California?
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Old 12-07-2017, 9:34 AM
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Since when does CA recognize ALL Federal laws and regulations or even the constitution for that matter? CA cherry picks what they want to comply with based on their liberal "progressive" agenda. It will probably lead to a series of lawsuits.
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Old 12-07-2017, 10:01 AM
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This is one of the what-ifs that we probably shouldn't try to interpret too hard at this point, especially until the bill is actually reconciled and passed (and likely lawsuits).

But, it seems that yeah, this bill would make it legal for a CA prohibited person (as defined in your post above) to CCW, IF they meet all of the prerequisites (including not being Federally prohibited).

HOWEVER, there would be a whole slew of possible problems. How did that person buy the gun without breaking state law? Could that person be arrested and charged for illegal possession if the gun is in their control but not being carried concealed (IE, in their house but not concealed on their person)? Etc. People always joke about someone being the test case to find out, and this is one where I definitely would NOT want to be that test case. It would not be difficult for the state to arrest you on gun related charges not covered by CCW protections.

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Presuming HR38 is passed and signed, apparently if one is not Federally precluded from possessing a firearm and acquires a permit from a state then that person is supposedly protected from the local and State laws pertaining to concealed carry or related offenses. How does that square with the fact of being prohibited in the State of California?

Last edited by mit31; 12-07-2017 at 10:07 AM..
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Old 12-07-2017, 10:15 AM
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If this passes the Senate, the CA AG will sue and mostly get a temporary injunction. Meanwhile Excramento will conjure up some laws restricting CA residents from obtaining out of state CCW permits and place requirements on out of state CCW holders making CCW permits difficult use in CA.
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Old 12-07-2017, 11:06 AM
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Originally Posted by Theseus View Post
Presuming HR38 is passed and signed, apparently if one is not Federally precluded from possessing a firearm and acquires a permit from a state then that person is supposedly protected from the local and State laws pertaining to concealed carry or related offenses. How does that square with the fact of being prohibited in the State of California?
So the charge will be prohibited person in possession, and they won't try to charge on the concealed carry. Two separate laws, only one is subject to the Federal pre-emption.
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Old 12-07-2017, 1:13 PM
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The bill as written requires that the individual have a resident permit. If you are a California prohibited person, you are not going to get that permit, so the question is moot. If on the other hand you are referring to out of state individuals with a CCW from their own state carrying in California, it should not be an issue since California has to accept that permit, even if the carrier would not qualify under California law. In other words, California should not look past the face of a valid CCW license and try to "requalify" or "disqualify" the carriers under California law. If it was allowed to do so, it could disqualify anyone who had not had California's requisite 16 hours of training, was carrying a nonroster firearm, etc etc., which the bill seeks to preclude.
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Old 12-07-2017, 1:49 PM
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The bill as written requires that the individual have a resident permit. If you are a California prohibited person, you are not going to get that permit, so the question is moot. If on the other hand you are referring to out of state individuals with a CCW from their own state carrying in California, it should not be an issue since California has to accept that permit, even if the carrier would not qualify under California law. In other words, California should not look past the face of a valid CCW license and try to "requalify" or "disqualify" the carriers under California law. If it was allowed to do so, it could disqualify anyone who had not had California's requisite 16 hours of training, was carrying a nonroster firearm, etc etc., which the bill seeks to preclude.
Incorrect. Current bill requires a permit from a state, not from your resident state. His question is very valid and one we have no good answer for.
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Old 12-07-2017, 1:49 PM
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That is inaccurate. The house bill as written does NOT require a resident permit. The SENATE bill does. As written, HR38 would allow someone in LA to get a Utah permit and CCW in California.

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The bill as written requires that the individual have a resident permit. If you are a California prohibited person, you are not going to get that permit, so the question is moot. If on the other hand you are referring to out of state individuals with a CCW from their own state carrying in California, it should not be an issue since California has to accept that permit, even if the carrier would not qualify under California law. In other words, California should not look past the face of a valid CCW license and try to "requalify" or "disqualify" the carriers under California law. If it was allowed to do so, it could disqualify anyone who had not had California's requisite 16 hours of training, was carrying a nonroster firearm, etc etc., which the bill seeks to preclude.
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Old 12-07-2017, 3:45 PM
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Originally Posted by Blade Gunner View Post
If this passes the Senate, the CA AG will sue and mostly get a temporary injunction.
I don't see any grounds for that.
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Meanwhile Excramento will conjure up some laws restricting CA residents from obtaining out of state CCW permits [/B]
They can't regulate out of state matters. Thus, they can't prohibit applying for and/or receiving such a permit. If the House version finally passes, CA won't be able to ignore or not recognize it. The Senate version is different.

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and place requirements on out of state CCW holders making CCW permits difficult use in CA.
They will have to reciprocate in order to be compliant with the Federal law. Yet, some municipalities (like SF) can go anal, but they will face the federal law suits. More likely, they will encourage businesses to prohibit CCW on premises to discourage any form of gun carry.

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Old 12-07-2017, 5:03 PM
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Default California Prohibitive Misdemeanor and HR38

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  #11  
Old 12-07-2017, 5:32 PM
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Default California Prohibitive Misdemeanor and HR38

Here specifically is my point of interest.

ď(c) (1) A person who carries or possesses a concealed handgun in accordance with subsections (a) and (b) may not be arrested or otherwise detained for violation of any law or any rule or regulation of a State or any political subdivision thereof related to the possession, transportation, or carrying of firearms unless there is probable cause to believe that the person is doing so in a manner not provided for by this section. Presentation of facially valid documents as specified in subsection (a) is prima facie evidence that the individual has a license or permit as required by this section.Ē

It seems to me to specifically say that Federal law would protect me so long as I am not Federally prohibited from possessing and doing so as a permitted person from a state of this union. In other words, unless I am Federally prohibited, California 10 misdemeanor prohibitions that arenít Federally considered are null in this case.
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Old 12-07-2017, 5:39 PM
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Originally Posted by mit31 View Post
This is one of the what-ifs that we probably shouldn't try to interpret too hard at this point, especially until the bill is actually reconciled and passed (and likely lawsuits).

But, it seems that yeah, this bill would make it legal for a CA prohibited person (as defined in your post above) to CCW, IF they meet all of the prerequisites (including not being Federally prohibited).

HOWEVER, there would be a whole slew of possible problems. How did that person buy the gun without breaking state law? Could that person be arrested and charged for illegal possession if the gun is in their control but not being carried concealed (IE, in their house but not concealed on their person)? Etc. People always joke about someone being the test case to find out, and this is one where I definitely would NOT want to be that test case. It would not be difficult for the state to arrest you on gun related charges not covered by CCW protections.
Some merit here ^^^ but this clearly indicates if you are not Federally Prohibited and have a permit from A state you can possess or carry... citing interstate commerce.
This does seem like it is specifically intended to override State Prohibitions. But I am not versed in what
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Notwithstanding any provision of the law of any State or political subdivision thereof
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Add, the text below is where I am wondering preemption.

“ß 926D. Reciprocity for the carrying of certain concealed firearms
“(a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, <bold>may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that—</bold>


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Old 12-07-2017, 5:48 PM
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(I actually typed this up for Theseus' last post, but it dovetailed perfectly to your response 71)

"...unless there is probable cause to believe that the person is doing so in a manner not provided for by this section."

As I said, I read it that these protections only apply to CCW (WHILE you are concealed carrying). So if LEO can ever show evidence you possessed a firearm and were not concealed carrying it, could they not arrest? They find it in your trunk, or anywhere in your house, etc). That person would be a CA prohibited person with a firearm, NOT engaged in CCW. I don't think it can be interpreted that it protects your ability to CCW, it only protects you WHILE you are CCW. Hopefully I am making sense.

I also still think they could get you for criminal purchase (state law), since you would have to break CA law and do an illegal off the books transfer to GET that CCW pistol (or break federal law by doing the same in another state).

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  #14  
Old 12-07-2017, 5:50 PM
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Iím thinking making one would be the best way.
As cited in my other post, it protects me from possessing as well. Can I really stop possessing said firearm just because Iím at home, for example?

Just a note, I am not intending to actually do this. Iíll quietly wait out my 10 years, just thought it would be a fun mental exercise.

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This is one of the what-ifs that we probably shouldn't try to interpret too hard at this point, especially until the bill is actually reconciled and passed (and likely lawsuits).



But, it seems that yeah, this bill would make it legal for a CA prohibited person (as defined in your post above) to CCW, IF they meet all of the prerequisites (including not being Federally prohibited).



HOWEVER, there would be a whole slew of possible problems. How did that person buy the gun without breaking state law? Could that person be arrested and charged for illegal possession if the gun is in their control but not being carried concealed (IE, in their house but not concealed on their person)? Etc. People always joke about someone being the test case to find out, and this is one where I definitely would NOT want to be that test case. It would not be difficult for the state to arrest you on gun related charges not covered by CCW protections.





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Old 12-07-2017, 5:53 PM
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I legit just assumed you were pulling a thread for funsies. It is definitely an unintended consequence and would make an interesting case study for some law student somewhere.


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Iím thinking making one would be the best way.
As cited in my other post, it protects me from possessing as well. Can I really stop possessing said firearm just because Iím at home, for example?

Just a note, I am not intending to actually do this. Iíll quietly wait out my 10 years, just thought it would be a fun mental exercise.

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Old 12-07-2017, 6:13 PM
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Once identified as prohibited in NICs you're are prohibited until cleared and removed.
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Old 12-07-2017, 7:57 PM
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You all know Theseus' legal history, right? He has been convicted of a California prohibiting misdemeanor, and is the poster child for carry rights in this state. If I remember the background correctly, he is currently living outside of California (the HK in his location might indicate Hongkong, but I'm not sure). There are lots of old threads about the topic.
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Old 12-07-2017, 10:42 PM
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Bottom line is this unless all self defense and gun ownership laws are taken away from the states it won't matter what laws are passed at the federal level because they will be undermined at the state level. States like CA and NJ and also NY will never fully comply with any reciprocity law you can bet on it.
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Old 12-07-2017, 11:31 PM
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Sacramento county threatens jail time if they revoke a concealed permit and it is not surrendered within 24 hours and they do not give a reason and refuse to do so except it was revoked on some vague reason they cannot discuss. california will refuse to honor any federal law in this area and until the feds step in and revoke all federal aid to this state including welfare this state is going to thumb it's nose at the feds. With all the jerks being forced to resign in Washington due to sex allegations maybe we will get some good people in office that will defend the second amendment.
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Old 12-08-2017, 6:15 AM
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That is inaccurate. The house bill as written does NOT require a resident permit. The SENATE bill does. As written, HR38 would allow someone in LA to get a Utah permit and CCW in California.
The text of HR38 as it passed in the House:

Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that
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Old 12-08-2017, 8:31 AM
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Once identified as prohibited in NICs you're are prohibited until cleared and removed.
Does California's 10 year prohibition put me in the NICS system? I am not sure about that. I figured they just made the check part of the DOJ check that California does.
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Old 12-08-2017, 8:35 AM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
The text of HR38 as it passed in the House:

Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that
Read that a little more carefully there, ΜΟΛΩΝ ΛΑΒΕ.

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...and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides,
My comprehension skills aren't what they used to be but this indicates to me that there is no residency requirement here. Either you get a permit in any State and can carry in your State as well as all the others or if you are already authorized to carry in your state, that permit is good anywhere. I understand why the confusion, before carefully reading it I believed that it was like the Senate version that limits reciprocity to the State in which you reside being the issuer of your permit.

Let's say, for example, that I home-build a 1911 in California and get, say, a Utah permit. According to this, I should not be able to be charged for possession or concealed carry of the firearm so long as I do so with my identification and applicable permit. The way I see it, counter to the other post thinking that I may be charged when not actively carrying, this law protects both possession and carrying. Thus meaning that the State then couldn't charge me with the crime of prohibited person in possession because I am shielded by a preemption law from the Fed's.
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Old 12-08-2017, 8:44 AM
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Originally Posted by MountainLion View Post
You all know Theseus' legal history, right? He has been convicted of a California prohibiting misdemeanor, and is the poster child for carry rights in this state. If I remember the background correctly, he is currently living outside of California (the HK in his location might indicate Hongkong, but I'm not sure). There are lots of old threads about the topic.
I don't know about being the poster child. More like a stupid early adopter of open carry. Funny thing is that I had stopped carrying mere days after this incident as per the request by Calguns leadership at the time expecting a case to help answer and protect open carry, which it didn't.

Sorry for the multiple posts, I forgot you can do a multi-quote here.
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Old 12-08-2017, 8:57 AM
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Originally Posted by MountainLion View Post
You all know Theseus' legal history, right? He has been convicted of a California prohibiting misdemeanor, and is the poster child for carry rights in this state. If I remember the background correctly, he is currently living outside of California (the HK in his location might indicate Hongkong, but I'm not sure). There are lots of old threads about the topic.
Thanks, I was not aware of this.

In light of this I spent the night pondering.

So if Theseus were a resident of California his "California Prohibiting Misdemeanor" would prevent him from legally purchasing, owning or getting a CCW in California. As such I do not see this potential law and getting another States permit helping his situation (or someone in a similar situation). It might but I do not see it.

HOWEVER

If Theseus were a resident of another state (lets say Arizona) would he be able to purchase and possess a firearm in that state?

I could be wrong but I don't believe other states follow California Law, only that's states and federal laws apply.

If that is correct then I believe as a resident of another state (lets say Arizona) he could purchase and possess a firearm legally and if he can obtain a CCW/LCH from any state he would then be protected under this proposed law while carrying in the state of California.

IINAL but that is how I read this.

The fact he WAS a Prohibited Person by California law while he WAS a resident here should have no bearing while he is a resident of another state.
That does not prevent California from trying to find a way to mess with him if they found out.

Theseus and anyone who finds himself in a similar situation please get the advice of a competent firearms lawyer and do not trust your freedom to my opinion.
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Old 12-08-2017, 9:39 AM
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Read that a little more carefully there, ΜΟΛΩΝ ΛΑΒΕ.

My comprehension skills aren't what they used to be but this indicates to me that there is no residency requirement here. Either you get a permit in any State and can carry in your State as well as all the others or if you are already authorized to carry in your state, that permit is good anywhere. I understand why the confusion, before carefully reading it I believed that it was like the Senate version that limits reciprocity to the State in which you reside being the issuer of your permit.

Let's say, for example, that I home-build a 1911 in California and get, say, a Utah permit. According to this, I should not be able to be charged for possession or concealed carry of the firearm so long as I do so with my identification and applicable permit. The way I see it, counter to the other post thinking that I may be charged when not actively carrying, this law protects both possession and carrying. Thus meaning that the State then couldn't charge me with the crime of prohibited person in possession because I am shielded by a preemption law from the Fed's.
I think that you would need that Utah permit first.

I too had trouble trying to comprehend these provisions. My conclusion is that the language "or is entitled to carry a concealed firearm in the State in which the person resides" is to ensure that the right to carry in other states is extended to the residents of constitutional carry states who may carry in their state of residence without the need for a permit.

But there is a related question. What happens or would happen if the CA DOJ reported to the NICS that you are a prohibited person based on a violation of CA law that does not make you a prohibited person under federal law? Anyone know?
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Old 12-08-2017, 9:55 AM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
The text of HR38 as it passed in the House:

Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that
There are a number of things to look at here. I believe the part bolden by you actually refers to Constitutional Carry States. The first part makes no remark about needing to live in the state issuing the permit before the OR

who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides

According to the first part A State may issue it but it says nothing about residing there. The second thing to consider is Hudson made clear it’s his intention for this to be the case when he first came out with the bill and has talked to members on the judicial committee who agreed with him.

Last edited by SPGuy; 12-08-2017 at 10:35 AM..
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Old 12-08-2017, 10:42 AM
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There are a number of things to look at here. I believe the part bolden by you actually refers to Constitutional Carry States. The first part makes no remark about needing to live in the state issuing the permit before the OR

who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides

According to the first part A State may issue it but it says nothing about residing there. The second part is Hudson made clear itís his intention for this to be the case when he first came out with the bill and has talked to members on the judicial committee who agreed with him.
Rep. Hudson was clear in what he said but as those opposed to his bill argued, that is not what it actually says. Who knows who is correct. We will have to wait to see what comes out of the Senate.
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Old 12-10-2017, 6:36 PM
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Rep. Hudson was clear in what he said but as those opposed to his bill argued, that is not what it actually says. Who knows who is correct. We will have to wait to see what comes out of the Senate.
The WORDING of the bill, as passed. Conform perfectly with the authors assertions of intent.

The obsfucatory deflections as to the wording. Are false claims of those opposing it. Backed by nothing more than the incorrectly worded, and IMO intentionally misleading wording of the "Summary" of the bill. Which DOES NOT CONFORM, to the actual text as passed.

https://www.congress.gov/bill/115th-.../house-bill/38

Quote:
Concealed Carry Reciprocity Act of 2017

This bill amends the federal criminal code to allow a qualified individual to carry a concealed handgun into or possess a concealed handgun in another state that allows individuals to carry concealed firearms.

A qualified individual must: (1) be eligible to possess, transport, or receive a firearm under federal law; (2) carry a valid photo identification document; and (3) carry a valid concealed carry permit issued by, or be eligible to carry a concealed firearm in, his or her state of residence.

Additionally, the bill specifies that a qualified individual who lawfully carries or possesses a concealed handgun in another state: (1) is not subject to the federal prohibition on possessing a firearm in a school zone, and (2) may carry or possess the concealed handgun in federally owned lands that are open to the public.
Item [3] bolded in the above quote, creates ambiguity through misinformation.

The "state of residency requirement" was attempted to be added twice as an amendment, during the two floor votes. But voted down TWICE. It is NOT included in the text of the bill as passed.

And yes, we must wait to see what the Senate does. But HR38 is a done deal in the House.


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Old 12-10-2017, 6:45 PM
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Whatever state your permit is from you will have to follow CA laws while carrying in CA. Location/Schools/Bars etc. Just like using an out of state drivers license in CA.
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Old 12-10-2017, 11:37 PM
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Whatever state your permit is from you will have to follow CA laws while carrying in CA. Location/Schools/Bars etc. Just like using an out of state drivers license in CA.
you are correct and if national reciprocity becomes law watch CA become way more restrictive in the places you can carry.
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Old 12-11-2017, 2:11 PM
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you are correct and if national reciprocity becomes law watch CA become way more restrictive in the places you can carry.
^^^^ this couldnít be more true
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Old 12-11-2017, 4:05 PM
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If they get too fast & loose it may blow up in their faces as they try to assert "but the kids", or "blood in the streets" with not only no proof, but proof of he opposite.

Of course, the is the 9CA...so the right really doesn't exist
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Old 12-11-2017, 4:25 PM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
The text of HR38 as it passed in the House:

Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)) and subject only to the requirements of this section, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State that
Much of this was explained a few posts earlier. The passage you reference in bold is applied to only those states that do not issue a permit, such as NH, VT, ME, KS, etc. Without that reference a resident of those states would not have reciprocity simply because their states use constitutional carry. That runs counter to the goal of national reciprocity.
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