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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #521  
Old 10-19-2017, 12:06 PM
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Originally Posted by CCWFacts View Post
To be clear, I have no problem with open carry. I have done it myself in certain situations (other states, in times and places where it wasn't surprising to the people around). I wouldn't do it here in California but it's a reasonable choice. I've spent quite a lot of time in Israel where open carry of both pistols and rifles is seen routinely, and I'm sure it has a deterrent effect.

But the merits of open carry are not the point here.

The point is, is unregulated open carry THE right? That's the question presented. It seems like the people in this thread who like this case believe that unregulated open carry is THE right. I think that legal premise is insane. I can't imagine that 5, or even 1, SCOTUS justice is going to agree with that. I only hope this case doesn't get cert.
Whether a state that broadly allows responsible, law - abiding adults to carry handguns and other weapons in public for self - defense may, consistent with the Second Amendment, require that those weapons generally remain concealed
The merits of open vs concealed aren't relevant. The question presented is relevant.
Like I said, I agree.
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  #522  
Old 10-19-2017, 3:08 PM
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I don't know that Norman is the vehicle that will address all of the fundamental questions left unanswered by Heller. Institutionally, the Supreme Court tries to limit the cases it decides to ones raising broad questions of policy, not specific disputes. The first question, of course, is whether there is a right to "bear" arms, which Heller strongly hinted, but did not hold, there was. If answered affirmatively, which it must, then the question becomes whether the state can regulate the time, place and manner of bearing, as it does in First Amendment cases. If the answer is yes, then any regulation ought to be subject to strict scrutiny, if the same analysis as used in First Amendment cases is applied.

The problem is two-fold. First, the 2A does not distinguish between open carry or concealed carry, establishing only a guarantee of a right "to bear." Second, Florida has "shall issue" concealed carry. The old 19th century cases held that concealed carry may be banned as long as open carry is permitted--which, more generally stated, is that same as saying that some forms of carry may be barred as long as an avenue exists to exercise the right. Isn't it logical to assume that the court would rule that open carry may be banned as long as some form of carry is allowed? I suggest that a ruling along these lines would make sense; back then, open carry was the norm and concealed carry was viewed with suspicion, but just the opposite is true today in many places (especially California) where open carry inevitably draws a police response.

Unfortunately, Peruta was a better case, since the Ninth declared that there is no right to bear concealed weapons, in a decision that intentionally avoided the fact that open carry is illegal in all urban areas, thus establishing that there is no right to bear arms in cities and towns, only a privilege that may be exercised at the discretion of the sheriff or police chief.

Will Nichols change that? I have my doubts, since the remedy he seeks is so narrow. He only desires the right to openly carry loaded firearms outside of school zones and public buildings (and of course in any private business that bans guns), which is so close to nowhere as to be effectively useless for the purpose of bearing arms for self defense. And even if he wins, does it mean anything other than that we return to "open unloaded"? I really doubt it.
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  #523  
Old 10-19-2017, 3:49 PM
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Unfortunately, Peruta was a better case, since the Ninth declared that there is no right to bear concealed weapons, in a decision that intentionally avoided the fact that open carry is illegal in all urban areas, thus establishing that there is no right to bear arms in cities and towns, only a privilege that may be exercised at the discretion of the sheriff or police chief.
Which is a confirmation of sorts that CC is not the core of the Right since the SCOTUS denied cert.
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  #524  
Old 10-19-2017, 10:36 PM
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Which is a confirmation of sorts that CC is not the core of the Right since the SCOTUS denied cert.
That SCOTUS denied cert means absolutely nothing and is of no precedential value. A denial of cert is not a decision on the merits. It only means that there were not four votes to grant cert to review the decision.

Peruta stands only for the proposition that concealed carry is not at the core of the 2A in the Ninth Circuit. (The D.C. Circuit disagrees, but that split is not presented by Norman.) Norman kind of argues the same thing as Peruta: concealed carry is great, but it is a privilege and the right to keep and OPENLY bear arms shall not be infringed, i.e., I have the right to openly bear arms notwithstanding an alternative means of exercising my right. Although it does raise an issue as to the scope of the Second Amendment outside the home, it does so in the context of a case that invites the court to decide that as long as the right is preserved in some fashion, the state has the right to regulate the manner in which firearms are borne.
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  #525  
Old 10-23-2017, 2:12 PM
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Originally Posted by TruOil View Post
That SCOTUS denied cert means absolutely nothing and is of no precedential value. A denial of cert is not a decision on the merits. It only means that there were not four votes to grant cert to review the decision.

Peruta stands only for the proposition that concealed carry is not at the core of the 2A in the Ninth Circuit. (The D.C. Circuit disagrees, but that split is not presented by Norman.) Norman kind of argues the same thing as Peruta: concealed carry is great, but it is a privilege and the right to keep and OPENLY bear arms shall not be infringed, i.e., I have the right to openly bear arms notwithstanding an alternative means of exercising my right. Although it does raise an issue as to the scope of the Second Amendment outside the home, it does so in the context of a case that invites the court to decide that as long as the right is preserved in some fashion, the state has the right to regulate the manner in which firearms are borne.
The whole "denial of cert means..." thing has been debated to death. The reality is that if there weren't 4 votes for cert there were 5 votes AGAINST it, either directly or by abstention.

That tells me that the current makeup of the court doesn't believe that the CORE RIGHT of the 2A includes CC. Whether that's because of true belief, political belief or actual legal research isn't relevant. What's relevant is that the majority doesn't believe the Right encompasses CC. If they did, they'd have voted for Cert.
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  #526  
Old 10-23-2017, 3:07 PM
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The whole "denial of cert means..." thing has been debated to death. The reality is that if there weren't 4 votes for cert there were 5 votes AGAINST it, either directly or by abstention.

That tells me that the current makeup of the court doesn't believe that the CORE RIGHT of the 2A includes CC. Whether that's because of true belief, political belief or actual legal research isn't relevant. What's relevant is that the majority doesn't believe the Right encompasses CC. If they did, they'd have voted for Cert.
That's stupid.

That's a logical, simple explanation that explains the facts in this case and all the prior facts.

Clearly that is wrong, and there is a much more complex explanation that happens to dovetail with what we want that must be correct.
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  #527  
Old 10-27-2017, 10:41 AM
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That's stupid.

That's a logical, simple explanation that explains the facts in this case and all the prior facts.

Clearly that is wrong, and there is a much more complex explanation that happens to dovetail with what we want that must be correct.
Well OF COURSE there is:

You see, openly carrying a a firearm is a direct challenge for any criminal to either take you out on the first shot or try to steal your weapon to use it against you. Therefore the only logical way to carry a firearm is to conceal it so that the criminal element doesn't know you're carrying. That way, when the SHTF and you're scurrying for cover, you can yank your gat and return fire before stuffing it back under your shirt when you're done so that no one's the wiser. Because concealed means concealed. Any other method of carrying in today's society is just ridiculous and, therefore, the Constitution should be interpreted to include Concealed Carry as the core of the Right and toss out our extensive historical precedent of Open Carry being the Right of every citizen.

At least, that's the most common rationale...
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  #528  
Old 10-27-2017, 7:24 PM
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Well OF COURSE there is:

You see, openly carrying a a firearm is a direct challenge for any criminal to either take you out on the first shot or try to steal your weapon to use it against you. Therefore the only logical way to carry a firearm is to conceal it so that the criminal element doesn't know you're carrying. That way, when the SHTF and you're scurrying for cover, you can yank your gat and return fire before stuffing it back under your shirt when you're done so that no one's the wiser. Because concealed means concealed. Any other method of carrying in today's society is just ridiculous and, therefore, the Constitution should be interpreted to include Concealed Carry as the core of the Right and toss out our extensive historical precedent of Open Carry being the Right of every citizen.

At least, that's the most common rationale...
Beautiful. You are wonderfully fluent and melodious in Calgunese.

I was going to say that clearly judges, being concerned with openly carried firearms stolen, would be subject to continuous torts, or invocations of takings clauses, which would forever imperil municipalities that became unwilling partners to the eager pocketbooks of plaintiffs, and to avoid this, along with abortion, the "penumbra" of the 4th amendment, which holds a right to privacy- and on this most finely distinguished outer limits of the 4th amendment, which balances not only a right to privacy, and a right to abortion, nestled here, as well, is the right to privacy of armament. So, like two twins, inextricably sharing an impossibly small, intimate space-

so does the 4th amendment find an inherent right to concealed carry.
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  #529  
Old 10-28-2017, 9:26 AM
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Beautiful. You are wonderfully fluent and melodious in Calgunese.

I was going to say that clearly judges, being concerned with openly carried firearms stolen, would be subject to continuous torts, or invocations of takings clauses, which would forever imperil municipalities that became unwilling partners to the eager pocketbooks of plaintiffs, and to avoid this, along with abortion, the "penumbra" of the 4th amendment, which holds a right to privacy- and on this most finely distinguished outer limits of the 4th amendment, which balances not only a right to privacy, and a right to abortion, nestled here, as well, is the right to privacy of armament. So, like two twins, inextricably sharing an impossibly small, intimate space-

so does the 4th amendment find an inherent right to concealed carry.

For shame.
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  #530  
Old 11-01-2017, 7:09 AM
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This case has been fully briefed for over a week and no updates for a conference. The Hamilton case has been briefed for almost a month, with no conference date.
Seems something is going on here.
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  #531  
Old 11-01-2017, 2:13 PM
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This case has been fully briefed for over a week and no updates for a conference. The Hamilton case has been briefed for almost a month, with no conference date.
Seems something is going on here.
Waiting for someone to die or retire.
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  #532  
Old 11-02-2017, 9:32 AM
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Waiting for someone to die or retire.
Normally I'd say someone is writing something, but usually the case keeps getting relisted. This one hasn't been relisted yet.
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  #533  
Old 11-02-2017, 11:41 AM
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Norman distributed for Nov. 21st conference
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  #534  
Old 11-03-2017, 8:56 AM
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Norman distributed for Nov. 21st conference
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  #535  
Old 11-03-2017, 10:24 AM
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HEY!

Did you bring enough for everyone?
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  #536  
Old 11-03-2017, 11:24 AM
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My computer still only shows the reply of the 24th. But I'll take your word it'll be at the 21st conference. Still seems a very long gap, usually they'll be at the very next conference after petitioner's reply has been filed.

But I'm somewhat optimistic. Only downside is lack of amicus briefs, hope it doesn't doom Norman.
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  #537  
Old 11-03-2017, 1:08 PM
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Insert vague, "this will be heard after all the rubble bouncing is over" and veiled references to internet rumors about fun stuff. We will see.
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  #538  
Old 11-21-2017, 8:23 AM
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Today is conference. My g00glefu is not very good... Will there be any info today? Or does an update on status take time?
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  #539  
Old 11-27-2017, 6:36 AM
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Cert denied. Game over.
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  #540  
Old 11-27-2017, 8:18 AM
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Raisuli: Now do you believe me?
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  #541  
Old 11-27-2017, 9:43 AM
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Well, obviously the court wasn't dying to take an open carry case after all.
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  #542  
Old 11-27-2017, 11:41 AM
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What a disaster. There is no constitutional right to open carry, or concealed carry. There's a right to carry (I hope SCOTUS will agree) but states can regulate that right. Where does anyone get the idea that open carry is some magical protected mode of carry? I understand that open carry was a social norm at some point a long time ago but it isn't now, and the fact that it was, a long time ago, doesn't mean it's some magical right we have.

IANAL, this is just my armchair QB opinion. But it seems like a foolish case.

I hope they don't get cert, because if they do, they will lose. "You want to carry a gun? Ok, get a permit, problem solved." I don't see how that's a burden. ...
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The point is, is unregulated open carry THE right? That's the question presented. It seems like the people in this thread who like this case believe that unregulated open carry is THE right. I think that legal premise is insane. I can't imagine that 5, or even 1, SCOTUS justice is going to agree with that. I only hope this case doesn't get cert.
Whether a state that broadly allows responsible, law - abiding adults to carry handguns and other weapons in public for self - defense may, consistent with the Second Amendment, require that those weapons generally remain concealed
The merits of open vs concealed aren't relevant. The question presented is relevant.
As expected. IANAL but I think this case, and the Nichols case, are based on pure fantasy.
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  #543  
Old 11-27-2017, 12:04 PM
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Calguns is populated by people Who believe when lined up against the wall by communists their failing was they didn’t file their injunction properly.

Facing the truth that communists can’t be judicially halted or that the courts and politicians are radically against them is just too much for calgunners to bear.

The idea that they are hated, despised, and opposed by virtually all figures in power is too big a redpill for the calguns sheep.

We can still be Democrats and support gun rights!
We can oppose Roy Moore and protect the GOPe and Mitch and Paul Ryan will reward us!

Communists are wrong about many things, but they are right about useful idiots. I won’t weep for you as I’ll be against the wall early; and whether you’re against the wall later or declared kulaks and sent to Barrow Alaska American gulag; you’ll have earned your stay.
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Last edited by lowimpactuser; 11-27-2017 at 12:06 PM..
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  #544  
Old 11-27-2017, 3:24 PM
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Calguns is populated by people Who believe when lined up against the wall by communists their failing was they didnít file their injunction properly.

Facing the truth that communists canít be judicially halted or that the courts and politicians are radically against them is just too much for calgunners to bear.

The idea that they are hated, despised, and opposed by virtually all figures in power is too big a redpill for the calguns sheep.

We can still be Democrats and support gun rights!
We can oppose Roy Moore and protect the GOPe and Mitch and Paul Ryan will reward us!

Communists are wrong about many things, but they are right about useful idiots. I wonít weep for you as Iíll be against the wall early; and whether youíre against the wall later or declared kulaks and sent to Barrow Alaska American gulag; youíll have earned your stay.
There is an answer to the problem of the courts not doing their job. Unfortunately, at this point no one wants to begin the necessary steps for a course correction. But, eventually the gov and the courts will go too far and then we shall see if we all wind up in the gulag, against the wall, an airtight green room, or in a muddy ditch somewhere.

Paul Ryan and the rest of the ball-less sob's in Washington need to get their act together. We're TIRED of the play-acting when we, the people, are suffering under the yoke of an oppressive government THEY PROMISED US they would end,

To that point, we have elections next year. STOP WHINING that you can't do anything and START running for office! It is the ONLY peaceful way to get rid of our unsatisfactory representatives. Who's up to run for McCain's and Flake's seats? Boxer is done, somebody in SF needs to get out there and start shaking hands NOW!
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  #545  
Old 11-27-2017, 4:11 PM
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WAT? Fighting for our rights instead of just jawing on and on uselessly about them? You should be ashamed! /sarc

ooh! The scorching was laid down earlier, but only now is the true extent of the burn evident!

If you were just mulay of a few years ago, I wouldn't care. But your predictions about open carry, combined with the continued chugging along of the Nichols vehicle, has convinced me sometimes it's better to take Mr. Smith to Washington than anyone else.

As I said- you earned it.



So you think denial for peruta, cert for Norman? With current court configuration or with MOAR TRUMP?

Oh come now, never say never. Kc and I can put our heads together and come up with SOMETHING certainly. We almost have southwest chuck, who's resisted for years, and IVC can't be too far off. Tell us your favorite cult pop culture reference, and what cases are nearest and dearest to your heart, and KC and I will be waiting, with a chocolate consolation prize when your cases fall through, and an invitation to join us on the dark side.

Conversely, I'm pretty sure Kc would WELCOME a last minute Darth Vader deathbed conversion. Except it would be of the emperor. Or of Snoke? Hmm. Have to ponder the analogy. Point is, I'm sure WE BOTH would welcome you greeting us with a "told you so!" smile and beers on us.



DO tell! There's a couple people in the main Peruta thread arguing something similar (the same?) but I'd love to hear YOUR perspective!

Make hay while the sun shines and force it where the sun don't shine.

Isn't that pretty much a pipe dream though? SCOTUS has retreated from doing that I'd be more shocked than knowing "vater" is father in dutch, but then hearing Vader was luke's father. I mean yeah, the possibility sorta halfway crossed my mind- but it ACTUALLY HAPPENED!!

Uh oh, grudge match between two people's opinions I respect!

I've been very busy lately. And don't have a lot of spare time now. So, I've no time to read all the way back to whatever I posted when I last was here (or at other posts). And since cert was denied, I guess I'm going to content myself with responding to just a few posts here. Just for old times sake.

For the sake of saving space, I'll also thank StogieC here for all his efforts.


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I don't know that Norman is the vehicle that will address all of the fundamental questions left unanswered by Heller. Institutionally, the Supreme Court tries to limit the cases it decides to ones raising broad questions of policy, not specific disputes. The first question, of course, is whether there is a right to "bear" arms, which Heller strongly hinted, but did not hold, there was. If answered affirmatively, which it must, then the question becomes whether the state can regulate the time, place and manner of bearing, as it does in First Amendment cases. If the answer is yes, then any regulation ought to be subject to strict scrutiny, if the same analysis as used in First Amendment cases is applied.

The problem is two-fold. First, the 2A does not distinguish between open carry or concealed carry, establishing only a guarantee of a right "to bear." Second, Florida has "shall issue" concealed carry. The old 19th century cases held that concealed carry may be banned as long as open carry is permitted--which, more generally stated, is that same as saying that some forms of carry may be barred as long as an avenue exists to exercise the right. Isn't it logical to assume that the court would rule that open carry may be banned as long as some form of carry is allowed? I suggest that a ruling along these lines would make sense; back then, open carry was the norm and concealed carry was viewed with suspicion, but just the opposite is true today in many places (especially California) where open carry inevitably draws a police response.

Unfortunately, Peruta was a better case, since the Ninth declared that there is no right to bear concealed weapons, in a decision that intentionally avoided the fact that open carry is illegal in all urban areas, thus establishing that there is no right to bear arms in cities and towns, only a privilege that may be exercised at the discretion of the sheriff or police chief.

Will Nichols change that? I have my doubts, since the remedy he seeks is so narrow. He only desires the right to openly carry loaded firearms outside of school zones and public buildings (and of course in any private business that bans guns), which is so close to nowhere as to be effectively useless for the purpose of bearing arms for self defense. And even if he wins, does it mean anything other than that we return to "open unloaded"? I really doubt it.

While it is true that the 2A doesn't make a distinction when it comes to "and bear," courts that were closer to the Founding Era got greater reverence from SCOTUS in Heller when it came to HOW "and bear" was protected by the Constitution, and those courts said that Concealed Carry could be banned, but that Open Carry couldn't (note: the claim that "concealed carry could be banned as long as open carry was available" is NOT in Heller). That Open isn't the norm NOW (and Concealed is) is also irrelevant. Something actually said by SCOTUS in Heller was,

"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

This would, of course, apply to how "and bear" is protected today.

My guess, for whatever that's worth, is that Mr Nichols wants to establish A form of "and bear" outside the home, and leave the fight over GFSZs and such for later. After all, GFSZs are only barely hanging on as it is. Once 'outside the home' is established AS a Right, they'll fall quite easily. IMHO.


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Originally Posted by rplaw View Post
Well OF COURSE there is:

You see, openly carrying a a firearm is a direct challenge for any criminal to either take you out on the first shot or try to steal your weapon to use it against you. Therefore the only logical way to carry a firearm is to conceal it so that the criminal element doesn't know you're carrying. That way, when the SHTF and you're scurrying for cover, you can yank your gat and return fire before stuffing it back under your shirt when you're done so that no one's the wiser. Because concealed means concealed. Any other method of carrying in today's society is just ridiculous and, therefore, the Constitution should be interpreted to include Concealed Carry as the core of the Right and toss out our extensive historical precedent of Open Carry being the Right of every citizen.

At least, that's the most common rationale...

The problem with this sort of thinking is that it goes against what was I quoted above from Heller (about the scope being what it was then), and allowing the thinking of "today's society" AT ALL opens the door to courts applying "today's society" thinking (that we don't really need the 2A because we have cops) to the Right. WE surely do NOT want that, do we?


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Originally Posted by kcbrown View Post
Raisuli: Now do you believe me?

That the courts (including SCOTUS) will just ignore their duty to the very document they swore and oath to preserve, protect and defend against all enemies, foreign and domestic?

It is hard not to.


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Calguns is populated by people Who believe when lined up against the wall by communists their failing was they didnít file their injunction properly.

Facing the truth that communists canít be judicially halted or that the courts and politicians are radically against them is just too much for calgunners to bear.

The idea that they are hated, despised, and opposed by virtually all figures in power is too big a redpill for the calguns sheep.

We can still be Democrats and support gun rights!
We can oppose Roy Moore and protect the GOPe and Mitch and Paul Ryan will reward us!

Communists are wrong about many things, but they are right about useful idiots. I wonít weep for you as Iíll be against the wall early; and whether youíre against the wall later or declared kulaks and sent to Barrow Alaska American gulag; youíll have earned your stay.

I think you're an even bigger pessimist that kcbrown!


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  #546  
Old 11-27-2017, 4:44 PM
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Originally Posted by Mulay El Raisuli View Post
While it is true that the 2A doesn't make a distinction when it comes to "and bear," courts that were closer to the Founding Era got greater reverence from SCOTUS in Heller when it came to HOW "and bear" was protected by the Constitution, and those courts said that Concealed Carry could be banned, but that Open Carry couldn't (note: the claim that "concealed carry could be banned as long as open carry was available" is NOT in Heller). That Open isn't the norm NOW (and Concealed is) is also irrelevant. Something actually said by SCOTUS in Heller was,

"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

This would, of course, apply to how "and bear" is protected today.
Yes. And what was the scope that the right to bear was understood to have at the time the people adopted the 2nd Amendment? And which case is the only carry case (that we know of) that was decided by founding-generation people, i.e. the very people whose understanding is called out by SCOTUS? The answer is Bliss, and the understanding it represents is that the 2nd Amendment protects all forms of carry.

You don't get to pick and choose which cases are relevant versus which ones aren't without having something valid and relevant to distinguish them. Here, that relevant something is the generation of the people who decided the case. Bliss stands apart from the rest in that regard.

The cases SCOTUS calls out were not called out for their treatment of carry. They were called out for their treatment of the right as an individual right. That is the context that you and all of the other open-carry-only proponents consistently refuse to acknowledge, even though that context is right there in black and white.


Do you truly believe that the founding generation believed that concealed carry was not part of the right to bear? That is what you'd have to show in order to make your case. SCOTUS does nothing of the sort in Heller. And note that if you cannot find something of greater substance and import than Bliss, then it is Bliss that must inform us of the scope of the right to carry.


Quote:
The problem with this sort of thinking is that it goes against what was I quoted above from Heller (about the scope being what it was then), and allowing the thinking of "today's society" AT ALL opens the door to courts applying "today's society" thinking (that we don't really need the 2A because we have cops) to the Right. WE surely do NOT want that, do we?
I think the person you were quoting was being sarcastic.

You're exactly right. The scope of the right is that which was understood at the time of ratification. Really, it's that which the authors understood it to be and intended to communicate. We tend to rely on the former because it's easier to discern and because we presume it's a match for the latter (since the right in question is that held by the public at large, and it is the public at large that would be governed by the government established by the Constitution). The reason the scope of the right is that which was understood at the time of ratification is that the 2nd Amendment is part of a written document which has as its purpose the communication of intended meaning. Like any communication, the only valid standard of reference for what it means is that which the authors themselves intended it to mean. When the authors are no longer available, the only valid course of action is to examine as much evidence as one can lay hands on to determine that intent as definitively as possible. This is why Bliss, and not the cases that SCOTUS cites, is the most relevant to this question.



Quote:
That the courts (including SCOTUS) will just ignore their duty to the very document they swore and oath to preserve, protect and defend against all enemies, foreign and domestic?

It is hard not to.
Exactly.

Now that you know that SCOTUS will not do its duty to the Constitution, what in the world makes you think SCOTUS meant what you believe in Heller in the first place?
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  #547  
Old 11-27-2017, 4:52 PM
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Originally Posted by Mulay El Raisuli View Post
That the courts (including SCOTUS) will just ignore their duty to the very document they swore and oath to preserve, protect and defend against all enemies, foreign and domestic?

It is hard not to.





I think you're an even bigger pessimist that kcbrown!


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Old 11-27-2017, 6:12 PM
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Originally Posted by Mulay El Raisuli;20956484



While it is true that the 2A doesn't make a distinction when it comes to "and bear," courts that were closer to the Founding Era got greater reverence from SCOTUS in Heller when it came to HOW "and bear" was protected by the Constitution, and those courts said that Concealed Carry could be banned, but that Open Carry couldn't (note: the claim that "concealed carry could be banned as long as open carry was available" is NOT in [I
Heller[/I]). That Open isn't the norm NOW (and Concealed is) is also irrelevant. Something actually said by SCOTUS in Heller was,

"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

This would, of course, apply to how "and bear" is protected today.

The Raisuli
I think I have accurately reported the holdings of those ancient state law cases: the MANNER of carry (open or concealed) may be regulated as long as CARRY (bearing) is permitted. The RIGHT is "to bear," not "to openly bear" arms. So don't try to add words that do not exist in the text, especially when it is clear from the texts of those old cases that the carrying of concealed arms was considered immoral and "dangerous," while openly carrying arms was considered virtuous and morally upright. Times have changed, and as long as the right is respected, the Court is not bound to accord the morality of times past in determining the method of carriage as bearing on the "scope" of the right.
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  #549  
Old 11-27-2017, 8:07 PM
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  #550  
Old 11-28-2017, 3:21 PM
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Yes. And what was the scope that the right to bear was understood to have at the time the people adopted the 2nd Amendment? And which case is the only carry case (that we know of) that was decided by founding-generation people, i.e. the very people whose understanding is called out by SCOTUS? The answer is Bliss, and the understanding it represents is that the 2nd Amendment protects all forms of carry.

You don't get to pick and choose which cases are relevant versus which ones aren't without having something valid and relevant to distinguish them. Here, that relevant something is the generation of the people who decided the case. Bliss stands apart from the rest in that regard.

The cases SCOTUS calls out were not called out for their treatment of carry. They were called out for their treatment of the right as an individual right. That is the context that you and all of the other open-carry-only proponents consistently refuse to acknowledge, even though that context is right there in black and white.


Do you truly believe that the founding generation believed that concealed carry was not part of the right to bear? That is what you'd have to show in order to make your case. SCOTUS does nothing of the sort in Heller. And note that if you cannot find something of greater substance and import than Bliss, then it is Bliss that must inform us of the scope of the right to carry.




I think the person you were quoting was being sarcastic.

You're exactly right. The scope of the right is that which was understood at the time of ratification. Really, it's that which the authors understood it to be and intended to communicate. We tend to rely on the former because it's easier to discern and because we presume it's a match for the latter (since the right in question is that held by the public at large, and it is the public at large that would be governed by the government established by the Constitution). The reason the scope of the right is that which was understood at the time of ratification is that the 2nd Amendment is part of a written document which has as its purpose the communication of intended meaning. Like any communication, the only valid standard of reference for what it means is that which the authors themselves intended it to mean. When the authors are no longer available, the only valid course of action is to examine as much evidence as one can lay hands on to determine that intent as definitively as possible. This is why Bliss, and not the cases that SCOTUS cites, is the most relevant to this question.





Exactly.

Now that you know that SCOTUS will not do its duty to the Constitution, what in the world makes you think SCOTUS meant what you believe in Heller in the first place?
Just to add in another point that the 2A was agnostic on mode of carry. The state RKBA protections didn't start adding in concealed carry prohibitions until after Bliss. And Bliss being a KY court opinion (precedent in only KY) meant other states didn't have to follow it. So if they were soooo sure that concealed carry was in no way protected, why add the language to the RKBA protections?
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  #551  
Old 11-28-2017, 4:49 PM
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Originally Posted by TruOil View Post
I think I have accurately reported the holdings of those ancient state law cases: the MANNER of carry (open or concealed) may be regulated as long as CARRY (bearing) is permitted. The RIGHT is "to bear," not "to openly bear" arms. So don't try to add words that do not exist in the text, especially when it is clear from the texts of those old cases that the carrying of concealed arms was considered immoral and "dangerous," while openly carrying arms was considered virtuous and morally upright. Times have changed, and as long as the right is respected, the Court is not bound to accord the morality of times past in determining the method of carriage as bearing on the "scope" of the right.
So, how is it that one is "allowed" bear long guns in public in Fla? Answer: One can't because one cannot get a CC permit for a long arm. In ANY State in the Union.

This illustrates the problem with the "manner of bear" argument. The problem is that it focuses solely on handguns and does not discuss ARMS. ARMS are handguns, long guns, swords, knives, and so on. The 2A doesn't distinguish between the type of arm at all. Yet the "manner of bear" argument does and the argument doesn't include or address those arms which are disfavored or not considered. Thus, the entire argument is a fallacy because it sets up a straw man as proof of sorts to support the proposition that bearing arms can be regulated.

BLISS says that argument is not the law. If I have to choose between Bliss and recent decisions to the contrary as to which is TRUE, I'll pick Bliss and not because I like the end result. I'll pick it because all the recent decisions attempt to cherry pick the facts and ignore reality in order to achieve a false result. That is not justice. Nor the law. Nor logical.
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  #552  
Old 02-09-2018, 6:04 PM
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Mulay El Raisuli Mulay El Raisuli is offline
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Originally Posted by kcbrown View Post
Yes. And what was the scope that the right to bear was understood to have at the time the people adopted the 2nd Amendment? And which case is the only carry case (that we know of) that was decided by founding-generation people, i.e. the very people whose understanding is called out by SCOTUS? The answer is Bliss, and the understanding it represents is that the 2nd Amendment protects all forms of carry.

You don't get to pick and choose which cases are relevant versus which ones aren't without having something valid and relevant to distinguish them. Here, that relevant something is the generation of the people who decided the case. Bliss stands apart from the rest in that regard.

The cases SCOTUS calls out were not called out for their treatment of carry. They were called out for their treatment of the right as an individual right. That is the context that you and all of the other open-carry-only proponents consistently refuse to acknowledge, even though that context is right there in black and white.


Do you truly believe that the founding generation believed that concealed carry was not part of the right to bear? That is what you'd have to show in order to make your case. SCOTUS does nothing of the sort in Heller. And note that if you cannot find something of greater substance and import than Bliss, then it is Bliss that must inform us of the scope of the right to carry.

I'm not saying that I disagree with with your reasoning. I'm saying that Heller Ruled that Open Carry was the Right. Of Course Bliss protected all manner of "and bear." I suspect that this is why SCOTUS ignored it. It isn't that I agree with them doing do. I accept that they did so. I also would like it a lot if the "right people" did so as well.


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Originally Posted by kcbrown View Post
I think the person you were quoting was being sarcastic.

Maybe not. See, below.


Quote:
Originally Posted by kcbrown View Post
You're exactly right. The scope of the right is that which was understood at the time of ratification. Really, it's that which the authors understood it to be and intended to communicate. We tend to rely on the former because it's easier to discern and because we presume it's a match for the latter (since the right in question is that held by the public at large, and it is the public at large that would be governed by the government established by the Constitution). The reason the scope of the right is that which was understood at the time of ratification is that the 2nd Amendment is part of a written document which has as its purpose the communication of intended meaning. Like any communication, the only valid standard of reference for what it means is that which the authors themselves intended it to mean. When the authors are no longer available, the only valid course of action is to examine as much evidence as one can lay hands on to determine that intent as definitively as possible. This is why Bliss, and not the cases that SCOTUS cites, is the most relevant to this question.

I agree completely. But, we gotta live with what they did, and not what they SHOULD have done.


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Originally Posted by kcbrown View Post
Exactly.

Now that you know that SCOTUS will not do its duty to the Constitution, what in the world makes you think SCOTUS meant what you believe in Heller in the first place?

Having a President that respects the Constitution. The presence of Gorsuch. I'll be crass and add the (soon, I hope) death of RBG. I don't wish her any harm, but she's been looking like an ad for dead lately. Sotomayor is a diabetic. Lifespans are short for them. Here's hoping that this is true in her case. Kennedy ain't been looking to spry late either. Things are looking up.


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Originally Posted by lowimpactuser View Post
We have cookies for your coming out party;

And THANK YOU!

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LOL! Still, I haven't taken any boat trips, and I won't quite yet.


Quote:
Originally Posted by TruOil View Post
I think I have accurately reported the holdings of those ancient state law cases: the MANNER of carry (open or concealed) may be regulated as long as CARRY (bearing) is permitted. The RIGHT is "to bear," not "to openly bear" arms. So don't try to add words that do not exist in the text, especially when it is clear from the texts of those old cases that the carrying of concealed arms was considered immoral and "dangerous," while openly carrying arms was considered virtuous and morally upright. Times have changed, and as long as the right is respected, the Court is not bound to accord the morality of times past in determining the method of carriage as bearing on the "scope" of the right.

I haven't "added words to the text." I quoted them exactly. Regardless of WHY Open Carry was Ruled the Protected Right and Concealed Carry was not, it WAS so Ruled. SCOTUS was not, as you note "bound" by them, but SCOTUS did go along with them.

And that "the times have changed" is an argument we do NOT (or at least SHOULD not) want to give to our enemies. For the reasons I mentioned before.


Quote:
Originally Posted by rplaw View Post
So, how is it that one is "allowed" bear long guns in public in Fla? Answer: One can't because one cannot get a CC permit for a long arm. In ANY State in the Union.

This illustrates the problem with the "manner of bear" argument. The problem is that it focuses solely on handguns and does not discuss ARMS. ARMS are handguns, long guns, swords, knives, and so on. The 2A doesn't distinguish between the type of arm at all. Yet the "manner of bear" argument does and the argument doesn't include or address those arms which are disfavored or not considered. Thus, the entire argument is a fallacy because it sets up a straw man as proof of sorts to support the proposition that bearing arms can be regulated.

BLISS says that argument is not the law. If I have to choose between Bliss and recent decisions to the contrary as to which is TRUE, I'll pick Bliss and not because I like the end result. I'll pick it because all the recent decisions attempt to cherry pick the facts and ignore reality in order to achieve a false result. That is not justice. Nor the law. Nor logical.

Ah, but one can "bear" long arms in some places. Texas, for one. No permit needed. The ideal is that we get that for handguns, and then, legislatively, national reciprocity for CCW. Again, it's not that I disagree with Bliss, I just accept that SCOTUS ignored it and there's not a lot that can be done about that.

As for swords and such, there are groups working for permitless Open Carry for them. I wish them all the best. I have a few that I'm dying to go out & about wearing.


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  #553  
Old 02-10-2018, 9:22 AM
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Originally Posted by Mulay El Raisuli View Post
I agree completely. But, we gotta live with what they did, and not what they SHOULD have done.
What they did was to reject the case that argued for the very position you claim SCOTUS took in Heller.

If SCOTUS refuses, without anyone so much as even dissenting against that refusal, to uphold an argument that reiterates what you think they originally claimed, why in the world would you continue to believe that they meant what you thought?


Quote:
Having a President that respects the Constitution. The presence of Gorsuch. I'll be crass and add the (soon, I hope) death of RBG. I don't wish her any harm, but she's been looking like an ad for dead lately. Sotomayor is a diabetic. Lifespans are short for them. Here's hoping that this is true in her case. Kennedy ain't been looking to spry late either. Things are looking up.
I certainly hope you're right. But this avoids the question. The very same people who signed onto Heller had the opportunity to directly back the position you claim they took in Heller. They refused to. Their refusal was so complete that nobody on the court even dissented against that refusal. So in essence, you're now saying that the composition of SCOTUS needs to change such that its position changes so as to match that which you claim it was in Heller, because right now nobody on the court backs your claim enough to even bother lifting a pen in protest against the refusal to hear the case that backed your claim. There's always a possibility, of course, that the SCOTUS composition changes to that degree, but the fact that nobody even dissented against the denial of cert in Norman, while both Thomas and Gorsuch dissented against the denial of cert in Peruta, clearly means that you need to replace a lot of people in order to get the Court's position to match what you claim it was in Heller, because it's clear that all of the current players have either abandoned that position, or never held it in the first place.
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