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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel. |
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Bringing a LOC Case Potentially Destined for SCOTUS
Among the many, many speculated reasons that Certiorari was denied in Kachalsky inside the thread relating to the case was the notion that the SCOTUS is adverse to making the initial ruling regarding fleshing out "bear" in a case dealing with concealed carry -that it might be a "bridge too far" for them at this point. It was also speculated that LOC was the "original" right preexisting CC, and based on the dicta of Heller, that THIS is the direction the court would prefer to start down in fleshing out "bear". The thought of initiating a suit with LOC as a prayer for relief using a "clean", denied LTC applicant has been discussed.
If the speculation above were true, wouldn't it be prudent to get a case started in the pipeline NOW -so that if the other cases approaching the court fail, we're on our way up the ladder with a different approach to take another bite at the apple, so to speak? What say you?
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-17-2013 at 12:34 PM.. |
#2
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I say we have to be VERY careful in how we proceed. The law of unintended consequences can jump up and bite us in the butt very easily. I'm more than merely inclined to leave this stuff up to those who know how to play the game. Like somebody said, it's chess, not checkers. If the seasoned veterans don't move the pieces we could easily end up check mated.
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Things usually turn out best for those who make the best of how things turn out. |
#3
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I recall the quote that arguing with a liberal is like playing chess with a pigeon. The pigeon will strut around, knock over the pieces, and $#!t on the board, and say he is winning. Our problem here is that even though it's like chess, don't expect the other side to play by the rules. And remember, some of the opponents get to make the rules.
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It doesn't matter how scary, ugly, uncomfortable, or inconvenient self defense can be. Like it or not, you will never, ever be relieved of your duty and responsibility to defend your life, your family, your country and your freedom. How much ammo do I need? Enough to last me the rest of my life, and then lot more for later. The government does not come knocking at your door. It comes knocking down your door. |
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#5
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If we can get Madigan to petition for cert. in Moore, I think this is all we would need. In deciding Moore in our favor (of course), SCOTUS would need to say that public carry is a right and we are done.
Woollard may also provide a similar result if Madigan doesn't petition in Moore (for example if IL passes a NY style CC permitting law). Unlike Kachalsky where OC is banned and CC is by permit, in Woollard the license is to simply carry (open or concealed). Assuming again that SCOTUS believes that open carry is protected and concealed carry is not, they could say that and still grant relief to the plaintiffs, acknowledging that MD could restrict the license to OC only. If they limit the right to open carry, we don't really lose because we all know that CA, NY, NJ, MD and the rest won't tolerate average people walking around with openly carried handguns. They will gladly issue permits to CC. |
#6
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That would be my worry. An LOC is the right decision would effectively kill useful urban carry in a state like CA. Businesses across the state would throw up no guns signs, and you'd only be able to carry while you aren't actually going anywhere other than a private residence in the end.
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#7
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Yes, the prevailing view is that states will go "shall issue" when faced with a LOC right. I don't see LOC as the right having a downside in this regard. I'm trying to think of any other pitfalls to a LOC approach, but as a contingency, I think it might be wise to get a case started, in case Moore is not appealed and Woolard is not granted cert.
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#8
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LOC was not an "original" right preexisting CC. The only item preexisting was one form of carry needed to be permitted.
Be patient. Heller took 5 years. These cases have only been going for 2(?) years. Lots of cases in the pipeline. |
#9
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I am not impatient in the matter, I am just positing that what if our approach is not correct (based on the discussions in the Kachalsky thread). What if the SCOTUS is shy or uncomfortable in dealing with "concealed" in a case as the first fleshing out of "bear"? That was the concern. It might benefit us to have a different (novel?) approach to what is being attempted in Woolard (we'll have to see what Ms. Madigan decides to do with Moore)?
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#10
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Gura and Calguns won't ever shift gears but maybe we can get the NRA to point Paul Clement or another super star in the direction of open carry, preferably shoot for unlicensed open carry and settle for shall issue open carry licenses if it's all we can get. Quote:
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-17-2013 at 3:55 PM.. |
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#12
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Bussda, perhaps "original right" was a poor choice of words on my part...
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#13
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They will pass a law requiring that you carry ID when you LOC and that police have the right to run your ID to verify you aren't a prohibited person, which will result in continued police harassment for carriers to try to discourage the practice. They will pass a law saying that a business posting a no guns sign carries the force of law. They will pass laws attempting to restrict the right as much as they possibly can rather than give the ok to CC instead. |
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Businesses will take care of themselves because it isn't a problem in other open carry states. National retailers may not like it but they know if they mess with gun owners they'll face boycotts in free states. But hey if your dry cleaner posts a sign then just find a new dry cleaner.
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-17-2013 at 3:49 PM.. |
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Good points, Sholling. I don't see the harm in getting a case rolling with the right plaintiff and backing organizations just in case the current cases fail. I'm not saying that they WILL fail, but it would be a nice covering of the bases/contingency.
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#16
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Hey I have my fingers crossed for Gura but we can't afford to put all of our eggs in the existing baskets. Not when the court told us what the right is and is not in Heller.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#18
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In today's society, open carry carries significant negatives. It scares women and children. Think of it this way. If the gun control forces really want to attack the carry concept, they would push open carry only with no carry able to be enforced similar to the Texas 30.06 sign. After a while, carrying a firearm in a legal manner would carry much more significant negative social overtones.
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I don't care what you call me, just don't call me late for dinner. Stupid Idiot will suffice, after all, it's only words. You must define something before you can understand it. |
#22
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The gun control laws in Ca that banned open carry of Handguns dates to 1855 or so, that.s why the British Bulldog was such a big seller in CA.People were far more likely to disobey a law they didn't like in the old days.I also think you guys have watched too many Western movies.However, i see your point.I am lucky i live in TX,however we still can't cary openly even here.
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#23
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I'll be writing the NRA-ILA and asking them to look into bringing suit for open carry in California and I'm hoping others will do likewise. If we bombard them with enough letters and emails they may just move on this.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-17-2013 at 5:47 PM.. |
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-17-2013 at 5:54 PM.. |
#25
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They may be, but it's not likely to do much for us even if IL appeals which is doubtful. Unless SCOTUS goes beyond affirming the 7th Circuit's decision all it does is say that some form of carry must be available and that leaves may-issue (de facto no-issue) intact. We already have may issue in California.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#26
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Bussda, I don't see how the type of suit being discussed would be a copycat suit, as the approach/prayer for relief would be different from all of the other cases in a substantial way. I'm familiar with what you are referring to with regards to Peruta, and i don't see how that would apply in this example.
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#27
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I don't care what you call me, just don't call me late for dinner. Stupid Idiot will suffice, after all, it's only words. You must define something before you can understand it. |
#28
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IANAL but I've been rereading Heller so I can better explain why I think we have been barking up the wrong tree and assuming we could get things from the court that they've already told us we cannot while conceding away attainable rights.
http://www.scotusblog.com/wp-content...06/07-2901.pdf Bear: Page 10 Paragraph 1. Scalia quotes Justice Ginsberg to nail down the meaning of "bear" in the right to keep and bear arms. Quote:
Why concealed is a bridge too far: Page 54 Paragraph 2. In Heller Scalia went out of his way to point out that bans on concealed carry are presumably constitutional after first explaining that the core right was to keep and bear arms and what bear means in earlier paragraphs. Quote:
Licensing of the core right: Page 59 Paragraph 1. Scalia specifically states that they aren't taking up the city's licensing requirement because Heller's council chose to concede to the licensing requirement. In other words, the majority did not rule that licensing a core right such as "keep" was constitutional. They avoided rubber stamping licensing and instead Scalia seems almost disappointed that a licensing requirement for an enumerated right wasn't challenged. Why else bring it up in this manner when it could safely be ignored or even licensing affirmed? Quote:
Moore comes close but I don't think it will help us because the even if they affirm the ruling of the 7th it only says some form of carry and leaves open may-issue to a select few and nothing for everyone else - the California system. Don't get me wrong I prefer concealed carry but I'll take what I can get.
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#29
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Open carry has a potential problem
One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.
In hindsight, one could argue that the "Black Panthers" were in fact the "true victims" and the true purpose of the "Mulford Act" was to disarm Blacks so that white cops could continue to violate their "civil rights". The major gun organizations probably won't touch open carry because of the "Black Panther" history that is tied to it. I don't see how we can run an "open carry" lawsuit, especially here in California without the history of the Black Panthers becoming a part of it. If someone can share with us how to run a lawsuit where we not only bypass the "Black Panther" issue, but also make sure the state doesn't bring it up, please share with us how we do that. The "Black Panthers" issue is a double edged sword because in order to push for "Open Carry", we in effect have to support what they were doing pre Mulford Act. As organizations get big in size, factions develop and unfortunately for us on this issue, some conservatives aren't exactly too happy with the Black Panthers, as a result, they probably will use their influence to stop any major gun organization from supporting such a suit. An "Open Carry" lawsuit has a big potential to go sideways, so whoever is running the lawsuit has to be willing to be thrown under the bus and take alot of heat because the media will go on a frenzy on this one. The Black Panthers and the Black Power movement in the 1960's were advocated "armed defense" against racist police. I don't have a problem with that, in fact I agree with that. The problem is the media back then portrayed people like Malcolm X and others who advocated armed defense as trying to overthrow the government. In fact when the news was doing stories on unloaded open carry a few years ago, they dug up old newsreels about the Black Panthers "storming the capitol". Of course in lawsuits, the saying goes, present the facts of the case, not present the feelings of the case. Open carry opens up the following questions, do the people retain the right to take up arms against oppressive government to protect their rights? As I stated above, this is a case that could easily go sideways. Nicki |
#30
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__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#31
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Open carry has a potential problem
One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.
In hindsight, one could argue that the "Black Panthers" were in fact the "true victims" and the true purpose of the "Mulford Act" was to disarm Blacks so that white cops could continue to violate their "civil rights". The major gun organizations probably won't touch open carry because of the "Black Panther" history that is tied to it. I don't see how we can run an "open carry" lawsuit, especially here in California without the history of the Black Panthers becoming a part of it. If someone can share with us how to run a lawsuit where we not only bypass the "Black Panther" issue, but also make sure the state doesn't bring it up, please share with us how we do that. The "Black Panthers" issue is a double edged sword because in order to push for "Open Carry", we in effect have to support what they were doing pre Mulford Act. As organizations get big in size, factions develop and unfortunately for us on this issue, some conservatives aren't exactly too happy with the Black Panthers, as a result, they probably will use their influence to stop any major gun organization from supporting such a suit. An "Open Carry" lawsuit has a big potential to go sideways, so whoever is running the lawsuit has to be willing to be thrown under the bus and take alot of heat because the media will go on a frenzy on this one. The Black Panthers and the Black Power movement in the 1960's were advocated "armed defense" against racist police. I don't have a problem with that, in fact I agree with that. The problem is the media back then portrayed people like Malcolm X and others who advocated armed defense as trying to overthrow the government. In fact when the news was doing stories on unloaded open carry a few years ago, they dug up old newsreels about the Black Panthers "storming the capitol". Of course in lawsuits, the saying goes, present the facts of the case, not present the feelings of the case. Open carry opens up the following questions, do the people retain the right to take up arms against oppressive government to protect their rights? As I stated above, this is a case that could easily go sideways. Nicki |
#32
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The media will treat the plaintiff just like they have Dick Heller and the others, they'll dig a bit but they won't waste much ink or airtime unless there is real dirt.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-17-2013 at 9:48 PM.. |
#33
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Open carry has a potential problem
One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.
In hindsight, one could argue that the "Black Panthers" were in fact the "true victims" and the true purpose of the "Mulford Act" was to disarm Blacks so that white cops could continue to violate their "civil rights". The major gun organizations probably won't touch open carry because of the "Black Panther" history that is tied to it. I don't see how we can run an "open carry" lawsuit, especially here in California without the history of the Black Panthers becoming a part of it. If someone can share with us how to run a lawsuit where we not only bypass the "Black Panther" issue, but also make sure the state doesn't bring it up, please share with us how we do that. The "Black Panthers" issue is a double edged sword because in order to push for "Open Carry", we in effect have to support what they were doing pre Mulford Act. As organizations get big in size, factions develop and unfortunately for us on this issue, some conservatives aren't exactly too happy with the Black Panthers, as a result, they probably will use their influence to stop any major gun organization from supporting such a suit. An "Open Carry" lawsuit has a big potential to go sideways, so whoever is running the lawsuit has to be willing to be thrown under the bus and take alot of heat because the media will go on a frenzy on this one. The Black Panthers and the Black Power movement in the 1960's were advocated "armed defense" against racist police. I don't have a problem with that, in fact I agree with that. The problem is the media back then portrayed people like Malcolm X and others who advocated armed defense as trying to overthrow the government. In fact when the news was doing stories on unloaded open carry a few years ago, they dug up old newsreels about the Black Panthers "storming the capitol". Of course in lawsuits, the saying goes, present the facts of the case, not present the feelings of the case. Open carry opens up the following questions, do the people retain the right to take up arms against oppressive government to protect their rights? As I stated above, this is a case that could easily go sideways. Nicki |
#34
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Triple post.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#35
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It's not that concealed carry is somehow legally inferior to open carry. It's that outright bans on all manners of carry are unconstitutional. It just so happens back in the 19th century concealed weapons were considered criminal, whereas today they're preferred so soccer moms don't freak.
I bet the supreme court wants a carry prohibition case without the discretionary issue aspect. They seem to prefer incremental rulings. Kachalsky was nice, but it directly dealt with discretionary issue. With Moore still being an open case, the court will prefer to get that case, as it deals directly with a total carry ban. The question is will there be an appeal / cert. Also, it's worth noting a positive outcome in the Moore case at the SCOTUS level may not impact CA immediately, aside from helping lower court cases. I don't expect the court to deal with discretionary issue if they take up Moore.
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#37
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__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#38
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#39
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You can't really use a concealed weapon to protect against tyranny.
It is pretty obvious that "bear" means to carry around at the ready, which isn't tucked into your wasteband. IMO we want concealed, because it is more convenient in our broken society, but we should really want open carry. Societal issues and soccer moms be damned, real men carry a gun on their waste so that their intentions are obvious. |
#40
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If we get open carry, conceal carry will follow fast.
Back in Ohio around 2003/4 the Ohio Supreme court upheld the state's ban on carrying concealed weapons because the people in Ohio had the right to openly carry arms for self defense.
Prior to this ruling, I believe it was Feely vs Hamilton county, if anyone open carried, they would be arrested for public disturbance. Gun activists mobilized and had mass open LOADED carry rallies and marches all across the state and they educated the public in the process about what they were doing. A long stalled shall issue CCW bill was signed by then Gov Taft, a RINO republican governor within the next 6 months. Nicki |
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