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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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  #521  
Old 08-19-2018, 3:45 PM
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Quote:
Originally Posted by Robotron2k84 View Post
Denying the motion wound alllow for permitted open-carry, where an en banc reversal and appeal to SCOTUS could open permit-less constitutional open-carry.
Layman here, requesting clarification. Does this mean that if en banc ratifies Young, the entire 9th Circuit will become permitted open-carry?

But if en banc rules against Young and SCOTUS ratifies, then all of America becomes constitutional open-carry?
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  #522  
Old 08-19-2018, 3:54 PM
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Reading tea leaves is not a scientific endeavor. However, should the motion be denied or en banc convened and uphold the panel's findings, it would solidify the opinion to where Nichols could proceed. It would then be up to the 9th, CA appeal, en banc cycle again to settle Nichols. If Nichols is upheld at the ninth, then CA would be compelled to find some avenue to permit open carry (loaded?).

That would have to go through the legislative process and may not adhere to any ruling in Nichols, where another round of lawsuits would ensue. It could take another 5-6 years post-Young, in the best case, to get California to comply.

As for SCOTUS, if any of these cases are appealed and granted cert., it could very well lead to shall-issue or permit-less open-carry based on their interpretation of how 2A and 10A interact. Or, they could simply uphold whatever finding the 9th produced.

The other unknown is how SCOTUS might grant a case cert. in order to overcome any circuit splits should CA9 reverse the panel's decision.

There are no certainties, it's all game theory at this point.
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  #523  
Old 08-19-2018, 7:06 PM
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Quote:
Originally Posted by Robotron2k84 View Post
State of Hawaii's motion to intervene and requesting en banc hearing:

http://michellawyers.com/wp-content/...28-USC_138.pdf
Cool, lets go to scotus.
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  #524  
Old 08-19-2018, 7:44 PM
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Does anyone know anything about Neal Kumar Katyal from the Washington DC law firm named in the motion It appears the state went and got some help. Does that firm have any history of gun rights cases?
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  #525  
Old 08-19-2018, 8:26 PM
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https://en.m.wikipedia.org/wiki/Neal_Katyal

Obama solicitor general, has argued numerous SCOTUS cases, including Obamacare, general Dem crusader and clerked for Roberts before he became Chief Justice. Nothing good for our side, it would appear.
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  #526  
Old 08-19-2018, 8:49 PM
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Thanks
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  #527  
Old 08-20-2018, 6:53 AM
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I know worst case scenario and game theory can be fun to play as well as keeping hopes down/realistic...However sometimes I feel like the anti-2A groups look at eachother when they get into a pickle and say, “How do we get the f—- out of this? You know what let’s go over to Cal Guns and see what they come up with, they might even give us a better idea and they will do the homework for us. Hell we could even copy the argument word for word!!”

Last edited by SPGuy; 08-20-2018 at 6:57 AM..
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  #528  
Old 08-20-2018, 9:35 AM
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here is a fuller body picture of George in full uniform. George is the real deal. He spent 21 years in the infantry. I also included a picture of his counsel wearing a younger man's uniform
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  #529  
Old 08-20-2018, 9:54 AM
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Quote:
Originally Posted by Robotron2k84 View Post
https://en.m.wikipedia.org/wiki/Neal_Katyal

Obama solicitor general, has argued numerous SCOTUS cases, including Obamacare, general Dem crusader and clerked for Roberts before he became Chief Justice. Nothing good for our side, it would appear.
Are you saying that he clerked for Roberts on the Supreme Court. That article you cited says he clerked for Justic Breyer on the Court. As for Roberts, while in law school he clerked for Roberts before his nomination to the Court.

Quote:
During law school Katyal clerked one summer at Hogan Lovells, where he worked for Roberts before Roberts's nomination to the US Supreme Court.
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  #530  
Old 08-20-2018, 10:04 AM
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Both quotes you cite say the same thing. Katyal clerked for Roberts before his nomination to SCOTUS.

Roberts was nominated to replace O'Connor, but became Chief Justice in one pass on September 29, 2005 to replace Justice Rehnquist's seat after his passing, earlier the same month.
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  #531  
Old 08-20-2018, 10:38 AM
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The first quote is what I was commented on. It says he clerked for Roberts before he became Chief Justice and that could easily be read as saying he clerked for Justice Roberts on the Court. The quote I added shows that he was a summer clerk for Roberts at Hogan Lovell. Do you really not know the difference between a summer law firm clerk and a law clerk for a Supreme Court Justice?
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  #532  
Old 08-20-2018, 10:46 AM
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Your contention seems to be with the wiki article. I only condensed the two facts.

Roberts was never an Associate Justice, so how could it be construed Katyal clerked for Roberts on the Supreme Court?

ETA: my only reason for pointing out that Katyal had a working relationship with Roberts was to support the idea that this is an ill omen for our side. Roberts is the likely swing vote for a majority, and the two being associated is not that flattering.

Had I pointed out his SCOTUS clerking for Breyer it wouldn't impune Katyal any more as the lead council for an anti state clerking for an anti Justice.

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  #533  
Old 08-20-2018, 12:56 PM
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An intersting tid bit from the same Wikipedia article on Kaytal; endorsement of Gorsuch to the Supreme Court.

Quote:
Katyal endorsed President Trump's nomination of Neil Gorsuch to the Supreme Court in an op-ed to The New York Times.[24] When that newspaper's public editor criticized the op-ed for failing to disclose Katyal had active cases being considered by the Court, Katyal responded that it would have been obvious he always has cases being heard by the Supreme Court.[25] Katyal formally introduced Judge Gorsuch at the Senate Judiciary Committee confirmation hearings.
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  #534  
Old 08-20-2018, 1:07 PM
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https://www.nytimes.com/2017/01/31/o...l-gorsuch.html

Seems like nothing more than welcoming the new guy to the office, since they will see a lot of each other. The title of the Op-Ed: "Why Liberals should back Neil Gorsuch," does not inspire confidence that Katyal isn't going to go for the jugular if "Bear" makes it to SCOTUS via Young. The very first line of the article betrays his bias: "I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration..."

Last edited by Robotron2k84; 08-20-2018 at 1:09 PM..
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  #535  
Old 08-20-2018, 2:47 PM
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Quote:
Originally Posted by Robotron2k84 View Post
https://www.nytimes.com/2017/01/31/o...l-gorsuch.html

Seems like nothing more than welcoming the new guy to the office, since they will see a lot of each other. The title of the Op-Ed: "Why Liberals should back Neil Gorsuch," does not inspire confidence that Katyal isn't going to go for the jugular if "Bear" makes it to SCOTUS via Young. The very first line of the article betrays his bias: "I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration..."
Anyone reading the short article you posted would realize that it was far from a welcoming the new guy to the office speech, since at the time Gorsuch had only been nominated. Indeed, while acknowledging the nominee's outstanding credentials, Katyal questioned whether Gorsuch should even receive a straight up or down confirmation vote because of the Republican's of a vote on Garland's nomination for the Court.
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  #536  
Old 08-21-2018, 8:39 AM
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new article

https://thefederalist.com/2018/08/21...perfect-movie/
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  #537  
Old 08-21-2018, 3:23 PM
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Quote:
Originally Posted by wolfwood View Post
From the article:

Quote:
Aside from this personal success and advancement in the cause of gun rights
for all citizens of Hawaii, Young’s story is an occasion for conservatives and
gun rights advocates. This is something Hollywood should love, since the
man is a walking, talking embodiment of the best of diversity in America.
He’s half-Japanese, a quarter Hawaiian, and a quarter Chinese, married to
a Japanese woman. There’s a lot for conservatives, too, beyond gun rights,
since he’s a veteran and served his country in Vietnam.
The vast Majority of Hollywood is Anti 2A, with the exception of a few like
film maker Clint Eastwood.

With that said, I would definitely see a movie based on the above,
directed by Eastwood....


Noble
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  #538  
Old 08-21-2018, 9:13 PM
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Or Kurt Russel


Quote:
Originally Posted by Noble Cause View Post
From the article:



The vast Majority of Hollywood is Anti 2A, with the exception of a few like
film maker Clint Eastwood.

With that said, I would definitely see a movie based on the above,
directed by Eastwood....


Noble
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  #539  
Old 08-22-2018, 7:15 PM
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That Hawaiian legislative body was supposed to meet today to discuss the appeal of the Young decision, does anybody have any info on that?
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  #540  
Old 08-23-2018, 6:02 AM
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Quote:
Originally Posted by Robotron2k84 View Post
Reading tea leaves is not a scientific endeavor. However, should the motion be denied or en banc convened and uphold the panel's findings, it would solidify the opinion to where Nichols could proceed. It would then be up to the 9th, CA appeal, en banc cycle again to settle Nichols. If Nichols is upheld at the ninth, then CA would be compelled to find some avenue to permit open carry (loaded?).

That would have to go through the legislative process and may not adhere to any ruling in Nichols, where another round of lawsuits would ensue. It could take another 5-6 years post-Young, in the best case, to get California to comply.

As for SCOTUS, if any of these cases are appealed and granted cert., it could very well lead to shall-issue or permit-less open-carry based on their interpretation of how 2A and 10A interact. Or, they could simply uphold whatever finding the 9th produced.

The other unknown is how SCOTUS might grant a case cert. in order to overcome any circuit splits should CA9 reverse the panel's decision.

There are no certainties, it's all game theory at this point.
Addressing the bolded part, IF Ca were to allow UNloaded permitless carry, there becomes a HUGE problem for those with CCW's.

1. How do you publicly switch from loaded concealed to unloaded open without drawing the arm? Which instantly creates a criminal offense regardless of either statute or Constitutional Right. (You can't even do this when alone in a public bathroom since you're still "technically" in public.)

2. What would this mean for a "flash"? Half of one and half of another is neither and right now a "flash" is not a criminal offense. It might get your permit yanked if you do it too often, but it's not a crime. Yet.

IMO, given the current state of the gun laws in Ca, "Permitted Carry" is the only practical solution the State has. Such a permit would authorize both concealed and LOC. It would also have to do away with discretion and be shall issue to comport with the Constitutional mandate.

Otherwise, the current scheme will become white noise as no one complies and carries openly or concealed at a whim. (Not that people aren't already carrying concealed without permits anyway.)

Young and Nichols combined have Ca in a situation where the Dem anti-gun agenda is in real danger of falling apart completely. I'm not sure the State truly understands that yet.
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Old 08-23-2018, 8:42 AM
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That Hawaiian legislative body was supposed to meet today to discuss the appeal of the Young decision, does anybody have any info on that?
It was the County of HI council meeting. The matter was taken off the agenda when the state of HI decided to intervene.

Next deadline to watch is Sept 14th, the last day for the county of HI to ask for en banc appeal.
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  #542  
Old 08-23-2018, 12:21 PM
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Originally Posted by rplaw View Post
Addressing the bolded part, IF Ca were to allow UNloaded permitless carry, there becomes a HUGE problem for those with CCW's.

Young and Nichols combined have Ca in a situation where the Dem anti-gun agenda is in real danger of falling apart completely. I'm not sure the State truly understands that yet.
I disagree. If you currently have a CCW, you cannot draw your firearm anyway except if you are in fear of imminent bodily injury of death to yourself or others, and maybe to effectuate a citizen's arrest. So none of that would change if open unloaded were legalized. Further, until about 5 years ago, open unloaded was legal but no one took advantage of it (but when some people did, the effluent hit the impeller).

Personally, I would MUCH rather carry a concealed (loaded) firearm that an unloaded openly carried one. And even if it were to be relegalized, I doubt that I would take advantage of an open (unloaded) carry law.
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  #543  
Old 08-23-2018, 4:48 PM
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I've got a feeling Hawaii and antis around the national are busy trying to field a "Dream Team" of top NYC and/or Wash D.C. legal talent to fight this at CA9 and then at SCOTUS afterwards.

Assuming a 45 day extension is granted, I *think* we're looking at ~Jan to June 2020 for an en banc decision.

And then comes appeal to SCOTUS... So we're looking at June 2021 for a final decision!


So, for us in anti strongholds in CA, time for a big sandwich and long nap....
Here's the 2nd D.C. lawyer retained for HI's "Dream Team" (along with 2 HI AG lawyers): Colleen E. Roh Sinzdak of Hogan Lovells US LLP
http://michellawyers.com/wp-content/...Hawaii_140.pdf
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  #544  
Old 08-23-2018, 4:52 PM
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It was the County of HI council meeting. The matter was taken off the agenda when the state of HI decided to intervene.

Next deadline to watch is Sept 14th, the last day for the county of HI to ask for en banc appeal.
It did not have anything to do with that. The issue just got moved to the Sept 5th meeting in Hilo. I emailed the County lawyer today and that is what he said. There is that whole issue of the hurricane they are dealing with right now.
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Old 08-23-2018, 6:54 PM
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It did not have anything to do with that. The issue just got moved to the Sept 5th meeting in Hilo. I emailed the County lawyer today and that is what he said. There is that whole issue of the hurricane they are dealing with right now.
Thanks for the correction. I guess the person who said that was mistaken or I misunderstood what they meant.
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Old 08-24-2018, 12:06 PM
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It did not have anything to do with that. The issue just got moved to the Sept 5th meeting in Hilo. I emailed the County lawyer today and that is what he said. There is that whole issue of the hurricane they are dealing with right now.
There goes mother nature getting in the way of our 2A rights, again. SMH.
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Old 08-24-2018, 1:02 PM
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Didn't they submit a request for en banc on the 16th?
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  #548  
Old 08-24-2018, 1:22 PM
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I disagree. If you currently have a CCW, you cannot draw your firearm anyway except if you are in fear of imminent bodily injury of death to yourself or others, and maybe to effectuate a citizen's arrest. So none of that would change if open unloaded were legalized. Further, until about 5 years ago, open unloaded was legal but no one took advantage of it (but when some people did, the effluent hit the impeller).

Personally, I would MUCH rather carry a concealed (loaded) firearm that an unloaded openly carried one. And even if it were to be relegalized, I doubt that I would take advantage of an open (unloaded) carry law.
Sorry this is BS.

In a nutshell, The Law is that I cannot reveal my firearm in an angry, rude or threatening manner UNLESS I am defending myself or another from imminent great bodily injury or death or preventing a felony from being committed.

There is no law prohibiting me from transferring my loaded firearm from it's holster to a lockbox for storage since doing so would not be done in an "angry, rude, or threatening manner."

HOWEVER, pulling my firearm from the holster for the purposes of unloading it so that I could carry it openly, requires that I manipulate the arm and thereby risk a negligent discharge in public. Further, anyone who sees me manipulating the arm and not knowing what I was doing could mistakenly but honestly believe that I was LOADING the arm. Thus triggering the "threatening manner" prohibition.

Whatever your personal preferences for carry are, they are IRRELEVANT to this discussion. Please refrain from trying to make sweeping pronouncements on what everyone else "should do" because of your own ignorance of the law and personal biases.
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Old 08-24-2018, 2:03 PM
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Quote:
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Didn't they submit a request for en banc on the 16th?
On the 16th the state of Hawaii filed a motion to intervene. Only the county of Hawaii participated in the oral arguments. The state had filed an amicus after being dismissed from the complaint due to sovereign immunity.

The request for county funds to be used to hire outside counsel was not removed from the agenda due to the possible hurricane weather, it was removed due to necessary revision as it did not meet some unspecified reason that required it to be "re-written" (Office of Council Services).

The day the agenda came out, 6 days prior to the scheduled meeting for the 22nd, without the request in it, county attorney Horowitz (who argued the case for the county in the Ninth orals) thought it was still on the agenda. Supervisor of Litigation for Corporation Counsel Lorraine Martin stated that the item would be on the agenda "sometime in September". The agenda for the September 5 meeting will come out August 30. Then we'll know for sure about that meeting.

Individual testimony is limited to three minutes.

Last edited by surfgeorge; 08-24-2018 at 2:06 PM..
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Old 08-24-2018, 3:56 PM
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Originally Posted by rplaw View Post
Sorry this is BS.

In a nutshell, The Law is that I cannot reveal my firearm in an angry, rude or threatening manner UNLESS I am defending myself or another from imminent great bodily injury or death or preventing a felony from being committed.


HOWEVER, pulling my firearm from the holster for the purposes of unloading it so that I could carry it openly, requires that I manipulate the arm and thereby risk a negligent discharge in public. Further, anyone who sees me manipulating the arm and not knowing what I was doing could mistakenly but honestly believe that I was LOADING the arm. Thus triggering the "threatening manner" prohibition.
Why would ANYONE want to take a legally concealed carry firearm out of a concealment holster, unload it, and transfer it to an open carry holster?
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Old 08-24-2018, 4:47 PM
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Originally Posted by CJ5&G23 View Post
Same here, except since I live in LA county where CCW is impossible, I'd lawfully carry all over LA county and let the police field lots of calls that waste their time until they figure out CCW licenses would help them.
For those readers who live not only in LA county, but also in LA city, the LAPD has a slightly more liberal issuance policy than LASD, making it light red/yellow on the CA CCW GC map. See: http://www.calguns.net/calgunforum/s...php?p=21264476
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  #552  
Old 08-24-2018, 7:01 PM
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Quote:
Originally Posted by TruOil View Post
Why would ANYONE want to take a legally concealed carry firearm out of a concealment holster, unload it, and transfer it to an open carry holster?
Why would ANYONE want to take constitutionally protected open carry firearm out of a holster, load it, and transfer it to a concealment holster?

Notice the arrogance in BOTH of our questions . . .

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Old 08-24-2018, 7:49 PM
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Why would ANYONE want to take a legally concealed carry firearm out of a concealment holster, unload it, and transfer it to an open carry holster?


TWO mistakes here:

One is that you assume that UNloaded carry is what I'm talking about. I'm not. MY POINT is that UNloaded carry for CCW permitees is stupid because we violate the law while attempting to comply with the law.

It's also ridiculous because, as a CCW holder, I'm legally authorized to go fully armed with a loaded firearm in public. Yet for open carry, I'm not considered trustworthy enough to do that unless the firearm is unloaded.

Secondly: Apparently you've never been outside in the summer while wearing a suit jacket. Believe me, you can't just take off your jacket and pull the tail of your shirt out while still expecting to meet with clients and not look like a rodeo clown.

Being able to take my jacket off when it's 100 degrees would be a huge bonus. Not having to unlawfully reveal and manipulate my carry pistol in order to unload it so I can do that would be logical.

Thus my opinion that IF Young and Nichols are both successful, Ca is in a world of hurt unless they create a carry permit system that allows permitees to carry loaded both concealed and openly. And IF Constitutionality requires that ALL citizens be allowed to bear arms, then the permit system cannot be weighted to only authorize those who meet "good cause" or fall within exceptions and/or have special status. (This is the basis for the decision in Young BTW.)
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Old 08-24-2018, 9:20 PM
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There's nothing stopping the CA legislature from creating two distinct permit classes: CCW that also permits OC, and a straight OC permit. That would still allow GC to be enforced on CCW and comply with a Young/Nichols verdict that open carry be allowed.

Stupid? Yes! But everything the CA Govt. does is such.
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Old 08-24-2018, 9:33 PM
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cockedandglocked cockedandglocked is offline
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Quote:
Originally Posted by Robotron2k84 View Post
There's nothing stopping the CA legislature from creating two distinct permit classes: CCW that also permits OC, and a straight OC permit. That would still allow GC to be enforced on CCW and comply with a Young/Nichols verdict that open carry be allowed.

Stupid? Yes! But everything the CA Govt. does is such.
There's nothing stopping the CA legislature. Period. They have free reign in this single-party system we have here. They can make it so that we can only own one 22lr single-shot rifle that we're only allowed to use on the first tuesday of october during in a leap year from 2am to 2:05am in a designated area in the middle of death valley.

Until our single-party system changes, the courts are all we have.

Fortunately, the left is going SO FAR extreme left lately that they're losing voters. We may have a chance yet, though it might take a few years. Political polarity is cyclical, and when it swings too far one direction, it always swings back to the other. Look at ANY state's history since the beginning of America, that's always how it works. Interested to see what the election this November holds.
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Old 08-25-2018, 11:52 AM
rplaw rplaw is offline
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Originally Posted by Robotron2k84 View Post
There's nothing stopping the CA legislature from creating two distinct permit classes: CCW that also permits OC, and a straight OC permit. That would still allow GC to be enforced on CCW and comply with a Young/Nichols verdict that open carry be allowed.

Stupid? Yes! But everything the CA Govt. does is such.
Equal protection is what limits that idea. Even the way you phrased it shows that what you're talking about is a permit system with 2 different classes of citizens; those who are allowed to carry loaded openly or concealed and those who cannot. Thereby making a distinct separate class of citizens who have been singled out for disparate treatment as to their Rights.

There is no sufficient reason to justify the different treatment because a person carrying a loaded firearm openly is no more dangerous to the general public than someone with the ability to carry one either concealed or openly.
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Old 08-25-2018, 1:06 PM
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Except that, to date, we have no decision upholding CCW as the right protected by 2A. So long as the right is protected, and CCW is discretionary, how does it make it unconstitutional?
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Old 08-26-2018, 10:04 AM
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Except that, to date, we have no decision upholding CCW as the right protected by 2A. So long as the right is protected, and CCW is discretionary, how does it make it unconstitutional?
We are discussing the possibility of Young and Nichols changing the landscape of bearing arms in Ca. NOT the current state of the law.
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Old 08-26-2018, 10:43 AM
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I wish Young all the success in the world, but my personal belief is that interest balancing will occur at SCOTUS and the 2A will prevail over 10A for open carry only. CCW will still be a state-only regulation and SCOTUS will allow states to regulate OC permitting as shall issue.

It will be up to Congress to liberate CCW.
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Old 08-27-2018, 3:06 PM
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Originally Posted by rplaw View Post
Equal protection is what limits that idea. Even the way you phrased it shows that what you're talking about is a permit system with 2 different classes of citizens; those who are allowed to carry loaded openly or concealed and those who cannot. Thereby making a distinct separate class of citizens who have been singled out for disparate treatment as to their Rights.

There is no sufficient reason to justify the different treatment because a person carrying a loaded firearm openly is no more dangerous to the general public than someone with the ability to carry one either concealed or openly.
They are more likely to instill fear in others, whether it be intended or unintended, and that is the danger as many have discussed when forecasting how the Legislature might act if instructed that it must allow carry, albeit open or concealed.
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