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

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  #1  
Old 02-26-2019, 5:19 PM
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Default On open carry, concealed carry, and Heller

Over the years, we've had quite a bit of discussion of what Heller means for carry, whether it be open or concealed, but that discussion has been distributed across multiple threads through time. The purpose of this thread is to concentrate that discussion into a single thread, to act as a sort of "definitive thread" for the issue.

And what better way to start than to lay out the issue, describe the claims, show what the Heller decision says and cites with respect to these things, and draw some at least tentative conclusions based on arguments that have been raised in the past? That's my intent here, but obviously we can, and perhaps even should, extend the discussion beyond those boundaries.

First, the Heller decision itself that I'll use for reference is the one on Google Scholar, here: https://scholar.google.com/scholar_c...80926445491577

While mrrabbit (a proponent of the notion that the 2nd Amendment protects only open carry, and that concealed carry can be forbidden utterly, and that even open carry of concealable arms can likewise be forbidden utterly) asserts that my "copy" of Heller is somehow defective, the link to the decision I provide above is what I've been using before, and what I'll continue to use in the absence of evidence that shows that it differs materially from the contents of the decision on SCOTUS' site, here: https://www.scotusblog.com/wp-conten.../06/07-290.pdf, because it's easier for me to link to specific portions of the Google Scholar version. Note, however, that I have read the PDF version as well and have found nothing to materially distinguish it from the Google Scholar version. They look the same to me in all the ways that matter.

There are multiple sets of claims with respect to carry that have been made. My focus will be on those made by open-carry-only proponents, but we needn't limit the discussion in this thread to only those claims. But as to the claims of the open-carry-only proponents, I'll attempt to raise each and (in followup messages) address each. Their claims are:
  1. The 2nd Amendment unequivocally protects open carry
  2. The 2nd Amendment unequivocally does not protect concealed carry
  3. (made by some but perhaps not others) The 2nd Amendment does not protect any form of carry of concealable weapons
One of the justifications for these claims is that Heller "says" them. Of course, when one goes and looks, one does not see such claims being made directly within the text of Heller itself. But the justification is maintained by at least some proponents of the claims on the basis that Heller cited cases which make those claims. Put another way, those proponents state that the fact that a case cites another is equivalent to that case incorporating the entirety of that which they cite as if the citing case said it directly.


There are others who believe that the 2nd Amendment was meant to protect "carry", but in such a way as to allow governments at whatever level to decide what forms to allow, and when, and where. For instance, some argue that it is permissible for a government to forbid open carry as long as concealed carry is available as a matter of right (some such people seem to also believe that it is permissible to burden the entire exercise of the right with permits), or to forbid concealed carry as long as open carry is available as a matter of right.

There are still others who believe that the 2nd Amendment was meant to protect all forms of carry, without exception.


All of which is to say that the spectrum of beliefs with respect to what is protected is as varied as the number of possible combinations in existence.


My primary focus as I open here is going to be on the set of claims made by open-carry-only proponents, but the discussion in this thread obviously can, and probably should, extend far beyond that.
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Old 02-26-2019, 6:16 PM
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1) Heller suggests carry is protected by the 2A, but until we get a specific ruling so stating, it's all meaningless speculation (of which I am a fan).

2) Anyone who thinks the originalists are going to sign on to any opinion distinguishing "concealable" arms from "non-concealable" needs to check their meds. "Under 29 inches OAL was considered 'concealable' by the Founding Fathers, but 29.5" and over, not including approved, permanently-affixed muzzle attachments as described in Appendices A-L, was clearly considered by the Founders to be non-concealable. However, since the average height of an American has increased by 14% since the Founding, we find that..."

there aren't enough drugs in all the world to get Thomas and Gorsuch to sign on to that, sorry

3) OC only vs whatever -- probably not going to happen. We know that the Founders considered concealing a firearm to be dastardly behavior, and the originalists on the Court will so stipulate, but I don't see those same originalists ready to deny a state's right to force CC and shut down OC. Don't see it. Maybe, it's not impossible, but my personal bet is against it, although I really don't GAF -- I'd be stoked just to have SCOTUS take a case where they'd make such a ruling, regardless of the result.
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Old 02-26-2019, 7:13 PM
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Good starting place:

https://reason.com/volokh/2016/06/11...diego-analyzed
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Old 02-26-2019, 7:24 PM
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Can I say, IANAL but I am an observer, and...

The current situation:
  • There's a circuit split. Some have found that the states must allow some form of carry, and can regulate it, and can require a permit, but that permit must be "shall issue" and not restricted to a narrow set of people. For example, Wrenn v DC
  • Other circuits, such as the 9th, have said that the 2A does apply outside the home, but that a may-issue permit system and bans on open carry aren't contradicted by the 2A and Heller
  • Everyone has said that the 2A has some application outside the home
  • Everyone has upheld prohibitions of people from carrying for people who have felonies or are otherwise unfit to carry

The consensus among the well-informed on our side is:
  • States can regulate the form of carry: open or concealed or both
  • States can require a permit, training, and other requirements that are not burdensome
  • States can't limit it to a narrow set of people, like people with good cause
  • States can't limit it to a narrow set of locations, like only while fishing
  • Due to looking at the composition of the courts and so on, we're pretty sure that the above are going to become enforceable law in the US soon

The consensus among the well-informed on the other side is:
  • Heller and the 2A do include some form of "bear" or carry
  • However states and localities can restrict it to a narrow set of people who have good cause
  • Local authorities can define good cause very narrowly if they want to, so long as they apply it fairly
  • States and localities can regulate and restrict it heavily
  • Their version applies in the 9th, and they are very worried that, due to the composition of SCOTUS, their view of rBa will soon be gone and replaced with our version

The non-well-informed opinions from both sides are:
  • Open carry, without any permit, is "the" right, and will be protected soon, or maybe it's already protected
  • "The 2A is my permit", and allows open or concealed carry without a permit
  • All forms of carry can be banned. The 2A doesn't apply outside the home.

No circuit has supported those non-well-informed opinions so far.

We could be surprised, in that there could be a court ruling, any day now, that picks one of the non-well-informed opinions and says, "yup, that's it". But... we could also get a ruling that the 16th amendment wasn't properly ratified and we don't need to file tax returns! Yeah! Not.
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Old 02-26-2019, 7:49 PM
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Quote:
Originally Posted by mrrabbit View Post
Again, for the n++; time, read Heller v. DC . . .

https://www.scotusblog.com/wp-conten.../06/07-290.pdf

. . . and its cited authorities here:

https://www.guncite.com

=8-)
Again, post the exact portions of Heller you think are pertinent.

Feel free to repost things in your posting history, to save retyping.
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Old 02-26-2019, 8:02 PM
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Marked for observation.
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Old 02-26-2019, 8:32 PM
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Quote:
Originally Posted by mrrabbit View Post
Everything in Heller v. DC is pertinent.

Hence the link to the PDF should suffice.

=8-)
No.

Further evasions will be deleted ETA as off-topic for the thread.

Either participate or remain silent.
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Last edited by Librarian; 02-26-2019 at 10:27 PM..
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Old 02-26-2019, 8:39 PM
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*2793 At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1990)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms." Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization.



Why the **** is it so hard for you people to read? Both open and concealed, per Heller, are within the meaning of "bearing arms".

Last edited by ziegenbock; 02-26-2019 at 8:41 PM.. Reason: Just to add the both open and concealed are protected.
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Old 02-26-2019, 9:50 PM
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Quote:
Originally Posted by mrrabbit View Post
It's not an evasion, the SCOTUS is the highest court in the land under the Constitution of the United States, thus everything they say in a decision is pertinent.

Again, I'm not anonymous.

Feel free to call me...between 9:00am and 10:30pm PST.
Or email me anytime.

=8-)
You are wrong. Not everything in SCOTUS ruling is pertinent to a question they are not answering in that ruling, and that is why no circuit has confirmed what you think they had been told.

That is because they are professionals and you are wrong.
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Old 02-27-2019, 5:16 AM
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Concealed carry laws cause the "gun free zones" ("sensitive areas") of which Heller speaks.

People know that a few cops can't protect everyone, so they panic and "need a law" to ban any sort of carry.

So open carry is on a firmer footing as the fundamental right. (You have to look back probably to English cases on this, been awhile since i read these decisions.)

Police need more latitude in regulating time/place/manner of concealed, for general policing and also for truly sensitive areas (but not so wide as any place where children congregate).

But concealed carry must be protected at some level as incident to the fundamental right of open carry (concealing backup, or staying warm with jacket). Dealing with temperature fluctuations should be allowed. Perhaps a distinction might be made regarding deep concealment.

Bottom line, more regulation permissible for CC, but OC must be allowed in all but the most sensitive areas. And maybe even those.
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Old 02-27-2019, 8:01 AM
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2799
Quote:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.
2797
Quote:
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."
Definition of "bear", as already posted. 2793
Quote:
At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'"
Based on this, open and concealed are protected. Most of the discussion in Heller is around open carry and I believe the point was it is clearly protected. The question is, does concealed carry fall into "long-standing" regulation? Likely it does but this can't be based on arbitrary and subjective criteria since it is an enumerated right. Thus licensed concealed carry would seem to be subject to long-standing prohibitions (felons, mentally ill, etc.) but licensing can't be based on subjective "good cause."

Edited to add: thanks for the thread idea, KCBrown.

Last edited by ritter; 02-27-2019 at 8:27 AM.. Reason: add
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Old 02-27-2019, 8:46 AM
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Quote:
Originally Posted by mrrabbit View Post
#1

If you're going to represent a position taken by others - don't resort to a strawman.

Represent it accurately.
I completely agree. It won't do for me, or anyone, to argue against strawman arguments, since that is a failure to argue against the real argument being made.


Quote:
If you're honest, you'll correct your original post on this point, and the best place to start would likely be Scalia's quoting/citing of two particular precedents from the cited authorities used for Heller v. DC.
What I wrote is by no means complete. However, you ask me to correct it without stating what needs correction, and that won't do at all. If you insist that someone is making a strawman argument, it's on you to, firstly, show what part of the stated argument is not the real argument and, secondly, supply the proper real argument substitute.

So to reiterate, my understanding of the argument that the only-open-carry people are making is that Heller says:
  1. The 2nd Amendment unequivocally protects open carry
  2. The 2nd Amendment unequivocally does not protect concealed carry
  3. (made by some but perhaps not others) The 2nd Amendment does not protect any form of carry of concealable weapons

And that the basis for the argument that Heller says the above is that it cites cases that say the above.


What about the above understanding fails to match the real argument being made, and what needs to be substituted in its stead?


Note that if you fail to substantively answer this question, I'll be forced to presume that my understanding is correct, and proceed on that basis.


Quote:
"The 2nd Amendment is best exemplified by open carry as it is the behavior of gentlemen not seeking the secret advantage desired by criminals and assassins and is therefore the protected form of carry."
"Best exemplified" is not the same as "limited to". Is your argument that open carry is the only protected form of carry, or that it is the most protected form of carry? Those two things are not the same, and the difference is crucial. By saying "best exemplified" in the above, you introduce ambiguity. Please clarify.
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Last edited by kcbrown; 02-27-2019 at 10:06 AM..
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Old 02-27-2019, 9:21 AM
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Because the citation reasoning that the open-carry-only proponents use is critical to their argument, I'll address that first, because it affects everything going forward.

As I mentioned, the claim is that Heller's citation of sources that make the claims in question is the equivalent of Heller making those claims directly. But there are really two variants of this:
  1. The meaning of the citations in the primary decision is dependent upon the context in which the citations were used
  2. The meaning of the citations in the primary decision is independent of context

Here is a list of all cases that Heller cites, in order of their first appearance in the decision (footnoted citations are towards the end -- I can reorder this list so that it reflects the footnoted citations as if they were part of the main text if that is desired):
  1. United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931)
  2. Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23 (1824)
  3. Rex v. Marks, 3 East 157, 165, 102 Eng.Rep. 557, 560 (K.B. 1802)
  4. United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)
  5. State v. Duke, 42 Tex. 455, 458 (1874)
  6. Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997),
  7. Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001),
  8. Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998),
  9. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876),
  10. Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999),
  11. United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)
  12. United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939),
  13. Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897),
  14. State v. Huntly, 25 N.C. 418, 25 N. C. 418, 422-423
  15. Commonwealth v. Blanding, 20 Mass. 304, 313-314
  16. Simpson v. State, 13 Tenn. 356, 5 Yer. 356, 360 (1833)
  17. Andrews v. State, 50 Tenn. 165, 183-184 (1871)
  18. Houston v. Moore, 5 Wheat. 1, 24, 5 L.Ed. 19 (1820),
  19. Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833),
  20. Aldridge v. Commonwealth, 4 Va. 447, 2 Va. Cas. 447, 449 (Gen.Ct.)
  21. Waters v. State, 1 Gill 302, 309 (Md. 1843)
  22. Nunn v. State, 1 Ga. 243, 251 (1846),
  23. State v. Chandler, 5 La. Ann. 489, 490 (1850),
  24. Aymette v. State, 21 Tenn. 154
  25. Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886),
  26. State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980)
  27. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931),
  28. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948)
  29. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)
  30. State v. Langford, 10 N.C. 381, 383-384 (1824)
  31. O'Neill v. State, 16 Ala. 65, 67 (1849)
  32. English v. State, 35 Tex. 473, 476 (1871)
  33. State v. Lanier, 71 N.C. 288, 289 (1874)
  34. McIntosh v. Washington, 395 A.2d 744, 755-756 (1978)
  35. National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam)
  36. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879),
  37. Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716),
  38. McDonald v. Smith, 472 U.S. 479, 482-484, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985)
  39. State v. Dempsey, 31 N.C. 384, 385 (1849)
  40. Bliss v. Commonwealth, 12 Ky. 90, 2 Litt. 90, 91-92 (1822)
  41. State v. Reid, 1 Ala. 612, 616-617 (1840)
  42. State v. Schoultz, 25 Mo. 128, 155 (1857)
  43. Simpson v. State, 13 Tenn. 356, 5 Yer. 356, 360 (1833)
  44. State v. Huntly, 25 N.C. 418, 422-423 (1843)
  45. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833),
  46. Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894),
  47. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980),
  48. Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602, 128 S.Ct. 2146, 2153-2154, 2008 WL 2329768,
  49. United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)
  50. Morris's Lessee v. Smith, 4 Dall. 119, 120, 1 L.Ed. 766 (Pa. 1792)

Note that this list isn't necessarily exhaustive, and it's just the court cases. But citations of other works, e.g., Blackstone's Commentaries, dictionaries, and other written works are perhaps equally important. Also note that some of the links to older decisions don't actually take you to those decisions, because Google Scholar doesn't have them on file. I will, when going over specific decisions, provide links to those decisions if the link for it above doesn't get you to the actual text of the decision, but that'll be at the point of discussion. I'll try to remember to update the corresponding link above when I do that, but no guarantees.

So: on to the question of context.

In the case of context-free citation, then all citations are incorporated in full as if the Court were stating them directly. But this clearly blows the "concealed carry is not protected" claim out of the water, because one of the cases so incorporated is Bliss, and Bliss explicitly states that concealed carry is protected.

There are other problems with that approach as well. Precedent is a time-ordered thing. Whatever is stated last is what controls. If one insists that cited decisions are incorporated in their entirety as if the Court were stating them in full, then citation of outdated precedent would make it new again. One of the cited cases is Cruikshank, in which the Court held that the scope of the First Amendment's protection is limited to federal laws and actions. If citations are incorporated in full as if the Court were stating them directly, then the effect here would be to remove First Amendment protection against the states, to undo the effects of the decisions that came later. The Court would have to cite those later decisions as well in order to negate this problem. As regards Cruikshank, the Court would have to cite DeJonge v Oregon in order to prevent reversal of its own precedent. But the Court failed to do that here.

And that's just for starters. There are 50 cases (perhaps more) cited by Heller. It's highly likely that there are other effects that would occur under a "citations are incorporated in full as if the Court stated them itself" approach. But Bliss alone is sufficient to destroy that approach even if nothing else does.

I'll address the question of context-sensitive citations in a separate message, as that is going to be a long one (likely multi-part), seeing how it requires analysis of the context of every case upon which the only-open-carry argument depends.
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Last edited by kcbrown; 04-26-2020 at 6:16 PM..
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Old 02-27-2019, 9:49 AM
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Disagree on the purpose of defining "bear" since it's central to the meaning of the Second and considerable time was spent in the opinion on it. Definition of "bear" was required to find:
Quote:
Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
The use of "find" has legal ramifications and wouldn't have been used if not intended. It is not opinion, dicta, etc. It is a legal finding and defining "bear" was necessary to that finding. Then again, I'm not an attorney, so...

Quote:
What is FINDING?
A decision upon a question of fact reached as the result of a judicial examination or investigation by a court, jury, referee, coroner, etc. Williams v. Giblin, 86Wis. 648. 57 N. W. 1111; Rhodes v. United States Bank, 66 Fed. 514, 13 C. C. A. 612,34 L. R. A. 742.
Argument about open vs. concealed may now continue....
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Old 02-27-2019, 5:25 PM
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Part of the issue at hand is that BOTH sides "read into" Heller and McDonald what they desire by parsimoniously dissecting portions rather than looking at context, followed by near-absurd extrapolation without the context of what the decisions actually said. As an example from Heller as it pertains to this thread...

Quote:
...It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues...
This is, in part, where the following is drawn...

Quote:
Originally Posted by kcbrown
3. (made by some but perhaps not others) The 2nd Amendment does not protect any form of carry of concealable weapons
We see this portion of the decision repeatedly cited as 'evidence,' with no further elucidation. The problem is, when pressed for specifics, those specifics either fail them or don't necessarily provide, strictly, on-point examples. Take Heller...

Quote:
...Aymette held that the state constitutional guarantee of the right to "bear" arms did not prohibit the banning of concealed weapons...
What is usually left out is 1.) what Aymette actually says and (2.) the remainder of that section in Heller...

From Aymette...

Quote:
...To hold that the Legislature could pass no law upon this subject by which to preserve the public peace, and protect our citizens from the terror which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil of infinitely greater extent to society than would result from abandoning the right itself...

...All these considerations are left out of view in the case referred to, and the court confine themselves entirely to the consideration of the distinction between a law prohibiting the right, and a law merely regulating the manner in which arms may be worn. They say there can be no difference between a law prohibiting the wearing concealed weapons and one prohibiting the wearing them openly...

...But a prohibition to wear a spear concealed in a cane would in no degree circumscribe the right to bear arms in defence of the State; for this weapon could in no degree contribute to its defence, and would be worse than useless in an army. And, if as is above suggested, the wearing arms in defence of the citizens is taken to mean the common defence, the same observations apply...
Then in Heller, as it pertains to Aymette...

Quote:
...The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners' reading either...
The Court then notes Simpson, followed by Andrews, 50 Tenn., at 178-179, which goes further than the specific line cited in Heller...

Quote:
...The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the legislature had the right to punish him for it, without violating this clause of the Constitution...

...What, then, is be protected in the right to keep and thus use? Not every thing that may be useful for offense or defense; but what may properly be included or understood under the title of arms, taken in connection with the fact that the citizen is to keep them, as a citizen. Such, then, as are found to make up the usual arms of the citizen of the country, and the use of which will properly train and render him efficient in defense of his own liberties, as well as of the State. Under this head, with a knowledge of the habits of our people, and of the arms in the use of which a soldier should be trained, we would hold, that the rifle of all descriptions, the shot gun, the musket, and repeater, are such arms; and that under the Constitution the right to keep such arms, can not be infringed or forbidden by the Legislature. Their use, however, to be subordinated to such regulations and limitations as are or may be authorized by the law...
(bold emphasis mine)

In other words, all that was established is that the State may regulate the type, manner, and location of carry of arms. In addition, such limitations MAY be authorized by law, but the right to "keep" such arms MAY NOT be forbidden or infringed and that "a man would have the right to carry them to and from his home, and no one could claim that the legislature had the right to punish him for it..."

Heller and Andrews both note "personal defense (liberties)," placing greater or, at a minimum, equal emphasis on that portion which I placed in bold above - the use of which will properly train and render him efficient in defense of his own liberties, as well as of the State. The logical inference is that the right to keep and bear arms is NOT limited to service in the militia (defense of the State), neither is "bear (carry)" limited to the home or, as Thomas stated in his now famous 2017 dissent...

Quote:
...Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” ... The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen...
The key is that portion they choose to ignore or deliberately "misread" in Heller...

Quote:
...Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession... of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms...
In other words, Scalia specifically stated that Heller was not the be all, end all insofar as the scope of what is protected under the 2nd Amendment. In fact, if you listened to interviews with Scalia subsequent to Heller, he was overtly and deliberately inviting cases by which that scope could be explored/examined. This is precisely what Thomas has been getting at on a number of issues related to firearms, including "public carry." From his previously cited 2017 dissent...

Quote:
...Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively...
The bottom line is that it seems clear from Heller and the cases cited therein, that some form of "public carry" is protected under the 2nd Amendment; a position which, at the very least, is sympathized with by Justice Thomas. What pro-gun advocates must accept is that the Court also views some forms of limitation of the what, where, when, and how as "Constitutional;" whether as a matter of legal principle or judicial pragmatism or social 'balancing.' Unfortunately, herein lies our problem...

We've reached a point where SCOTUS is verging on being forced to 'define' (or re-define) boundaries for an enumerated right. Roberts has publicly declared that he is loathe to have the Court 'dictate' or 'deliver' social policy. The problem is, that's actually how the Government defines the fundamental role of SCOTUS...

Quote:
The Supreme Court plays a very important role in our constitutional system of government. First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power. Third, it protects civil rights and liberties by striking down laws that violate the Constitution. Finally, it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities. In essence, it serves to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion, and due process of law.
Or, more precisely, that the Judiciary (ultimately represented by SCOTUS) is the branch of government which sets limitations on the degree to which social policy can be 'dictated' based on the individual rights present in the Constitution. With that in mind, we are left with hoping that the Court adopts the mindset presented in West Virginia Board of Education v Barnette (1943)...

Quote:
...The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections...
...where the emphasis is on individual freedom/liberty rather than vitriolic cries for "public" safety. You would hope, if they were consistent, that since SCOTUS has repeatedly ruled that the police have no duty to protect individuals, that they would come down on the side of individuals being allowed the means to protect themselves. But, I suppose that largely depends on the philosophical 'balance' of the Court related to the issue of "individual" vs. "collective" rights.

Last edited by TrappedinCalifornia; 02-27-2019 at 5:33 PM..
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Old 02-27-2019, 6:47 PM
Phiremin Phiremin is offline
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In my opinion, the decision in NYSRPA v NYC may provide the parameters for answering the open vs concealed question.
While I don’t expect a direct answer, I see this case addressing the “2 step test” many of the lower courts have adopted in determining if a gun control law passes constitutional muster:
1. Is a constitutional right being infringed (based on history/text)?
2. If yes, does the law pass intermediate scrutiny?
Now, in practice, the courts skip right to step 2; everything passes intermediate scrutiny, no matter how ridiculous, and therefore step 1, they opine, is superfluous.
Why is this important for OC/CC?
Because SCOTUS could say “yes, the test concept is right, but the 2A is a fundamental right and intermediate scrutiny is too low a bar...it must be something like strict scrutiny”. (like when encumbering any other constitutional right).
Or, it could say Something like “the rights and prohibitions that existed at the time the constitution was written are set in stone and can’t be touched”.
If it’s the former (some type of scrutiny), it may give states more flexibility in regulating OC vs CC. Even if OC was the historic right, could restricting it be considered “narrowly tailored” (part of the strict scrutiny test) if CC is permitted?
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Old 02-27-2019, 7:32 PM
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Originally Posted by Phiremin View Post
...Because SCOTUS could say “yes, the test concept is right, but the 2A is a fundamental right and intermediate scrutiny is too low a bar...it must be something like strict scrutiny”. (like when encumbering any other constitutional right)...Even if OC was the historic right, could restricting it be considered “narrowly tailored” (part of the strict scrutiny test) if CC is permitted?
You might want to consider what kcbrown has already stated about strict scrutiny...

Quote:
Originally Posted by kcbrown
...Get it through your heads: scrutiny is a means of determining on a case by case basis whether the right is really worth insisting upon. Whether it's "strict", intermediate, or rational basis makes no difference. It is no salve when applied to the 2nd Amendment precisely because the first two requirements are passed so easily and the third requirement is only a "guideline".

No, something much stronger than that is required to save the 2nd Amendment. Even ownership of any and all firearms could be banned utterly and pass "strict scrutiny" if the "compelling government interest" were prevention of violent overthrow of the government by the civilian population...

There is but one method that might work: the "shall not be infringed" standard...

Anything less will be taken as carte blanche by the lower courts to destroy the right, because they will find a way to shoehorn acceptance of the infringing law into the allowing framework...
Bear in mind that I don't... entirely... agree with him and I certainly don't believe we would get a "shall not be infringed standard," at least as he alludes to it, but he is, mostly, correct about strict scrutiny not being a panacea. Then again, I still have a modicum of 'hope' in the system, whereas he is an advocate for a Constitutional Convention to create what he refers to as "structural changes." Both positions 'color' our views; but, we agree on this...

Quote:
Originally Posted by kcbrown
No amount of changes to the wording of the Bill of Rights will prevent, or even reduce, malfeasance of the courts. We are where we are right now because the judges who sit on these courts refuse to read the bill of rights in any way that contradicts their personal agendas, and the politicians who swore an oath to uphold and defend the Constitution don't give a **** about it at all.
In a sense, what he wants is a 'new' system; i.e., alteration of the Constitution. What I contend is that such alterations have the same, exact weakness as he points out in that last quote. What we need is a change of or a return to a mindset that used to exist, not necessarily new wording which will then be parsed, twisted, etc.
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Old 02-27-2019, 9:13 PM
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What we're currently dealing with is summarized in this piece...

Quote:
... the Supreme Court was reluctant to define the standard of review for laws that were challenged as unconstitutional limits on the Second Amendment right. The majority in Heller eliminated rational basis as a standard of review for laws challenged under the Second Amendment. The Court in Heller also eliminated a “freestanding interest-balancing approach,” which would balance the burden on the individual right with the challenged law’s benefits. This standard of review is quite close to the intermediate scrutiny standard, which requires a nexus between an important government objective that is furthered by means substantially related to that objective. It is clear from Heller dicta that the Court considered rational basis and intermediate scrutiny inappropriate for challenges to laws that limit the core protections of the Second Amendment...

...Traditionally, the Supreme Court provides a concise framework to the lower courts for review of laws that limit fundamental constitutional rights. In the absence of this guidance, courts at the state and federal levels have adopted numerous, often incompatible, legal standards. The marked divergence among the federal circuit courts of appeal leaves the Second Amendment doctrine alarmingly unsettled. In the midst of such profound circuit confusion, federal courts are consistent only in their rulings on challenges brought under the Second Amendment...

... every circuit adheres to some form of intermediate scrutiny as the default standard. An intermediate scrutiny standard of review demands that a law be substantially related to the furtherance of an important government interest. Second, despite circuit agreement on some variant of intermediate scrutiny as a standard of review, there is little uniformity in how it is applied. An overview of the federal circuit reveals a need for a solitary voice. It is clear that some laws will not impede the Second Amendment right, while others will. Some form of hybrid scrutiny should apply. This type of scrutiny allows for a relaxed standard of review depending on the nature of the burden on the Second Amendment right. A higher standard of review will govern laws restricting the core right of the Second Amendment as defined by Heller...
The different levels of scrutiny are no panacea in that there is always a way to 'hybridize' or work around them; something kcbrown alludes to. As an example, from the same article...

Quote:
...The Heller court created a Second Amendment right in a very narrow set of circumstances. The right exists only to protect oneself from lethal force inside the home. If the Court adopts Tyler, only laws that abridge the Heller right will be subject to a strict scrutiny standard of review...
Depending on the premises/assumptions the court posits, scrutiny, no matter the 'standard' can quickly become "limited to" or "adjusted" to suit the prevailing agenda of the judges. Just as the author of that article has 'assumed' certain things we largely disagree with on this site, so can judges and, ultimately, SCOTUS would have to rule to change it. As an example, the author's contention that the Supreme Court did not define a level of scrutiny in Heller, leaving it up to the lower courts to determine an 'hybridized' standard, is juxtaposed to this author's contention from The Heller Decision and Strict Scrutiny posted on The Truth About Guns website...

Quote:
...It does, however, seem clear that the Court, in Heller, applied the most rigorous analysis in its decision: strict scrutiny. While the Heller minority would wish otherwise, it seems reasonable to believe that future analysis of issues having fundamental Second Amendment implications would also be subjected to such rigor...
If we can't even agree on what Heller did/didn't say/do, how can one expect agreement on what constitutes the proper framework and applicable definitions? Put another way, even if SCOTUS were to overtly and definitively declare "strict scrutiny" to be THE standard for ALL cases involving the 2nd Amendment, SCOTUS would then have to regularly defend that standard and provide a specific framework to preclude what many would see as 'violation' of that standard.

Such a rigid framework would work against the core aspects of 'strict scrutiny' ...

Quote:
To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.
By creating such a framework, SCOTUS would be faced with how one defines "compelling," "governmental," and "narrowly." Bear in mind that how such terms are defined will potentially have an influence beyond 2nd Amendment jurisprudence. In the end, such definition is currently determined on a case-by-case basis and I'm fairly confident that SCOTUS would be hesitant to rule otherwise lest they paint themselves into an unworkable corner in that there is no, one-size-fits-all set of definitions which could or should be applied.

The specifics of kcbrown's example...

Quote:
Originally Posted by kcbrown
Even ownership of any and all firearms could be banned utterly and pass "strict scrutiny" if the "compelling government interest" were prevention of violent overthrow of the government by the civilian population...
...were, I believe, actually 'addressed' by the majority decision in Heller...

Quote:
...if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee—it does not assure the existence of a "citizens' militia" as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. That is why the first Militia Act's requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government's Power to Enact Color-Conscious Laws, 92 Nw. U.L.Rev. 477, 521-525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the concern of the founding generation...
However, his broader point is valid. One only need look at how the microstamping issue has been dealt with to see how lower courts can 'interpret' the levels of scrutiny and the standards of 'evidence.'
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Old 02-28-2019, 2:42 PM
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Trapped reminds me of what I thought in law school-that the judges/justices decide on the result they want and then pick the level of scrutiny that achieves that result. I think the Ninth has gone well beyond that in this context: Knowing that it has to apply at least intermediate scrutiny in order to comply with Heller, it uses the language of that test to disguise that it is really applying rational basis analysis. It gives nothing but lip service to the right and in almost every instance (except Judge O'Scanlain) allows the government to impose whatever restriction it wants, on no more than the alleged "significant public interest." Despite the existence of battling and contradictory expert testimony, which in all cases should require a rial and not a resolution "as a matter of law," the Court applies its own yardstick to what constitutes evidence of that significant public interest and whether the regulation or law actually furthers that interest.
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Old 02-28-2019, 5:13 PM
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I wantto focus on California. You can't outlaw open carry and be a mayissue state. That's infringement. Scalia wrotethat RKBA is not unlimited. Some regulation is ok. Calif has gone too far. That ismy focus with this thread. Either overturn Mulford or be shallissue. End of story.

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Old 02-28-2019, 6:13 PM
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IANAL and I am not able to argue the fine points of Constitutional law. I admit I am out of my league. I do follow this topic because it is near and dear to me.

I am a trained scientist and that training has taught me to reduce complex problems into parts so I can better understand them. With that here is the 2A:

Quote:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Simply put, this statement is saying the people (I am assuming US citizens) can keep and bear (have on their person and/or access to) arms and this is a right that shall not be infringed, period. Applying levels of scrutiny is infringement!.

Where I have issues with the OC is the only form protected under the 2A crowd is their argument is based on the Founding Fathers opinions that people who conceal carry are scoundrels and men of ill-repute. That is an opinion. Most would have likely thought laws against pornography were acceptable and should not be considered a violation of the First Amendment. Many might be appalled to permit a church of Satanism or to allow Wiccans to practice without legal repercussions because they had a First Amendment Right.

This I know from my family history. I had an ancestor who signed the Declaration of Independence and his son was a Baptist minister who migrated westward from South Carolina preaching the evils of liquor, slavery, and the devil. He was disowned by his slave owning father. He eventually ended up in Michigan.

The family story is he always carried more than a couple guns concealed and that is how he stayed alive after upsetting so many people in the southern towns he passed through. He was not a proper southern gentleman.

Read the other Amendments of the Bill of Rights and none of them end with the definitive of "shall not be infringed". So even if the Founding Fathers expected some limits on the Amendments of the Bill of Rights, they made it clear the 2A was not to be infringed upon. The Amendment itself says so.

I fall into the camp that believes both OC and CC should be protected.

Reality is, SCOTUS will do its balancing act. People want to pretend they are safe and pretend they have some protection from BGs getting guns. Look at how many here think BG checks actually work to keep guns away from criminals and think that UBC like we have here in CA are effective in reducing gun crime.

In my day to day life, I want CC. I do not want to be a target. OC makes me a target. In CA, OC only would ultimately mean no carry. Just about every business would put up a no guns sign so I could not carry anywhere during my day to day life. I would be forced to keep the gun locked in my truck and risking having it stolen when I am away from it. I will not have it on me when I need it.

If I can CC, nobody but I will know I have the gun. I can use it if I need it otherwise it is out of sight and out of mind. I will give the no gun signs their just due, I will ignore them.

The store owner will feel good, the anti-gun people will feel good, and I will still be able to protect myself and my family if I need to.

Bearing a gun should be the same as voting. If I do not need to pass a test to vote, then I do not need to pass a test to carry a gun. Just like with voting, any obstacle the state puts in the way to gun ownership or carrying a gun, it ends up discouraging citizens from exercising their right.

We have to deal with reality and American politics is always about compromise. In the end I expect the issue to be settled with a compromise. I just wish the OC people would stop insisting that OC is the only way. Anti-gun states, if forced to allow only one will still win if it is OC. Most businesses will ban guns and will have the blessing of their insurance companies who will raise their rates if they do not.

With the Federal GFSZ, OC would not be permitted in 95% of urban areas anyway causing many to not even attempt it. (Unless my understanding of the law is wrong).

Personally, I think both are permitted under the 2A but will be happy if SCOTUS rules that at least one has to be permitted. Personally, I want CC because that is my preferred method. I am leaving CA soon for a free state that has Constitutional Carry so I no longer care about CA.
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Old 02-28-2019, 9:48 PM
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Quote:
Originally Posted by TruOil View Post
Trapped reminds me of what I thought in law school-that the judges/justices decide on the result they want and then pick the level of scrutiny that achieves that result. I think the Ninth has gone well beyond that in this context: Knowing that it has to apply at least intermediate scrutiny in order to comply with Heller, it uses the language of that test to disguise that it is really applying rational basis analysis. It gives nothing but lip service to the right and in almost every instance (except Judge O'Scanlain) allows the government to impose whatever restriction it wants, on no more than the alleged "significant public interest." Despite the existence of battling and contradictory expert testimony, which in all cases should require a rial and not a resolution "as a matter of law," the Court applies its own yardstick to what constitutes evidence of that significant public interest and whether the regulation or law actually furthers that interest."
Justice Thomas said, in essence, the same thing in his dissent to the denial of cert in Silvester v. Becerra.

Quote:
...Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review... But the decision below did just that. Purporting to apply intermediate scrutiny, the Court of Appeals upheld California’s 10-day waiting period for firearms based solely on its own “common sense.” ... It did so without requiring California to submit relevant evidence, without addressing petitioners’ arguments to the contrary, and without acknowledging the District Court’s factual findings. This deferential analysis was indistinguishable from rational basis review. And it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right...
That dissent was where Thomas noted the 2nd Amendment was being treated as a "disfavored right." He then went on, eviscerating the 9th's approach to the case, stating...

Quote:
...This Court has not definitively resolved the standard for evaluating Second Amendment claims. Heller did not need to resolve it because the law there failed “any of the standards of scrutiny that we have applied to enumerated constitutional rights.” ... After Heller, the Courts of Appeals generally evaluate Second Amendment claims under intermediate scrutiny... Several jurists disagree with this approach, suggesting that courts should instead ask whether the challenged law complies with the text, history, and tradition of the Second Amendment... Although Heller did not definitively resolve the standard for evaluating Second Amendment claims, it rejected two proposed standards. The Court first rejected a “freestanding ‘interest-balancing’ approach,” which would have weighed a law’s burdens on Second Amendment rights against the governmental interests it promotes... “The very enumeration of the [Second Amendment] right,” Heller explained, eliminates courts’ power “to decide on a case-by-case basis whether the right is really worth insisting upon.” ... The Court also rejected “rational-basis scrutiny.” ... Heller found it “[o]bviou[s]” that rational-basis review “could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right.” Ibid. Otherwise, the Second Amendment “would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” ... The Ninth Circuit claimed to be applying intermediate scrutiny, but its analysis did not resemble anything approaching that standard. It allowed California to prove a governmental interest with speculation instead of evidence. It did not meaningfully assess whether the 10-day waiting period is reasonably tailored to California’s purported interest. And it did not defer to the factual findings that the District Court made after trial. The Ninth Circuit would not have done this for any other constitutional right, and it could not have done this unless it was applying rational-basis review...
Clearly, Justice Thomas was not happy with the 9th Circuit's approach, taking several pages to completely take it apart, declaring...

Quote:
...The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights... This double standard is apparent from other cases where the Ninth Circuit applies heightened scrutiny... Our continued refusal to hear Second Amendment cases only enables this kind of defiance... The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message... Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” ... By refusing to review decisions like the one below, we undermine that declaration. Because I still believe that the Second Amendment cannot be “singled out for special—and specially unfavorable—treatment,” ... I respectfully dissent from the denial of certiorari.
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Old 03-02-2019, 10:01 PM
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Quote:
Originally Posted by mrrabbit View Post
I'm not arguing. I'm merely pointing to Heller v. DC. SCOTUS, the justices in the cited authorities, legal commentary and historical analysis going way back - says it all.

They said it. They argued it. They discussed it.

NOT ME!

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Quote:
Originally Posted by Offwidth View Post
No they did not say what you think they did. Proof is in circuit court decisions. They know better than you.
Tut, and tut again,

Specifics and details are required here.

‘Yes they did!’ ‘No they did not!’ get us nowhere; nowhere posts are off topic for this thread.
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Old 03-03-2019, 4:38 AM
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2 justices who would be relied upon for votes wrote in the Peruta dissent

The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable.

How does this fit with OC is the right and the ONLY right? IF they believed OC is the right and the ONLY right, there is no reason to oppose the denial of dissent of Peruta because the 9th would have "gotten it right".

You can go on and on about Heller, Baldwin, exc. but when 2 justices come out with this dissent, it seems to me you've got a little problem.
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Old 03-03-2019, 9:11 AM
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Other way round, sir,

Create an argument. Make assertions point by point. Provide specific supporting documentation.
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Old 03-03-2019, 3:53 PM
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Originally Posted by mrrabbit View Post
And Jeremiah?

=8-/
Point - I was out of town, limited access.

Jeremiah, wrong thread for your post. Nice in a different thread, perhaps, but this one has some formalities.
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Old 03-05-2019, 9:53 PM
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The dichotomy between OC and CC, as Jeremiah points out and "others" ignore, is that times have changed. When we were colonies and then states, open carry in an almost entirely agrarian society on the edge of wild forests full of animals and Indians, many of which and whom were dangerous was the norm. Against this background, statutes outlawing concealed carry are understandable, and the case law approving of these statutes on the basis that concealed carry ws, in essence, immoral, are perfectly understandable.

But as the country became more settled, and particularly in the urbanized and industrialized cities, open carry--or any carry for that matter--became increasingly rare. Mill workers did not bring firearms to the job, if the workers could even afford them, because the country was settled and the risk of meeting wild animals or Indians remote. Open carry in the cities virtually disappeared except for police officers/sheriffs and the military. The bearing of arms for urbanites was almost exclusively for the purpose of hunting. Although farmers were more likely to carry a shotgun or rifle if any game should come his way or varmints needed eradicating, when the West became increasingly settled resulted in fewer and fewer handguns being openly carried by the beginning of the 20th century. By the roaring twenties, pocket carry of small caliber vest guns was far more common than holstered handguns. Society became used to the absence of firearms--and gradually, those who carried, unless obviously police officers, were viewed with suspicion. In short, as proven by the open carry crusaders five or six years ago, openly carried firearms are considered threatening by the average urbanite, a population group that has a clear majority in public offices in many states, especially the two coasts. When people see a hip holstered hand gun, and without otherwise judging the outward appearance of the bearers), they call the police. But concealed carry is "out of sight, out of mind." If you do not perceive it, it is not threatening.
Historically, unlicensed open carry was the recognized right, as was common in that age, and concealed carry could be banned or permitted by license. But that history is now at odds with the common practice of most urban areas in this day and age. People in liberal areas do not want open carry--ever. So even if it is allowed as a right, people will find ways to "shame" or burden the practice. And this is to say nothing of the GFSZA, which for all practical purposes bans unlicensed open carry in every city and town/ state that has such a law. By contrast, licensed CCW is generally exempt from the zone, even if barred from entering campuses (a variable restriction).
Given the changes in society, especially in urban areas, and given he conflict between rural areas and urban areas, we see that what is good for the goose isn't necessarily good for the gander, What is fine in Arizona is anathema in SoCal and the Bay Area. If you were sitting on the Supreme Court, and recognizing that your role is to resolve disputes not set new ones in motion, your choices are as follows"
1. Anything goes (con carry)
2. permitless Open carry, permitted (shall or may issue) CCW
3. permitted open carry (allowing carry in GFSZs), banned or permitted ccw.
4. A right to bear with states free to enact whatever is suitable for that state, as long a some form of "to bear" is permitted (except in sensitive places) on a permitless or "shall issue" licensing basis, all laws subject to strict scrutiny.

Given the options, and with the caveat that the bearing of arms in some fashion must be allowed in order to fully recognize the right, where do you think the court will end up?
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Old 03-06-2019, 3:31 AM
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Shall issue, states can choose the manner. This was essentially what Justices Thomas and Gorsuch said in the peruta dissent.
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Old 03-06-2019, 5:41 AM
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Quote:
Originally Posted by TruOil View Post
If you were sitting on the Supreme Court, and recognizing that your role is to resolve disputes not set new ones in motion, your choices are as follows"
(snip)
You believe those are the options, but an originalist would not agree with you. An originalist would say something closer to, "My job is not to resolve disputes, it is to interpret the law. There is only one option here: to find out what was the original meaning of the 2A when it was adopted. That society may have changed is irrelevant."

Given that we have 2 originalists sitting on the Court, and given that their votes are absolutely critical for any 2A victory, their approach is very important.


Quote:
Given the options, and with the caveat that the bearing of arms in some fashion must be allowed in order to fully recognize the right, where do you think the court will end up?
Everybody already knows the answer to this question. Unless we get another pro-2A Justice, everything depends on Roberts, and so we will only get what he will agree to.
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Old 03-06-2019, 5:45 AM
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Quote:
Originally Posted by TruOil View Post
The dichotomy between OC and CC, as Jeremiah points out and "others" ignore, is that times have changed. When we were colonies and then states, open carry in an almost entirely agrarian society on the edge of wild forests full of animals and Indians, many of which and whom were dangerous was the norm. Against this background, statutes outlawing concealed carry are understandable, and the case law approving of these statutes on the basis that concealed carry ws, in essence, immoral, are perfectly understandable.

But as the country became more settled, and particularly in the urbanized and industrialized cities, open carry--or any carry for that matter--became increasingly rare. Mill workers did not bring firearms to the job, if the workers could even afford them, because the country was settled and the risk of meeting wild animals or Indians remote. Open carry in the cities virtually disappeared except for police officers/sheriffs and the military. The bearing of arms for urbanites was almost exclusively for the purpose of hunting. Although farmers were more likely to carry a shotgun or rifle if any game should come his way or varmints needed eradicating, when the West became increasingly settled resulted in fewer and fewer handguns being openly carried by the beginning of the 20th century. By the roaring twenties, pocket carry of small caliber vest guns was far more common than holstered handguns. Society became used to the absence of firearms--and gradually, those who carried, unless obviously police officers, were viewed with suspicion. In short, as proven by the open carry crusaders five or six years ago, openly carried firearms are considered threatening by the average urbanite, a population group that has a clear majority in public offices in many states, especially the two coasts. When people see a hip holstered hand gun, and without otherwise judging the outward appearance of the bearers), they call the police. But concealed carry is "out of sight, out of mind." If you do not perceive it, it is not threatening.
Historically, unlicensed open carry was the recognized right, as was common in that age, and concealed carry could be banned or permitted by license. But that history is now at odds with the common practice of most urban areas in this day and age. People in liberal areas do not want open carry--ever. So even if it is allowed as a right, people will find ways to "shame" or burden the practice. And this is to say nothing of the GFSZA, which for all practical purposes bans unlicensed open carry in every city and town/ state that has such a law. By contrast, licensed CCW is generally exempt from the zone, even if barred from entering campuses (a variable restriction).
Given the changes in society, especially in urban areas, and given he conflict between rural areas and urban areas, we see that what is good for the goose isn't necessarily good for the gander, What is fine in Arizona is anathema in SoCal and the Bay Area. If you were sitting on the Supreme Court, and recognizing that your role is to resolve disputes not set new ones in motion, your choices are as follows"
1. Anything goes (con carry)
2. permitless Open carry, permitted (shall or may issue) CCW
3. permitted open carry (allowing carry in GFSZs), banned or permitted ccw.
4. A right to bear with states free to enact whatever is suitable for that state, as long a some form of "to bear" is permitted (except in sensitive places) on a permitless or "shall issue" licensing basis, all laws subject to strict scrutiny.

Given the options, and with the caveat that the bearing of arms in some fashion must be allowed in order to fully recognize the right, where do you think the court will end up?
One of your points is that "times have changed" and people panic when they see guns carried openly. Before the ban, I openly carried a handgun many times in my neighborhood right here in urbanized Orange County, California. No one panicked, or called cops. I've also caried openly quite a bit while traveling in other states. No problems. I realize there are a few people calling in to cops once in awhile, but that is education, not widespread panic, which BTW is one of the benefits of OC, along with deterrence and accountability (are you actually carrying like you should be?). The few problems i've heard about are with OC of long guns, and i think a lot of this "panic" is merely griping of activists.

Open carry is ultrasound for the Second Amendment. Without it, we are ghetto-ized.

To answer question, SCOTUS should rule 1.5: permitless OC, and shall-issue CC. Both are important rights and probably both protected under 2A, but OC is more fundamental because only OC educates the public and provides accountability that you are actually carrying like you should, and in the way that you should. Juridically, it is simply not possible to hold that ONLY CC is protected. As a practical matter, if OC is a right, states will rush to allow CC (remember Ohio?). And most people will CC rather than OC, which is unfortunate. They should be doing both.
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Old 03-06-2019, 8:52 PM
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Originally Posted by guntrust View Post
One of your points is that "times have changed" and people panic when they see guns carried openly. Before the ban, I openly carried a handgun many times in my neighborhood right here in urbanized Orange County, California. No one panicked, or called cops. I've also caried openly quite a bit while traveling in other states. No problems. I realize there are a few people calling in to cops once in awhile, but that is education, not widespread panic, which BTW is one of the benefits of OC, along with deterrence and accountability (are you actually carrying like you should be?). The few problems i've heard about are with OC of long guns, and i think a lot of this "panic" is merely griping of activists.

Open carry is ultrasound for the Second Amendment. Without it, we are ghetto-ized.

To answer question, SCOTUS should rule 1.5: permitless OC, and shall-issue CC. Both are important rights and probably both protected under 2A, but OC is more fundamental because only OC educates the public and provides accountability that you are actually carrying like you should, and in the way that you should. Juridically, it is simply not possible to hold that ONLY CC is protected. As a practical matter, if OC is a right, states will rush to allow CC (remember Ohio?). And most people will CC rather than OC, which is unfortunate. They should be doing both.
That is certainly a possible outcome. I am assuming that the Supreme Court, as is its wont. will offer some open ended opinion that tries to preserve the right without giving explicit direction as to what is permissible and what is not. and yes, constitutionally mandated open carry would likely to result in more states granting cc rights in lieu of open carry. AS to what happened in urban states, we should not forget that open carry "protests" in SoCal and San Jose led to massive police responses and, not too long after that, a law banning the practice because the soccer moms were scared by simply seeing firearms--notwithstanding the fact that they were all unloaded. Nothing those advocates were doing was an actual threat of harm (except to themselves when there were heavy, and often threatening, police responses). California cops in urban areas seem to be just as afraid of MWG! as the soccer moms. The culture here has changed. I have to assume that the same is true in Chicago, NYC, LA, Boston, Philadelphia...places where people are conditioned to think that anyone with a gun is a threat. How do you normalize that?
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Old 03-06-2019, 9:50 PM
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We're drifting here.

Let us try to hew closer to the line
Quote:
And what better way to start than to lay out the issue, describe the claims, show what the Heller decision says and cites with respect to these things, and draw some at least tentative conclusions based on arguments that have been raised in the past? That's my intent here, but obviously we can, and perhaps even should, extend the discussion beyond those boundaries.
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  #33  
Old 04-22-2020, 9:55 AM
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Inter-state CCW will be the rule, which will make the Sullivan Act in NYC problematic, and the MA law will also fall. The NFA will not fall, yet.

So you are predicting that SCOTUS will say they were wrong in DC v. Heller in 2008 when they said that States regulate concealed carry and that prohibitions on concealed carry may be upheld?

Are you predicting that SCOTUS will say they were wrong in DC v. Heller in 2008 when they said that States regulate concealed carry and that prohibitions on concealed carry may be upheld -and open the door to national ccw reciprocity by Congress?

Are you saying that SCOTUS will again change their minds on DC v. Heller 2008 and say that States are NOT allowed to define or identify those arms that by design are concealable arms and regulate them?

=8-|


Can't they say, without contradicting themselves, that states are free to regulate these things in their own way with respect to requirements/hoops to jump through but the regulations must exist in such a way as to allow the average, law abiding person to satisfy them?
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Old 04-22-2020, 5:40 PM
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@mrrabbit as usual you are being obtuse and pedantic.

To clarify, I expect no case of any kind, locked or not, may be required.

Your comment is doubly bizarre, assuming a firearm is in a “gun shaped” case, or let’s play your silly game, a clear case or a case with the words “gun inside”

The point is that it appears to me from Heller that the right to carry and transport (transport is just a subset of carry) loaded firearms is what the 2nd amendment recognizes, so rules about what kind of case, any requirement for a case, locked, unlocked, and especially unloaded, will likely be struck down, but I am just a random person on the internet what do I know.
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Old 04-22-2020, 6:04 PM
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Quote:
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@mrrabbit as usual you are being obtuse and pedantic.

To clarify, I expect no case of any kind, locked or not, may be required.

Your comment is doubly bizarre, assuming a firearm is in a “gun shaped” case, or let’s play your silly game, a clear case or a case with the words “gun inside”

The point is that it appears to me from Heller that the right to carry and transport (transport is just a subset of carry) loaded firearms is what the 2nd amendment recognizes, so rules about what kind of case, any requirement for a case, locked, unlocked, and especially unloaded, will likely be struck down, but I am just a random person on the internet what do I know.
Now, that make sense to my little BSEE brain. AND, it could open a lot of doors.
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Old 04-22-2020, 8:52 PM
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This is the first time I've seen him make a directly claim about what SCOTUS has said. One rarely gets this kind of opportunity. Apologies in advance to others.

Therefore ...

Quote:
Originally Posted by mrrabbit View Post
So you are predicting that SCOTUS will say they were wrong in DC v. Heller in 2008 when they said that States regulate concealed carry and that prohibitions on concealed carry may be upheld?
Oh yeah? Then quote SCOTUS saying in Heller that prohibitions on concealed carry may be upheld. No, you don't get to just say "see Heller", or "it says what it says", or any of that other BS that you use to weasel your way out of properly defending your position. Either quote exactly what SCOTUS itself, and not some decision it cited or quoted, explicitly said (no paraphrasing, no interpretation -- only a direct cut'n'paste from Heller will do), or admit you don't know what SCOTUS itself actually said.
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Old 04-23-2020, 10:03 AM
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Originally Posted by mrrabbit View Post

Open carry is recognized when the method of carry gives notice to others that a firearm is being carried - and allows others to govern themselves accordingly.

=8-|
You are completely clueless, and you post bad and irrelevant advice. Don't.

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Old 04-24-2020, 10:29 AM
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So, mrrabbit, are you going to answer this or not?

Quote:
Originally Posted by kcbrown View Post
This is the first time I've seen him make a directly claim about what SCOTUS has said. One rarely gets this kind of opportunity. Apologies in advance to others.

Therefore ...

Quote:
Originally Posted by mrrabbit View Post
So you are predicting that SCOTUS will say they were wrong in DC v. Heller in 2008 when they said that States regulate concealed carry and that prohibitions on concealed carry may be upheld?
Oh yeah? Then quote SCOTUS saying in Heller that prohibitions on concealed carry may be upheld. No, you don't get to just say "see Heller", or "it says what it says", or any of that other BS that you use to weasel your way out of properly defending your position. Either quote exactly what SCOTUS itself, and not some decision it cited or quoted, explicitly said (no paraphrasing, no interpretation -- only a direct cut'n'paste from Heller will do), or admit you don't know what SCOTUS itself actually said.
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Old 04-24-2020, 11:52 AM
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So, mrrabbit, are you going to answer this or not?
It is a good reminder for you to bring up again. Truly it is valuable to quote from the source which forms and informs one's opinions. In this case, I did
quote from Heller but the Sylvilagus did not. In the future I will try to include direct quotations from the Congressional Record, the ACA ruling, and the Raisin Board Cases, as they apply to the cases at hand.
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Old 04-24-2020, 12:33 PM
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Quote:
Originally Posted by kcbrown View Post
Oh yeah? Then quote SCOTUS saying in Heller that prohibitions on concealed carry may be upheld. No, you don't get to just say "see Heller", or "it says what it says", or any of that other BS that you use to weasel your way out of properly defending your position. Either quote exactly what SCOTUS itself, and not some decision it cited or quoted, explicitly said (no paraphrasing, no interpretation -- only a direct cut'n'paste from Heller will do), or admit you don't know what SCOTUS itself actually said.
Yeah, basically all he does is say "see Heller", or he references a case that Heller cited. Then I point out that Heller cited an English statute that said that "papists" (Catholics) don't have a right to be armed (Heller references 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) ), and so I ask him if that means that the Second Amendment doesn't apply to Catholics, because hey, that's what Heller says right? He's never addressed that. I've also suggested to him that he should start open carrying now, and he can get out of any possible legal troubles by saying "see Heller". He hasn't done this AFAIK, still waiting.
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