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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel. |
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#82
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I'm not rich enough to file a case, plus I'm not the ideal hard working African-American mother with a Spanish sir-name, or wounded decorated ex police officer and war hero that tugs at a judge's heart strings. But I'll be undertaking a letter writing campaign to get the NRA or SAF to file a case.
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-21-2013 at 7:14 PM.. |
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But your denial would be for a CC permit, which is a different law from the ban on OC. Only in states where one permit covers both OC and CC would you have a chance of making such a suit work, the best approach would be to apply for and be granted a permit which you noted on the application would be for OC only. Then you sue to get your money back, saying the permit is improperly required.
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#84
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-19-2013 at 4:56 PM.. |
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There is also other things to think about. As for LOC, what does population density have to do with a fundamental enumerated right? Multiple thieves veto? Another.... I can LOC in unincorporated areas where discharge is not otherwise prohibited. Why the link between carrying and discharge? Why the link between incorporated and unincorporated areas? Can these be justified under intermediate (the real kind) or strict scrutiny?
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#87
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Benefactor Life Member NRA, Life Member CRPA, CGN Contributor, US Army Veteran, Black Ribbon in Memoriam for the deceased 2nd Amendment Last edited by advocatusdiaboli; 04-19-2013 at 6:12 PM.. |
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The Questions Presented in Kachalsky were 1) Does the Second Amendment secure a right to carry handguns for self-defense outside the home? and 2) Do state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense? These are indistinguishable from 1) Is carrying a loaded gun in public in some manner a fundamental right? and 2) May states require a license in order to exercise a fundamental right? So maybe (or obviously) cert was denied for some other reason. Justice Scalia is only one of nine justices. Even if he secretly harbored the intentions you suggest (which he assuredly does not), he has no personal power to effect them. And why are the scope of the Second Amendment in public and the sorts of permissible licensing schemes that might be applied to its exercise “two closely related questions?” When did the Court last consider such divergent issues to be “closely related?” And if open vs. concealed carry is indeed to be regulated under some form of First Amendment time, place and manner jurisprudence, why would it affect the Court's decisions on unrelated issues? All of which leaves the real answer as, “I have no idea. My personal anxieties and ignorance are causing me to make meaningless speculations.” |
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In other words you're drunk (your post looks that way) or you have no flipping clue what you're talking about so you make a personal attack. I'm not going to explain it to you again so if you have any interest in learning why you're wrong go back and reread the thread but I'm done with you.
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
#90
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If unlicensed LOC becomes the Minimum Constitutional Standard (which I stole from Gene, btw), then a state couldn't prohibit LOC under any circumstances, emergency or whatever. That's the point. Quote:
Yes! That's the idea. And from the language actually used in Heller, that's what they want to do. As for the disruption, we got Roe v Wade, didn't we? Quote:
We been doing that. We keep getting shot down. Because Heller said that the lower courts could shoot us down. Because they've already told us that concealed carry is NOT the Right. Quote:
Your analysis is flawed. "Non-prohibited" people have the Right to do anything protected by the Constitution. Of course. The point I keep making is that carrying concealed is NOT the Right protected by the Constitution. Since Kachalsky was all (and strictly) about regs for concealed carry, & since that's NOT the Right, there was no need for SCOTUS to look at the case. Quote:
Again, non-prohibited people have the Right to do anything protected by the Constitution, so there's no reason for SCOTUS to say anything of the kind. Second, there's no language at all in Heller that to the effect that states have the ability to decide how the Right can be exercised. Quote:
If that were so, then they would have taken up Kachalsky. Quote:
But we keep hitting the same 'rocks' again & again & again. My suggestion is that it's time to seek clear water. Quote:
Maybe, in that LOC could be part of the attack. The Raisuli P.S. I agree with just about everything Sholling has posted as well. I do disagree that the states can have any say about how the Right can be exercised.
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#91
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You all can opine until the cows come home, the SCOTUS passed and they might continue to punt, given 4 justices oppose RKBA, but even if they don't California will ignore them like they are now and the 9th Circuit will support that so it will be 3-4 years if anything else comes down while the CA anti-gun legislators and judiciary play cheat and retreat well enough to make the Serbs look like amateurs. I look forward to watching your excuses over the next 3-4 years as you keep re-formulating them. I am not going to Negative Town to read teh hand writing on the wall. We'll fight on, but it's going to be a long battle and all this opining is pointless.
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#92
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Your goal of getting open carry as the right and leveraging that to get the legislature to grant us the option of shall-issue or unlicensed concealed carry as a carrot to get most gun owners to stop open carrying is a nice hope, and it would be the ideal result, but I think it's a long shot. I think that open carry will be established as the minimum right but that the court will allow the legislature to substitute a non-discretionary right to carry concealed. I say that because while the court said that there is a right to bear arms in public they also said that the legislature has the power to decide the manner of carry and that there is no right to carry concealed. Of the remaining cases, in my layman's opinion Moore has the best chance because it's the only one that doesn't ask for a license that includes concealed carry. If IL appeals (super iffy) and if cert is granted the only real risk is that the decision will be too narrow and won't slam the door on licensing a right or at least slam it on discretionary licensing. SCOTUS doesn't seem to like answering questions that aren't asked and based on the reaction to Heller lower courts are likely consider answers to unasked questions to just be dicta. If we get a narrow victory that just affirms a right to carry in public in some manner but doesn't ban discretionary licensing (or licensing of a right) then we are left with the status quo in California and we will still have to challenge California's open carry ban because I'm pretty sure that the court will not accept a concealed carry case. The danger is that a less qualified attorney will blow the challenge before we act and leave us with bad precedent already in place. By challenging California's law banning loaded open carry we would be challenging three things 1) an outright ban on open carry in populous counties where CCWs are for all intents and purposes unavailable, 2) discretionary licensing of a right, and 3) licensing of a right. If Moore doesn't get to the US Supreme Court then we'd still have better case, one that explicitly gives SCOTUS the chance to establish strict scrutiny as the standard of review and limit or better yet eliminate licensing requirements for a right which also solves the never ending legal antics of Chicago and DC - that is the holy grail. But filing and arguing a challenge to California's open carry law can't wait for Moore to play out.
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-20-2013 at 1:14 PM.. |
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^+1. Well said. Now we just need to DO it. Agreeing with Sholling that a letter-writing/phone call campaign to NRA/SAF (input about any other relevant organizations?) might be in short order.
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-20-2013 at 10:15 AM.. |
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association |
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Clarification: Gene first used the term "Minimum Constitutional Standard" & I started using it after that. We approach the topic from VERY different POVs. I'm pretty sure I was the first to advocate using an LOC victory to leverage decent CCW regs from the PRK legislature. Quote:
The problem with that analysis is that SCOTUS said nothing whatsoever about the states having the power to decide the manner of carry. Words that ARE in Heller are that carrying concealed is NOT the protected Right, along with examples to show that LOC (the references to Nunn, etc) IS the protected Right. Given that fact, my analysis is that once we 'chart a new course' & follow the lead SCOTUS gave us 5 years ago, we'll wind up with unlicensed LOC as the protected Right. Quote:
Discretionary licensing of CCW will be something we will have regardless. Again, CCW is not the protected Right. Heller tells us this. All the effort that has been put into making "Shall Issue" CCW the protected Right has failed. Any & all further effort into doing so will also fail. Because SCOTUS has already said that carrying concealed isn't the protected Right. This also applies to all the effort to have "strict scrutiny" applied to CCW. It has failed & further effort will also fail. Because strict scrutiny cannot be applied to something that is not a protected Right. That's just the way it is. So, CCW is going to remain discretionary. Is this a bad thing? Not necessarily. Unlicensed LOC is something that makes those on The Left VERY unhappy. If they're unable to ban LOC, they will fall over themselves to make CCW easy & reasonable. How I can say this? Because we've seen this before. In Ohio. That's why I keep referring to the Ohio Experience. Precedent isn't just for court. Quote:
I disagree that 3 things would be in play. Licensing would not (or at least, should not) be a part of the effort. Licensing (of CCW) is something Heller specifically allowed. Which means that (again) any & all effort there is going to be wasted. I do agree that we have to hurry. People should NOT be allowed anywhere near a courtroom are already litigating this issue. People better than them (I.E., the Right People) have to get to SCOTUS first. Its already too late to start crafting a proper civil case. There's at least one already filed. Also, I'm willing to bet that there are criminal defendants appealing a conviction for some form of LOC. "Assisted" by public defenders. Our obvious & logical course is to either take over for a public defender (who will no doubt be happy to have a lighter workload), or find a defendant we like (or can at least live with) & represent that person. The Raisuli
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Very convincing and compelling, Mulay. Agreed. I would love that we were to be proven wrong on these points with the several upcoming cases in the pipeline already, but reasons have been given as to why we will see NO relief in CA with favorable rulings in these cases -either that, or denial of cert altogether in those cases. It seems a wise course to follow what you have advocated. A contingency case.
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-20-2013 at 6:03 PM.. |
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I think that's pretty much the definition of a “personal attack.” I don't think I called you an idiot. Or unhinged. Or even fat. I just said that you didn't know what you were talking about. And given that you've admitted that you have no legal training, my assessment also has the benefit of being based in objective fact. So, here's another question: on what legal basis does the manner of carry materially affect litigation designed to validate the core scope of the right? You and others have presented many non-legal reasons for believing that this is a really important issue. But no one has yet offered any legal theory based upon existing precedent and established canons that lends it any credence whatsoever. If you insist on speculating, expect to be called upon to justify yourself. |
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-20-2013 at 6:17 PM.. |
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We DON'T HAVE five years, Hillary is the next President.
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Things usually turn out best for those who make the best of how things turn out. |
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NO! Heller DID NOT deal with carry outside the home.
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OMG! Whatta mess that would be!
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Things usually turn out best for those who make the best of how things turn out. |
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You, sholling, and KCBrown keep acting as though the denial of cert. in Kachalsky was surprising. It was not. If you actually bothered reading what a bunch of people with legal training (or in communication with people with legal training) were saying, you would have seen that denial of cert. in Kachalsky was pretty darn likely. Not desirable, but pretty likely. There's an outside chance that IL's AG will petition for cert. in Moore. If that doesn't happen, then Woollard will be in front of SCOTUS. If SCOTUS doesn't bite at either of those, we can discuss this again.
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That is correct, not directly in the ruling itself -the ruling was confined to "keep" in the home. However, "bear" was defined and its history was explored, but has yet to be "fleshed out" -as it was beyond the narrow question of Heller. It was implied in the ruling (or others' analysis of the dicta? in the ruling) that the states would have to allow LOC, CC or both regarding "bear" but could not totally deny "bear" altogether. Several others have alluded to this earlier in this thread.
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-21-2013 at 12:25 AM.. |
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While Gura's petition simply noted "handgun carry licenses", NY's reply noted correctly "concealed carry license". Enough of a distinction to get the court to pass on this one possibly.
MD, NJ, and HI will not be able to claim this distinction. |
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Worth doing for that reason alone. Quote:
On the basis of what was actually said in Heller, open carry is the protected Right. Going for that therefore has a better chance of success. Yes, it would. More so if its a criminal case. Quote:
Well, there would be at least one a-hole strolling thru Times Square with heat on his hip (that would be me). Quote:
Yup! Quote:
Could you clarify this a bit? Quote:
Allow me to speak heresy. I think (based on the attitudes I see here) that unlicensed carry isn't loved at the top as much as I love the idea. True, I could have taken the wrong meaning from the actual words used in Heller. Only time will tell. Quote:
The law attacked concerned itself with concealed carry. Quote:
Those states are preventing people from carrying concealed. Which Heller told them was acceptable. Quote:
If you saw those words coupled with "concealed" carry, then maybe you got a contact high? Ya lost me. What are you going for here? Quote:
Did I limit my analysis to presented to SCOTUS? Did I limit my analysis to non-criminal? Quote:
Where did you see me being surprised by Kalchalsky? Of course a loss here was expected (by me, anyway). The whole basis of the suit was to make concealed carry the protected Right. Which, I keep pointing out, ain't gonna happen. Not no way. Not no how. Quote:
If there's time. Which is kind of the point. The Heller-5 ain't getting any younger. Discovering that taking the hint is the way to go & starting anew months from now runs the risk of presenting a case to a changed SCOTUS. The Raisuli
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I agree, that's heresy. If unlicensed carry was unwanted, why would SAF have filed Palmer and Moore? Given the total carry bans at issue in IL and D.C., this is a possible outcome. Read the Moore opinion, do you see the 7th Circuit ever stating that IL can condition the carriage of a weapon on a license? From my perspective, it appeared as though Palmer was intended to be the lead case and Moore the secondary case. SAF won Moore. The SAF cannot force the D.D.C. to make a ruling in Palmer. Quote:
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There is an alternative reason why SCOTUS denied cert. in Kachalsky (as opposed to the CC issue). Namely, that Kachalsky raises two questions. SCOTUS knows that Moore is out there. The possibility of getting a petition in Moore adequately explains SCOTUS's denial of cert. in Kachalsky. Quote:
First, to the extent I conflated your and KCBrown's positions, I apologize. Nevertheless, I disagree with you regarding the purpose of Kachalsky. Kachalsky challenged NY's statutory scheme that prohibits all carriage outside the home without a license issued only on proper cause. Look at the questions asked, concealed carry is not the relief sought by plaintiffs. Carriage outside the home without a showing of proper cause was what was requested.
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#107
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I did word that rather poorly. In Heller the court told us several things, among them that there is an individual right to keep and bear arms, and that we have a right to own weapons that are in common use including handguns, and finally that we have the right to have a firearm, including a handgun, in our homes that is ready for use. What we also know is that in Heller the majority agreed that there is a right to bear arms, but that concealed carry is not a right. For that reason I don't think it's too much ask for our side to challenge a licensing requirement for a fundamental right in an open carry case. Maybe they'll punt on the licensing part but we can ask while challenging the law banning open carry.
There are several reasons that it's critical to challenge the power to license a fundamental right but for this discussion we need look no further than Chicago for our answer. Unless the power to require a license to exercise the right to keep and bear arms is struck down Chicago will just keep mooting cases as they come close to losing and throwing up new roadblocks just as they have done in Ezell. I'm afraid that the California legislature's answer to shall-issue a license for 'some form of carry' will be to create onerous licensing requirements. Sure we can sue to overturn a requirement but they'll just replace (for example) 100 hours of training with 20 hours of training from an off duty LEO with an unobtainable training certificate, and when the court tosses that as excessive, they'll come back with making traffic and parking violations a reason to refuse a license, and when we beat that they'll come up with something else. The legal eagles here will point out that none of that will hold up in court - but nobody will expect them to, the purpose will be to obstruct and delay issuing more than a handful licenses for as long as possible, and each consecutive case will take 1-2 years of litigation depending on how anti the trial judge is. The endless litigation strategy also risks that cases will still be pending after one or two of the Heller 5 are retired, and that will give the new anti-Heller majority a vehicle to roll back our rights. If the fundamental right is loaded open carry then a ruling that the government may not require a license to exercise a fundamental right then we head off years and years and years of litigation. It also heads off other things that our commissars are considering like a license to buy or possess ammunition (killing off IL's FOID) and things that they'll try to license later like possession of guns and purchasing guns. Why not head off a decade or more of roadblocks and litigation by asking for unlicensed open carry? Quote:
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-21-2013 at 2:02 PM.. |
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-21-2013 at 3:34 PM.. |
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The defeatist attitude in Texas scares me. Temple PD unlawfully disarming an active duty soldier scares the absolute shat out of me. Use your rights, or lose them. |
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Ruling on the manner of carry in the Heller opinion would have been a flagrant violation of the avoidance principle of the justiciability canon. The Court did not make that mistake. |
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Actually, it DOES logically follow that LOC is the protected Right. There are after all only two ways to carry. If one can be prohibited, that only leaves the other. But that's just logic. In addition, Heller also quoted Nunn & those other cases from the 19th century that prohibited concealed carry but forbade prohibitions of open carry. That may be merely dicta, but its extremely telling dicta. Also telling, that there isn't a single word about the Court allowing the states to regulate the manner of carry. Quote:
Given that "its checkers, not chess" I wouldn't automatically conclude that unlicensed concealed carry is the goal. My reading is that making Shall Issue concealed carry the protected Right is the goal. Along with this, Gura did admit during oral argument (in a case that I can't recall the name of right now) that the state can require a license, but that it must do so fairly. That's not exactly working for unlicensed carry of any kind. See below also. Quote:
The 2nd did say that. But, the court can't rule on an issue not presented to it. I.E., they didn't strike down the ban on open carry because they weren't asked to. See below also. Quote:
Limiting the options of a state to limit carriage is (I believe) the goal. It isn't just Heller that makes me think that. There's something from the 10th Circuit, back in February, (Peterson v. Martinez, 11-1149). The court said, "In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections." But elsewhere, they also said, "By contrast, had Peterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry." What I see is A: yet another example of why any & all effort to make concealed carry the protected Right will fail. And B: that not only will the Federal Courts courts make unlicensed LOC the protected Right, by going out of their way to comment on the matter, they're actually looking for the opportunity to do so. Quote:
Ah! I get it now. Thank you. I don't completely rule that out. I don't accept that this is the case either, mind, but do admit the possibility. Quote:
SCOTUS is always on my mind, but the post is about getting to SCOTUS, so you weren't too far off. As for context, I just want them to say it. I don't care about the context. Just as I don't care that the "context" for the 5th Amendment is Ernesto Miranda. Besides, "criminal case" doesn't have to equal bad guy. Good people get tagged with open carry too, you know. All we have to do is find one. Quote:
Well, KCBrown & I are both arguing against you, so conflating is certainly understandable. No (and, this is the "below" referred to above), "carriage outside the home" was NOT the issue Kachalsky. The section of the NY Penal Code that was challenged related only to concealed carry. The ban on open carry is in another section. That means that any & all arguments relating to non-concealed matters could not be raised by Kachalsky. If it were a matter of merely "carriage outside the home," then BOTH sections would have been challenged. As only the the ban on concealed carry was challenged, the intent of the effort completely clear. And, as was the case with Gray, was just as big a mistake. From your other post: Quote:
Not quite. There were other ways to address the 'military application' question. The deliberately chose to use civilian analogies. The Raisuli
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Thank you for clarifying. And, yes, I think you completely correct. ESPECIALLY about what Chicago is doing. The anti-Constitutionalists are certainly going to take inspiration from all of that. You're on the money in your other post as well. The Raisuli
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#114
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It also leaves Illinois a minefield of conflicting carry laws. One county may decide on constitutional carry, while the next decides on licensed open carry only, while the next decides on shall-issue concealed carry only, and Chicago decides may-issue (defacto no-issue) concealed carry is okay once you've completed several hundred hours of training. Depending on the commute that could mean transitioning from open to concealed to a locked box and back again a few times while driving to work. But I guess if enough good hard working citizens are sent to jail then the legislature will eventually compromise on a state wide may-issue law. May-issue because the pro's need to fix the patchwork will leave the antis in the driver's seat. Hopefully the court will use Woollard to address all of the above so that we can move on to an interstate carry case and NY's SAFE Act. It would be nice to be able to move forward instead of the court leaving us fighting a year in and year out losing rear guard battle to hang onto what few rights we still have here in California, but I'm not holding out much hope. Meanwhile because we waited the Nichols case (good or bad) will be the one that establishes licensing and carry case laws in 10CA. I have a couple of letters to write today.
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"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT-- Proud Life Member: National Rifle Association, the Second Amendment Foundation, and the California Rifle & Pistol Association Last edited by sholling; 04-22-2013 at 12:24 PM.. |
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Kuku, I think Mulay was referencing Peterson in your quoted reply above, not Heller. Here is the full quote by Mulay for context:
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-22-2013 at 1:03 PM.. |
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Through the course of this thread, I have heard lots of reasons why Moore, Woolard, Peruta, etc will hopefully be granted cert and the reasons why said cases are likely to get us bear in a meaningful way. What I haven't heard are reasons why pursuing a case going after unlicensed LOC is bad, with the exception of "people will freak out at Open Carry, so SCOTUS will not touch with a ten foot pole" -a reason I find to be not very compelling. What would be the HARM in going forward with an unlicenced LOC case if we can find a relatively clean defendant or plaintiff?
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member Last edited by VAReact; 04-22-2013 at 4:40 PM.. |
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Those arguing that the particular manner of carry matters before the courts have first established a Second Amendment right to carry misunderstand the judicial process. Litigation is not legislation. Courts only consider the controversy before them and purposely leave as much as possible for future decisions. Cass Sunstein's 2001 book, One Case at a Time: Judicial Minimalism on the Supreme Court explains it so: Quote:
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If the license was unavailable, it it likely that the case would be dismissed for failure to state a claim upon which relief can be granted because concealed carry was statutorily available. Depending upon how the complaint was drafted, there might be a slight possibility that a ruling on the constitutional issues could be forced, wherein the case would be dismissed because the Second Amendment does not protect a right to openly carry firearms — just like it doesn't protect a right to carry concealed firearms. It's not as if this hasn't been thought through before. |
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I did not find their denial of cert to be surprising. I found it to be dismaying, precisely for the reasons you've been arguing: it asked the right questions, and yet the Court refused to take it. Quote:
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
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