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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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#121
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A firearm cannot be carried in the clothing or in a pocket without being concealed. While the definition above also covers open carry, it includes concealed carry. To state that the 2nd Amendment does not protect concealed carry (at least when open carry is forbidden), therefore, flies in the face of the very definition SCOTUS is using for "bear" unless the 2nd Amendment does not protect carry at all.
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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. Last edited by kcbrown; 04-22-2013 at 4:41 PM.. |
#123
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The problem here is that the availability of open carry was not a factor in the Rulings that were quoted. It's not a matter of how I "read" them. The Supreme Courts quoted all said that carrying concealed = bad, NOT the protected Right; carrying openly = good, IS the protected Right. Now, if SCOTUS had added commentary about the states being allowed to choose the manner of carry (or even any commentary at all), then you'd have something. But to quote a Ruling w/o commentary is to accept the logic of that Ruling as well. Quote:
Maybe. Or maybe the Court will be packed after we lose one of the Heller-5 & the time to protect the 2A will have passed. Time matters & I think we've wasted enough of it. Quote:
Again, if that were true then they would have challenged the section banning open carry as well. You can always PM me. Quote:
No. Because, again, no challenge was made against the ban against open carry. And there's this question: Quote:
I wonder the same thing. Peterson explicitly refused to attack Denver's ban on open carry. Kachalsky implicitly refused to attack NY's ban. I'm not seeing any good reason to pass on the issue of unlicensed LOC. It isn't a matter of 'throwing everything in & see what sticks.' My interpretation that LOC is the protected Right isn't a 'out in left field' kind of thing. After all, both the 2nd & 10th Circuits have come to the same conclusion. So have other courts & lawyers. Sholling has listed a bunch of good that comes our way with a win on LOC. Its hard to avoid the conclusion that unlicensed LOC is NOT desired by the "right people." Quote:
Not true. Being arrested also provides standing. Quote:
As pointed out above, SCOTUS (by quoting the 19th Century carry cases) has said that concealed isn't the protected Right, but that open carry is. That's the part that worries me. Quote:
Yes, our enemies are not standing still. And neither are our "friends." Yielding the field only means that others step in. If we're not happy with their warplan, we've only ourselves to blame. Quote:
Al the more reason to NOT limit what we ask for. Quote:
The problem here is that 'ways a weapon can be borne' is not the same thing as 'what is the Constitutionally protected method of bearing a weapon.' I.E., just because SCOTUS is saying that a pistol can be carried in a pocket is NOT the same thing as SCOTUS saying that carrying in a pocket is the protected Right. And again, there are other ways of making the point that the Right is unconnected to service in a militia. By choosing those particular cases, SCOTUS was saying what is the Constitutionally protected manner of "and bear." The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#124
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For that to not be the case, that entire part of the discussion in Heller must be considered null and void. You can't say that only part of the definition they used is valid. Either all of it is or none of it is.
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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. Last edited by kcbrown; 04-23-2013 at 12:09 PM.. |
#125
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As I've said before "unlicensed" is a strict scrutiny ruling which we can use to fight all of the nastiness currently moving through the California legislature and all that they come up with next year, and the next. No matter how you dress it up or what the court calls it, licensed carry without some form of unlicensed loaded carry available is intermediate scrutiny and leaves the probability that lower courts will apply intermediate scrutiny (or rational basis dressed up as intermediate scrutiny) to the bullet button ban, the AWB, the safe handgun list, as well as gun and ammo purchase and possession licensing. It also solves interstate carry while traveling. Levels of Scrutiny of Civil Liberties Under the Due Process and Equal Protection Clauses Strict Scrutiny Quote:
Intermediate Scrutiny Quote:
Rational Basis 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; 04-23-2013 at 3:49 PM.. |
#127
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On a separate note: To quote Mulay: Quote:
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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; 04-23-2013 at 4:13 PM.. |
#128
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Sure. But that's not civil litigation anymore. And the constitutional issues would still be indistinguishable from Richards and Peruta.
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And no, quoting another opinion does not mean that the current opinion accepts, imports or sustains the logic, reasoning or facts of the quoted opinion wholesale. You are not employing logic. You're not even making interpretive leaps. This is pure fantasy driven by a willful ignorance of the law and by a manic investment in a particular outcome. While this “approach” is commonplace in political activism and can even be appropriate in legislative lobbying and issue advocacy, it is beyond counterproductive in litigation. |
#129
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I didn't read all 128 posts but if this hasn't been brought up yet, there is already a LOC lawsuit going through the courts:
http://blog.californiarighttocarry.org |
#130
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#131
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I'm of the belief that a case involving open carry is a necessity for the purpose of "defense in depth", as it were. Which is to say, it should come behind other cases that could get us concealed carry as a protected method of carry, but it should nevertheless be there in case those cases are passed upon, as a hedge with respect to the possibility (however unlikely) that the Court regards open carry as the most protected means of carry.
If the Court passes on that, too, then it means that the Court is not interested in protecting carry in public at all, and that would render the 2nd Amendment essentially nonexistent.
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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. |
#132
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#133
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I still disagree. I'm not going to say that you're way out in left field, but I believe that the references to those 19th Cent. cases are pretty instructive. That the 2nd & 10th Circuits agree with me helps as well. Quote:
That's my fear as well. Quote:
That's right! You've completely nailed it! The issues would be exactly the same! That it wouldn't be "civil litigation" is why its such a good idea. Criminal cases move thru the system MUCH faster. Quote:
But Peterson & Kachalsky did BOTH say that concealed is NOT the Right. Again, there's only two manners if carry. If one isn't protected, then other must be. See also, what the 10th said in Peterson. True, that isn't a Ruling, but it is a pretty good hint. Quote:
So, they quoted it because they disagreed with it? Quote:
Agree that passing on both would be as bad as you say. Disagree that LOC should come after CCW. We've HAD CCW cases make it to the Circuits. Kachalsky even made it to SCOTUS. And got shot down. CCW has had its chance. Time for LOC to step up to the plate. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#134
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The only interpretation that is consistent with both the cases that SCOTUS cited and the definition of "bear" that they used is that states may forbid one manner of carry so long as the other is treated as a right. To argue, as you are here, that open carry is the only method of "bear" that is protected is to outright ignore the definition of "bear" that SCOTUS itself claimed to agree with. Quote:
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My belief is that we should already have an open carry case in the pipeline, but that said case should be positioned after the concealed carry cases. I believe the fact that we don't have such a case in the pipeline to be a monumental strategic error.
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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. |
#135
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As Mulay can tell you I was vehemently opposed to the unloaded open carry movement because I knew it was just going to trigger more legislation and cost us more of what little we retain of our rights. We argued a LOT over the subject. I'm not one of those that would open carry if concealed carry were easily available, I'm older and just prefer to be low key. What brought me into this camp is that Palmer is going nowhere for years and years, and I have serious doubts that Moore will be appealed just because of home rule and Chicago's ability to (with the help of judges) game the system for many years to come just as they have with McDonald and Ezell. Madigan would be a fool to appeal when she knows that carry licenses valid within Cook County will be kept as rare as hen's teeth for at least the next 3-5 years. She also knows that SCOTUS has rejected cert in criminal cases and now it's rejected cert in civil cases and by doing nothing she still keeps carry out of Chicago without the risk of setting SC precedent she doesn't like. In our situation the definition of insanity isn't just doing the same thing over and over while expecting different results, it's doing the same thing over and over while expecting different results - while rejecting any other approach because of what appears to be tunnel vision. It just seems foolish to reject unlicensed open carry even if it means the court rejecting our carry cases for years to come and people in California, NY, and MD are left helpless outside the home.
The other thing that's brought me over to Mulray's camp is that if we don't get strict scrutiny soon we're pretty quick going to have to figure out what to do with suddenly illegal semiautomatic rifles and shotguns and grandfathered magazines.
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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; 04-23-2013 at 8:11 PM.. |
#136
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I’m afraid that navyinrwanda has us over the legalistic barrel on this one. Read what he actually posted and not just what you want to hear. The Supreme Court has not tipped its hand, so all of this has become pointless speculation.
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA Last edited by M. D. Van Norman; 04-24-2013 at 7:07 AM.. Reason: Signature. |
#137
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Even if they have not tipped their hand we have little choice but to try a different approach while continuing Gura's current cases. Our legislature is just not going to leave us much in the way of choices other than to 1) try to find a case that will firm up our rights, or 2) become instant felons for possessing semiautomatic rifles, or 3) leave the state.
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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 |
#138
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The federal magistrate is treating Nichols fairly and his performance so far is no better or worse that CGF's local attorneys. Nichols is only on his second amended complaint and he's managed to overcome AG Harris' motions to dismiss. However, since he's being criminally prosecuted by the City of Redondo Beach for violating their local ordinances, Nichols' federal constitutional claims against these local defendants were dismissed pending Younger abstention (Nichols must assert and exhaust his federal constitutional claims in state court before federal courts can exercise jurisdiction). And his damages claims against the local police officers (for confiscating his openly carried weapons, etc.) were dismissed on qualified immunity grounds. If his second (or third or fourth) amended complaint(s) survives, Nichols may even get an opinion on the merits. But following the Peruta court, any final opinion is likely to conclude that California's open carry ban does not operate as a total prohibition because concealed carry is available as an alternative. Nichols' second amended complaint also challenges several other aspects of California's carry statutes and appears not to be responsive to the magistrate's findings that earlier versions violated FRCP 8(a)(2), i.e., it contained so many rambling and irrelevant facts and allegations that it failed to “‘give the defendant fair notice of what the... claim is and the grounds upon which it rests.” But who knows? Nichols might someday find himself (2015, 2016?) at the Supreme Court, successfully arguing that the Second Amendment really does protect open carry and nothing else. I've never claimed to be able to predict the future — just that I can rationally, professionally and in consensus with other legal scholars interpret existing law and court precedent. And no modern court has yet said that the Second Amendment says anything about open or concealed carry. |
#139
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There's no First Amendment right to speak in public at 1:00PM. There's also no right to speak at 11:00AM or 3:51PM or any other particular time. Time (or place or manner) regulations that are content neutral and allow ample alternative means for expression are not in conflict with the First Amendment*. It would take a rewrite (or a wholesale repudiation of existing expressive conduct jurisprudence) to interpret the Second Amendment as “the right of the people to keep and openly bear arms shall not be infringed.” No modern court has ever hinted that such thinking is plausible. [*Content-neutral time, place and manner regulations also cannot be arbitrary or irrational. They must further an important government interest in a way that is substantially related to that interest. Hopefully, similar regulations on Second Amendment activity will receive similar judicial scrutiny.] |
#140
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The only people pushing the "OC is the right" tome are people with a vested interest in OC as the right, crazy people like Mr. Nichols. Example, with Mr. Nichols: Redondo Beach MTD If you're charged in the state court system, and are still charged with something, Younger abstenion applies. |
#141
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There is an interesting open carry case in FL: http://www.floridacarry.org/litigation
A FL appeals court in 1989 ruled the CCW permit was a privilege. If OC is banned, and CCW is a privilege, where's the right to bear arms? |
#142
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Is preventing exercise of a right itself a valid "important government interest", most especially when misuse of that right can cause grievous harm or death? I am incredibly skeptical of the application of intermediate scrutiny to the right to keep and bear arms, because the very things the right purports to protect are by design dangerous. If "public safety" is the "important government interest" and direct interference with the exercise of the right to keep and bear arms is substantially related to that interest (and if one ignores the fact that criminals by definition spit in the face of the law, then how can one argue that it is not?), then there is absolutely no hope for the right if intermediate scrutiny is the standard of choice to use for deciding whether or not a given law is valid in the face of the right. And note that scrutiny is itself a means by which the judiciary decides, on a case by case basis, whether the right is really worth insisting upon. I fully expect that the wording for that was merely the Supreme Court waxing poetic, and that it didn't really mean what it said. And in my mind, that casts grave doubt upon whether the Supreme Court meant any of what it said in Heller, save for the "longstanding prohibition" language and "sensitive places" language (i.e., the language which would uphold restrictions on the right).
__________________
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. Last edited by kcbrown; 04-25-2013 at 2:56 AM.. |
#143
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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. Last edited by kcbrown; 04-25-2013 at 3:02 AM.. |
#144
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If that was their intent, then they would have included language to that effect. By saying that "bear" includes open or in a pocket, & then referring to the 19th Cent cases that ALL said that concealed carry can be banned, but that open carry cannot be, SCOTUS sent a pretty clear message. Quote:
It sounds like you don't regard my theory as completely unsound then. As for timing, "after" the CCW cases is what we have now. There's not just a lot of CCW cases in the pipeline, we've had one make it to SCOTUS. And get rejected. So, is now the time to try LOC? Quote:
Its true. Sholling was VERY much against me on this. If what I predicted back then hadn't come to pass, he would still be VERY much against me. And yes, time is very much against us. If I'm as right as the Peterson & Kachalsky Rulings suggest that I am, then the PRK will have us all reduced to flintlocks in pretty short order if we don't present SCOTUS with something they like. And they like LOC. Quote:
Well, Mr Nichols may be crazy, but he may also be right (yes, that IS a Billy Joel reference) on the basics. That doesn't mean that I support his efforts. As for the possibility that I am crazy, my "agenda" is that We The People have the freest possible exercise of the Right. Where we don't have to get permission of any kind to protect ourselves. Quote:
Interesting! Along with that, given the strong hint by the 10th Circuit, maybe we should find a good guy charged with the same thing in Denver? The Raisuli
__________________
"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#145
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Also, the state judiciary itself doesn't have to honor the 10th Circuit's decision on the matter. They could rule, as they did in Trinen v. City/County of Denver, that despite only concealed carry being excluded by the state constitution, Denver could exclude OC based on density and urbanity factors. Denver courts also have a history of excluding constitutional rights arguments by defense attorneys gun carry charges, neccesitating a trip up to the court of appeals or the state district court on an interlocutory to even raise the argument. Challenging on LOC grounds via state criminal courts is a fools errand, and will not accomplish what you want. |
#146
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Im hesitant to jump into this but I have to point out that neither LOC or CCW as a single option are likely to meet all scenarios the justices could be presented with. They have to be thinking that the status quo is just about right except where both options are off the table or majorlly infringed. I dont think they will ever rule on LOC for every state, especially ones with big cities or suburban areas. I also think they would have taken Kachalsky if they wanted everyone, everywhere to Conceal Carry.
I believe the court conservatives are very much States Rights oriented. Roberts vote on Obamacare as a Tax could have been interpreted as such. If this is the case, then I thnk the court is punting and will likely take Moore because Illinois wants No Bear and thats something the court wont allow. Shoot my conclusion but I think they want both LOC AND CCW TBD by the States and furthermore wont be too interested in any case unless it flatout infringes both. |
#147
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This is why I've been hoping that a competent and motivated gun rights group would take on California's loaded open carry ban in federal court. But it's become obvious that the feeling is 'shall-issue concealed carry or bust'.
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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 |
#148
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"Who is the more foolish? The fool, or the fool that follows him?"-Obi Wan Kenobi the question here is not whether the carrying of arms is a good idea—the question is whether carrying arms is constitutionally protected. Objective standards and due process—not Defendants’ philosophy or personal beliefs about the value of this activity—must carry the day-Alan Gura |
#149
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Many of those so called 'gun rights' groups actually oppose open carry and support open carry bans. A few even go as far as filing a lawsuit to get open carry banned or keep a ban in place, during concealed carry cases they often argue that states can and should ban open carry. It's disgusting.
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#150
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Well, with the LOC criminal case in FL and the Nichols case, it seems to me we have already "yielded the field" on this...
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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; 04-25-2013 at 12:37 PM.. |
#151
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I agree with NIR. I think it's futile to argue for LOC. I agree with Gura's 2A arguments in that:
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#152
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Looking at the carry issue from a very simple perspective, it could be argued that "concealment" of a firearm only has nefarious purposes, and it might be the "color" that prevented SCOTUS from hearing Kachalsky.
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#153
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Mud99, some people have read Heller that way. (i.e. Heller casts a dark shadow on concealed carry). However, how does one reconcile that with the fact that so many states have passed shall issue concealed carry permit systems?
The answer of course is that most Americans prefer concealed carry over open carry. That's it. It's just a preference. It doesn't mean its right or wrong. It's just what most people prefer.
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#154
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Has it occurred to you that they may have cited the cases they did, and not a case which upheld concealed carry as a right in the face of a total ban on open carry, because the latter case doesn't exist? The Supreme Court cannot cite, as evidence that the mode of carry can be prescribed by the state, cases which do not exist. Quote:
I don't buy it. Anything's possible, of course, so it's possible that the Court intends to protect only open carry, but if that is their intention, then Heller is a very poor indicator of 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. Last edited by kcbrown; 04-25-2013 at 10:14 AM.. |
#155
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At this point, I must point out that concealed carry also falls within the right to privacy.
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA |
#156
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This is now my hope as well...
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NRA Life Member SAF Life Member (Defenders' Club) CCRKBA Life Member Madison Society Life Member CRPA Life Member |
#157
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The only thing disgusting here is your complete lack of knowledge and your willingness to essentially libel people. That opinion, that states could ban OC for CC, is shared by Gura, Clement, Michel, Donald Kates, Dave Kopel, the entirety of the upper scholarship on 2A matters. Moore v. Madigan decision cited "Hidden or on the Hip", a treatise by a man named James Bishop, which explored this issue. |
#158
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There's nothing inherently wrong with applying intermediate scrutiny to many aspects of the Second Amendment — the key is applying it appropriately and properly. A few courts (notably, the Woolard panel) simply have not properly applied intermediate scrutiny. Others courts seem to be dismissing the distinction between flat bans versus regulatory friction cases and apply balancing tests when categorical invalidation is more appropriate. Some of this is an understandable response to the very early stage of Second Amendment jurisprudence that we are in coupled with the extraordinary number of cases winding their way through the legal system. As I have said many times before, Supreme Court Justices are generalists and they go out of their way to decide only the minimum necessary in order to reach a decision. Those who are unfamiliar with the legal system and temperamentally more comfortable with settled issues will obviously find this uncertainty distressing and attempt to over-interpret opinions and administrative decisions. A fair reading of both Heller and McDonald makes it clear that the Court's majority was tenuous. The “presumptively lawful” caveat in both opinions were transparent add-ons, incorporated at the last minute to secure a fifth vote. This may be the reason why the Court has not yet decided to hear another Second Amendment case. Or the Justices may be waiting for the circuit appeals courts to fully weigh in on the current round of litigation before stepping back into the fray. Or the Justices may not be ready to answer all of the questions raised in some of the more prominent cases. Nobody really knows why the Court decides or declines to hear a particular case because the process is opaque. But it's highly unlikely that secondary issues like manner of carry have anything to do with their cert decisions (or criminal vs. civil, etc.). The bottom line is: if you want fast finality, go to your state legislature. Or Congress. |
#159
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Or …
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA |
#160
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I'll drop out of the discussion and let you guys figure it out. I just don't see a reason to get my blood pressure up when I don't expect to see a positive resolution for carry in my lifetime.
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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; 04-25-2013 at 3:34 PM.. |
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