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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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  #201  
Old 07-07-2017, 7:21 PM
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Originally Posted by press1280 View Post
Here's an article he wrote (he admits Gorsuch is an unknown), but thought no way Thomas would vote for Peruta: http://newsblaze.com/business/legal/...ifornia_78072/
From that Nichols' article (emphasis in Nichols' article):

Quote:
The Peruta lawyers have the hubris to cite this passage from the Heller decision and claim, in their cert petition, that the Supreme Court has already said that Open Carry can be banned in favor of concealed carry when SCOTUS said this:

“”Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
I read that quote from Heller (the 2nd paragraph I quoted), as support for Scalia's statement that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." I do not read it as an endorsement/adoption of any particular conclusion/opinion/holding of those courts or commentators. That's not what Scalia was using it to prove. The Heller Court was not dealing with those particular issues.

Since Thomas was for taking Peruta -- and I don't think any of us will claim Thomas to be an anti -- I think Nichols' has mistaken the law of Heller. I think Thomas and Gorsuch (and probably Alieto) understand Heller better than Nichols'.

Too bad the MA SC didn't also shoot down Caetano by saying even if pepper spray is an "arm" protected by the 2nd A, there is no right to bear it in public for self-defense. Then public carry would have been an issue in Caetano. It probably would have been an issue in Caetano II if MA legalized the ownership, but banned the public carrying of pepper spray. But my guess is the antis did not want a Carry Case to get to SCOTUS before Hillary was in office and able to replace Scalia.

Too bad!
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  #202  
Old 07-07-2017, 7:41 PM
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Originally Posted by TruOil View Post
Really? Show me. Cite the page. Yes, I've read Heller--more than once--and I don't see anywhere that this was a HOLDING in the case, as opposed to a recitation of the history of the right in the United States. The only HOLDING was that the District of Columbia could not ban the possession of a loaded firearm in the home. Everything else is dicta, which may be persuasive but is not binding on any other court.
Certainly, decisions of state supreme courts are not binding on any federal court (except as to matters of state law), and all that those decisions say, afaik, is that concealed carry bans are permissible when open carry is permitted. But those are not decisions by a federal court under the Second Amendment.
McDonald changes nothing, as it too was a case concerning the right to keep a firearm in one's home for the "core" Second Amendment right of self-defense. NEITHER McDonald NOR Heller case was a carry case, so to suggest that either "holds" that there is a right to open carry outside the home is simply incorrect. And without a holding as to carry outside the home, the Ninth Circuit will do whatever its liberal justices damn well please.
And you continue to deliberately misconstrue Heller....

...by passing it off as having recognizinig a balance between OC and CCW...

Scalia did absolutely no such thing. Scalia made it clear that bans on Open Carry do not pass muster period! In no way did he condition OC on CCW, or condition CCW on OC.

He treated them seperately, and brought history and precedent to bear when discussing both.

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  #203  
Old 07-07-2017, 7:47 PM
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Originally Posted by Paladin View Post
From that Nichols' article (emphasis in Nichols' article):



I read that quote from Heller (the 2nd paragraph I quoted), as support for Scalia's statement that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." I do not read it as an endorsement/adoption of any particular conclusion/opinion/holding of those courts or commentators. That's not what Scalia was using it to prove. The Heller Court was not dealing with those particular issues.

Since Thomas was for taking Peruta -- and I don't think any of us will claim Thomas to be an anti -- I think Nichols' has mistaken the law of Heller. I think Thomas and Gorsuch (and probably Alieto) understand Heller better than Nichols'.

Too bad the MA SC didn't also shoot down Caetano by saying even if pepper spray is an "arm" protected by the 2nd A, there is no right to bear it in public for self-defense. Then public carry would have been an issue in Caetano. It probably would have been an issue in Caetano II if MA legalized the ownership, but banned the public carrying of pepper spray. But my guess is the antis did not want a Carry Case to get to SCOTUS before Hillary was in office and able to replace Scalia.

Too bad!
Nichols didn't make an interpretation mistake...he LIKE THE REST OF US are having a hard time getting a "read" on the justices.


. . . i.e., the "tea in the leaves" stuff we're not supposed to be discussing here...


Even an 8th grader can read the Heller decision and get exactly what Scalia was explaining about OC, CCW, bearable arms, the individual right, etc.

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  #204  
Old 07-07-2017, 9:28 PM
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Originally Posted by mrrabbit View Post
And you continue to deliberately misconstrue Heller....

...by passing it off as having recognizinig a balance between OC and CCW...

Scalia did absolutely no such thing. Scalia made it clear that bans on Open Carry do not pass muster period! In no way did he condition OC on CCW, or condition CCW on OC.
That's correct. There were no conditions on OC or CCW in what Scalia wrote.


Quote:
He treated them seperately, and brought history and precedent to bear when discussing both.
No. Scalia did not discuss carry at all. What he did discuss was "the way in which the operative clause of the 2nd Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right".

So again I ask, because you didn't give an answer to it the first time I asked: what, exactly, is "the way in which the operative clause of the 2nd Amendment furthers the purpose announced in the prefatory clause"? And why is neither concealed carry nor open carry mentioned in the part of the decision the Court quoted, if the nonprotected status of concealed carry is the essential takeaway from the portion of Heller that you (and others who argue as you do) seem to rely on (District of Columbia v. Heller, 128 S. Ct. 2783 at 2809)?

And now that we have a dissent from Thomas, it raises another question that I expect you'll have trouble answering in a logically consistent fashion: do you believe that Thomas' understanding of the right to arms is so different from Scalia's that he would uphold concealed carry as a matter of right whilst Scalia would insist that it is not a part of the protected right? If so, on what basis would Thomas' understanding differ in such a profound way?
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  #205  
Old 07-08-2017, 1:17 AM
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Originally Posted by kcbrown View Post
That's correct. There were no conditions on OC or CCW in what Scalia wrote.




No. Scalia did not discuss carry at all. What he did discuss was "the way in which the operative clause of the 2nd Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right".

So again I ask, because you didn't give an answer to it the first time I asked: what, exactly, is "the way in which the operative clause of the 2nd Amendment furthers the purpose announced in the prefatory clause"? And why is neither concealed carry nor open carry mentioned in the part of the decision the Court quoted, if the nonprotected status of concealed carry is the essential takeaway from the portion of Heller that you (and others who argue as you do) seem to rely on (District of Columbia v. Heller, 128 S. Ct. 2783 at 2809)?

And now that we have a dissent from Thomas, it raises another question that I expect you'll have trouble answering in a logically consistent fashion: do you believe that Thomas' understanding of the right to arms is so different from Scalia's that he would uphold concealed carry as a matter of right whilst Scalia would insist that it is not a part of the protected right? If so, on what basis would Thomas' understanding differ in such a profound way?
Once again,

I

am not one of the Supreme Court justices making these decision nor was I a judge in the Heller v. DC case.


It is justices (in particular Scalia) making the case and holding that:


1. Practices regarding open carrying of bearable arms and concealing of bearable arms that arise from the English tradition.

2. That the English tradition was respected and practiced during the Colonial era.

3. That this tradition was inherited / adopted upon the adoption of the Articles of Confederation and carried over later to the adoption of the Constitution.

3. State Courts have held the same - open carry is the default practice, concealed can have prohibitions placed upon it.

4. Legislatures before and after these court decision have clarified or modified their laws to be in line with the honored and respected tradition with the "supposition" that it is what the 2nd Amendment intended.

5. Heller v. DC with Scalia writing the majority opinion recognized the above.


That's THEIR interpretation - NOT MINE.


Both YOU and I know qualifications or distinctions regarding open or concealed are not directly written in the 2nd Amendment.


You are trying to get ME to defend THEIR position. That's THEIR job, not mine.


^^^ That's the precedent and path SCOTUS has taken picking up where state courts, legislatures and colonial bodies left off and made "official" with Heller v. DC.

Direct your question at them....not me.

As to Thomas, perhaps he is a Justice who agrees with the gist of YOUR question. Perhaps he is one who thinks keep is keep, bear is bear, and that open v. carry is irrelevant.

I don't know, and to try to postulate as to whether he is in that corner is to try to read the tea in the leaves - until he says something directly to that effect.

And yes, carry was discussed. Scalia, in pointing out that open carry bans do not pass constitutional muster while in the same breath pointing out that prohibitions on concealed do IS TO DISCUSS CARRY - a very short discussion to boot.

That was then, now is now. We'll see if SCOTUS reasserts its position as the highest court in the land . . . or allows pressure groups and states to make them blink - with newer justices on board.

=8-|
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  #206  
Old 07-08-2017, 4:39 AM
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Originally Posted by mrrabbit View Post
Once again,

I

am not one of the Supreme Court justices making these decision nor was I a judge in the Heller v. DC case.
Understood. But you have the opinion you have for a reason. What is that reason in this case?


Quote:
It is justices (in particular Scalia) making the case and holding that:
It is in dispute what the justices actually held. Put simply, what follows in what you've written here is your interpretation of what they held, an interpretation that has a debatable basis.


Quote:
1. Practices regarding open carrying of bearable arms and concealing of bearable arms that arise from the English tradition.
Nowhere in Heller is the above actually discussed by the justices. They pull quotes from decisions that struck prohibitions on open carry, but do not actually discuss open carry at all. Nowhere in Heller will you see the justices say that open carry is explicitly protected. You will see them mention that certain decisions struck open carry bans, but you will not see them say that open carry is protected. Similarly, you will see them say that concealed carry bans have been upheld by certain decisions, but you will not see them say that concealed carry bans are Constitutional or that concealed carry is not protected.


Quote:
2. That the English tradition was respected and practiced during the Colonial era.
Yes. But notably, the discussion in Heller with respect to the English tradition centers around the right being an individual one.


Quote:
3. That this tradition was inherited / adopted upon the adoption of the Articles of Confederation and carried over later to the adoption of the Constitution.
Yes, where "this tradition" is the tradition of the right to arms itself. Nowhere does Heller itself say that the tradition in question allows concealed carry to be forbidden.


Quote:
3. State Courts have held the same - open carry is the default practice, concealed can have prohibitions placed upon it.
Yes, state courts have held that. But Heller itself does not hold any such thing. You will not find a single word in the decision itself stating that concealed carry prohibitions are Constitutional. You will find references to decisions that stated such, but the use of those decisions was for a different purpose than to describe allowable limitations on carry. You will even find a reference to those decisions being used as an example of how the right is not unlimited. But you will not find anything stating that such prohibitions are unconditionally Constitutional.


Quote:
4. Legislatures before and after these court decision have clarified or modified their laws to be in line with the honored and respected tradition with the "supposition" that it is what the 2nd Amendment intended.
Legislatures before and after have varied all over the place as regards that, and even varied massively over time (remember that carry was actually prohibited in full in much of the country for a couple of decades in the 20th century). For instance, Florida bans open carry but allows concealed carry. California bans everything as a matter of right. Arizona allows everything as a matter of right. More states allow concealed carry than allow open carry.


Quote:
5. Heller v. DC with Scalia writing the majority opinion recognized the above.
No. That decision recognized that the right is an individual one, is unconnected with militia service, and is not unlimited.


Quote:
That's THEIR interpretation - NOT MINE.
No, it's yours. It's yours because Heller does not explicitly state that which you claim. If it's not explicitly stated, then it must be the result of interpretation.


Quote:
Both YOU and I know qualifications or distinctions regarding open or concealed are not directly written in the 2nd Amendment.
The 2nd Amendment doesn't even indirectly encode qualifications or distinctions as regards open or concealed carry. And as regards the original understanding of the right, the one court in which the question was decided by people of the founding generation is the one court which found that concealed carry is also included in the right. That court is the Kentucky supreme court, in Bliss v Commonwealth (1822). No other case after that is likely to have been decided by judges who were of the founding generation -- they came too late. If it is the original understanding of the right that defines its scope, then it is Bliss v Commonwealth which must enunciate that understanding most clearly, since it was members of the founding generation who uttered it.


Quote:
You are trying to get ME to defend THEIR position. That's THEIR job, not mine.
Why? You're the one who interprets Heller in the way you state. You ascribe that interpretation to the justices who penned Heller, but they did not write anything like the words you have written. What they wrote differs markedly from what you've written.

But most importantly of all, it is illogical for Thomas to insist that the Court should have granted cert to Peruta if his interpretation of carry is what you claim the Heller interpretation to be. It would be entirely logical for him to insist such if his interpretation matches that of the Bliss court. As the most originalist member of the Court, he is more likely to agree with Bliss than perhaps any of the rest.


Quote:
As to Thomas, perhaps he is a Justice who agrees with the gist of YOUR question. Perhaps he is one who thinks keep is keep, bear is bear, and that open v. carry is irrelevant.
That would be consistent with his dissent against Peruta's denial of cert.

But there's another factor that argues strongly against the claims you've made. Thomas has no reservations about writing a concurrence when his interpretation differs from that of his colleagues. He did so, after all, in McDonald. If Thomas' interpretation is that of Bliss, and Heller really stated what you claim it does, then Thomas would almost certainly have written a concurrence that stated his opinion on carry. But he didn't. He didn't because he didn't believe there was a need to. But the only logical reason for him to not believe that such was necessary is if Heller's holdings and reasoning do not include the interpretation of carry that you claim it does.


Quote:
And yes, carry was discussed. Scalia, in pointing out that open carry bans do not pass constitutional muster while in the same breath pointing out that prohibitions on concealed do IS TO DISCUSS CARRY - a very short discussion to boot.
Scalia didn't point out that concealed carry prohibitions pass Constitutional muster. He pointed out that prior state decisions held that. But he was clear and direct about those prohibitions that he believed actually do pass muster, e.g. prohibitions on felons and the mentally ill. Scalia was perfectly capable of directly stating that concealed carry prohibitions are Constitutional and didn't. Pointing out that someone else did something is not the same as adopting that something for yourself.
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  #207  
Old 07-08-2017, 10:05 AM
mrrabbit mrrabbit is offline
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Originally Posted by kcbrown View Post
Understood. But you have the opinion you have for a reason. What is that reason in this case?




It is in dispute what the justices actually held. Put simply, what follows in what you've written here is your interpretation of what they held, an interpretation that has a debatable basis.




Nowhere in Heller is the above actually discussed by the justices. They pull quotes from decisions that struck prohibitions on open carry, but do not actually discuss open carry at all. Nowhere in Heller will you see the justices say that open carry is explicitly protected. You will see them mention that certain decisions struck open carry bans, but you will not see them say that open carry is protected. Similarly, you will see them say that concealed carry bans have been upheld by certain decisions, but you will not see them say that concealed carry bans are Constitutional or that concealed carry is not protected.




Yes. But notably, the discussion in Heller with respect to the English tradition centers around the right being an individual one.




Yes, where "this tradition" is the tradition of the right to arms itself. Nowhere does Heller itself say that the tradition in question allows concealed carry to be forbidden.




Yes, state courts have held that. But Heller itself does not hold any such thing. You will not find a single word in the decision itself stating that concealed carry prohibitions are Constitutional. You will find references to decisions that stated such, but the use of those decisions was for a different purpose than to describe allowable limitations on carry. You will even find a reference to those decisions being used as an example of how the right is not unlimited. But you will not find anything stating that such prohibitions are unconditionally Constitutional.




Legislatures before and after have varied all over the place as regards that, and even varied massively over time (remember that carry was actually prohibited in full in much of the country for a couple of decades in the 20th century). For instance, Florida bans open carry but allows concealed carry. California bans everything as a matter of right. Arizona allows everything as a matter of right. More states allow concealed carry than allow open carry.




No. That decision recognized that the right is an individual one, is unconnected with militia service, and is not unlimited.




No, it's yours. It's yours because Heller does not explicitly state that which you claim. If it's not explicitly stated, then it must be the result of interpretation.




The 2nd Amendment doesn't even indirectly encode qualifications or distinctions as regards open or concealed carry. And as regards the original understanding of the right, the one court in which the question was decided by people of the founding generation is the one court which found that concealed carry is also included in the right. That court is the Kentucky supreme court, in Bliss v Commonwealth (1822). No other case after that is likely to have been decided by judges who were of the founding generation -- they came too late. If it is the original understanding of the right that defines its scope, then it is Bliss v Commonwealth which must enunciate that understanding most clearly, since it was members of the founding generation who uttered it.




Why? You're the one who interprets Heller in the way you state. You ascribe that interpretation to the justices who penned Heller, but they did not write anything like the words you have written. What they wrote differs markedly from what you've written.

But most importantly of all, it is illogical for Thomas to insist that the Court should have granted cert to Peruta if his interpretation of carry is what you claim the Heller interpretation to be. It would be entirely logical for him to insist such if his interpretation matches that of the Bliss court. As the most originalist member of the Court, he is more likely to agree with Bliss than perhaps any of the rest.




That would be consistent with his dissent against Peruta's denial of cert.

But there's another factor that argues strongly against the claims you've made. Thomas has no reservations about writing a concurrence when his interpretation differs from that of his colleagues. He did so, after all, in McDonald. If Thomas' interpretation is that of Bliss, and Heller really stated what you claim it does, then Thomas would almost certainly have written a concurrence that stated his opinion on carry. But he didn't. He didn't because he didn't believe there was a need to. But the only logical reason for him to not believe that such was necessary is if Heller's holdings and reasoning do not include the interpretation of carry that you claim it does.




Scalia didn't point out that concealed carry prohibitions pass Constitutional muster. He pointed out that prior state decisions held that. But he was clear and direct about those prohibitions that he believed actually do pass muster, e.g. prohibitions on felons and the mentally ill. Scalia was perfectly capable of directly stating that concealed carry prohibitions are Constitutional and didn't. Pointing out that someone else did something is not the same as adopting that something for yourself.
KC, now you are selectively cherry picking - trying to argue that one cite is being use at a precendent - and another is not....

...and in the process making the claim that the short discussion by Scalia about previous treatment of open v carry meant nothing at all...while every other parargraph in the decision did.

If YOU are going to argue at all that his short discussion meant absolutely nothing or had no bearing at all - then you have get Scalia to clarify that himself. But you can't....he's dead.

I on other hand in supporting the idea that IT did mean something merely have to point out that he wrote it - it plain simple english. It's there IN WRITING. I don't have to defend it. I just merely have to point to it.

It is very likely that CA9 looking for a way to trash Peruta saw that . . . and used it - to squash Peruta en banc.


There's a danger in what you are trying to do and that is:

You're making the argument of the Antis AND the pro-CCW only.

"They didn't mean anything in such and such part of the decsion..."

1. To do so is to make the argument of Florida, Calguns Foundation, SAF, CRPA, NRA, etc . . . that open carry can be banned in favor of concealed carry.

2. That English tradtion, Colonial practice of the English tradtion doesn't matter...historical precedent got it all wrong, that previous court cases establishing precedent are irrelevant. Which allows political actors on the court to argue on the basis that the 2nd Amendment means whatever they want it to mean at the given time.


^ That one is bad news . . . cause the potentional for gettinig figuratively and literally screwed by those believe they run the country is very high.


If SCOTUS denies cert on Norman and Nichols - we lose. Heller has been tossed. Period.

(#1 is in effect)


IF SCOTUS accepts cert on Norman and Nichols - we can still lose . . . cert doesn't mean you win, it just means you have a case before the court. No one can predict how they'll decide the case.

(#2 is in effect - we're at the mercy of the Uniparty who runs the country.)


=8-)
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  #208  
Old 07-08-2017, 11:32 AM
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KC, now you are selectively cherry picking - trying to argue that one cite is being use at a precendent - and another is not....
No. I'm not the one who is claiming that the Court is using the quotes as precedent. You are.

My claim is actually that the quotes themselves are not precedential, that rather they are used to illustrate a specific point about the right, namely that it is an individual right that is unconnected with militia service, and that the 2nd Amendment forecloses the possibility of blanket bans on the exercise of the right.


Quote:
...and in the process making the claim that the short discussion by Scalia about previous treatment of open v carry meant nothing at all...while every other parargraph in the decision did.
No. I'm saying that the quotes about open carry mean no more than the specific context of the quotes dictates. Specifically, that the quotes show "the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause", and more specifically "an individual right unconnected to militia service". That is the specific point of the part of the discussion in which you see the quotes about open carry.


Quote:
If YOU are going to argue at all that his short discussion meant absolutely nothing or had no bearing at all - then you have get Scalia to clarify that himself. But you can't....he's dead.
Scalia is dead, but Thomas isn't. And Thomas signed onto Scalia's decision. He didn't pen an independent concurrence. That has significance when combined with the Peruta dissent to denial of cert.


Quote:
I on other hand in supporting the idea that IT did mean something merely have to point out that he wrote it - it plain simple english. It's there IN WRITING. I don't have to defend it. I just merely have to point to it.
It's not what you point to that is at issue, it's what you conclude from that which you point to that is. What you are doing is drawing conclusions by taking the quotes out of the context in which they were made. Your claim amounts to one that says that if one quotes from a source in a decision, then one is importing the entirety of that source into the decision as if it were your own, or that you are importing the quote itself as if it were your own. No, that is not how quoting works or what its purpose is. Quoting is for illustrative purposes, for making a specific point. You cannot presume that the mere presence of a quote is automatic approval of everything from which the quote is taken, or even everything within the quote itself. Such a presumption is ludicrous on its face, especially when the quotes in question exist within a discussion framework that is different from that which the source of the quote is addressing.


The specific context in which the quotes were used is not about carry at all. It is about the individual, militia-independent nature of the right, and how the 2nd Amendment forecloses bans on exercise of the right.


Quote:
It is very likely that CA9 looking for a way to trash Peruta saw that . . . and used it - to squash Peruta en banc.
The 9th Circuit would have squashed Peruta in its en banc proceedings no matter what. It would go to any lengths, including pulling bits and pieces of Heller out of context for the purpose of using them against the right. If the 9th Circuit were faced with a de facto ban on handguns in the home, it would use bits and pieces of Heller to support that ban. It is irrelevant to the 9th Circuit whether its interpretation of a Supreme Court decision is correct or not. It will use whatever interpretation suits its whims.


Quote:
There's a danger in what you are trying to do and that is:

You're making the argument of the Antis AND the pro-CCW only.

"They didn't mean anything in such and such part of the decsion..."
No. There is language in Heller that logically cannot be interpreted in any other way than to say that carry outside the home is protected by the 2nd Amendment. Specifically, the language talking about "sensitive places" is wholly nonsensical if 2nd Amendment protections do not extend to public spaces. And furthermore, the very definition of "bear" that the Supreme Court adopted in Heller makes plain that it includes both open carry and concealed.

But to claim that the 2nd Amendment protects "bear", and that "bear" includes both open and concealed carry by its definition, and then to state that one specific mode of carry is not protected despite the fact that your very own originally-understood definition of bear includes that mode is disingenuous at best. It is flat-out contradictory to claim that the understood meaning of "bear arms" at the founding includes concealed carry while simultaneously claiming that the 2nd Amendment's protection does not include concealed carry, since the 2nd Amendment unequivocally states "bear arms". That is a claim that the authors of the 2nd Amendment didn't write what they meant.


Quote:
1. To do so is to make the argument of Florida, Calguns Foundation, SAF, CRPA, NRA, etc . . . that open carry can be banned in favor of concealed carry.
That is not the only possible interpretation of the argument I raise. My argument is that Heller does not address "bear" at all except to define what it is and to say that it is protected by the 2nd Amendment, and that it cannot be banned wholesale. That's it. That's all it says. Maybe that implies that you can ban one mode in favor of another, but I would not argue that, especially since Heller flat out states that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them" and the people who were of the founding generation decided Bliss, not any of the followup cases. Bliss doesn't stand for the proposition that you can ban one mode in favor of another, it stands for the proposition that a ban on any mode is infringement upon the right.


Quote:
2. That English tradtion, Colonial practice of the English tradtion doesn't matter...
Where in English tradition is it stated that concealed carry is not a part of the right? Cite your source.


Quote:
historical precedent got it all wrong, that previous court cases establishing precedent are irrelevant.
They are irrelevant if they decided things differently than the founding generation would have. And Bliss is the only historical carry case decided by the founding generation. Why, then, do you insist that Bliss is of lesser importance than are cases that were decided by people who were not of the founding generation?


Quote:
If SCOTUS denies cert on Norman and Nichols - we lose. Heller has been tossed. Period.
Oh, I quite agree. But for a reason different from yours. We lose under those circumstances because it would mean that the Court is allowing, and tacitly agreeing with, infringement upon the right to bear, period. We lose whenever the Supreme Court refuses to uphold the right, be it with respect to concealed carry or open carry. We lose because for the Court to do that is for the Court to allow the lower courts, and the state governments, to restrict our essential liberty. That is a loss no matter how you slice it.
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Old 07-08-2017, 12:00 PM
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Nichols didn't make an interpretation mistake...he LIKE THE REST OF US are having a hard time getting a "read" on the justices.
Well, Nichols said Heller "held" that OC "is the right" to bear arms.
Quote:
All of the so called gun-rights groups have been in Federal court for years arguing to uphold California’s Open Carry bans and have been since shortly after the US Supreme Court issued its landmark decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago which held that Open Carry is the right guaranteed by the Constitution and which held that concealed carry is not a right and can therefore be banned.
From: http://newsblaze.com/business/legal/...-public_59576/

Nichols' obviously did misinterprete Heller because Thomas, who is VERY pro-2nd A RKBA, in his Peruta dissent says Heller only "suggested" that there was a right to bear arms "in some fashion." (Gorsuch agreed with Thomas' interpretation of Heller by signing on to his Peruta dissent.)

Quote:
This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.
From carry over paragraph bottom of p.4 of: https://www.supremecourt.gov/opinion...6-894_p86b.pdf

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Originally Posted by mrrabbit View Post
Even an 8th grader can read the Heller decision and get exactly what Scalia was explaining about OC, CCW, bearable arms, the individual right, etc.
I'm still looking forward to you citing where in Heller Scalia said that. Again, please us the page numbering of the Heller decision hosted by SCOTUS so that we all can easily read it.

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Originally Posted by Paladin View Post
Can you direct the rest of us to where Scalia said that?

Can you use the Heller opinion found at: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Why? (1) Since that is from SCOTUS' own website, there is no question as to its authenticity & accuracy. (2) It is available to all the public (in the entire world!) for FREE. Last, (3) that way, we're all literally "on the same page" when citing the case, just state who you're citing and giving the page number of their opinion.

Syllabus: pp. 1 - 3
Scalia for the Court: pp. 1 - 61
Stevens' dissent: pp. 1 - 46
Breyer's dissent: pp. 1 - 44

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Old 07-08-2017, 1:14 PM
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Originally Posted by Paladin View Post
Well, Nichols said Heller "held" that OC "is the right" to bear arms.

From: http://newsblaze.com/business/legal/...-public_59576/

Nichols' obviously did misinterprete Heller because Thomas, who is VERY pro-2nd A RKBA, in his Peruta dissent says Heller only "suggested" that there was a right to bear arms "in some fashion." (Gorsuch agreed with Thomas' interpretation of Heller by signing on to his Peruta dissent.)


From carry over paragraph bottom of p.4 of: https://www.supremecourt.gov/opinion...6-894_p86b.pdf

I'm still looking forward to you citing where in Heller Scalia said that. Again, please us the page numbering of the Heller decision hosted by SCOTUS so that we all can easily read it.
I and OTHERS have posted the link to the SCOTUS .pdf on Heller v. DC - and have quoted the related passages MULTIPLE times in the original thread for PERUTA.

Stop pretending that we haven't...

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Old 07-08-2017, 1:40 PM
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http://www.scotusblog.com/wp-content.../06/07-290.pdf

Decision p.10 (pdf p.13) to Decision p.18 (pdf p. 18)

bear = carry on the person - discussed IN DETAIL


Decision p.39 (pdf p. 42) to Decision p.40 (pdf p. 43)

Open Carry discussed...in detail.


Decision p.54 (pdf p. 57)

Begins the historical discussion of lawful prohibitions - including concealed carry.



It's the public record as far as SCOTUS goes. I don't have to prove anything - it's in writing - they own it - not me.

If someone wants argue they didn't mean what they wrote then THAT person has to provide evidence to that effect....NOT ME.

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Old 07-08-2017, 2:03 PM
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Originally Posted by mrrabbit View Post
http://www.scotusblog.com/wp-content.../06/07-290.pdf

Decision p.10 (pdf p.13) to Decision p.18 (pdf p. 18)

bear = carry on the person - discussed IN DETAIL
More precisely, bear = carry "upon the person or in the clothing or in a pocket". You do not get to cherry pick the meaning of "bear".


Quote:
Decision p.39 (pdf p. 42) to Decision p.40 (pdf p. 43)

Open Carry discussed...in detail.
No. The way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause is what is discussed there. Open carry is discussed by the quotes in that part of the decision, not by Heller.


Quote:
Decision p.54 (pdf p. 57)

Begins the historical discussion of lawful prohibitions - including concealed carry.
No. It starts by stating that the right is not unlimited and uses the decisions that said that prohibitions on concealed carry were lawful to illustrate that the right was not historically understood to be unlimited. More specifically, it uses those examples to illustrate that "commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose". It did not call out the concealed carry prohibitions themselves as unconditionally lawful. There is a difference between citing an historical example that shows a belief that the right is not unlimited and explicitly calling out the limitation itself as unconditionally allowed. That part of the decision calls out "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" as being explicitly allowed, because those are within the "nothing in our opinion should be taken to case doubt on ..." statement, but prohibitions on concealed carry are absent from the list of prohibitions that Heller casts no doubt upon.

The difference in wording between an example to show that the right was not historically understood to be unlimited and a list of explicitly allowed prohibitions matters. You treat it as if the difference in wording doesn't matter. How can your reading of Heller not be a misreading if you refuse to impart meaning to that difference?


Quote:
If someone wants argue they didn't mean what they wrote then THAT person has to provide evidence to that effect....NOT ME.
They mean what they wrote. But they didn't mean what you believe they meant. Because context matters. That's the difference: you are interpreting what they quoted as if it were what they wrote. What they quoted is not what they wrote, it is illustrative of the point they're attempting to make, and that point is not about carry at all.
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Old 07-08-2017, 3:25 PM
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Do you think it's possible that the Ninth would "damn well please" to issue an opinion stating that there is also no right to bear arms outside the home, in public, openly? That is, in essence declare that the "right to bear" means to have a firearm on one's person within the home (or business (in Hawaii)) only? And that any carry outside the home is thus merely a privilege that may be regulated, just like concealed carry (also) is in Hawaii, to the point of no one being allowed to lawfully carry outside the home/business in any manner?
AS I said above, I think the court will rule that the right is less protected outside the home, that restrictions on the exercise of the right are analyzed under intermediate scrutiny, and that ultimately the right is subject to regulations/restriction in the public interest. Because "more guns means more crime," it is reasonable to restrict the exercise of the right in urban areas to those who have a "demonstrated need," and who will therefore qualify to obtain an CCW, notwithstanding that fact that a CCW is a privilege and not a right. I mean, really, can you imagine that the liberal members of the circuit would, in a million years, rule that a right to openly carry a loaded firearm is a right that cannot be infringed? I just can't see that happening. These guys fear guns, they don't want to see guns, and they don't want people carrying guns. So they must act in a way that reduces fear and assures "the keeping of the peace."
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Old 07-08-2017, 6:52 PM
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More precisely, bear = carry "upon the person or in the clothing or in a pocket". You do not get to cherry pick the meaning of "bear".




No. The way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause is what is discussed there. Open carry is discussed by the quotes in that part of the decision, not by Heller.




No. It starts by stating that the right is not unlimited and uses the decisions that said that prohibitions on concealed carry were lawful to illustrate that the right was not historically understood to be unlimited. More specifically, it uses those examples to illustrate that "commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose". It did not call out the concealed carry prohibitions themselves as unconditionally lawful. There is a difference between citing an historical example that shows a belief that the right is not unlimited and explicitly calling out the limitation itself as unconditionally allowed. That part of the decision calls out "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" as being explicitly allowed, because those are within the "nothing in our opinion should be taken to case doubt on ..." statement, but prohibitions on concealed carry are absent from the list of prohibitions that Heller casts no doubt upon.

The difference in wording between an example to show that the right was not historically understood to be unlimited and a list of explicitly allowed prohibitions matters. You treat it as if the difference in wording doesn't matter. How can your reading of Heller not be a misreading if you refuse to impart meaning to that difference?




They mean what they wrote. But they didn't mean what you believe they meant. Because context matters. That's the difference: you are interpreting what they quoted as if it were what they wrote. What they quoted is not what they wrote, it is illustrative of the point they're attempting to make, and that point is not about carry at all.


I stated no belief, merely pointed to what they said. PERIOD!

Jesus!

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Old 07-08-2017, 6:55 PM
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Originally Posted by TruOil View Post
AS I said above, I think the court will rule that the right is less protected outside the home, that restrictions on the exercise of the right are analyzed under intermediate scrutiny, and that ultimately the right is subject to regulations/restriction in the public interest. Because "more guns means more crime," it is reasonable to restrict the exercise of the right in urban areas to those who have a "demonstrated need," and who will therefore qualify to obtain an CCW, notwithstanding that fact that a CCW is a privilege and not a right. I mean, really, can you imagine that the liberal members of the circuit would, in a million years, rule that a right to openly carry a loaded firearm is a right that cannot be infringed? I just can't see that happening. These guys fear guns, they don't want to see guns, and they don't want people carrying guns. So they must act in a way that reduces fear and assures "the keeping of the peace."
Politics by those "professing" to know what's best for us!

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Old 07-08-2017, 6:58 PM
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I stated no belief, merely pointed to what they said. PERIOD!
Call it what you want. A belief, an interpretation, or a claim. It's all the same in the end. You stated a claim, and you did so by pointing at what they quoted. Merely pointing at some bit of text that doesn't say what you claim it says does your position (which is shorthand for the position you promote) no good. This is especially true when you ignore what was directly written by the authors of the text you point at. A perfect example of that is the definition of "bear", which is one that includes concealed carry as well as open carry.

Words have meaning, and quotes have context. The position you state (whether it's yours or not, it's one that you promote) ignores both the meaning and the context of what you point at. How, then, can the position you promote possibly be valid in the face of that?
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Old 07-08-2017, 7:11 PM
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Vs. mrrabbit

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Old 07-09-2017, 7:00 AM
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I and OTHERS have posted the link to the SCOTUS .pdf on Heller v. DC - and have quoted the related passages MULTIPLE times in the original thread for PERUTA.

Stop pretending that we haven't...

=8-|
I'm not pretending anything. Never said you/others never posted it over there/anywhere else. I didn't keep up the the Peruta thread. If you/others did, all you would have to say is "See post# xxxx in the Peruta thread." Which brings up the related: that Peruta thread was huge. Expecting someone to go thru it (using search would be futile since no distinctive wording for that post/s), to find where it was posted is unrealistic.

Besides, this is the Nichols thread: what better place to put that info than here?
Quote:
Originally Posted by mrrabbit View Post
http://www.scotusblog.com/wp-content.../06/07-290.pdf

Decision p.10 (pdf p.13) to Decision p.18 (pdf p. 18)

bear = carry on the person - discussed IN DETAIL


Decision p.39 (pdf p. 42) to Decision p.40 (pdf p. 43)

Open Carry discussed...in detail.


Decision p.54 (pdf p. 57)

Begins the historical discussion of lawful prohibitions - including concealed carry.



It's the public record as far as SCOTUS goes. I don't have to prove anything - it's in writing - they own it - not me.

If someone wants argue they didn't mean what they wrote then THAT person has to provide evidence to that effect....NOT ME.

=8-)
Thank you very much! I'll check it out and make a reply post in the next few days.

FWIW the conflict I saw in the Peruta thread and the conflict that I hope does not migrate to this Nichols thread is, IMO, a direct result of us CA gunnies having been robbed of our RKBA birthright as Americans by our own state for pretty much half of a century. While I'm sure some of us have strong feelings pro-OC, anti-OC, pro-CCW, whatever, I think many of us, as we approach a DECADE after Heller and seeing very slim practical benefit to it in CA (no SI CCWs, no hicaps, roster still in place, etc), just want some frickin' RKBA! As I once posted shortly after Peruta went en banc and pulled the 3-judge decision, the gravest risk we run is our side attacking each other in our frustration rather than focusing on opposing the antis.
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Old 07-09-2017, 8:33 AM
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<snip>

As I once posted shortly after Peruta went en banc and pulled the 3-judge decision, the gravest risk we run is our side attacking each other in our frustration rather than focusing on opposing the antis.
The "gravest risk"? I'd think that adopting a legal strategy that is unlikely to succeed, and/or incompetently executing a legal strategy has been the "gravest risk", aka "shooting oneself in the foot". "Attacking each other" regarding what the proper strategy is/should have been doesn't take anything away from us, as the other side already knows what they're doing independent of any reflections on our part.

The part that cannot be disputed is that after nearly eight years (and untold dollars) spent on Peruta/Richards, nothing has been gained, and it could be argued something has been lost (CCA ruling that there is no right to bear arms concealed in public).

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Old 07-09-2017, 7:42 PM
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The "gravest risk"? I'd think that adopting a legal strategy that is unlikely to succeed, and/or incompetently executing a legal strategy has been the "gravest risk", aka "shooting oneself in the foot". "Attacking each other" regarding what the proper strategy is/should have been doesn't take anything away from us, as the other side already knows what they're doing independent of any reflections on our part.
In the face of a circuit court that is absolutely hostile to the right and is essentially guaranteed to be for decades to come, combined with a Supreme Court that will not act except under the most heart-wrenching and innocuous circumstances (homeless woman with a stun gun), there is no such thing as as a competently executed legal strategy. All strategies lead to failure in the face of that no matter how brilliantly executed they may be.


Quote:
The part that cannot be disputed is that after nearly eight years (and untold dollars) spent on Peruta/Richards, nothing has been gained, and it could be argued something has been lost (CCA ruling that there is no right to bear arms concealed in public).
It needs to be made clear that the only alternative is to not challenge the laws at all. And doing that for a sufficiently long period of time bootstraps them into "longstanding" status (meaning that you have to challenge them at some point if only to ensure that future generations do not come away with the belief that that law in question was regarded by everyone as "acceptable" at or near the time of passage), while simultaneously generating identical end results.

There is nothing that can be won until the Supreme Court composition changes. The only reason for bringing challenges in this environment is the anticipation that the Supreme Court composition will change in a favorable manner. That the circuit court's decisions may affect future cases is irrelevant if the jurisprudence in question is ultimately overridden by the Supreme Court. And it is also irrelevant if it is not overridden by a later Supreme Court, since the jurisprudence would end up being established under those circumstances at a later time if it isn't established now.

Put another way, the only real difference that waiting makes is to minimize the amount of resources put into the overall effort. That's not a trivial difference, to be sure, but it means that the failures to this point do not represent any sort of grievous injury to later efforts.
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Old 07-10-2017, 7:16 AM
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Originally Posted by kcbrown View Post
In the face of a circuit court that is absolutely hostile to the right and is essentially guaranteed to be for decades to come, combined with a Supreme Court that will not act except under the most heart-wrenching and innocuous circumstances (homeless woman with a stun gun), there is no such thing as as a competently executed legal strategy. All strategies lead to failure in the face of that no matter how brilliantly executed they may be.




It needs to be made clear that the only alternative is to not challenge the laws at all. And doing that for a sufficiently long period of time bootstraps them into "longstanding" status (meaning that you have to challenge them at some point if only to ensure that future generations do not come away with the belief that that law in question was regarded by everyone as "acceptable" at or near the time of passage), while simultaneously generating identical end results.

There is nothing that can be won until the Supreme Court composition changes. The only reason for bringing challenges in this environment is the anticipation that the Supreme Court composition will change in a favorable manner. That the circuit court's decisions may affect future cases is irrelevant if the jurisprudence in question is ultimately overridden by the Supreme Court. And it is also irrelevant if it is not overridden by a later Supreme Court, since the jurisprudence would end up being established under those circumstances at a later time if it isn't established now.

Put another way, the only real difference that waiting makes is to minimize the amount of resources put into the overall effort. That's not a trivial difference, to be sure, but it means that the failures to this point do not represent any sort of grievous injury to later efforts.
Wrong...

"The only alternative is to not challenge the the laws at all..."


^ That's a false dichotomy or a posing of a choice scenario in which all options have not been exhausted.

The following options are available:

1. Bring a pure Open Carry case before SCOTUS - pure as in, no CCW baggage or wrappers or "gotcha's".

2. Bring an Equal Protection case before SCOTUS - one that challenges clear inconsistencies in policy that discriminate among what are supposed to be otherwise equal citizens deserving of equal treatment.

(I would have pushed Peruta in this regard....)

3. Vote legislators out of office.

^^^Knowing that SCOTUS ability to enforce a decsion is only as good as the system's willingness to go along with it - knowing that the system's momentum is toward more control (statism) - not less control (liberty), option #3 is the best option.

It won't be until the "peasants revolt" and bounce a dozen or so anti-gun legislators out onto the pavement via the ballot box that the "elites" who think they run this country have a change in attitude.

Our courts can make brilliant pro-gun / pro-2A decision over and over - it doesn't matter so long as a propoderance of anti-gun actors remain in office.

They can just throw 12 different flavors of mustard onto the legistlative calendar for passage into law - as in California - and those that survive an injuction will simply force us right back into the all time famous Calgun's exclamation:

Two Weeks!

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Old 07-10-2017, 11:23 AM
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Wrong...

"The only alternative is to not challenge the the laws at all..."


^ That's a false dichotomy or a posing of a choice scenario in which all options have not been exhausted.
Of course, I'm speaking of our judicial options. I suppose I should have made that more clear. Even so, some of what you write includes judicial options, so let's look at those.


Quote:
The following options are available:

1. Bring a pure Open Carry case before SCOTUS - pure as in, no CCW baggage or wrappers or "gotcha's".
This has already been done a couple of times. We'll know within a few months whether that makes any difference (the petition for cert in Norman was filed today, apparently: https://www.floridacarry.org/images/...rman-Final.pdf).

You already know my prediction on this one. Norman will be denied cert in the absence of a change in the composition of the Court. There is no reason to believe that Kennedy is more of an originalist than Thomas on this front, and Thomas has already shown that he believes a case like Peruta should have been granted cert. That's not to say that Thomas won't vote for cert in Norman -- he almost certainly will -- but Kennedy won't. And without Kennedy, there's no way Norman, or any other 2A case for that matter, gets cert (because there's no way the pro-2A justices will ensure that cert is granted if they can't count on actually getting a favorable decision out of it).


Quote:
2. Bring an Equal Protection case before SCOTUS - one that challenges clear inconsistencies in policy that discriminate among what are supposed to be otherwise equal citizens deserving of equal treatment.
"Equal protection" has proven to be immensely difficult to litigate, because "similarly situated" is used by the courts to achieve whatever outcome they desire. Which is to say, if a court wants the plaintiff to win, then it will find that the plaintiff is "similarly situated", but if it wants the plaintiff to lose, then it'll interpret "similarly situated" to mean identically situated, and thus decide against the plaintiff.

So such a case would clearly turn on the Supreme Court disagreeing with the lower court as to the "similarly situated" question. But save for Caetano, the Court has already refused to hear every firearm case involving a challenge to a state law. Why in the world should we believe the Court will suddenly change its mind when faced with a different kind of argument?


Quote:
3. Vote legislators out of office.

^^^Knowing that SCOTUS ability to enforce a decsion is only as good as the system's willingness to go along with it - knowing that the system's momentum is toward more control (statism) - not less control (liberty), option #3 is the best option.
No disagreement with you on that. The problem is that doing so isn't really possible in California, so that leaves only the national angle.


Quote:
It won't be until the "peasants revolt" and bounce a dozen or so anti-gun legislators out onto the pavement via the ballot box that the "elites" who think they run this country have a change in attitude.
And that can't happen unless the way primaries are done changes, because a "revolt" can't happen if the peasants don't have control over which choices they're presented with.


Quote:
Our courts can make brilliant pro-gun / pro-2A decision over and over - it doesn't matter so long as a propoderance of anti-gun actors remain in office.

They can just throw 12 different flavors of mustard onto the legistlative calendar for passage into law - as in California - and those that survive an injuction will simply force us right back into the all time famous Calgun's exclamation:

Two Weeks!
I completely, unequivocally agree with you on this. And those anti-rights actors will have the backing of the 9th Circuit as well.

There's a reason I said, a long time ago, that it would be many years, and likely decades, before we get any meaningful changes. My view on that has not changed, and events are proving that prediction to be correct.
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Old 07-10-2017, 8:48 PM
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I hope Mr. Nichols will object to the State's attempt to insert a very dubious study into the appellate record, especially at this very late time.

John Lott has a critique of the Donahue study, and I suspect John Lott would ghost write a short criticism of the study as a response for Nichols to file.

Article on the Donahue study here:

http://www.breitbart.com/2nd-amendme...violent-crime/
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Old 07-11-2017, 8:44 AM
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I hope Mr. Nichols will object to the State's attempt to insert a very dubious study into the appellate record, especially at this very late time.
He filed a response the same day California submitted their letter:

http://blog.californiarighttocarry.o...uly-7-2017.pdf
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Old 07-11-2017, 10:51 AM
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His last sentence is laughable.

California courts HAVE NOT upheld open carry. (please cite where they have struck down the open carry prohibition)
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Old 07-11-2017, 12:55 PM
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His last sentence is laughable.

California courts HAVE NOT upheld open carry. (please cite where they have struck down the open carry prohibition)
The statement in question: "The California courts have always upheld prohibitions on concealed carry and required that arms be carried openly in the interest of public safety."

Mr. Nichols did not write that the California Courts have struck down any Open Carry bans. They haven't because they have never before been challenged in state court. The only challenges were to carrying loaded, concealed handguns and/or by persons who were prohibited from possessing firearms.

In fifty years, there had never been a challenge to California's ban on carrying loaded firearms as it applies to Open Carry until Nichols filed his lawsuit. Not in state court and not in Federal court.

Some of those cases are cited in Nichols' briefs and in Nichols' FRAP 28(j) letters.
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Old 07-12-2017, 6:58 PM
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Update today from Mr. Nichols:

http://blog.californiarighttocarry.org/?page_id=6922

Update by Charles Nichols, President of California Right To Carry – July 12, 2017 – It appears that oral arguments in my appeal may very well take place during the week of November 6th in Pasadena. My motion to have my appeal heard before the same panel, and on the same day, as Young v. Hawaii is still pending. Reportedly, the lawyers in that case were contacted but the attorney representing Hawaii said “No!” The court can still calendar the Young appeal to take place in Pasadena. The court has the power to schedule oral arguments anywhere in the 9th circuit. If the court wants to calendar both appeals before the same panel in Alaska in December then it has the power to do so.

I am surprised that the Hawaii county attorney reportedly gave as his reason for not coming to Pasadena as “I don’t want to.” In any event, if my motion is denied then at least we now know that oral arguments in my appeal will very likely be scheduled for the week of November 6th. When oral arguments will take place in Young is more problematic. The court of appeals holds oral arguments in Hawaii only three times a year. Court rules requires that the panel of judges be given the briefs in an appeal at least 12 weeks prior to oral arguments taking place. If the Young v. Hawaii appeal had already been assigned to a panel for oral arguments to take place in October then it is unlikely that the court would have sought to calendar the oral arguments to take place alongside my appeal in Pasadena.

This means that the Young v. Hawaii oral arguments will likely take place next February in Hawaii and oral arguments in my case will take place in November. This is fine by me as that means my case will be taken under submission for a decision first. That means the decision in my case is the one which will be binding in the 9th circuit.
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Old 07-13-2017, 8:41 PM
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Originally Posted by surfgeorge View Post
The statement in question: "The California courts have always upheld prohibitions on concealed carry and required that arms be carried openly in the interest of public safety."

Mr. Nichols did not write that the California Courts have struck down any Open Carry bans. They haven't because they have never before been challenged in state court. The only challenges were to carrying loaded, concealed handguns and/or by persons who were prohibited from possessing firearms.

In fifty years, there had never been a challenge to California's ban on carrying loaded firearms as it applies to Open Carry until Nichols filed his lawsuit. Not in state court and not in Federal court.

Some of those cases are cited in Nichols' briefs and in Nichols' FRAP 28(j) letters.
Nice try. Now go call Mom and tell her you are a failure
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Old 07-14-2017, 9:07 PM
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Originally Posted by surfgeorge View Post
The statement in question: "The California courts have always upheld prohibitions on concealed carry and required that arms be carried openly in the interest of public safety."

Mr. Nichols did not write that the California Courts have struck down any Open Carry bans. They haven't because they have never before been challenged in state court. The only challenges were to carrying loaded, concealed handguns and/or by persons who were prohibited from possessing firearms.
That's true, but that's not what's laughable. What's laughable is his claim (which I emphasized in the above) that the California courts have "required that arms be carried openly in the interest of public safety". Courts have required no such thing, and neither has any legislation. Opposition to one mode of carry does not translate to automatic endorsement of the other mode.

Charles Nichols will find out soon enough that the 9th Circuit is just as opposed to open carry as it is to concealed carry, and that no amount of brilliant argumentation will change that. Its justification for denying open carry will almost certainly differ from that for concealed carry, but it will deny open carry all the same.
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The real world laughs at optimism. And here's why.

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Old 07-15-2017, 5:30 AM
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That's true, but that's not what's laughable. What's laughable is his claim (which I emphasized in the above) that the courts have "required that arms be carried openly in the interest of public safety". Courts have required no such thing, and neither has any legislation. Opposition to one mode of carry does not translate to automatic endorsement of the other mode.

Charles Nichols will find out soon enough that the 9th Circuit is just as opposed to open carry as it is to concealed carry, and that no amount of brilliant argumentation will change that. Its justification for denying open carry will almost certainly differ from that for concealed carry, but it will deny open carry all the same.
California courts perhaps, but the 19th century courts did do so (although they took it as a given that public safety was improved by CCW bans).

The 9th is opposed to all forms of carry, but they're in a tight box. If there's no right to OC (coupled w/Peruta), then they've just split with Moore.
I think they'll try to issue a narrow ruling and will tacitly endorse may-issue OC.
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Old 07-16-2017, 1:23 PM
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California courts perhaps, but the 19th century courts did do so (although they took it as a given that public safety was improved by CCW bans).
His statement was specifically about California courts. I've changed my message to make that more clear (though it should be completely obvious from reading his quote).
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Old 07-16-2017, 6:23 PM
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Originally Posted by kcbrown View Post
His statement was specifically about California courts. I've changed my message to make that more clear (though it should be completely obvious from reading his quote).
Is this a California court case?

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon." People v. Mitchell, 209 Cal. App. 4th 1364 (2012) at 1371.

That case is mentioned in the Nichols original brief, as are other cases from California courts. You can read the brief for yourself and see there are other California courts cases cited.
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Old 07-16-2017, 7:21 PM
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California courts perhaps, but the 19th century courts did do so (although they took it as a given that public safety was improved by CCW bans).

The 9th is opposed to all forms of carry, but they're in a tight box. If there's no right to OC (coupled w/Peruta), then they've just split with Moore.
I think they'll try to issue a narrow ruling and will tacitly endorse may-issue OC.
I'm sticking with my original prediction:

1. They'll strike down the ban on Unloaded Open Carry - claiming it satisfies open carry.

2. Basically sticking it to Mr. Nichols - no Loaded Open Carry action.

3. Basically sticking it to us - a neutered form of Open Carry.

4. Legislature will continues to pass every law under the sun to harass or put a ball and chain on those who try to exercise Unloaded Open Carry.

The parties involved including CA9 will bet on SCOTUS denying cert on an appeal by Mr. Nichols.

=8-|
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Old 07-16-2017, 8:37 PM
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Originally Posted by surfgeorge View Post
Is this a California court case?

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon." People v. Mitchell, 209 Cal. App. 4th 1364 (2012) at 1371.

That case is mentioned in the Nichols original brief, as are other cases from California courts. You can read the brief for yourself and see there are other California courts cases cited.
Interesting. Learn something new every day.

I can't seem to find the original People v Mitchell decision, so I can't comment intelligently on that excerpt from it.
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Old 07-16-2017, 9:33 PM
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http://www.leagle.com/decision/In%20...0v.%20MITCHELL
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Old 07-16-2017, 10:30 PM
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I'm sticking with my original prediction:

1. They'll strike down the ban on Unloaded Open Carry - claiming it satisfies open carry.

2. Basically sticking it to Mr. Nichols - no Loaded Open Carry action.

3. Basically sticking it to us - a neutered form of Open Carry.

4. Legislature will continues to pass every law under the sun to harass or put a ball and chain on those who try to exercise Unloaded Open Carry.

The parties involved including CA9 will bet on SCOTUS denying cert on an appeal by Mr. Nichols.

=8-|
If UOC is somehow reinstated, I will UOC everywhere, hassle or not. I did not do this last go around but will for sure if it is the court's opinion. If enough of us do it, it could be the pressure we need to get the legislature to move, similar to what they did in Illinois.
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Old 07-17-2017, 9:03 PM
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On July 4th Nichols posted an article re. our 2nd A right to bear arms and the Peruta denial with dissent, but now it is gone....

http://blog.californiarighttocarry.org/?page_id=739

http://newsblaze.com/business/legal/

Anyone know why?

Anyone make a copy of it?
Late reply, but for the record: At the very least, I didn't get an e-mail about an article, and I'm on both the mailing list and I have newsblaze notifications for him set.

He did send out copy of the Declaration of Independence for 4th of July though: http://mailchi.mp/ea0ae2f54121/happy...ight-to-carry?

I do wish Mr. Nichols the best of luck with his case, though I'm sure if -any- victory were to be found, it wouldn't be in the 9th, so we'll likely be waiting for a while yet. (Not that I'm particularly knowledgeable, but we've seen how the 9th rolls).

Last edited by BeAuMaN; 07-17-2017 at 9:09 PM..
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Old 07-18-2017, 10:09 AM
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If UOC is somehow reinstated, I will UOC everywhere, hassle or not. I did not do this last go around but will for sure if it is the court's opinion. If enough of us do it, it could be the pressure we need to get the legislature to move, similar to what they did in Illinois.
I doubt this will happen, no one is asking for UOC as a form of relief.
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Old 07-18-2017, 5:07 PM
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on the open vs concealed carry--the restrictions on concealed carry were viewed as legit because carrying concealed was viewed as an indicator that the person was carrying for less than legit reasons--after all, if your rifle/shotgun/ handgun was visible, you weren't planning on robbing the bank etc
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Old 07-19-2017, 12:35 PM
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on the open vs concealed carry--the restrictions on concealed carry were viewed as legit because carrying concealed was viewed as an indicator that the person was carrying for less than legit reasons--after all, if your rifle/shotgun/ handgun was visible, you weren't planning on robbing the bank etc
True enough, but those days are long gone. As the open unloaded demonstrators quickly learned, the soccer moms are so terrified of the sight of guns that they wi8ll immediately call 911 to report MAN WITH GUN!!!, resulting in a huuuge police response. The response wquiclkly lead to the present ban.

Today, there are some courts that will recognize that allowing shall issue concealed carry licensing is a sufficient outlet for exercise of the Second Amendment, specifically Florida in Norman v. State, further holding that this outlet validated the State's open carry ban (with exceptions of course). In California, the Ninth, while expressly avoiding the question presented by the open carry ban, that there is no right to concealed carry, relying on those old state law cases you refer to. the issue of whether that means there is a right to openly carry in public is the question at least theoretically presented by Nichols. Nichols, however, that the ban on carrying in sensitive places, such as public buildings, courthouses, and schools is valid, which to my mind leaves very few places one can carry in our cities and towns due to the breadth of the 1000' GFSZ Act limitation. (He also ignores a specific Penal Code provision that purports to authorize CCW in courthouses that all the courts in the state have attempted to overrule by local rule).
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