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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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  #241  
Old 07-19-2017, 1:50 PM
press1280 press1280 is offline
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Originally Posted by TruOil View Post
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).
Other than a one off District Court ruling in IL, the FL Supremes are the ONLY court to hold this. That's why I'm somewhat optimistic it gets cert.
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  #242  
Old 07-19-2017, 3:18 PM
TruOil TruOil is offline
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Originally Posted by press1280 View Post
Other than a one off District Court ruling in IL, the FL Supremes are the ONLY court to hold this. That's why I'm somewhat optimistic it gets cert.
Norman is pretty much the flip side of those old 19th century cases (cited in Heller) holding that concealed carry can be banned as long as open carry is permitted.
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  #243  
Old 07-21-2017, 9:44 AM
mrrabbit mrrabbit is offline
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Originally Posted by TruOil View Post
Norman is pretty much the flip side of those old 19th century cases (cited in Heller) holding that concealed carry can be banned as long as open carry is permitted.
Heller did not condition one upon the other in general...

Read the actual decision please.

- English Tradition > Colonial Era > Post American Revolution Law and Precendent
- Individual Right
- Bearable Arms
- Keep = Own
- Bear = Carry
- Bans on OC do not pass constitutional muster.
- Prohibitons on CCW by the States can be upheld.

=8-|
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  #244  
Old 07-21-2017, 2:16 PM
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Originally Posted by mrrabbit View Post
Heller did not condition one upon the other in general...

Read the actual decision please.

- English Tradition > Colonial Era > Post American Revolution Law and Precendent
- Individual Right
- Bearable Arms
- Keep = Own
- Bear = Carry
- Bans on OC do not pass constitutional muster.
- Prohibitons on CCW by the States can be upheld.

=8-|
Learn reading comprehension, please. I didn't say anything about Heller, only referenced as a ready source of the old 19th century court case citations, cases that are, as I stated, the flip side of Norman, and essentially hold that one method can be banned as long as the other is preserved.

Heller did not make any holdings whatsoever about carry outside the home. Heller cannot be cited for the propositions that you suggest. It did NOT conclude that OC bans do not pass constitutional muster, and it did NOT conclude that prohibitions on CCW are valid. That issue was NOT before it, and so far, it has refused to grant cert in any of the cases that have raised questions about the scope of the second amendment outside the home.
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  #245  
Old 07-21-2017, 3:41 PM
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Originally Posted by mrrabbit View Post
Heller did not condition one upon the other in general...
Correct. That's because Heller did not address carry at all, except to say what it is and to directly imply (due to the "sensitive places" doctrine) that it is protected outside the home.

Heller cited and quoted from cases which addressed carry, but those citations and quotes were in a context that was addressing whether or not the right is an individual one and whether or not the right extends beyond militia duty. Those contexts were not about carry at all and, thus, neither was the Court's intended purpose for the citations/quotes.


To argue that Heller holds that concealed carry is not protected is to insist that Clarence Thomas is incompetent, since he penned a dissent to Peruta's denial of cert (despite knowing that Norman was forthcoming) while also failing to pen a concurrence to Heller. The only way that Thomas can be competent under the current situation is for Heller to not mean that concealed carry is not protected.

One would be a fool to insist that Thomas is incompetent, so to continue to argue that Heller means that concealed carry is not protected is to argue as a fool would. The notion that Heller means that concealed carry is not protected is one that had some plausibility prior to the Peruta dissent to denial of cert, but it has none after that.


It may be that the Supreme Court ends up deciding that concealed carry is, in fact, not protected by the 2nd Amendment. But based on the above, you can bet that Clarence Thomas, at least, will not be among the justices who agree with that decision. If he is as much of an originalist as I expect, then he will recognize that it is Bliss, and not Nunn, which is the most relevant case on that question. After all, "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them", and Bliss is the only carry case that could have been decided by people of the same generation as the founders. His action on Peruta is consistent with that notion.
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The real world laughs at optimism. And here's why.

Last edited by kcbrown; 07-21-2017 at 3:46 PM..
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  #246  
Old 07-21-2017, 6:43 PM
mrrabbit mrrabbit is offline
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I've already provided the page numbers in the Heller v. DC descison as written by Scalia in a previous page.

As I've stated very clearly to the point that a 3rd grader can understand it:

SCOTUS said it, not me.

IT IS THE PUBLIC RECORD.

=8-|
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  #247  
Old 07-21-2017, 7:27 PM
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Originally Posted by mrrabbit View Post
I've already provided the page numbers in the Heller v. DC descison as written by Scalia in a previous page.
And I've already shown the actual content of those pages which shows why your claims about what the Supreme Court said do not match what the Supreme Court itself was actually talking about (and thus saying) on those pages.


Quote:
As I've stated very clearly to the point that a 3rd grader can understand it:

SCOTUS said it, not me.

IT IS THE PUBLIC RECORD.
Yes, it is. And that public record does not say what you claim it says.

A quote from something is not the same as saying it yourself. For instance, I quote you above in this very message, but clearly am not saying what you say in your quote above.


But most importantly, Thomas himself directly signed onto the Heller decision. His dissent to denial of cert in Peruta puts to rest any claim that Heller says that concealed carry is unprotected, since if that really is what Heller says then it would mean that Thomas would agree with the 9th Circuit. Thus, to claim that Heller says that concealed carry is unprotected is to claim that Thomas himself does not understand what Heller says. That is a laughable proposition, to put it mildly.
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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; 07-21-2017 at 7:49 PM..
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  #248  
Old 07-21-2017, 8:22 PM
mrrabbit mrrabbit is offline
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Originally Posted by kcbrown View Post
And I've already shown the actual content of those pages which shows why your claims about what the Supreme Court said do not match what the Supreme Court itself was actually talking about (and thus saying) on those pages.




Yes, it is. And that public record does not say what you claim it says.

A quote from something is not the same as saying it yourself. For instance, I quote you above in this very message, but clearly am not saying what you say in your quote above.


But most importantly, Thomas himself directly signed onto the Heller decision. His dissent to denial of cert in Peruta puts to rest any claim that Heller says that concealed carry is unprotected, since if that really is what Heller says then it would mean that Thomas would agree with the 9th Circuit. Thus, to claim that Heller says that concealed carry is unprotected is to claim that Thomas himself does not understand what Heller says. That is a laughable proposition, to put it mildly.
^^^^^^^^^

That's what you are claiming. I suggest you go back and re-read Justice Thomas's dissent.

He in an abstract or paraphrased manner restated everything noted in Heller - including that which I referenced by page number.

Or do I have to cut and paste his entire dissent right here in this thread?

=8-|
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  #249  
Old 07-21-2017, 8:32 PM
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Originally Posted by mrrabbit View Post
^^^^^^^^^

That's what you are claiming. I suggest you go back and re-read Justice Thomas's dissent.
I did. He said:

Quote:
We should have granted certiorari in this case. The approach taken by the en banc court is indefensible
But the approach taken by the en banc court was to declare that concealed carry is not protected by the 2nd Amendment, which is exactly what you claim Heller says! Why would Thomas object to the 9th Circuit's handling of Peruta if he agreed with the 9th Circuit's conclusions? Remember: he knew Norman was forthcoming (and Nichols, and Young, and Baker, and Grace, etc.), so it's not like Peruta is the Court's last shot at dealing with open carry.

Now, Thomas does go on about how the 9th Circuit ignored the entirety of the scheme in front of it, but nowhere in that prose does he even suggest that the 9th Circuit came to the correct conclusion about concealed carry.

And further, Thomas says directly:

Quote:
This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

(emphasis mine)

and then goes on to restate the Court's definition of carry which includes "in the clothing or in a pocket" (i.e., concealed).

"In some fashion" does not translate only to open carry. If Thomas intended to say that the 2nd Amendment protects only open carry, he would have said as much. To claim otherwise is to claim that Thomas is not capable or willing to say what he actually means.


And he furthermore says:

Quote:
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable.
If open carry was all that the 2nd Amendment protected, then he would have said "as opposed to the right to open carry" in that last. He didn't.


Quote:
He in an abstract or paraphrased manner restated everything noted in Heller - including that which I referenced by page number.
He did more than merely restate in an "abstract or paraphrased manner". He directly stated everything that was noted in Heller about carry: that there is a right to carry in public in some fashion, and that to "bear arms" means "to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in case of conflict with another person". He did not, at any point in his dissent, state or even infer that concealed carry is not within the scope of the right that the 2nd Amendment protects.


Thomas' dissent is completely consistent with the notion that the 2nd Amendment protects carry and is agnostic about the mode. It is not consistent with the notion that only open carry is protected. Both the verbiage of his dissent and the circumstances surrounding it point strongly away from an "only open carry is protected" stance.
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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; 07-22-2017 at 8:39 AM..
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  #250  
Old 07-21-2017, 10:17 PM
mrrabbit mrrabbit is offline
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Originally Posted by kcbrown View Post
I did. He said:



But the approach taken by the en banc court was to declare that concealed carry is not protected by the 2nd Amendment, which is exactly what you claim Heller says! Why would Thomas object to the 9th Circuit's handling of Peruta if he agreed with the 9th Circuit's conclusions? Remember: he knew Norman was forthcoming (and Nichols, and Young, etc.), so it's not like Peruta is the Court's last shot at dealing with open carry.

Now, Thomas does go on about how the 9th Circuit ignored the entirety of the scheme in front of it, but nowhere in that prose does he even suggest that the 9th Circuit came to the correct conclusion about concealed carry.

And further, Thomas says directly:




(emphasis mine)

and then goes on to restate the Court's definition of carry which includes "in the clothing or in a pocket" (i.e., concealed).

"In some fashion" does not translate only to open carry. If Thomas intended to say that the 2nd Amendment protects only open carry, he would have said as much. To claim otherwise is to claim that Thomas is not capable or willing to say what he actually means.


And he furthermore says:



If open carry was all that the 2nd Amendment protected, then he would have said "as opposed to the right to open carry" in that last. He didn't.




He did more than merely restate in an "abstract or paraphrased manner". He directly stated everything that was noted in Heller about carry: that there is a right to carry in public in some fashion, and that to "bear arms" means "to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in case of conflict with another person". He did not, at any point in his dissent, state or even infer that concealed carry is not within the scope of the right that the 2nd Amendment protects.


Thomas' dissent is completely consistent with the notion that the 2nd Amendment protects carry and is agnostic about the mode. It is not consistent with the notion that only open carry is protected. Both the verbiage of his dissent and the circumstances surrounding it point strongly away from an "only open carry is protected" stance.
That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.

I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.

You left out a very particular quote...

Let's see if you'll put it in.

=8-)
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  #251  
Old 07-22-2017, 1:54 AM
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Originally Posted by mrrabbit View Post
That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.



I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.



You left out a very particular quote...



Let's see if you'll put it in.



=8-)


A quote as in something that Thomas quoted, or quote as in something Thomas said directly in the dissent, and which I would be quoting?



Sent from my iPhone using Tapatalk
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
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  #252  
Old 07-22-2017, 8:20 AM
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In honor of the upcoming 50th anniversary of the Mulford Act (signed by governor Reagan on July 28, 1967), Mr. Nichols filed a FRAP Rule 28(j) letter regarding the relationship of that law to his lawsuit.

The letter includes 72 pages of evidence that one component of the motivation for the law was (racial) animus.

http://blog.californiarighttocarry.o...06/92-ROM1.pdf
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  #253  
Old 07-22-2017, 9:14 AM
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Originally Posted by mrrabbit View Post
That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.
So if SCOTUS refuses Norman, what will that do to your view of what Heller says?


Quote:
I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.

You left out a very particular quote...

Let's see if you'll put it in.

=8-)
You're probably referring to this:

Quote:
For example, in Nunn v. State, 1 Ga. 243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251.
That's the closest Thomas comes to saying what you claim he said. But that is not the same as actually saying what you claim he said, most especially when it's followed up with:

Quote:
Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616–617 (1840)
(emphasis mine)

Everywhere else in the dissent, including the above regarding Reid, Thomas goes to great lengths to stress that the protection is of carry in some manner. Not once does he directly say that the protection is of open carry only.


Again, if Thomas agreed with the position you're purporting he has, then he would have every reason to call out that position directly, and every reason to avoid not doing so. If he held the position you claim, he would want lower courts and litigators in lower courts to understand that position so that they would be able to bring a proper case before the Court.


Just look at all of the facts and logic arrayed against your claim:
  • Thomas knew Norman (and other carry cases as well, e.g., Baker, Grace, Young, Nichols, etc.) was forthcoming, so had no reason (if his position is as you claim) to insist that the Court should have taken Peruta in particular, especially since Peruta is no different than previous carry cases he had not dissented from denial of cert on (Woollard especially, which was completely mode-agnostic).
  • Thomas went out of his way to avoid directly stating that the 2nd Amendment protects open carry only, instead stating multiple times that it protects carry in "some fashion" or "some manner", and that while "some regulation of public carry is permissible, an effective ban on all forms of public carry is not". In every such statement, Thomas had the opportunity to state the position you claim he holds directly: that the 2nd Amendment protects open carry, that while some regulation of public carry, including banning concealed carry, is permissible, a ban on open carry is not. But Thomas said no such thing. Thomas would have to be an idiot to intentionally obfuscate the Court's position here, and yet that's exactly what he is doing if your position is correct.
  • Thomas could have stated that the 9th Circuit was correct with respect to its decision that concealed carry is not part of the protected right. But instead, Thomas rebuked the 9th Circuit without saying one word about agreeing with the 9th Circuit in anything it decided.
  • This is a dissent to denial of cert, not an opinion of the Court. It does not require any signatories, so the usual process of manufacturing consent is absent, and therefore what the dissent says is direct and exactly what Thomas intended, no more and no less.
  • The discussion in Heller with respect to Nunn was specifically about two things: (1) the protected right is not unlimited, and (2) the protected right is an individual one unconnected to militia service. That first is the most relevant to Thomas' dissent here.
  • The claim from the open-carry-only crowd is that the reason the Supreme Court has repeatedly denied carry cases is that it was looking for the "right case" and that said "right case" would be one like Norman: a direct challenge to an open carry prohibition without the "taint" of concealed carry. Thomas' dissent blows that position out of the water, because Peruta is no different from the very cases the open-carry-only crowd was claiming the Court rightly refused to hear, and Thomas was one of the Heller signatories.

And what have you backing your position? A single quote from the dissent that must ignore the way everything else in the dissent was said, and especially that everything else was said exactly the way it was intended with no obfuscation, and must likewise ignore the context in which the decision it refers to was used in Heller.



Now, is it possible that you're right? Certainly. It's always possible that Thomas was stupid enough to intentionally obfuscate his meaning in order to reduce the probability that a proper case would appear before the Court, and that he really does believe that only open carry is protected by the 2nd Amendment no matter what else the situation, and that "in some manner" is "code" for "open carry". It's always possible that the Court will grant cert to Norman because it represents the perfect open carry case. But that is not the high probability bet in light of all of the above.
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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; 07-22-2017 at 12:37 PM..
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  #254  
Old 07-23-2017, 10:20 AM
press1280 press1280 is offline
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I would play devil's advocate and ask how you know that a SCOTUS justice knows some other case (which hasn't filed for cert and may not even have been decided by the court below) is coming and specifically takes it into account?
With their workload and the thousands of cases seeking cert I'm skeptical it's on their radar unless it's a super high profile case that's all over the news. Norman wouldn't qualify as one of those.
But I certainly could be wrong. The inner workings of the court are better guarded than National security secrets it seems.
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  #255  
Old 07-23-2017, 12:03 PM
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Originally Posted by press1280 View Post
I would play devil's advocate and ask how you know that a SCOTUS justice knows some other case (which hasn't filed for cert and may not even have been decided by the court below) is coming and specifically takes it into account?
With their workload and the thousands of cases seeking cert I'm skeptical it's on their radar unless it's a super high profile case that's all over the news. Norman wouldn't qualify as one of those.
But I certainly could be wrong. The inner workings of the court are better guarded than National security secrets it seems.
This is a good point, but think it through. When examining a case to determine whether or not to grant cert, it is logical to want to know whether or not there exist other pending cases which are more on point than the one being examined. After all, why waste time on the current case when a better one is around the corner?

The justices have clerks who work for them. They do the research asked of them. Obviously that involves research into settled cases related to the ones the Court has been asked to decide, but because it is logical to want to know which related cases are forthcoming, it follows that the clerks would also be tasked with investigating such things.


While it's possible that the justices are blind to the legal activities around them, it seems unlikely that any justice who actually cares about the subject matter in question would allow himself to be blind to such things.


Note, however, that what we're talking about here is a dissent against denial of cert. That means that waiting for the next case had already been forced on Thomas, so even if the above logic doesn't apply with respect to deciding whether or not to take a given case, the importance of clearly telegraphing the expectations of the Court to later cases remains undiminished. If you know what's coming, you might even be able to specially tailor your message to up and coming litigation, so there is some incentive to know what's coming.
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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; 07-23-2017 at 12:14 PM..
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  #256  
Old 07-24-2017, 7:38 AM
mrrabbit mrrabbit is offline
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Originally Posted by kcbrown View Post
So if SCOTUS refuses Norman, what will that do to your view of what Heller says?




You're probably referring to this:



That's the closest Thomas comes to saying what you claim he said. But that is not the same as actually saying what you claim he said, most especially when it's followed up with:



(emphasis mine)

Everywhere else in the dissent, including the above regarding Reid, Thomas goes to great lengths to stress that the protection is of carry in some manner. Not once does he directly say that the protection is of open carry only.


Again, if Thomas agreed with the position you're purporting he has, then he would have every reason to call out that position directly, and every reason to avoid not doing so. If he held the position you claim, he would want lower courts and litigators in lower courts to understand that position so that they would be able to bring a proper case before the Court.


Just look at all of the facts and logic arrayed against your claim:
  • Thomas knew Norman (and other carry cases as well, e.g., Baker, Grace, Young, Nichols, etc.) was forthcoming, so had no reason (if his position is as you claim) to insist that the Court should have taken Peruta in particular, especially since Peruta is no different than previous carry cases he had not dissented from denial of cert on (Woollard especially, which was completely mode-agnostic).
  • Thomas went out of his way to avoid directly stating that the 2nd Amendment protects open carry only, instead stating multiple times that it protects carry in "some fashion" or "some manner", and that while "some regulation of public carry is permissible, an effective ban on all forms of public carry is not". In every such statement, Thomas had the opportunity to state the position you claim he holds directly: that the 2nd Amendment protects open carry, that while some regulation of public carry, including banning concealed carry, is permissible, a ban on open carry is not. But Thomas said no such thing. Thomas would have to be an idiot to intentionally obfuscate the Court's position here, and yet that's exactly what he is doing if your position is correct.
  • Thomas could have stated that the 9th Circuit was correct with respect to its decision that concealed carry is not part of the protected right. But instead, Thomas rebuked the 9th Circuit without saying one word about agreeing with the 9th Circuit in anything it decided.
  • This is a dissent to denial of cert, not an opinion of the Court. It does not require any signatories, so the usual process of manufacturing consent is absent, and therefore what the dissent says is direct and exactly what Thomas intended, no more and no less.
  • The discussion in Heller with respect to Nunn was specifically about two things: (1) the protected right is not unlimited, and (2) the protected right is an individual one unconnected to militia service. That first is the most relevant to Thomas' dissent here.
  • The claim from the open-carry-only crowd is that the reason the Supreme Court has repeatedly denied carry cases is that it was looking for the "right case" and that said "right case" would be one like Norman: a direct challenge to an open carry prohibition without the "taint" of concealed carry. Thomas' dissent blows that position out of the water, because Peruta is no different from the very cases the open-carry-only crowd was claiming the Court rightly refused to hear, and Thomas was one of the Heller signatories.

And what have you backing your position? A single quote from the dissent that must ignore the way everything else in the dissent was said, and especially that everything else was said exactly the way it was intended with no obfuscation, and must likewise ignore the context in which the decision it refers to was used in Heller.



Now, is it possible that you're right? Certainly. It's always possible that Thomas was stupid enough to intentionally obfuscate his meaning in order to reduce the probability that a proper case would appear before the Court, and that he really does believe that only open carry is protected by the 2nd Amendment no matter what else the situation, and that "in some manner" is "code" for "open carry". It's always possible that the Court will grant cert to Norman because it represents the perfect open carry case. But that is not the high probability bet in light of all of the above.
All the above is a lotta text....

...and wasted.

Because I have made NO POSITIONAL CLAIM about Thomas!

You are committing a strawman.

Furthermore, I have made no positional claims about SCOTUS in Heller. As I have made crystal clear - they said what they said - it's the public record - available for anyone to read - IF THEY ARE HONEST about accurately representing what SCOTUS said.


Now I know the above is frustrating you - you want me to make a claim that YOU can attack.

So I'll give you one . . .

And, hence I'm back to reminding you that perhaps YOU are reading too much into his dissent.


When I read Thomas's dissent in the denial of Cert for Peruta, I come to one conclusion:


He's calling out CA9 for the chicken**** political hacks that they are in a polite and respectful manner - demonstrating the class act that he is in the process!


Why?

He makes crystal clear the following:

1. The history of the case clearly shows a request for some kind of remedy.

2. That CA9 was heading into the same discussion that SCOTUS already held in Heller v. DC. (cited Heller v. DC particulars on bear (carry)).

3. That CA9 would have had to respect Heller v. DC on bear (carry).

4. That CA9 instead grabbed ONE particular only from Heller v. DC - "Prohibiton on Concealed Carry may be upheld. . ." and ran with that - conveniently allowing them to evade Peruta's request for some kind of remedy.


So there's my claim. Thomas isn't pointing out a need for a discussion on carry - SCOTUS already had that discussion - he repeated it in his dissent.

He's calling CA9 a bunch of chicken**** political hacks for refusing to have the same discussion that SCOTUS had in Heller v. DC knowing full welll they would arrive at roughly the same particulars and conclusions.

Actually, I'll put some "English" on my claim for you..

...read my signature!!!


=8-)
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Old 07-24-2017, 8:10 PM
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Not that I want to derail things and get back more specifically to the topic of this thread, but... Mr. Nichols published an article today that included a brief explanation of why he filed his latest FRAP 28(j) letter with the “Notice of Supplemental Authority” regarding the Mulford Act and "animus" and the bearing that has on his lawsuit.

http://newsblaze.com/business/legal/...rry-ban_83003/
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  #258  
Old 07-24-2017, 8:57 PM
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Another "scholarly" work that ignores multiple statutes passed after the 70's. Jesus H Christ
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Old 07-24-2017, 8:59 PM
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All the above is a lotta text....

...and wasted.

Because I have made NO POSITIONAL CLAIM about Thomas!
That's correct, you didn't. I brought up Thomas' dissent as strong evidence that the "open carry is the only protected form of carry" position is almost certainly an incorrect interpretation of Heller (such an interpretation prior to his dissent at least had some plausibility, but that plausibility is gone in the presence of Thomas' dissent).

Since you have no positional claim about Thomas, it therefore follows that you cannot be disagreeing with me on that point, since to disagree with a position that is derived from Thomas' dissent automatically means that you must have a position on Thomas' dissent, as said position must at least include the degree to which Thomas' dissent matters, which in turn requires a position on Thomas' dissent.


Quote:
Furthermore, I have made no positional claims about SCOTUS in Heller.
Oh, yes you have. That's because you said the following:

Quote:
Originally Posted by mrrabbit View Post
- Bans on OC do not pass constitutional muster.
You said that. Not SCOTUS in Heller. Nowhere in Heller does SCOTUS say any such thing. You interpret the Heller decision as meaning the above, but there is no sentence anywhere in Heller where SCOTUS said anything like the above. The Nunn court said that. The Reid court said that. SCOTUS didn't say that, because quoting something is not the same thing as saying it.


But if you truly do not have a position on what SCOTUS said in Heller, then you cannot possibly disagree with any particular interpretation of Heller, since that most certainly requires taking a position on what Heller means, something that you claim you are not doing.


Quote:
And, hence I'm back to reminding you that perhaps YOU are reading too much into his dissent.
Maybe I am, but at the very least, what I read from his dissent is completely logically consistent with the context of what Heller actually says (the decision itself, not that which it quotes) as well as with what Thomas said about the 9th Circuit and with what he didn't say about it (in particular, that he didn't give any indication whatsoever that he agrees with the 9th Circuit about its position on concealed carry).


Quote:
When I read Thomas's dissent in the denial of Cert for Peruta, I come to one conclusion:


He's calling out CA9 for the chicken**** political hacks that they are in a polite and respectful manner - demonstrating the class act that he is in the process!
Yep. Completely agree. But that's not all that Thomas was doing, because his intended audience extends beyond the 9th Circuit.


Quote:
Why?

He makes crystal clear the following:

1. The history of the case clearly shows a request for some kind of remedy.

2. That CA9 was heading into the same discussion that SCOTUS already held in Heller v. DC. (cited Heller v. DC particulars on bear (carry)).

3. That CA9 would have had to respect Heller v. DC on bear (carry).

4. That CA9 instead grabbed ONE particular only from Heller v. DC - "Prohibiton on Concealed Carry may be upheld. . ." and ran with that - conveniently allowing them to evade Peruta's request for some kind of remedy.


So there's my claim. Thomas isn't pointing out a need for a discussion on carry - SCOTUS already had that discussion - he repeated it in his dissent.
Yes, I agree with all of the above. He repeated exactly what Heller both says and implies: that some form of carry must be available to the citizenry. What form? He doesn't say, because SCOTUS didn't say in Heller, either.


Quote:
He's calling CA9 a bunch of chicken**** political hacks for refusing to have the same discussion that SCOTUS had in Heller v. DC knowing full welll they would arrive at roughly the same particulars and conclusions.
What particulars would they arrive at that would yield some form of remedy? Would they strike the open carry ban? Or would they grant the relief requested by the plaintiffs (a declaration that "self defense" is sufficient "good cause" for a concealed carry license)? Or something else? Note that in order to answer that question, you have to take a position on what Heller says.
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Old 07-25-2017, 6:25 AM
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That's correct, you didn't. I brought up Thomas' dissent as strong evidence that the "open carry is the only protected form of carry" position is almost certainly an incorrect interpretation of Heller (such an interpretation prior to his dissent at least had some plausibility, but that plausibility is gone in the presence of Thomas' dissent).

Since you have no positional claim about Thomas, it therefore follows that you cannot be disagreeing with me on that point, since to disagree with a position that is derived from Thomas' dissent automatically means that you must have a position on Thomas' dissent, as said position must at least include the degree to which Thomas' dissent matters, which in turn requires a position on Thomas' dissent.




Oh, yes you have. That's because you said the following:



You said that. Not Heller. Nowhere in Heller does SCOTUS say any such thing. You interpret the Heller decision as meaning the above, but there is no sentence anywhere in Heller where SCOTUS said anything like the above. The Nunn court said that. The Reid court said that. SCOTUS didn't say that, because quoting something is not the same thing as saying it.


But if you truly do not have a position on what SCOTUS said in Heller, then you cannot possibly disagree with any particular interpretation of Heller, since that most certainly requires taking a position on what Heller means, something that you claim you are not doing.




Maybe I am, but at the very least, what I read from his dissent is completely logically consistent with the context of what Heller actually says (the decision itself, not that which it quotes) as well as with what Thomas said about the 9th Circuit and with what he didn't say about it (in particular, that he didn't give any indication whatsoever that he agrees with the 9th Circuit about its position on concealed carry).




Yep. Completely agree. But that's not all that Thomas was doing, because his intended audience extends beyond the 9th Circuit.




Yes, I agree with all of the above. He repeated exactly what Heller says and implies: that some form of carry must be available to the citizenry. What form? He doesn't say, because SCOTUS didn't say in Heller, either.




What particulars would they arrive at that would yield some form of remedy? Would they strike the open carry ban? Or would they grant the relief requested by the plaintiffs (a declaration that "self defense" is sufficient "good cause" for a concealed carry license)? Or something else? Note that in order to answer that question, you have to take a position on what Heller says.
I don't have to take a position on what Heller says.

CA9 has to take a position on what Heller says.

The already did with Peruta, cherry picking to avoid the request for some kind of remedy AND in doing so, agreeing with SCOTUS the prohibitions on concealed can be upheld . . .

. . . and SCOTUS denied Cert on appeal.


Now CA9 has to take a position again on what Heller says in regards to Nichols loaded open carry case.

If past performance is a promise of future returns (just being funny here) CA9 will probably play loose with the "narrow restrictions" theme in Heller and strike down the ban on Unloaded Open Carry - but leave in place the ban on Loaded Open Carry - betting that SCOTUS will deny Cert if Nichol's appeals.


Perhaps Nichol's is reading my mind. Perhaps Nichol's is sneaking around Calguns and reading this thread. Perhaps his filing of FRAPS letters reminding CA9 of the racial animus behind the Loaded Open Carry ban is designed specifically to keep CA9 from grabbing Unloaded Open Carry and running with it to the exclusion of all else.


We'll find out...

=8-|
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Old 07-25-2017, 8:04 AM
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I don't have to take a position on what Heller says.
Good. Then you don't disagree with me on what I say about Heller, do you? Since to disagree with me on what I say about Heller, you do have to take a position on what Heller says.


Quote:
CA9 has to take a position on what Heller says.
Indeed it does.


Quote:
The already did with Peruta, cherry picking to avoid the request for some kind of remedy AND in doing so, agreeing with SCOTUS the prohibitions on concealed can be upheld . . .

. . . and SCOTUS denied Cert on appeal.


Now CA9 has to take a position again on what Heller says in regards to Nichols loaded open carry case.

If past performance is a promise of future returns (just being funny here) CA9 will probably play loose with the "narrow restrictions" theme in Heller and strike down the ban on Unloaded Open Carry - but leave in place the ban on Loaded Open Carry - betting that SCOTUS will deny Cert if Nichol's appeals.
Actually, I expect CA9 will uphold the ban under "intermediate scrutiny" and claim that while concealed carry does not fall under the protection of the 2nd Amendment, it is nevertheless a manner of "bear" and thus satisfies the requirement that "some manner" of carry be "available".


Quote:
Perhaps Nichol's is reading my mind. Perhaps Nichol's is sneaking around Calguns and reading this thread. Perhaps his filing of FRAPS letters reminding CA9 of the racial animus behind the Loaded Open Carry ban is designed specifically to keep CA9 from grabbing Unloaded Open Carry and running with it to the exclusion of all else.


We'll find out...

=8-|
We will indeed, and I think it's going to be an interesting show, to say the least.
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Old 07-25-2017, 4:13 PM
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Actually, I expect CA9 will uphold the ban under "intermediate scrutiny" and claim that while concealed carry does not fall under the protection of the 2nd Amendment, it is nevertheless a manner of "bear" and thus satisfies the requirement that "some manner" of carry be "available".
I agree that the Ninth will likely uphold the open carry ban--I find it inconceivable that they would suddenly declare their is a right to openly carry loaded firearms in public, even with Mr. Nichols' narrow reading of the scope or breadth of areas in which that right might be exercised. However, having painted itself into a conceptual corner with Peruta by declaring that there is no right to carry a concealed weapon (and thus no right to a CCW permit), how can it logically contend that the exercise of the Second Amendment is adequately protected by carrying in a manner for which there is no right?

I know I know...this is kind of awkward but...If a CCW is not a right, then one is not exercising a right but a privilege when carrying a concealed weapon. So how can one exercising a right that is available only as a privilege? You can't--the Second Amendment has been effectively reduced to a privilege exerciseable only in the discretion of the government. So how will the Ninth avoid this conundrum?

As you said, through the exercise of intermediate scrutiny and a finding that the exercise of the right may be regulated (into an unstated nonexistence) "in the interest of public safety." So instead of saying that CCW is an adequate protection of the right, it will hold that the exercise is limited to unincorporated areas of the state, for which a right to open loaded carry exists--for the children. In short, it will massively expand all GFSZs into all incorporated areas of the state, but argue, unpersuasively, that this is really not a "ban" at all. If THAT doesn't get the attention of the Supreme Court, along with today's decision in Wrenn, nothing will.
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Old 07-25-2017, 6:52 PM
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The 9th will use the same reasoning that was used in the dissent of the Wren v DC appeal, namely that Heller said the defense of self, family and property is "most acute" in the home and conversely "not acute" or of less import outside of the home, therefore it does not impinge the "core" of the right. As such both concealed and open carry can be regulated (out of existence).

Intellectually dishonest at its core.
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Old 07-25-2017, 11:43 PM
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The 9th will use the same reasoning that was used in the dissent of the Wren v DC appeal, namely that Heller said the defense of self, family and property is "most acute" in the home and conversely "not acute" or of less import outside of the home, therefore it does not impinge the "core" of the right. As such both concealed and open carry can be regulated (out of existence).

Intellectually dishonest at its core.
This will be difficult considering in Nichols' case it's a total ban on OC. They would have to hold OC is the "right" but that a total ban is permissible under intermediate scrutiny (BIG stretch), or, hold the 2A has no application in public (and split with CA7).
Another route they may try is the good old "Let's wait for SCOTUS to rule on public carry before we make any call on this."
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Old 07-26-2017, 7:29 AM
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The only reasoning the CA9 will give is "because we say so." That seems to be it's SOP on anything it wants to make into reality. Since when has the 9th ever shown itself to care about being judicially sound in its decisions.
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  #266  
Old 07-26-2017, 12:57 PM
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This will be difficult considering in Nichols' case it's a total ban on OC. They would have to hold OC is the "right" but that a total ban is permissible under intermediate scrutiny (BIG stretch), or, hold the 2A has no application in public (and split with CA7).
Another route they may try is the good old "Let's wait for SCOTUS to rule on public carry before we make any call on this."
The thing is, it is not a total ban. along with numerous exceptions, one can carry a loaded firearm openly when dealing with an emergency between the time you call 911 and the time it takes for the police to arrive (oh joy!), and you can openly carry loaded firearms in the vast forests and parks in this state--millions of acres of land for you to exercise your right! That should be enough! (*cough*) But they can make the same argument that D.C. made in opposing the Wrenn case--in which, as you may have noted, California filed or joined an amicus brief--where it was argued that carry is permissibly banned in dense public areas in the overweening interest of public safety.

I don't think there is any way the court can duck the issue presented by waiting for SCOTUS to act.

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Old 07-26-2017, 1:41 PM
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The thing is, it is not a total ban. along with numerous exceptions, one can carry a loaded firearm openly when dealing with an emergency between the time you call 911 and the time it takes for the police to arrive (oh joy!), and you can openly carry loaded firearms in the vast forests and parks in this state--millions of acres of land for you to exercise your right! That should be enough! (*cough*)
The county is incorporated, so no OC permit available. I also recall in Heller that DC was trying to make a big deal about an emergency clause which protected you if you were in the middle of an assault.
Big stretches all the way.
IMO he'll win, however CA9 will hint strongly that OC can require a permit which can also be may-issue(see Peruta concurrence which said even if CCW were protected under the 2A that they still would find may-issue permissible).
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Old 07-31-2017, 12:03 PM
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The county is incorporated, so no OC permit available. I also recall in Heller that DC was trying to make a big deal about an emergency clause which protected you if you were in the middle of an assault.
Big stretches all the way.
IMO he'll win, however CA9 will hint strongly that OC can require a permit which can also be may-issue(see Peruta concurrence which said even if CCW were protected under the 2A that they still would find may-issue permissible).

Counties are not incorporated, only cities and towns. And under both prior and current law, no permits were/are required for carry out in the unincorporated forests and deserts. And yes, there is an emergency clause in California law, but I am too busy to look up the Penal Code section. As I recall, it allows carry in public to defend against an immediate threat of harm between the time the police are called and the police arrive. The law presumes, I suppose, that one has exited one's premises with a firearm while responding to an imminent threat of harm, e.g., your significant other/child is being violently assaulted in the street.

the issue I ahve with Nichols' approach is that it seeks to allow open carry in any place that is not a sensitive place--but the problem with that is the Gun free School Zone Act, which prohibits that open carry of pistols within 1000' of any school (there is some inconsistent language that suggests that open carry of a rifle is still not banned under the GFSZ Act, which is kind of weird.) the fact is--and I've seen maps of San Francisco and Fresno--that once you map out all the school exclusion zones, in most places you can't even cross town with an exposed handgun without violating the law. I personally, absent a CCW, could not leave my house without violating that law even if Nichols wins.

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Old 07-31-2017, 12:16 PM
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Paladin, you really need to vary things up.

If you're going to continue to post "sandwich and a nap"
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Old 07-31-2017, 2:14 PM
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Counties are not incorporated, only cities and towns. And under both prior and current law, no permits were/are required for carry out in the unincorporated forests and deserts. And yes, there is an emergency clause in California law, but I am too busy to look up the Penal Code section. As I recall, it allows carry in public to defend against an immediate threat of harm between the time the police are called and the police arrive. The law presumes, I suppose, that one has exited one's premises with a firearm while responding to an imminent threat of harm, e.g., your significant other/child is being violently assaulted in the street.

the issue I ahve with Nichols' approach is that it seeks to allow open carry in any place that is not a sensitive place--but the problem with that is the Gun free School Zone Act, which prohibits that open carry of pistols within 1000' of any school (there is some inconsistent language that suggests that open carry of a rifle is still not banned under the GFSZ Act, which is kind of weird.) the fact is--and I've seen maps of San Francisco and Fresno--that once you map out all the school exclusion zones, in most places you can't even cross town with an exposed handgun without violating the law. I personally, absent a CCW, could not leave my house without violating that law even if Nichols wins.
Thanks, I meant to say cities. As far as the GFSZ I'll have to look at the briefs again, I thought there was some part of the CCW law that was being challenged. OC would be pretty useless in much of SF and LA (unless they're going to extend sanctuary policies to open carry-NOT).
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Old 08-01-2017, 12:42 PM
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Thanks, I meant to say cities. As far as the GFSZ I'll have to look at the briefs again, I thought there was some part of the CCW law that was being challenged. OC would be pretty useless in much of SF and LA (unless they're going to extend sanctuary policies to open carry-NOT).
Mr. Nichols is NOT challenging the GFSZ Act. Said so himself on another forum, so I assume that to be accurate.
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Old 08-01-2017, 2:58 PM
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Mr. Nichols is NOT challenging the GFSZ Act. Said so himself on another forum, so I assume that to be accurate.
Wait a sec, he can't be challenging the GFSZ act, that's a Federal law. Does CA have a 1000ft-from-schools law that can only be exempted with a CCW?
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Old 08-01-2017, 3:17 PM
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Yes, CA has its own GFSZ.
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Old 08-03-2017, 7:19 PM
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I agree that the Ninth will likely uphold the open carry ban--I find it inconceivable that they would suddenly declare their is a right to openly carry loaded firearms in public, even with Mr. Nichols' narrow reading of the scope or breadth of areas in which that right might be exercised. However, having painted itself into a conceptual corner with Peruta by declaring that there is no right to carry a concealed weapon (and thus no right to a CCW permit), how can it logically contend that the exercise of the Second Amendment is adequately protected by carrying in a manner for which there is no right?
It can't. But that doesn't mean it won't.

It can, and thus (absent some other alternative, which could easily be the one you point to below) will, claim that even though concealed carry itself is not a right, its "availability" is sufficient to "satisfy" the right. It will in essence claim that a right is not infringed as long as there is some way for some subset of the people (no matter how small) to exercise it, even if the means available to them is not, itself, a right.


Quote:
I know I know...this is kind of awkward but...If a CCW is not a right, then one is not exercising a right but a privilege when carrying a concealed weapon.
The 9th Circuit would (at least absent some other "better" alternative) argue otherwise. It will claim that one needn't have access to something that is a right in order to exercise a right. What it will argue is, of course, going to be inherently contradictory. But that is how this court rolls.


Quote:
So how can one exercising a right that is available only as a privilege? You can't--the Second Amendment has been effectively reduced to a privilege exerciseable only in the discretion of the government. So how will the Ninth avoid this conundrum?
In reality, it won't. It will claim to, but it won't.


Quote:
As you said, through the exercise of intermediate scrutiny and a finding that the exercise of the right may be regulated (into an unstated nonexistence) "in the interest of public safety." So instead of saying that CCW is an adequate protection of the right, it will hold that the exercise is limited to unincorporated areas of the state, for which a right to open loaded carry exists--for the children. In short, it will massively expand all GFSZs into all incorporated areas of the state, but argue, unpersuasively, that this is really not a "ban" at all. If THAT doesn't get the attention of the Supreme Court, along with today's decision in Wrenn, nothing will.
I won't be surprised if the 9th Circuit argues that way, either.

There are multiple ways the 9th Circuit can argue the issue, but every single one of them will eviscerate the right while simultaneously claiming that the right remains intact.
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Old 08-03-2017, 9:43 PM
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Originally Posted by kcbrown View Post
It can't. But that doesn't mean it won't.

It can, and thus (absent some other alternative, which could easily be the one you point to below) will, claim that even though concealed carry itself is not a right, its "availability" is sufficient to "satisfy" the right. It will in essence claim that a right is not infringed as long as there is some way for some subset of the people (no matter how small) to exercise it, even if the means available to them is not, itself, a right.




The 9th Circuit would (at least absent some other "better" alternative) argue otherwise. It will claim that one needn't have access to something that is a right in order to exercise a right. What it will argue is, of course, going to be inherently contradictory. But that is how this court rolls.




In reality, it won't. It will claim to, but it won't.




I won't be surprised if the 9th Circuit argues that way, either.

There are multiple ways the 9th Circuit can argue the issue, but every single one of them will eviscerate the right while simultaneously claiming that the right remains intact.
They can strike down the ban on UNLOADED open carry - claiming that satisfies Heller....and ignore Nichol's request for action on Loaded Open Carry.

Nichol's loses....in CA9...

UNLOADED open carry IS regulated open carry....it's a win-win for the 9th....

Nichol's loses...in SCOTUS...

...as SCOTUS will probably go along with CA9s bet and deny cert.

=8-|
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  #276  
Old 08-04-2017, 9:21 AM
Diamondi88 Diamondi88 is offline
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CA9 will just repeat "Open carry is not the protected right in the 2nd amendment and therefore can be regulated into none existence" It will not review the case in light of Peruta. They will ignore Peruta ruling altogether because it will not be revisited by the court. This case will not cause a review of the Entirety of the scheme to allow some form of carry be available to the common person. This case has the same handicap as Peruta did, and CA9 will abuse logic to come to the same conclusion.

just my 2c.
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  #277  
Old 08-04-2017, 11:03 AM
mrrabbit mrrabbit is offline
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Quote:
Originally Posted by Diamondi88 View Post
CA9 will just repeat "Open carry is not the protected right in the 2nd amendment and therefore can be regulated into none existence" It will not review the case in light of Peruta. They will ignore Peruta ruling altogether because it will not be revisited by the court. This case will not cause a review of the Entirety of the scheme to allow some form of carry be available to the common person. This case has the same handicap as Peruta did, and CA9 will abuse logic to come to the same conclusion.

just my 2c.
You are conveniently or purposely omitting something:

1. CA9 cherry picked Heller v. DC in the Peruta case and ran with it:

"Prohibitions on concealed carry can be upheld . . ." (paraphrasing)

They ducked ALL ELSE from Heller v. DC which was their strategy to get around Peruta's request for "some form of remedy (paraphrasing)".


2. Logic suggests that CA9 is well aware of Heller v. DC's comprehensive discussion on:

a. keep (to own)
b. bear (to carry)


3. Therefore, CA9 is well aware that Open Carry is the default mode by which the right is freely exercised and the 600+ years of tradition and precedent as covered in Heller v. DC.


4. And thus we arrive at the cold, manipulative and cruel logic of the "devil", the sophist, the politician with an agenda - or as in the case of CA9 - activist judges:

"The devil is in the details...."


As I've stated many times here before - even when they appear to decide in our favor - it's still not a win. The "devil" in the details will always reveal the politicians, bureaucrats and judges acting in a manner that protects the "system" as THEY see it and run it.


The Uniparty a.k.a., the Statist party simply will not tolerate us peons enjoying Loaded Open Carry.


I do not see Mr. Nichol's getting what he wants on LOC.


The Uniparty a.k.a., the Statist party simply will not tolerate us peons enjoying Unloaded Open Carry UNMOLESTED.


All they have to do is strike down the most recent ban on Unloaded Carry setting the clock back to 2012.


a. Anyone practicing UOC will be constantly stopped and told to present their papers.
b. Anyone practicing UOC will be constantly subject to a "serial" check.
c. Anyone practicing UOC will be constantly subject to "SWATting".
d. Anyone practicing UOC who tries to fight back using California's Penal Code provision for Criminal Harassment will simply discover that for them - it's printed on the same toilet tissue that the the Constitutions is printed on.


The activists don't just cherry pick the content - they cherry pick the type of paper it's printed on.


Striking down UOC is a loss for Nichol's, NOT a win.
Appealing inaction on LOC is a loss for Nichol's, NOT a win.

SCOTUS will say, open carry is open carry, and deny cert.


The Uniparty a.k.a., the Statist party wins in my scenario. There's no need to go the total ban route. Doing so would likely result in SCOTUS taking it up on appeal which is riskier.

These activist judges on CA9 aren't stupid!

=8-|
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  #278  
Old 08-04-2017, 12:35 PM
Diamondi88 Diamondi88 is offline
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mrrabbit, I see where you are going with your argument and respect your opinion on it. And you maybe completely right.

However, I believe the CA9 will narrow the question so tightly as to be able to say that LOC is not the right. They will not order UOC or CCW as relief. They will say "You will have to seek legal remedy to address that issue apart from this case". Just like they refused to look at the open carry ban in Peruta.


It is the whole scheme that needs to be challenged, not the bits and pieces.
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  #279  
Old 08-04-2017, 2:28 PM
mrrabbit mrrabbit is offline
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Quote:
Originally Posted by Diamondi88 View Post
mrrabbit, I see where you are going with your argument and respect your opinion on it. And you maybe completely right.

However, I believe the CA9 will narrow the question so tightly as to be able to say that LOC is not the right. They will not order UOC or CCW as relief. They will say "You will have to seek legal remedy to address that issue apart from this case". Just like they refused to look at the open carry ban in Peruta.


It is the whole scheme that needs to be challenged, not the bits and pieces.
Whole scheme was covered in Heller v. DC by SCOTUS in 2008.


Florida and California are thumbing their noses at SCOTUS - cause they want CCW.

NRA, SAF, GOA, GOC, CRPA, Calguns by a large percentage keep pushing the narrative that carry wasn't discussed by SCOTUS in Heller because they too wan't CCW.

One is outright defiance of SCOTUS to push an agenda.

The other is disrespect of SCOTUS via purposeful misrepresentation to push an agenda.


Now while SCOTUS did cover the "scheme" in Heller v. DC for carry in general including Open Carry and Concealed Carry treatment, they did not go into the "devil" in the details of "how" open carry was exercised and how "concealed carry" was exercised by type or level in terms of regulation - i.e., from an equal protection viewpoint.


And that ladies and gentleman is the "hole" that CA9 can take advantage of.


The can strike down the ban on Unloaded Open Carry - consider that as satisfying Heller v. DC - and ignore Nichol's request or dismiss it outright where Loaded Open Carry is concerned.


And they'll get away with it.


Once again, CA9 activist judges ARE NOT STUPID. They know full well that to go a complete ban route IS TO INCREASE THE LIKELIHOOD OF ACCEPTANCE BY SCOTUS ON APPEAL.


I highly doubt they wan't to risk SCOTUS saying:


"We meant what we said in Heller v. DC! You can't ban open carry!"


...therefore striking down the bans on Unloaded Open Carry AND Loaded Open Carry.


Smart activist judges are going to "cherry pick" on Unloaded Open Carry and take off running with that particular only.


They did exactly that in Peruta....which means they won't hesitate to do it again on Nichol's.


As I've said already, Nichol's loses.

=8-|
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Last edited by mrrabbit; 08-04-2017 at 2:30 PM..
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  #280  
Old 08-05-2017, 4:30 AM
press1280 press1280 is offline
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UOC was never asked for by Nichols. CA9 will either give him some form of LOC or nothing at all. I don't see the court granting a remedy that simply isn't being even suggested by either Nichols or the state.

The easiest way out for the court is to strike the LOC ban but map out a blueprint for the state to simply make LOC permits available statewide, but that those can follow the may-issue scheme just like CCW. Just look to the concurrence in the en banc opinion of Peruta where they stated that even if CCW were protected under the 2A, that the may-issue scheme was still constitutional. This tells me those same judges will do the same under a may-issue OC scheme.
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