[hoffmang]

All,

There have been many debates about open carry in California. CGF has had a couple of reasons for opposing it in the past as has been more than hashed out. The main concern was that it would lead to a modification in the law that would make 12050 licenses not valid for LOC. Illicit LOC has already made that fear come to pass and thus that opposition lightens. The other concerns remain and are simply about incorporation and the one other law that UOC could force the passage of.

However, I want to point out some evidence that supports a point I had tried to make earlier about focusing on the right to open carry as being the only right to carry while potentially sacrificing constitutionalizing shall issue concealed carry licensing.

I had predicted that if California went open carry only, it would become a moot right in practice as stores all over California would move to ban OC. So far I'm 3 for 4 on that prediction with two coffee houses and CPK banning U/LOC in their stores. I'm pleased with Starbucks (who came from WA where carry has been LOC and shall issue CCW for a while) so far holding back from Brady/LCAV pressure. I do think this entire bruhaha echos the Greensboro Woolworth's Lunch Counter sit-ins that started 50 years and 5 days ago where gun owners are seeking to not be discriminated against.

That said, I'd ask that those of you who were confident that LOC was the right thing to aim for to take recent events - as predicted - into consideration as you think about what we all are strategically trying to accomplish.

I don't want this to be a bash U/LOC thread. I want to seriously engage those who think that LOC is a better outcome with the early reality we're watching. I hope to change some minds - not radically but gently. I'm quite concerned we can not obtain Pruneyard for the 2A in California. I hope folks here and at OCDO can now better understand my fear.

-Gene

[ChrisO]

I think shall issue is a better option but would love to be able to do either really. While I am not the most knowledgeable in this 2a stuff I'm trying my best to follow the cause of CG and have not open carried. I do agree with you on these points especially having been brought to light by recent events.

[dantodd]

Why is LOC better than shall issue? It isn't. BUT if we get LOC as a minimum standard then we will get shall issue because of the OTHER clause in the 14th amendment that gives up equal protection. If bearing is a constitutionally protected right then the state cannot restrict it for some and give it to others.

There is no way that retired cops and judges will give up CCW. If they are given a permit to carry the state would have to show a compelling interest (at the very least) for giving them that right while preventing you and me from the exercising the same. Since these people will have the ability to protect themselves by OCing they can hardly claim a NEED to carry concealed for self-defense, which is the protected right at hand.

However; if "any form of bearing" becomes the base protected right there will not be any political pressure to allow OC in lieu of CCW. Because those with all the political clout have little interest in it.

In other words; Securing Open Carry will ensure Concealed Carry is accessible while if Concealed Carry is protected we will not necessarily get Open Carry.

Also; if "bearing" becomes a protected right stores will not be able to discriminate against people carrying firearms. If Open Carry is the protected standard then the minimum exercise of the second amendment will be to carry a firearm for self-defense. How can a public restaurant or store prevent me from the minimal exercise of the second amendment any more than they could prevent me from entering their store for being black, or for voting, or for my membership in a particular political or social group? The short answer is that they can't. If self-defense is the right protected by 2A then we cannot be forced to give up that right to enter a public establishment.

[hoffmang]

Originally Posted by dantodd

In other words; Securing Open Carry will ensure Concealed Carry is accessible while if Concealed Carry is protected we will not necessarily get Open Carry.

LOC first means that stores will post "no guns" signs. Are you willing to violate store owner's property rights even surreptitiously?

-Gene

[dantodd]

Originally Posted by hoffmang

LOC first means that stores will post "no guns" signs. Are you willing to violate store owner's property rights even surreptitiously?

-Gene

I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

For the time being I will leave my personal political (how things would be if Dan ran the world) opinions out of the conversation.

[hoffmang]

Originally Posted by dantodd

I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

Ignoring the California Constitution, stores can eject you for picketing, leafleting, or assembling peaceably as long as it is not race (or other protected class) discriminatory. Why would the Second Amendment be different than the First?

-Gene

[dantodd]

Originally Posted by hoffmang

Ignoring the California Constitution, stores can eject you for picketing, leafleting, or assembling peaceably as long as it is not race (or other protected class) discriminatory. Why would the Second Amendment be different than the First?

-Gene

Glad you brought that up. There are degrees of speech just as there are degrees of keeping and bearing arms. Heller has identified self-defense as the core of 2A. The most valued of the rights protected therein. Therefore a store would have to show an interest in prohibiting the exercise of that right that outweighs my right to self-defense.

It is a balancing of rights issue. In most of the examples you give above the activities will interfere with the ability of the property owner to conduct their business and will deprive them of their fifth amendment right against having their property "taken" (in this case used by someone else in a way not consistent with their design for the property.) If you balance this against the picketers or pamphleteers right to expressive speech you find that the business owner cannot effectively conduct his business without the use of his property but in most cases those wishing to exercise their free speech rights can very effectively do so on the sidewalk or in another permissible place. Making the same comparison with OC or CCW the scale goes the other way. The presence of a gun on the person is necessary for the exercise of one's 2A right to self-defense (the core of 2A) while the presence of the gun doesn't constitute a taking property in any significant manner, what little inconvenience it might cause by "offending" the business owner will, imo, carry little weight when balanced against the very core of 2A.

Unfortunately I will acknowledge near zero familiarity with the relevant 1A case law. I will do a little reading and see if I can find case law that supports my assertions.


The really short answer is that shutting up for the time it takes to eat a meal or shop doesn't take away your right to free speech. Disarming completely strips you of your right to self-defense. One right can be temporally shifted, the other cannot.

[artherd]

Originally Posted by dantodd

I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

If a library can enforce "no talking" you better believe a store can enforce "no guns"

[dantodd]

Originally Posted by artherd

If a library can enforce "no talking" you better believe a store can enforce "no guns"

Not that I spend much time in libraries these days but I don't recall one ever having a no talking rule. In the past, when I've used libraries, the rule was always to speak softly so as not to create a distraction for other patrons. I could live with the same limitations from a restaurant etc. What little I am there these days is for kids' story time or just in the kids' section. How the times they are a'changing.

[Mulay El Raisuli]

Originally Posted by artherd

If a library can enforce "no talking" you better believe a store can enforce "no guns"

The problem with this example being that libraries don't have (and so don't enforce) a "no talking" policy. They have a "no talking loudly" (and so disruptively) policy. Which is quite a bit different.


The Raisuli

[kcbrown]

Originally Posted by artherd

If a library can enforce "no talking" you better believe a store can enforce "no guns"

A library can enforce "no talking" (more generally, "no loud talking") because it is (or, at least, can be strongly argued as) necessary to the furtherance of their business purpose.

Can the same be said in the general case for restrictions on carry?

What you seem to be arguing is that a public business can rightly disallow any class of people from its premises for arbitrary reasons. So by your argument, for instance, any publicly-facing business can for no reason related to the furtherance of its business reject people wearing jeans, or wearing a cap, or wearing makeup, or who are shorter than 6 feet tall, or who weigh more than 150 pounds, etc.

Is that really what you're arguing?

I won't be all that surprised if such arbitrary restrictions on patronage are actually allowed, but I wanted to make what you guys are arguing here crystal clear.

[B Strong]

Originally Posted by dantodd

I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

For the time being I will leave my personal political (how things would be if Dan ran the world) opinions out of the conversation.

Dan, a private property owner, even property with limited public access, can restrict the activites of the public on those premises or property.

Here in California right now there are landlords that restrict the type of vehicles (motorcycle prohibitions, recreational vehicles as well in some cases) that can be parked on their property, regardless of state registration, insurance and licensing, and it's 100% legal.

It's no problem for a property owner to prohibit the carrying of firearms on their property, incorporation or no.

[dantodd]

Originally Posted by B Strong

Dan, a private property owner, even property with limited public access, can restrict the activites of the public on those premises or property.

Yes, but the case law surrounding Unruh is pretty clear that they cannot do so in just any manner they choose.

[anthonyca]

Originally Posted by dantodd

I do not believe that post-incorporation of a right to self-defense (defined as bearing a handgun) that a store offering public services can force you to give up that right.

For the time being I will leave my personal political (how things would be if Dan ran the world) opinions out of the conversation.

There was a thread here by a female from socal I believe about her visit to a "free state" where shall issue is standard and LOC requires nothing but not being a prohibited person. She was shocked to see most stores and resturaunts had "no firearms" signs.

Guns are the one issue that will make the Cali legislature and courts respect property rights.

[Roadrunner]

Originally Posted by anthonyca

There was a thread here by a female from socal I believe about her visit to a "free state" where shall issue is standard and LOC requires nothing but not being a prohibited person. She was shocked to see most stores and resturaunts had "no firearms" signs.

Guns are the one issue that will make the Cali legislature and courts respect property rights.

Could those "No firearms" signs just be a requirement to get liability insurance in those states? If it is, couldn't the state make it illegal for an insurance company to make that a provision of getting insurance? Or perhaps the NRA could begin selling business insurance that trumps that provision. Just throwing stuff out there.

[Telperion]

Originally Posted by hoffmang

LOC first means that stores will post "no guns" signs. Are you willing to violate store owner's property rights even surreptitiously?

-Gene

Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

[hoffmang]

Originally Posted by Telperion

Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

I expect that shall issue concealed licenses would lead to a vast majority of gunowners carrying concealed. LOC only first would lead to some gunowners (which is larger than the current UOC crowd) carrying openly - leading to the "no guns" signs at even more places faster than the 3 current chains...

-Gene

[ddestruel]

Originally Posted by hoffmang

I expect that shall issue concealed licenses would lead to a vast majority of gunowners carrying concealed. LOC only first would lead to some gunowners (which is larger than the current UOC crowd) carrying openly - leading to the "no guns" signs at even more places faster than the 3 current chains...

-Gene

This will happen if we are not careful. it is already evolving around the state. careful what you wish for or pursue. Sometimes silent integration is your best asset.

U/LOC seriously risks raising public awareness at the wrong time prior to certain court rulings risks putting in place many new barriers that alot of people under estimate the repercussions of.

[G17GUY]

Originally Posted by Telperion

Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

A big proponent of the open carry movement is folks that could not get CCW. If they would wait they could have their cake and eat it too.

[SP1200]

Originally Posted by Telperion

Elaborate on the bold? I would think LOC at any point in time means "no guns" signs in (sub)urban California.

Yea. And then "No Gun" zones in every city...

Gene as much as I would love to enforce my rights, I understand the movement and direction of CGF, and therefor will not participate in any ULOC events. I trust the legal staff of CG and CGF and will wait patently, and I encourage others to do so...

[Quser.619]

Originally Posted by SP1200

Yea. And then "No Gun" zones in every city..

I'd also imagine that a dramatic influx of people LOC/UC'ing could also be used to justify the "safe" or gun-free zones... Imagine the laws changed from 1000' to 2000'? 3000'?

I for one agree w/ Gene, get Incorporation 1st! Then attack bad law w/ a recognized RTKBA. Remove the damn platform being used to incrementally limit our rights, force the opposition to justify any further transgressions & attack, methodically, the state imposed limits as they are... hopefully preventing any further CA mandated limitations. W/O McDonald & an unassailable argument to act upon, everything else is moot. W/ McDonald, CA is automatically limited in whatever limitations proposed. I'd also imagine w/ a greater amount of items being knocked out while in committee for fear of further case laws & even greater losses of power, if nothing else.

I agree that all Open Carry should be suspended & don't wish to stimy those that feel or believe otherwise, their support & apparent motivation are needed... but gaining this foothold is by far more purposeful towards achieving our goals & weakening our opponents overall & it doesn't risk further laws being put into place before the decision arrives.

[GuyW]

Originally Posted by hoffmang

I'm quite concerned we can not obtain Pruneyard for the 2A in California.

Well....post-McDonald, how does one differentiate the 1st Am from the 2nd Am in a Pruneyard context?

.

[hoffmang]

Originally Posted by GuyW

Well....post-McDonald, how do one differentiate the 1st Am from the 2nd Am in a Pruneyard context?

Pruneyard relies upon the California Constitution's equivalent "First Amendment" rights. Seeing as the California Constitution has no right to arms...

-Gene

[GuyW]

Originally Posted by hoffmang

Pruneyard relies upon the California Constitution's equivalent "First Amendment" rights. Seeing as the California Constitution has no right to arms...

-Gene

But the US Constitution is the law of the land....

.

[hoffmang]

Originally Posted by GuyW

But the US Constitution is the law of the land...

Let me try again. Pruneyard was decided based on the California Constitution and not the Federal Constitution. The US Supreme Court has ruled that the Federal First Amendment is not applicable inside a shopping center - Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). However, SCOTUS agreed with the California Supreme Court that California's Constitutional right to free speech was more broad than the Federal First Amendment. Since there is no RKBA in the California Constitution, there will be no Pruneyard equivalent to the right to carry in California.

-Gene

[GuyW]

Originally Posted by hoffmang

Let me try again. Pruneyard was decided based on the California Constitution and not the Federal Constitution.... Since there is no RKBA in the California Constitution, there will be no Pruneyard equivalent to the right to carry in California.

-Gene

LOL - let ME try again:

The CA Constitution says that (paraphrased from memory) "the US Constitution is the law of the land". Is that meaningless legal drivel?

Since SCOTUS says the RKBA is indeed alive and well in the US Constitution, and the CA Constitution acknowledges the supremacy of the US Constitution, CA cannot continue to ignore or argue that it can ignore RKBA....a concept otherwise known as "incorporated by reference"....
.
.

[7x57]

Originally Posted by hoffmang

Pruneyard relies upon the California Constitution's equivalent "First Amendment" rights. Seeing as the California Constitution has no right to arms...

At least not one capable of withstanding judicial disapproval, anyway.

7x57

[My375hp302]

Concealed carry is the only way to go. I understand we all feel opressed and want to lash out at our state government by parading around with our uloaded guns on (IE paper weights) and lets be honest, that's what your doing. The only thing you are accomplishing is pissing off the average people that didn't care one way or the other on the issue or who may have supported us before they saw a bunch of armed thugs at the coffe shop. I understand that you may not be thugs, but you are becasue the media says so and most of the sheeple just accept what they hear. Your justification is that if you don't use your right you will lose it. I call BS. I have every right to go down to Compton and yell the N word as loud and long as I can. Free speech! But is it a good idea? No, it just draws unwanted attention from the wrong people, just like you are doing. If you really care about gun rights here in CA leave you guns at home and donate money to this site, the NRA, and whoever else is fighting the good fight for us. Stop making the rest of us look like ***** clowns...

[oaklander]

LOL,

Does this mean I don't have to have my UOC/CGN/CGF BBQ?

[G17GUY]

Originally Posted by oaklander

LOL,

Does this mean I don't have to have my UOC/CGN/CGF BBQ?

THis would be a good event to open carry the bananas.

[obeygiant]

Originally Posted by My375hp302

Concealed carry is the only way to go. I understand we all feel opressed and want to lash out at our state government by parading around with our uloaded guns on (IE paper weights) and lets be honest, that's what your doing. The only thing you are accomplishing is pissing off the average people that didn't care one way or the other on the issue or who may have supported us before they saw a bunch of armed thugs at the coffe shop. I understand that you may not be thugs, but you are becasue the media says so and most of the sheeple just accept what they hear. Your justification is that if you don't use your right you will lose it. I call BS. I have every right to go down to Compton and yell the N word as loud and long as I can. Free speech! But is it a good idea? No, it just draws unwanted attention from the wrong people, just like you are doing. If you really care about gun rights here in CA leave you guns at home and donate money to this site, the NRA, and whoever else is fighting the good fight for us. Stop making the rest of us look like ***** clowns...

Maybe you missed this part

Originally Posted by hoffmang

I don't want this to be a bash U/LOC thread. I want to seriously engage those who think that LOC is a better outcome with the early reality we're watching. I hope to change some minds - not radically but gently. I'm quite concerned we can not obtain Pruneyard for the 2A in California. I hope folks here and at OCDO can now better understand my fear.

-Gene

[pullnshoot25]

A response to this will take some thought, just not at the moment.

[pullnshoot25]

My357hp302, words cannot express my disdain for you...

[kcbrown]

Shall-issue CCW is considered to pass Constitutional muster for the core 2A self-defense right despite it being a permitting process because the process itself has to pass whichever level of scrutiny is decided upon by the judiciary as the appropriate level of scrutiny, right?

My question is: suppose one of the qualifications is that, to receive your CCW permit, your name cannot be on the TSA's terrorist watch list. Would that qualification pass strict scrutiny?

Would it pass intermediate scrutiny?

Note that the no-fly list has not yet been successfully challenged with respect to the right to travel, but that might not be relevant here.

[hoffmang]

Originally Posted by kcbrown

My question is: suppose one of the qualifications is that, to receive your CCW permit, your name cannot be on the TSA's terrorist watch list. Would that qualification pass strict scrutiny?

The TSA watch list can't deny you a fundamental right absent due process. The process due to lose a fundamental right implicates most all of the process rights in the Bill of Rights including trial by jury, right not to incriminate self, etc.

Short answer, TSA no fly lists can't abrogate the right to keep or bear arms.

-Gene

[kcbrown]

Originally Posted by hoffmang

The TSA watch list can't deny you a fundamental right absent due process. The process due to lose a fundamental right implicates most all of the process rights in the Bill of Rights including trial by jury, right not to incriminate self, etc.

Short answer, TSA no fly lists can't abrogate the right to keep or bear arms.

What makes the right to travel enough less protected that the no fly list is Constitutional? I realize that the enumerated rights are the most protected of all, but it surprises me that such a basic right as the right to travel is so much less protected.

Note that I'm not disputing the carrier's right to deny service to whomever they choose. The TSA no fly list is not obeyed by choice, so the rights of the service provider are not involved here.

Why does due process not apply to the right to travel?

[hoffmang]

Originally Posted by kcbrown

Why does due process not apply to the right to travel?

Travel isn't an enumerated fundamental right and is thus susceptible to alternative methods (read you can drive.)

I too would like the right to travel to be considered fundamental and derivative of the right to petition but unfortunately a poorly planned case by friends of the EFF that left us with crap precedent on travel here in CA9.

-Gene

[kcbrown]

Originally Posted by hoffmang

Travel isn't an enumerated fundamental right and is thus susceptible to alternative methods (read you can drive.)

But driving is a process that is subject to permits as well. Since the TSA no fly list is Constitutional against flying, would it not also be Constitutional against driving?

Would it not be Constitutional against all modes of travel save, perhaps, walking?

[dantodd]

Originally Posted by hoffmang

Travel isn't an enumerated fundamental right and is thus susceptible to alternative methods (read you can drive.)

I too would like the right to travel to be considered fundamental and derivative of the right to petition but unfortunately a poorly planned case by friends of the EFF that left us with crap precedent on travel here in CA9.

-Gene

I assume you are referring to Gilmore. Wasn't that more about ID than travel really? I would think that Saenz v Roe is more on point and would likely be one of those evil unenumerated rights that so badly needs P/I reinvigorated.

[Ron-Solo]

I visit my daughter in Arizona frequently. Every visit I see more businesses posting "NO GUN" signs. Lets go for CCW for all law abiding citizens.