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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-13-2011, 6:55 PM
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Default Richards v Prieto MSJ filed (Carry)

Today, Alan Gura, Don Kilmer, SAF and CGF filed the motion for summary judgement in Richards v. Prieto.

The rest of the supporting documents can be found on the docket.

Oral argument is scheduled at 2PM on February 10, 2011 in Courtroom 7 of the Sacramento Eastern District Federal District Court - 501 I Street, Suite. 4-200 Sacramento, CA 95814.

-Gene
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Old 01-13-2011, 6:58 PM
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One step closer.......
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Old 01-13-2011, 7:01 PM
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What's the projection on likelihood of Prieto appealing if the ruling is favorable to our side?

Quote:
Of course, Defendants have an interest in regulating firearms in the interest of public
safety,
Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?
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Originally Posted by indiandave View Post
In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.

Last edited by yellowfin; 01-13-2011 at 7:06 PM..
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Old 01-13-2011, 7:15 PM
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Quote:
Originally Posted by yellowfin View Post
Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?
The brief doesn't say that the state has an interest in regulating concealed carry in the interest of public safety. It says that they have an interest in regulating firearms in the interest of public safety. Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?
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Old 01-13-2011, 7:15 PM
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Originally Posted by n2k View Post
One step closer.......
Exactly! Movement in the slow as molasses legal system is good. Looking forward to 2/10/11.
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  #6  
Old 01-13-2011, 7:29 PM
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The brief doesn't say that the state has an interest in regulating concealed carry in the interest of public safety. It says that they have an interest in regulating firearms in the interest of public safety. Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?
Yes I am, because virtually nothing in firearms regulation really works towards that intended purpose. How many people do you HONESTLY REALLY BELIEVE have ever REALLY been restrained from harming someone in a criminal manner because they couldn't get a firearm when they really wanted to when other means were available, or a particular kind when they had access to others? Has there EVER been a reported crime in recent history where someone who was shot said "Thank God they didn't have a ______________ because then I might have died!", or a criminal taken into custody who actually said "Well damn, if I'd had ______________, I would have done it, but I didn't so I stopped" ?

There is almost no effective impediment to criminal intention to commit crime in a country occupying this size of land mass that is anything short of making every square mile of it a police state in total lockdown. It is total fantasy to say when we can't even keep several million people out of our country who aren't supposed to be here, plus billions upon billions of dollars of illegal substances consumed every year, that somehow prohibiting firearms to certain people or certain kinds to everyone that magically that wish of law will be complied with just by having it on paper, and that that wish will remove from said individuals the intent to do harm with them.

So yes, I'm pretty thoroughly convinced that people will do what they will do if they really want to do it. As such, there is virtually zero such thing as restriction of firearms that ultimately works towards public safety, when human nature is a far more powerful influence of what people will and won't do. Laws against lawlessness are nothing more than "Stop! Or I will yell 'Stop' again!"
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Quote:
Originally Posted by indiandave View Post
In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.

Last edited by yellowfin; 01-13-2011 at 7:41 PM..
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  #7  
Old 01-13-2011, 7:29 PM
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Originally Posted by ColdDeadHands1 View Post
Exactly! Movement in the slow as molasses legal system is good. Looking forward to 2/10/11.
Likewise! Can we go to the hearing, or is it a closed hearing? DQ, but is it likely that our side will win SJ given that the facts and everything is all undisputed? Has the Judge ever awarded SJ on the day of such a hearing from the bench?

Erik.
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Old 01-13-2011, 7:30 PM
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Awesome. Can't (but will) wait to hear about the next step.

Quote:
Originally Posted by yellowfin View Post
Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?
It means that the Defendants have an interest in regulating firearms insofar as it furthers public safety. If, hypothetically, you were to prove that it never did, then sure, there'd be no governmental interest in regulating firearms. However, I bet there are some examples of firearm regulations that do indeed make the public safer, though to be sure, CCW laws in California are not among them.
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  #9  
Old 01-13-2011, 7:31 PM
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That just made my day.


I will keep my fingers crossed.
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Old 01-13-2011, 7:33 PM
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Figured that since I needed to go look, someone else might benefit from my efforts:

Quote:
Intent
Declaratory relief that the “good moral character” and “good cause” provisions of California Penal Code § 12050 are unconstitutional either on their face and/or as applied to bar applicants who are otherwise legally qualified to possess firearms and who assert self-defense as their “good cause” for seeking a handgun carry permit;
An order permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or articipation with them who receive actual notice of the injunction, from enforcing the “good moral character” and “good cause” requirements of California Penal Code § 12050 against handgun carry permit applicants who seek the permit for self-defense and are otherwise qualified to obtain a handgun carry permit under that section
Copied from HERE
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  #11  
Old 01-13-2011, 7:40 PM
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Quote:
Originally Posted by yellowfin View Post
Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?
Uhm, yes they do. Laws against actual brandishing, carrying while intoxicated, carrying in an actually unsafe manner (the state could ban horizontal shoulder holsters - sweeping people is bad ju-ju), and on and on are real, actual regulations in the interest of public safety. Arguably, discharge regulations that have self defense exceptions also fall into this boat. Further, the state can make a compelling case that requiring concealed carry is in the public interest because it serves to give society herd immunity to crime as criminals are unsure of which targets are armed and thus are deterred from attacking everyone.

Your sweeping knee jerk reaction means you're blinded by the other sides rhetoric. You need to think past that rhetoric to real actual honest regulations that the state could have real actual honest reasons to regulate.

-Gene
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  #12  
Old 01-13-2011, 7:41 PM
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Originally Posted by Window_Seat View Post
Likewise! Can we go to the hearing, or is it a closed hearing? DQ, but is it likely that our side will win SJ given that the facts and everything is all undisputed? Has the Judge ever awarded SJ on the day of such a hearing from the bench?

Erik.
This is open court. The courtroom's gallery is a bit small - think smaller than the Court of Appeals. It would be highly unusual for him to rule from the bench however.

-Gene
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  #13  
Old 01-13-2011, 7:43 PM
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Originally Posted by hoffmang View Post
You need to think past that rhetoric to real actual honest regulations that the state could have real actual honest reasons to regulate.

-Gene
Perhaps, if the state were honest, which they are not.
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Originally Posted by indiandave View Post
In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.

Last edited by yellowfin; 01-13-2011 at 7:50 PM..
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  #14  
Old 01-13-2011, 7:52 PM
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Originally Posted by yellowfin View Post
Perhaps, if the state were honest, which they are not.
But we are honest and Federal Courts believe they are honest so we have to assume honesty. Hence the very true statement in the MSJ.

-Gene
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  #15  
Old 01-13-2011, 8:13 PM
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Quote:
Originally Posted by hoffmang View Post
This is open court. The courtroom's gallery is a bit small - think smaller than the Court of Appeals. It would be highly unusual for him to rule from the bench however.
If I understand correctly, a msj is asking the judge to rule based on the facts as presented? So if it is unlikely he would rule, what is the point/strategy of asking him to do so?
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Old 01-13-2011, 8:14 PM
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If I understand correctly, a msj is asking the judge to rule based on the facts as presented? So if it is unlikely he would rule, what is the point/strategy of asking him to do so?
"Rule from the bench" means he gives his answer right there, in the court room. Obviously, we hope to win, it's just we'd expect that if we do it'll be in a written opinion he'll issue some time later.
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Old 01-13-2011, 8:22 PM
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Originally Posted by the_quark View Post
"Rule from the bench" means he gives his answer right there, in the court room. Obviously, we hope to win, it's just we'd expect that if we do it'll be in a written opinion he'll issue some time later.
So its an attempt to obtain a decision quicker than a full trial? Could it possibly hurt the lawsuit? Just trying to learn how the system works.

Thanks
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Old 01-13-2011, 8:25 PM
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This is great news. MSJ's are my favorite type of court filing, so are opinions that go are way.

Thank you Gene for the update.
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Old 01-13-2011, 8:28 PM
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AND... Nordyke is approaching 90-days. 2011 will prove to be a very good year!
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Old 01-13-2011, 8:32 PM
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Quote:
Originally Posted by RobG View Post
So its an attempt to obtain a decision quicker than a full trial? Could it possibly hurt the lawsuit? Just trying to learn how the system works.

Thanks
I think you ran down a rathole, here.

So, we've presented the Motion for Summary Judgement (MSJ). This says, "Hey, we're so completely going to win, we don't need to have a full trial."

Window_Seat then wondered:

Quote:
Has the Judge ever awarded SJ on the day of such a hearing from the bench?
Which, yes, sometimes Motions for Summary Judgement are, in fact, ruled from the bench. That's the dramatic courtroom moment when the Judge bangs his gavel and says "I rule for the plaintiffs on all counts" that you see in movies. However, you basically never see them in real life, as hoffmang noted:

Quote:
It would be highly unusual for him to rule from the bench however.
Anyway, so, we filed an MSJ, which we hope to win, but if we do win, it'll probably be a written opinion sometime later.

If the Judge denies the motion (which honestly isn't unlikely), then we'll actually have to have a trial. What we're saying here is "the facts are so overwhelmingly on our side, we don't even need a trial, you can just find for us right now". Obviously, we think that's the case. We'll see if the judge agrees, or if he wants to go through the whole process. I wouldn't read much into it if he denies our motion. If he grants it, though, we win as soon as he does.
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Old 01-13-2011, 9:15 PM
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Nice work Don & Alan!
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Old 01-13-2011, 9:29 PM
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Quote:
Originally Posted by the_quark View Post
If the Judge denies the motion (which honestly isn't unlikely), then we'll actually have to have a trial. What we're saying here is "the facts are so overwhelmingly on our side, we don't even need a trial, you can just find for us right now". Obviously, we think that's the case. We'll see if the judge agrees, or if he wants to go through the whole process. I wouldn't read much into it if he denies our motion. If he grants it, though, we win as soon as he does.
Err. Not exactly.

If we lose the MSJ, we will immediately appeal. Heller went all the way on cross motions for summary judgement and never saw a jury and had no need of one.

Trials are needed to find facts as only juries can find facts that are truly disputed. No material facts are in dispute in this case. The Sheriff's policy is what it is and we agree with him that that is his policy. It's a futile act to apply with just self defense and he in fact denied one of our people who only had self defense as good cause. However, we are saying that as a legal matter his policy and the denial are unconsitutional. Constitutionality isn't judged by a jury but by judges.

-Gene
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Old 01-13-2011, 9:53 PM
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The first of several wins in California for 2011.
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Old 01-13-2011, 10:14 PM
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Quote:
Originally Posted by kf6tac View Post
Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?
Well - maybe only a very few, for example:

"No one shall make, manufacture, or sell in commerce, a firearm that doesn't go bang when the trigger is activated".

"No one shall be shot with a firearm, except for them that really need killin'"

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Old 01-13-2011, 10:17 PM
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Originally Posted by hoffmang View Post
Trials are needed to find facts as only juries can find facts that are truly disputed. No material facts are in dispute in this case.
That's one of the positive differences from the Peruta case, in my humble non-lawyer opinion. Peruta was pushing equal protection claims about the special treatment of the friends-of-the-sheriff organization, with really quite weak evidence.

The weak link in this brief may be the leap from
California's only useful carry method is CCW
to
The second amendment therefore requires shall-issue.

We're kinda telling the judge that the law must be rewritten, and here's how it has to be. But it's not intuitively obvious to me that a judicially-imposed shall-issue licensing scheme is the only possible rewrite consistent with 2A rights.

I'm not a lawyer, so I'm probably missing something.

-m@
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Old 01-13-2011, 10:27 PM
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Quote:
Originally Posted by mdimeo View Post
That's one of the positive differences from the Peruta case, in my humble non-lawyer opinion. Peruta was pushing equal protection claims about the special treatment of the friends-of-the-sheriff organization, with really quite weak evidence.

The weak link in this brief may be the leap from
California's only useful carry method is CCW
to
The second amendment therefore requires shall-issue.

We're kinda telling the judge that the law must be rewritten, and here's how it has to be. But it's not intuitively obvious to me that a judicially-imposed shall-issue licensing scheme is the only possible rewrite consistent with 2A rights.

I'm not a lawyer, so I'm probably missing something.

-m@
What I think you're missing is

Heller says a functional firearm for self defense is 2nd Amendment right

California generally denies open carry

If open carry is out, what is left is the Legislature's preferred method, concealed carry

Concealed carry, being the implementation of the right identified in Heller in the method that California favors, cannot be conditional on 'whim' or 'proof of need' - that's not how rights work.
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Old 01-13-2011, 10:35 PM
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Quote:
Originally Posted by hoffmang View Post
Today, Alan Gura, Don Kilmer, SAF and CGF filed the motion for summary judgement in Richards v. Prieto.

The rest of the supporting documents can be found on the docket.

Oral argument is scheduled at 2PM on February 10, 2011 in Courtroom 7 of the Sacramento Eastern District Federal District Court - 501 I Street, Suite. 4-200 Sacramento, CA 95814.

-Gene
Hell of a good motion. Very well written and explained so that even the stupidest and most anti-gun person on the planet can logically understand it.
I have faith in this.
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Old 01-13-2011, 10:38 PM
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Quote:
Originally Posted by Librarian View Post
What I think you're missing is

Heller says a functional firearm for self defense is 2nd Amendment right

California generally denies open carry

If open carry is out, what is left is the Legislature's preferred method, concealed carry

Concealed carry, being the implementation of the right identified in Heller in the method that California favors, cannot be conditional on 'whim' or 'proof of need' - that's not how rights work.
This.

Strict scrutiny must be applied to the right to keep and bear arms as per Heller. Therefore they may not interpret it with intermediate scrutiny and take this enumerated right and regulate it to the point of effectively restricting it.

It is a very solid motion in my also non-lawyer opinion.
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Old 01-13-2011, 10:48 PM
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It's very clear that there must be an available method to carry functional firearms for those individuals not prohibited from doing so. Functional of course meaning loaded and capable of being fired. Since the open carrying of functional firearms is prohibited, they must be allowed to be carried concealed.This concept does not seem to be a departure from logic in any sense, nor does it seem difficult to understand. On a factual basis alone, from a legal standpoint it would appear that the motion should be granted. Although I don't expect for a moment that it will.

The Calguns Foundation has taken one more important step today, a step toward freedom for all of us. These steps are not taken for free however, lawyers are expensive. We should all look at this as a reminder that we need to donate, so tonight is the night that I sponsor my county in the Sunshine Initiative. I hope others will join me.
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Old 01-13-2011, 10:51 PM
RRangel RRangel is offline
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This is like the first cracks in the dam. It's only a matter of time before laws in this state have to change.
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Old 01-13-2011, 11:05 PM
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Quote:
Originally Posted by Goldseeker View Post
Well - maybe only a very few, for example:

"No one shall make, manufacture, or sell in commerce, a firearm that doesn't go bang when the trigger is activated".

"No one shall be shot with a firearm, except for them that really need killin'"
Goldseeker, I like this. We need to start collecting signatures to put these laws on the ballot as initiatives.
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Old 01-13-2011, 11:18 PM
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Quote:
Of course, Defendants have an interest in regulating firearms in the interest of public safety,
Doesn't "of course, Defendants" in a brief imply "the Defendants should"?

Because denying practically everyone but criminals from bearing arms is achieving exactly the opposite of that interest.
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Old 01-13-2011, 11:46 PM
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Quote:
Originally Posted by N6ATF View Post
Doesn't "of course, Defendants" in a brief imply "the Defendants should"?

Because denying practically everyone but criminals from bearing arms is achieving exactly the opposite of that interest.
Though a complex statement, when parsed you are absolutely correct. Issuing widely to the peaceable law abiding residents of a county will create a strong deterrent effect on the local criminal element.

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Old 01-14-2011, 12:14 AM
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Sac is my turf... Thursdays suck for me... but I'm gonna fight my way through and will be there any way I can.

Shall we plan a gathering for post hearing?
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Old 01-14-2011, 12:42 AM
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SAHWEEET!!
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I want Blood for Oil. Heck I want Blood for Oil over hand wringing sentiment!
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  #36  
Old 01-14-2011, 8:12 AM
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M1A Rifleman M1A Rifleman is offline
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Cool, and good luck in February,

The State allows three methods of carry - restricted licensed CCW, restricted licensed loaded OC, and unlicensed, and supposedly limited restrictions to UOC.

We know the problem with the UOC method is this in practicality is also restricted to the point of being prohibited by a means thatis not documented in the law, which is the harassment by police agency's responding to "man with a gun calls". This is not a blame on police, its just a fact of their current training.

I did see the short section about the restricted license to loaded open carry (LOC) in some parts of the state, but nothing on what really happens to those that to exercise UOC, and this seems like a weak link here.

My worry is the judge will simply rule the same as recently before - that we have an UOC right, and this is good enough with no consideration of what really happens to UOC practitioners.

Last edited by M1A Rifleman; 01-14-2011 at 8:40 AM..
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Old 01-14-2011, 8:17 AM
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I'm not sure... there was some points in the brief that pointed at a prior determination that restrictions that make the weapon useless are also unconstitutional. This might include mandatory unloaded.

The debate for some time on calguns is whether to prefer LOC or CCW, and much indication that the Heller & McDonald decisions suggest that the state must either allow LOC or CCW, but nowhere is UOC part of that list.
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Old 01-14-2011, 8:27 AM
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Forget about man with gun calls... It's the GFSZ's that make it useless for many.
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Old 01-14-2011, 8:39 AM
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Forget about man with gun calls... It's the GFSZ's that make it useless for many.
True, but this is also is a problem for those with a CCW or license to LOC. The resolution and removal of the GFSZ would seem to be high on the list for future challenges after the actual right to carry is hopfully established in this state.
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Old 01-14-2011, 8:49 AM
tabrisnet tabrisnet is offline
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If I remember correctly, there is a CCW exception to GFSZ.
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