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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 04-17-2013, 12:20 PM
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Default Bringing a LOC Case Potentially Destined for SCOTUS

Among the many, many speculated reasons that Certiorari was denied in Kachalsky inside the thread relating to the case was the notion that the SCOTUS is adverse to making the initial ruling regarding fleshing out "bear" in a case dealing with concealed carry -that it might be a "bridge too far" for them at this point. It was also speculated that LOC was the "original" right preexisting CC, and based on the dicta of Heller, that THIS is the direction the court would prefer to start down in fleshing out "bear". The thought of initiating a suit with LOC as a prayer for relief using a "clean", denied LTC applicant has been discussed.

If the speculation above were true, wouldn't it be prudent to get a case started in the pipeline NOW -so that if the other cases approaching the court fail, we're on our way up the ladder with a different approach to take another bite at the apple, so to speak?

What say you?
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Old 04-17-2013, 12:36 PM
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I say we have to be VERY careful in how we proceed. The law of unintended consequences can jump up and bite us in the butt very easily. I'm more than merely inclined to leave this stuff up to those who know how to play the game. Like somebody said, it's chess, not checkers. If the seasoned veterans don't move the pieces we could easily end up check mated.
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Old 04-17-2013, 12:47 PM
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I say we have to be VERY careful in how we proceed. The law of unintended consequences can jump up and bite us in the butt very easily. I'm more than merely inclined to leave this stuff up to those who know how to play the game. Like somebody said, it's chess, not checkers. If the seasoned veterans don't move the pieces we could easily end up check mated.
I agree. But it's more than just chess. In ordinary chess, you can't make up new rules in the middle of the game. Here, the legislators and the judiciary can.

I recall the quote that arguing with a liberal is like playing chess with a pigeon. The pigeon will strut around, knock over the pieces, and $#!t on the board, and say he is winning.

Our problem here is that even though it's like chess, don't expect the other side to play by the rules. And remember, some of the opponents get to make the rules.
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Old 04-17-2013, 12:55 PM
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I say we have to be VERY careful in how we proceed. The law of unintended consequences can jump up and bite us in the butt very easily. I'm more than merely inclined to leave this stuff up to those who know how to play the game. Like somebody said, it's chess, not checkers. If the seasoned veterans don't move the pieces we could easily end up check mated.
I'm curious as to what unintended consequences you are thinking of. Possibly LOC as the ONLY right, and CC as a privilege? I know there are many that would definitely NOT like this outcome. I'm hoping some of the "right" people might chime in on this...
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Old 04-17-2013, 2:06 PM
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If we can get Madigan to petition for cert. in Moore, I think this is all we would need. In deciding Moore in our favor (of course), SCOTUS would need to say that public carry is a right and we are done.

Woollard may also provide a similar result if Madigan doesn't petition in Moore (for example if IL passes a NY style CC permitting law). Unlike Kachalsky where OC is banned and CC is by permit, in Woollard the license is to simply carry (open or concealed). Assuming again that SCOTUS believes that open carry is protected and concealed carry is not, they could say that and still grant relief to the plaintiffs, acknowledging that MD could restrict the license to OC only.

If they limit the right to open carry, we don't really lose because we all know that CA, NY, NJ, MD and the rest won't tolerate average people walking around with openly carried handguns. They will gladly issue permits to CC.
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Old 04-17-2013, 2:20 PM
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I'm curious as to what unintended consequences you are thinking of. Possibly LOC as the ONLY right, and CC as a privilege? I know there are many that would definitely NOT like this outcome. I'm hoping some of the "right" people might chime in on this...
That would be my worry. An LOC is the right decision would effectively kill useful urban carry in a state like CA. Businesses across the state would throw up no guns signs, and you'd only be able to carry while you aren't actually going anywhere other than a private residence in the end.
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Old 04-17-2013, 2:25 PM
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Yes, the prevailing view is that states will go "shall issue" when faced with a LOC right. I don't see LOC as the right having a downside in this regard. I'm trying to think of any other pitfalls to a LOC approach, but as a contingency, I think it might be wise to get a case started, in case Moore is not appealed and Woolard is not granted cert.
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Old 04-17-2013, 2:33 PM
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LOC was not an "original" right preexisting CC. The only item preexisting was one form of carry needed to be permitted.

Be patient. Heller took 5 years. These cases have only been going for 2(?) years. Lots of cases in the pipeline.
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Old 04-17-2013, 2:59 PM
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LOC was not an "original" right preexisting CC. The only item preexisting was one form of carry needed to be permitted.

Be patient. Heller took 5 years. These cases have only been going for 2(?) years. Lots of cases in the pipeline.
Yes, as per Heller, one form of carry must be permitted, presumably by States' choice -but the right itself cannot be totally denied. I understand that. There is a somewhat lengthy historical account of carry in the Heller text.

I am not impatient in the matter, I am just positing that what if our approach is not correct (based on the discussions in the Kachalsky thread). What if the SCOTUS is shy or uncomfortable in dealing with "concealed" in a case as the first fleshing out of "bear"? That was the concern. It might benefit us to have a different (novel?) approach to what is being attempted in Woolard (we'll have to see what Ms. Madigan decides to do with Moore)?
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Old 04-17-2013, 3:11 PM
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Originally Posted by VAReact View Post
Among the many, many speculated reasons that Certiorari was denied in Kachalsky inside the thread relating to the case was the notion that the SCOTUS is adverse to making the initial ruling regarding fleshing out "bear" in a case dealing with concealed carry -that it might be a "bridge too far" for them at this point. It was also speculated that LOC was the "original" right preexisting CC, and based on the dicta of Heller, that THIS is the direction the court would prefer to start down in fleshing out "bear". The thought of initiating a suit with LOC as a prayer for relief using a "clean", denied LTC applicant has been discussed.

If the speculation above were true, wouldn't it be prudent to get a case started in the pipeline NOW -so that if the other cases approaching the court fail, we're on our way up the ladder with a different approach to take another bite at the apple, so to speak?

What say you?
I say it's the only smart move and the only move with a prayer of succeeding, but only if we strike now before someone else screws up that path. The problem is that the people that make these decisions have tunnel vision and are stuck in "concealed carry or bust!" mode and if their strategy goes bust then a right to carry ruling will probably never happen. They think if they keep throwing strategies and theories at the court that SCOTUS keeps rejecting that they'll eventually wear down the court like a virgin reluctant to go all the way. SCOTUS told us in Heller that open carry is the right so why not take the hint.

Gura and Calguns won't ever shift gears but maybe we can get the NRA to point Paul Clement or another super star in the direction of open carry, preferably shoot for unlicensed open carry and settle for shall issue open carry licenses if it's all we can get.

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Originally Posted by Kid Stanislaus View Post
I say we have to be VERY careful in how we proceed. The law of unintended consequences can jump up and bite us in the butt very easily. I'm more than merely inclined to leave this stuff up to those who know how to play the game. Like somebody said, it's chess, not checkers. If the seasoned veterans don't move the pieces we could easily end up check mated.
If you take a myopic view of the board and keep moving the wrong pieces or moving them in the wrong direction you inevitably lose the match. And if you stick with a strategy that loses in game after game then you lose the whole tournament. I'm fine with Gura going forward with the other concealed carry cases but it's time to file a LOC case right now. Not in 2, 3, 4, 5, or 10 years when he finally realises that CC isn't going anywhere because by that time a Gorsky type will have will already have destroyed our chances by filing and appealing bad or poorly argued cases.

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LOC was not an "original" right preexisting CC. The only item preexisting was one form of carry needed to be permitted.

Be patient. Heller took 5 years. These cases have only been going for 2(?) years. Lots of cases in the pipeline.
Patience will cost us our rights (see above). Even if SCOTUS grants cert and affirms Moore it does nothing for California because all they are affirming is that carry in some form including may-issue is the law of the land. News flash - that's where we are now in California.

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That would be my worry. An LOC is the right decision would effectively kill useful urban carry in a state like CA. Businesses across the state would throw up no guns signs, and you'd only be able to carry while you aren't actually going anywhere other than a private residence in the end.
Wrong, Starbucks and Walmart will continue their policies of supporting carry and most others will eventually join in just as they have in other states. But even if they don't thousands of Calgunners peacefully walking around every day with their guns on display on their hips will force the legislature to make shall-issue CC the legal method of carry in California.
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Old 04-17-2013, 3:12 PM
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That would be my worry. An LOC is the right decision would effectively kill useful urban carry in a state like CA. Businesses across the state would throw up no guns signs, and you'd only be able to carry while you aren't actually going anywhere other than a private residence in the end.
I suppose that is possible (signs have force of law, etc.).
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Old 04-17-2013, 3:12 PM
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Bussda, perhaps "original right" was a poor choice of words on my part...
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Old 04-17-2013, 3:27 PM
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Wrong, Starbucks and Walmart will continue their policies of supporting carry and others will eventually join in. But even if they don't thousands of Calgunners walking peacefully around every day with guns on display on their hips will force the legislature to make shall-issue CC the legal method of carry in California.
Ok, two businesses out of thousands you will be able to go to The idea that the legislature would be "forced" to make shall-issue CC if we get LOC is pretty laughable. They will not when what they can do is continue to come up with creative ways to harass openly carrying gun owners instead.

They will pass a law requiring that you carry ID when you LOC and that police have the right to run your ID to verify you aren't a prohibited person, which will result in continued police harassment for carriers to try to discourage the practice. They will pass a law saying that a business posting a no guns sign carries the force of law. They will pass laws attempting to restrict the right as much as they possibly can rather than give the ok to CC instead.
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Old 04-17-2013, 3:41 PM
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Ok, two businesses out of thousands you will be able to go to
Businesses will take care of themselves because it isn't a problem in other open carry states. National retailers may not like it but they know if they mess with gun owners they'll face boycotts in free states. But hey if your dry cleaner posts a sign then just find a new dry cleaner.

Quote:
The idea that the legislature would be "forced" to make shall-issue CC if we get LOC is pretty laughable. They will not when what they can do is continue to come up with creative ways to harass openly carrying gun owners instead.
That will get the state, and the offending officers sued because once unlicensed open carry is affirmed as a civil right in court the harassing officers lose their immunity. The constitution requires probable cause to stop someone and ask for ID and does not allow fishing expeditions or harassment.

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They will pass a law requiring that you carry ID when you LOC and that police have the right to run your ID to verify you aren't a prohibited person, which will result in continued police harassment for carriers to try to discourage the practice.
It won't pass legal muster (see above). What will force them to pass shall-issue concealed carry as the official method of carry are the soccer moms that won't want to see guns openly carried.

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They will pass a law saying that a business posting a no guns sign carries the force of law. They will pass laws attempting to restrict the right as much as they possibly can rather than give the ok to CC instead.
Those thing will have to be worked out in the courts but we'll have the federal courts on our side. But let's cut to the chase - would you rather have no carry, which is the direction that we're going now, than unlicensed loaded open carry?
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Old 04-17-2013, 3:48 PM
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Good points, Sholling. I don't see the harm in getting a case rolling with the right plaintiff and backing organizations just in case the current cases fail. I'm not saying that they WILL fail, but it would be a nice covering of the bases/contingency.
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Old 04-17-2013, 3:51 PM
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Good points, Sholling. I don't see the harm in getting a case rolling with the right plaintiff and backing organizations just in case the current cases fail. I'm not saying that they WILL fail, but it would be a nice covering of the bases/contingency.
Hey I have my fingers crossed for Gura but we can't afford to put all of our eggs in the existing baskets. Not when the court told us what the right is and is not in Heller.
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Old 04-17-2013, 3:59 PM
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Fingers crossed here as well...
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Old 04-17-2013, 5:13 PM
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...

If you take a myopic view of the board and keep moving the wrong pieces or moving them in the wrong direction you inevitably lose the match. And if you stick with a strategy that loses in game after game then you lose the whole tournament. I'm fine with Gura going forward with the other concealed carry cases but it's time to file a LOC case right now. Not in 2, 3, 4, 5, or 10 years when he finally realises that CC isn't going anywhere because by that time a Gorsky type will have will already have destroyed our chances by filing and appealing bad or poorly argued cases.


Patience will cost us our rights (see above). Even if SCOTUS grants cert and affirms Moore it does nothing for California because all they are affirming is that carry in some form including may-issue is the law of the land. News flash - that's where we are now in California.
The copy cats have already started with suits. Peruta's original suit was a cut and paste of the Richard's brief, just filed in an unfriendly court. And then there is Leonard Embody in Tennessee. And a big influencing factor is that open carry is less socially acceptable. Patience is better at this time.


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Bussda, perhaps "original right" was a poor choice of words on my part...
Well, yes and no. Originally, before they had permits, "gentlemen" carried their pistols openly, and "ruffians" carried them concealed. But early courts held after they banned concealed carry in some states and then banned open carry that one form of carry must be permitted. They then started permitting concealed carry.

In today's society, open carry carries significant negatives. It scares women and children. Think of it this way. If the gun control forces really want to attack the carry concept, they would push open carry only with no carry able to be enforced similar to the Texas 30.06 sign. After a while, carrying a firearm in a legal manner would carry much more significant negative social overtones.
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Old 04-17-2013, 5:18 PM
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The court is waiting for Madigan. /personal opinion
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Old 04-17-2013, 5:25 PM
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Thinking I may give Heller a re-read to refamiliarize...
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Old 04-17-2013, 5:37 PM
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Woollard and Moore both present the SC a chance to scratch their OC itch, if they are interested and one of the Heller Five does truly have a hang-up about CC.
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Old 04-17-2013, 5:37 PM
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The gun control laws in Ca that banned open carry of Handguns dates to 1855 or so, that.s why the British Bulldog was such a big seller in CA.People were far more likely to disobey a law they didn't like in the old days.I also think you guys have watched too many Western movies.However, i see your point.I am lucky i live in TX,however we still can't cary openly even here.
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Old 04-17-2013, 5:45 PM
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The copy cats have already started with suits. Peruta's original suit was a cut and paste of the Richard's brief, just filed in an unfriendly court. And then there is Leonard Embody in Tennessee. And a big influencing factor is that open carry is less socially acceptable. Patience is better at this time.
Patience is a sure formula for losing if less qualified lawyers set bad precedents and wall off open carry in California forever while we wait patiently for SCOTUS to reject cert in Woollard and the next case and the next until we finally listen to what they told us in Heller. Such patience is little more than fiddling while Rome burns and Californias are raped, robbed and murdered. Such patience is a sure way to sentence millions of Californians to a lifetime of no-issue in drag as may-issue should SCOTUS continue to reject cases. If nothing else we need to work in the direction of open carry now to prevent bad precedent which could leave us with no form of carry for average Californians. I'm hoping for a win in Woollard too but I think our odds of gaining cert and getting anything useful to Californians are less than 25%.

I'll be writing the NRA-ILA and asking them to look into bringing suit for open carry in California and I'm hoping others will do likewise. If we bombard them with enough letters and emails they may just move on this.
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Old 04-17-2013, 5:50 PM
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The gun control laws in Ca that banned open carry of Handguns dates to 1855 or so, that.s why the British Bulldog was such a big seller in CA.People were far more likely to disobey a law they didn't like in the old days.I also think you guys have watched too many Western movies.However, i see your point.I am lucky i live in TX,however we still can't cary openly even here.
I would like to clarify -I don't PREFER OC necessarily (I have both OCed and CCed), I am just bringing up this point as a strategic concern with the ultimate goal of securing a meaningful right to bear arms outside of the home. Under almost all circumstances, CC is preferable to me, but it would be nice to have a choice.
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Old 04-17-2013, 5:52 PM
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The court is waiting for Madigan. /personal opinion
They may be, but it's not likely to do much for us even if IL appeals which is doubtful. Unless SCOTUS goes beyond affirming the 7th Circuit's decision all it does is say that some form of carry must be available and that leaves may-issue (de facto no-issue) intact. We already have may issue in California.
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Old 04-17-2013, 6:04 PM
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Bussda, I don't see how the type of suit being discussed would be a copycat suit, as the approach/prayer for relief would be different from all of the other cases in a substantial way. I'm familiar with what you are referring to with regards to Peruta, and i don't see how that would apply in this example.
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Old 04-17-2013, 7:55 PM
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Originally Posted by VAReact View Post
Bussda, I don't see how the type of suit being discussed would be a copycat suit, as the approach/prayer for relief would be different from all of the other cases in a substantial way. I'm familiar with what you are referring to with regards to Peruta, and i don't see how that would apply in this example.
That comment was directed at sholling stating we need to keep the poor qualiy lawyers from making bad case law. Unless you are looking at no permit required open carry, the arguments for open and concealed are the same and differ only in the relief requested. Note that LOC with permit in California is prohibited except in counties with less than 200K population. That change in the penal code would be referred to the legislature.
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  #28  
Old 04-17-2013, 8:58 PM
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IANAL but I've been rereading Heller so I can better explain why I think we have been barking up the wrong tree and assuming we could get things from the court that they've already told us we cannot while conceding away attainable rights.

http://www.scotusblog.com/wp-content...06/07-2901.pdf

Bear: Page 10 Paragraph 1. Scalia quotes Justice Ginsberg to nail down the meaning of "bear" in the right to keep and bear arms.
Quote:
In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘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 a case of conflict with another person.’”
Heller had nothing to do with bear outside the home and they could have easily and cleanly stopped at "keep in the home ready to use". What they are instead saying is the right to bear arms means "‘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 a case of conflict with another person’" and therefore please come see us again with a pure "bear" case and address this at some future date.

Why concealed is a bridge too far: Page 54 Paragraph 2. In Heller Scalia went out of his way to point out that bans on concealed carry are presumably constitutional after first explaining that the core right was to keep and bear arms and what bear means in earlier paragraphs.

Quote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.
What they are obviously saying is 'we won't take on concealed carry' so don't even ask. Yet every case we take up seems to be about concealed carry permits, no wonder they keep rejecting our cases.

Licensing of the core right: Page 59 Paragraph 1. Scalia specifically states that they aren't taking up the city's licensing requirement because Heller's council chose to concede to the licensing requirement. In other words, the majority did not rule that licensing a core right such as "keep" was constitutional. They avoided rubber stamping licensing and instead Scalia seems almost disappointed that a licensing requirement for an enumerated right wasn't challenged. Why else bring it up in this manner when it could safely be ignored or even licensing affirmed?

Quote:
Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.
The snippets above tell me that there is or was a majority willing to rule in a future case that there is a constitutional right to bear arms outside the home, but that they don't want to hear challenges involving concealed carry laws. Therefore a pure open carry challenge is the ticket. It also tells me that unlicensed open carry is within reach because the Heller 5 see open carry is an enumerated right and didn't slam the door on unlicensed in Heller. I can just picture Scalia shaking his head in disappointment every time we bring a case where we ask for a concealed carry license, and wondering when we're going to bring them a pure unlicensed open carry case with a fallback of shall-issue licensed open carry.

Moore comes close but I don't think it will help us because the even if they affirm the ruling of the 7th it only says some form of carry and leaves open may-issue to a select few and nothing for everyone else - the California system.

Don't get me wrong I prefer concealed carry but I'll take what I can get.
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  #29  
Old 04-17-2013, 9:22 PM
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Default Open carry has a potential problem

One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.

In hindsight, one could argue that the "Black Panthers" were in fact the "true victims" and the true purpose of the "Mulford Act" was to disarm Blacks so that white cops could continue to violate their "civil rights".

The major gun organizations probably won't touch open carry because of the "Black Panther" history that is tied to it.

I don't see how we can run an "open carry" lawsuit, especially here in California without the history of the Black Panthers becoming a part of it.

If someone can share with us how to run a lawsuit where we not only bypass the "Black Panther" issue, but also make sure the state doesn't bring it up, please share with us how we do that.

The "Black Panthers" issue is a double edged sword because in order to push for "Open Carry", we in effect have to support what they were doing pre Mulford Act.

As organizations get big in size, factions develop and unfortunately for us on this issue, some conservatives aren't exactly too happy with the Black Panthers, as a result, they probably will use their influence to stop any major gun organization from supporting such a suit.

An "Open Carry" lawsuit has a big potential to go sideways, so whoever is running the lawsuit has to be willing to be thrown under the bus and take alot of heat because the media will go on a frenzy on this one.

The Black Panthers and the Black Power movement in the 1960's were advocated "armed defense" against racist police. I don't have a problem with that, in fact I agree with that.

The problem is the media back then portrayed people like Malcolm X and others who advocated armed defense as trying to overthrow the government.

In fact when the news was doing stories on unloaded open carry a few years ago, they dug up old newsreels about the Black Panthers "storming the capitol".

Of course in lawsuits, the saying goes, present the facts of the case, not present the feelings of the case.

Open carry opens up the following questions, do the people retain the right to take up arms against oppressive government to protect their rights?

As I stated above, this is a case that could easily go sideways.

Nicki
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Old 04-17-2013, 9:29 PM
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Originally Posted by bussda View Post
That comment was directed at sholling stating we need to keep the poor qualiy lawyers from making bad case law. Unless you are looking at no permit required open carry, the arguments for open and concealed are the same and differ only in the relief requested. Note that LOC with permit in California is prohibited except in counties with less than 200K population. That change in the penal code would be referred to the legislature.
Keep in mind that in every case (except Moore) that I'm aware of including Gray's the suit challenged the may-issue discretion or no-issue aspect of concealed carry licensing instead of challenging the law banning open carry without a concealed carry license. In each case we've been beaten over the head in court for asking for concealed carry permits fig-leafed in "well that's all the law allows for", and in each case we lost. The next step is to challenge the law against openly carrying a loaded firearm in public. Sure we have to show that the plaintiff tried to get a license to carry and was turned down but we challenge the law against open carry and leave concealed carry completely out of it.
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  #31  
Old 04-17-2013, 9:40 PM
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Default Open carry has a potential problem

One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.

In hindsight, one could argue that the "Black Panthers" were in fact the "true victims" and the true purpose of the "Mulford Act" was to disarm Blacks so that white cops could continue to violate their "civil rights".

The major gun organizations probably won't touch open carry because of the "Black Panther" history that is tied to it.

I don't see how we can run an "open carry" lawsuit, especially here in California without the history of the Black Panthers becoming a part of it.

If someone can share with us how to run a lawsuit where we not only bypass the "Black Panther" issue, but also make sure the state doesn't bring it up, please share with us how we do that.

The "Black Panthers" issue is a double edged sword because in order to push for "Open Carry", we in effect have to support what they were doing pre Mulford Act.

As organizations get big in size, factions develop and unfortunately for us on this issue, some conservatives aren't exactly too happy with the Black Panthers, as a result, they probably will use their influence to stop any major gun organization from supporting such a suit.

An "Open Carry" lawsuit has a big potential to go sideways, so whoever is running the lawsuit has to be willing to be thrown under the bus and take alot of heat because the media will go on a frenzy on this one.

The Black Panthers and the Black Power movement in the 1960's were advocated "armed defense" against racist police. I don't have a problem with that, in fact I agree with that.

The problem is the media back then portrayed people like Malcolm X and others who advocated armed defense as trying to overthrow the government.

In fact when the news was doing stories on unloaded open carry a few years ago, they dug up old newsreels about the Black Panthers "storming the capitol".

Of course in lawsuits, the saying goes, present the facts of the case, not present the feelings of the case.

Open carry opens up the following questions, do the people retain the right to take up arms against oppressive government to protect their rights?

As I stated above, this is a case that could easily go sideways.

Nicki
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  #32  
Old 04-17-2013, 9:41 PM
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One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.
You're grasping at skinny straws Nicki, none of that will be an issue. Again IANAL but as the 7th pointed out legislative findings and prejudices do not trump constitutional rights under any heightened level of scrutiny. I'd be shocked if the trial judge allowed any mention of the Panthers in the court room and I don't think the 9th Circus is enough of a circus to pay even the slighted attention to it. In fact lots of liberals think the Panthers were kinda cool and won't want to be labeled racists, and ancient history sure won't bother the NRA.

The media will treat the plaintiff just like they have Dick Heller and the others, they'll dig a bit but they won't waste much ink or airtime unless there is real dirt.
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Last edited by sholling; 04-17-2013 at 9:48 PM..
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  #33  
Old 04-17-2013, 9:56 PM
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Default Open carry has a potential problem

One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.

In hindsight, one could argue that the "Black Panthers" were in fact the "true victims" and the true purpose of the "Mulford Act" was to disarm Blacks so that white cops could continue to violate their "civil rights".

The major gun organizations probably won't touch open carry because of the "Black Panther" history that is tied to it.

I don't see how we can run an "open carry" lawsuit, especially here in California without the history of the Black Panthers becoming a part of it.

If someone can share with us how to run a lawsuit where we not only bypass the "Black Panther" issue, but also make sure the state doesn't bring it up, please share with us how we do that.

The "Black Panthers" issue is a double edged sword because in order to push for "Open Carry", we in effect have to support what they were doing pre Mulford Act.

As organizations get big in size, factions develop and unfortunately for us on this issue, some conservatives aren't exactly too happy with the Black Panthers, as a result, they probably will use their influence to stop any major gun organization from supporting such a suit.

An "Open Carry" lawsuit has a big potential to go sideways, so whoever is running the lawsuit has to be willing to be thrown under the bus and take alot of heat because the media will go on a frenzy on this one.

The Black Panthers and the Black Power movement in the 1960's were advocated "armed defense" against racist police. I don't have a problem with that, in fact I agree with that.

The problem is the media back then portrayed people like Malcolm X and others who advocated armed defense as trying to overthrow the government.

In fact when the news was doing stories on unloaded open carry a few years ago, they dug up old newsreels about the Black Panthers "storming the capitol".

Of course in lawsuits, the saying goes, present the facts of the case, not present the feelings of the case.

Open carry opens up the following questions, do the people retain the right to take up arms against oppressive government to protect their rights?

As I stated above, this is a case that could easily go sideways.

Nicki
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  #34  
Old 04-17-2013, 10:05 PM
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One has to look at why "Open Carry" was banned in the first place here in California, remember the "Black Panthers" circa 1967.
Triple post.
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Old 04-17-2013, 10:18 PM
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It's not that concealed carry is somehow legally inferior to open carry. It's that outright bans on all manners of carry are unconstitutional. It just so happens back in the 19th century concealed weapons were considered criminal, whereas today they're preferred so soccer moms don't freak.

I bet the supreme court wants a carry prohibition case without the discretionary issue aspect. They seem to prefer incremental rulings. Kachalsky was nice, but it directly dealt with discretionary issue. With Moore still being an open case, the court will prefer to get that case, as it deals directly with a total carry ban. The question is will there be an appeal / cert.

Also, it's worth noting a positive outcome in the Moore case at the SCOTUS level may not impact CA immediately, aside from helping lower court cases. I don't expect the court to deal with discretionary issue if they take up Moore.
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Old 04-17-2013, 10:32 PM
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Keep in mind that in every case (except Moore) that I'm aware of including Gray's the suit challenged the may-issue discretion or no-issue aspect of concealed carry licensing instead of challenging the law banning open carry without a concealed carry license. In each case we've been beaten over the head in court for asking for concealed carry permits fig-leafed in "well that's all the law allows for", and in each case we lost. The next step is to challenge the law against openly carrying a loaded firearm in public. Sure we have to show that the plaintiff tried to get a license to carry and was turned down but we challenge the law against open carry and leave concealed carry completely out of it.
Woollard is a challenge to Maryland's discretionary licensing scheme under "§5–303. A person shall have a permit issued under this subtitle before the person carries, wears, or transports a handgun." MD does not does not distinguish between OC or CC, both are prohibited without a permit, and the permit authorizes both.
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Old 04-17-2013, 10:51 PM
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Also, it's worth noting a positive outcome in the Moore case at the SCOTUS level may not impact CA immediately, aside from helping lower court cases. I don't expect the court to deal with discretionary issue if they take up Moore.
Exactly! The problem with Moore is it leaves may-issue as a presumably acceptable standard.

Quote:
Originally Posted by Wolverine View Post
Woollard is a challenge to Maryland's discretionary licensing scheme under "§5–303. A person shall have a permit issued under this subtitle before the person carries, wears, or transports a handgun." MD does not does not distinguish between OC or CC, both are prohibited without a permit, and the permit authorizes both.
Thanks for the information! Unfortunately it's still tainted by asking for a permit that allows concealed carry and I don't think that's what Scalia wants. I think he wants a clean open carry case. I suspect that what he's looking for is to affirm a right to at the least open carry without hoops or discretion to let us use to needle legislatures into granting shall-issue (or perhaps unlicensed) concealed carry on their own rather than have the court shove CC down their throats.
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Old 04-17-2013, 11:09 PM
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Exactly! The problem with Moore is it leaves may-issue as a presumably acceptable standard.


Thanks for the information! Unfortunately it's still tainted by asking for a permit that allows concealed carry and I don't think that's what Scalia wants. I think he wants a clean open carry case. I suspect that what he's looking for is to affirm a right to at the least open carry without hoops or discretion to let us use to needle legislatures into granting shall-issue (or perhaps unlicensed) concealed carry on their own rather than have the court shove CC down their throats.
You know, life would be a lot easier if we could just ask the Heller 5 what they thought and then proceed rather than trying to guess. The way it is right now is just nuts.
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Old 04-17-2013, 11:28 PM
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You can't really use a concealed weapon to protect against tyranny.

It is pretty obvious that "bear" means to carry around at the ready, which isn't tucked into your wasteband.

IMO we want concealed, because it is more convenient in our broken society, but we should really want open carry. Societal issues and soccer moms be damned, real men carry a gun on their waste so that their intentions are obvious.
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Old 04-17-2013, 11:40 PM
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Default If we get open carry, conceal carry will follow fast.

Back in Ohio around 2003/4 the Ohio Supreme court upheld the state's ban on carrying concealed weapons because the people in Ohio had the right to openly carry arms for self defense.

Prior to this ruling, I believe it was Feely vs Hamilton county, if anyone open carried, they would be arrested for public disturbance.

Gun activists mobilized and had mass open LOADED carry rallies and marches all across the state and they educated the public in the process about what they were doing.

A long stalled shall issue CCW bill was signed by then Gov Taft, a RINO republican governor within the next 6 months.

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