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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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  #81  
Old 04-19-2013, 4:10 PM
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Originally Posted by sholling View Post
. . . by only asking to have the Mulford tossed out we're only asking the court two squeaky clean questions that are untainted by "concealed": 1) Is carrying a loaded gun in public in some manner a fundamental right (hint, they said yes it is in Heller)? 2) May states require a license in order to exercise a fundamental right? That's all, that's no more than Heller's individual right to keep and bear arms, and may a government ban functional readily accessible firearms.
This pretty accurately describes the petition for cert. in Kachalsky. The Court didn't take it. Give the Court until October to grant cert. in Moore/Woollard before you file a LOC case.
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  #82  
Old 04-19-2013, 4:29 PM
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This pretty accurately describes the petition for cert. in Kachalsky. The Court didn't take it. Give the Court until October to grant cert. in Moore/Woollard before you file a LOC case.
It's not the same. Kachalsky asked for "good & substantial" cause be tossed out so he could obtain a CCW license. California has two separate laws and by challenging the loaded open carry law all you are asking for is carry is some form of carry with no taint of "concealed".

I'm not rich enough to file a case, plus I'm not the ideal hard working African-American mother with a Spanish sir-name, or wounded decorated ex police officer and war hero that tugs at a judge's heart strings. But I'll be undertaking a letter writing campaign to get the NRA or SAF to file a case.
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  #83  
Old 04-19-2013, 4:40 PM
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But your denial would be for a CC permit, which is a different law from the ban on OC. Only in states where one permit covers both OC and CC would you have a chance of making such a suit work, the best approach would be to apply for and be granted a permit which you noted on the application would be for OC only. Then you sue to get your money back, saying the permit is improperly required.
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  #84  
Old 04-19-2013, 4:49 PM
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But your denial would be for a CC permit, which is a different law from the ban on OC. Only in states where one permit covers both OC and CC would you have a chance of making such a suit work, the best approach would be to apply for and be granted a permit which you noted on the application would be for OC only. Then you sue to get your money back, saying the permit is improperly required.
Okay I'll take your word for that. California allows OC by may-issue permit only, and only in counties with a population under 200K. We can try to apply in a county with 10,000,000 or so and get refused. Actually it would make sense that someone would apply for a CCW in a no-issue county, and then ask to apply for an OC license so that every method of carry has been exhusted.
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  #85  
Old 04-19-2013, 5:03 PM
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Ah, I forgot about the <200k OC permit, since we so rarely talk about it on CGN.
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  #86  
Old 04-19-2013, 5:49 PM
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There is also other things to think about. As for LOC, what does population density have to do with a fundamental enumerated right? Multiple thieves veto? Another.... I can LOC in unincorporated areas where discharge is not otherwise prohibited. Why the link between carrying and discharge? Why the link between incorporated and unincorporated areas? Can these be justified under intermediate (the real kind) or strict scrutiny?
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  #87  
Old 04-19-2013, 6:08 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.
So we wait and wait and wait for just the right case even though by that time, the court is packed with anti-gun justices and the outcome is assured? Fortune favors the bold and at some point you need to cross the Rubicon. If we don't soon, our cause is lost in CA.
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  #88  
Old 04-19-2013, 6:32 PM
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But those foundations have already been built and I don't think the court wants to be involved in litigating the 2nd Amendment one baby step at a time for decades to come. I suspect that they want to limit their future involvement by wrapping much of what's left in a neat package...
In what other aspect of constitutional law has the Supreme Court ever chosen to act in this manner?

Or do the normal canons of justiciability and avoidance simply not apply when the Second Amendment is concerned?
I think two things come into play. First the conservatives and constitutionalists are well aware of their own mortality and that the widow for constructive 2nd Amendment case law is short. 2nd by only asking to have the Mulford tossed out we're only asking the court two squeaky clean questions that are untainted by "concealed": 1) Is carrying a loaded gun in public in some manner a fundamental right (hint, they said yes it is in Heller)? 2) May states require a license in order to exercise a fundamental right? That's all, that's no more than Heller's individual right to keep and bear arms, and may a government ban functional readily accessible firearms. Addressing licensing gives them the opportunity to specifically address scrutiny levels should they choose, but in the eyes of the courts of appeals unlicensed is going to equate to the strict scrutiny standard of review. Again, we're only asking two very strategic related questions and only those two questions. It's the choice of questions that open a lot of doors at the district and appeals level.

We're not asking them to address modern sporting rifles or magazine restrictions or approved gun lists or GFSZ, but those things become winable at the appeals level if we can get an explicit or de Facto strict scrutiny standard in place. Scalia isn't dumb and if he can head off years of cert requests by answering two straight forward and closely related questions in a single case I think he'll jump on it.
Who are the “conservatives and constitutionalists” who are “well aware of their own mortality?” Unless they're already sitting on the high court, their self-awareness is irrelevant. And there's never been any documented example of sitting Justices projecting the sort of power that you suggest.

The Questions Presented in Kachalsky were 1) Does the Second Amendment secure a right to carry handguns for self-defense outside the home? and 2) Do state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense? These are indistinguishable from 1) Is carrying a loaded gun in public in some manner a fundamental right? and 2) May states require a license in order to exercise a fundamental right?

So maybe (or obviously) cert was denied for some other reason.

Justice Scalia is only one of nine justices. Even if he secretly harbored the intentions you suggest (which he assuredly does not), he has no personal power to effect them. And why are the scope of the Second Amendment in public and the sorts of permissible licensing schemes that might be applied to its exercise “two closely related questions?” When did the Court last consider such divergent issues to be “closely related?”

And if open vs. concealed carry is indeed to be regulated under some form of First Amendment time, place and manner jurisprudence, why would it affect the Court's decisions on unrelated issues?

All of which leaves the real answer as, “I have no idea. My personal anxieties and ignorance are causing me to make meaningless speculations.”
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  #89  
Old 04-19-2013, 7:52 PM
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All of which leaves the real answer as, “I have no idea. My personal anxieties and ignorance are causing me to make meaningless speculations.”
In other words you're drunk (your post looks that way) or you have no flipping clue what you're talking about so you make a personal attack. I'm not going to explain it to you again so if you have any interest in learning why you're wrong go back and reread the thread but I'm done with you.
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  #90  
Old 04-20-2013, 5:23 AM
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Sholling, excellent points! I'm following what you are saying very well. However, I had a question about the following:



I understand the point about the state encouraging carriers to CC instead of unlicenced LOC. I fail to see how the state can then pass legislation prohibiting unlicensed LOC except in certain peculiar or exigent circumstances, if unlicenced LOC were deemed the Constitutional Minimum Standard (to borrow the term from Mulay). I can understand the state requesting people to apply for their now "shall issue" licenses, but I do not see how the state could limit unlicenced LOC if that were the right. I imagine most people would prefer CC, but I don't see how it could be forced.

If unlicensed LOC becomes the Minimum Constitutional Standard (which I stole from Gene, btw), then a state couldn't prohibit LOC under any circumstances, emergency or whatever. That's the point.


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I'd characterize it differently, but close enough.

Sure, but the Court is not going to say that unlicensed open carry is a right for the very reason you identified. If the Court held that LOC is a right, then SCOTUS would be invalidating the regulatory framework of nearly every state in the union. It would mean that in MA, every non-prohibited person could walk into a grocery store packing heat on the hip. No state could prohibit LOC. Even if the state allowed CC, any person could LOC. The entire East Coast and CA would erupt with displeasure. SCOTUS does not want to do this -- it would create as much social turbulence as Roe v. Wade.

Yes! That's the idea. And from the language actually used in Heller, that's what they want to do.

As for the disruption, we got Roe v Wade, didn't we?


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SCOTUS is much more likely to say, carrying outside the home is a core right. MA can then say, all public carriage must be concealed. If MA requires a license, we will attack it if the license is a PITA to obtain. If the license is easy to obtain, we attack other more irksome regulations.

We been doing that. We keep getting shot down. Because Heller said that the lower courts could shoot us down. Because they've already told us that concealed carry is NOT the Right.


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Yes, Kachalsky recognized that the Second Amendment extends to conduct outside the home. It did not hold that non-prohibited people have a right to carry a gun outside the home. If SCOTUS holds that non-prohibited people have a right to carry outside the home, then it will be overruling Kachalsky.

Your analysis is flawed. "Non-prohibited" people have the Right to do anything protected by the Constitution. Of course. The point I keep making is that carrying concealed is NOT the Right protected by the Constitution. Since Kachalsky was all (and strictly) about regs for concealed carry, & since that's NOT the Right, there was no need for SCOTUS to look at the case.


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SCOTUS is very unlikely to hold that states must allow people to openly carry loaded firearms. This holding restricts states' right to regulate the manner in which people carry guns. That goes further than SCOTUS needs to go. SCOTUS is much more likely to hold that states cannot prohibit non-prohibited people from carrying a gun outside the home. States can then decide for themselves how they want people to carry guns in public.

Again, non-prohibited people have the Right to do anything protected by the Constitution, so there's no reason for SCOTUS to say anything of the kind.

Second, there's no language at all in Heller that to the effect that states have the ability to decide how the Right can be exercised.


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If a state decides that all public carry must be concealed, then the state will have a somewhat difficult time imposing constitutional restrictions on the right to carry concealed. If concealed carry is the only way to excercise a protected right, then the state cannot unduly burden the right to carry concealed. It likely would be unconstitutional for a state to say: (1) you can only carry a weapon in public if the weapon is concealed; and (2) in order to carry a concealed gun, you must pay $1,000 every year for a license to carry. Sure, some states will pass laws like this, but that's what future litigation will address.

If that were so, then they would have taken up Kachalsky.


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Civil rights litigation is like sailing a ship. You usually cannot go in a straight line from where you are to your destination. You have to tack back and forth. Each case brings us closer to our destination.

But we keep hitting the same 'rocks' again & again & again. My suggestion is that it's time to seek clear water.


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Don't get me wrong, I would prefer the Court to hear Woollad over Moore, but a holding in Moore would still be a huge step forward.

Maybe, in that LOC could be part of the attack.


The Raisuli

P.S. I agree with just about everything Sholling has posted as well. I do disagree that the states can have any say about how the Right can be exercised.
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  #91  
Old 04-20-2013, 8:39 AM
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You all can opine until the cows come home, the SCOTUS passed and they might continue to punt, given 4 justices oppose RKBA, but even if they don't California will ignore them like they are now and the 9th Circuit will support that so it will be 3-4 years if anything else comes down while the CA anti-gun legislators and judiciary play cheat and retreat well enough to make the Serbs look like amateurs. I look forward to watching your excuses over the next 3-4 years as you keep re-formulating them. I am not going to Negative Town to read teh hand writing on the wall. We'll fight on, but it's going to be a long battle and all this opining is pointless.
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  #92  
Old 04-20-2013, 10:05 AM
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Originally Posted by Mulay El Raisuli View Post
If unlicensed LOC becomes the Minimum Constitutional Standard (which I stole from Gene, btw), then a state couldn't prohibit LOC under any circumstances, emergency or whatever. That's the point.
I couldn't find the quote and don't want to put words in his mouth but I could swear that he came up with the idea years ago of using an open carry victory to gain leverage over the legislature to get them to substitute shall-issue concealed carry - but I could be mistaken.

Your goal of getting open carry as the right and leveraging that to get the legislature to grant us the option of shall-issue or unlicensed concealed carry as a carrot to get most gun owners to stop open carrying is a nice hope, and it would be the ideal result, but I think it's a long shot. I think that open carry will be established as the minimum right but that the court will allow the legislature to substitute a non-discretionary right to carry concealed. I say that because while the court said that there is a right to bear arms in public they also said that the legislature has the power to decide the manner of carry and that there is no right to carry concealed.

Of the remaining cases, in my layman's opinion Moore has the best chance because it's the only one that doesn't ask for a license that includes concealed carry. If IL appeals (super iffy) and if cert is granted the only real risk is that the decision will be too narrow and won't slam the door on licensing a right or at least slam it on discretionary licensing. SCOTUS doesn't seem to like answering questions that aren't asked and based on the reaction to Heller lower courts are likely consider answers to unasked questions to just be dicta. If we get a narrow victory that just affirms a right to carry in public in some manner but doesn't ban discretionary licensing (or licensing of a right) then we are left with the status quo in California and we will still have to challenge California's open carry ban because I'm pretty sure that the court will not accept a concealed carry case. The danger is that a less qualified attorney will blow the challenge before we act and leave us with bad precedent already in place.

By challenging California's law banning loaded open carry we would be challenging three things 1) an outright ban on open carry in populous counties where CCWs are for all intents and purposes unavailable, 2) discretionary licensing of a right, and 3) licensing of a right. If Moore doesn't get to the US Supreme Court then we'd still have better case, one that explicitly gives SCOTUS the chance to establish strict scrutiny as the standard of review and limit or better yet eliminate licensing requirements for a right which also solves the never ending legal antics of Chicago and DC - that is the holy grail. But filing and arguing a challenge to California's open carry law can't wait for Moore to play out.
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  #93  
Old 04-20-2013, 10:11 AM
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^+1. Well said. Now we just need to DO it. Agreeing with Sholling that a letter-writing/phone call campaign to NRA/SAF (input about any other relevant organizations?) might be in short order.
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Old 04-20-2013, 10:14 AM
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Originally Posted by advocatusdiaboli View Post
California will ignore them like they are now and the 9th Circuit will support that so it will be 3-4 years if anything else comes down while the CA anti-gun legislators and judiciary play cheat and retreat well enough to make the Serbs look like amateurs.
It depends on how solid the SCOTUS ruling is and what panel that you get from the 9th. As long as we get a solid victory from the US Supreme Court then there are enough pro gun judges on the 9th to check the legislature. On the other hand a weak decision by SCOTUS will leave the rabid antis in the 9th an opening to try to water down our rights and empower the legislature.

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all this opining is pointless.
We'll continue offering our opinions until Kes says stop but you're free not to read them.
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  #95  
Old 04-20-2013, 3:18 PM
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I couldn't find the quote and don't want to put words in his mouth but I could swear that he came up with the idea years ago of using an open carry victory to gain leverage over the legislature to get them to substitute shall-issue concealed carry - but I could be mistaken.

Clarification: Gene first used the term "Minimum Constitutional Standard" & I started using it after that. We approach the topic from VERY different POVs.

I'm pretty sure I was the first to advocate using an LOC victory to leverage decent CCW regs from the PRK legislature.


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Your goal of getting open carry as the right and leveraging that to get the legislature to grant us the option of shall-issue or unlicensed concealed carry as a carrot to get most gun owners to stop open carrying is a nice hope, and it would be the ideal result, but I think it's a long shot. I think that open carry will be established as the minimum right but that the court will allow the legislature to substitute a non-discretionary right to carry concealed. I say that because while the court said that there is a right to bear arms in public they also said that the legislature has the power to decide the manner of carry and that there is no right to carry concealed.

The problem with that analysis is that SCOTUS said nothing whatsoever about the states having the power to decide the manner of carry. Words that ARE in Heller are that carrying concealed is NOT the protected Right, along with examples to show that LOC (the references to Nunn, etc) IS the protected Right.

Given that fact, my analysis is that once we 'chart a new course' & follow the lead SCOTUS gave us 5 years ago, we'll wind up with unlicensed LOC as the protected Right.


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Of the remaining cases, in my layman's opinion Moore has the best chance because it's the only one that doesn't ask for a license that includes concealed carry. If IL appeals (super iffy) and if cert is granted the only real risk is that the decision will be too narrow and won't slam the door on licensing a right or at least slam it on discretionary licensing. SCOTUS doesn't seem to like answering questions that aren't asked and based on the reaction to Heller lower courts are likely consider answers to unasked questions to just be dicta. If we get a narrow victory that just affirms a right to carry in public in some manner but doesn't ban discretionary licensing (or licensing of a right) then we are left with the status quo in California and we will still have to challenge California's open carry ban because I'm pretty sure that the court will not accept a concealed carry case. The danger is that a less qualified attorney will blow the challenge before we act and leave us with bad precedent already in place.

Discretionary licensing of CCW will be something we will have regardless. Again, CCW is not the protected Right. Heller tells us this. All the effort that has been put into making "Shall Issue" CCW the protected Right has failed. Any & all further effort into doing so will also fail. Because SCOTUS has already said that carrying concealed isn't the protected Right. This also applies to all the effort to have "strict scrutiny" applied to CCW. It has failed & further effort will also fail. Because strict scrutiny cannot be applied to something that is not a protected Right. That's just the way it is.

So, CCW is going to remain discretionary. Is this a bad thing? Not necessarily. Unlicensed LOC is something that makes those on The Left VERY unhappy. If they're unable to ban LOC, they will fall over themselves to make CCW easy & reasonable. How I can say this? Because we've seen this before. In Ohio. That's why I keep referring to the Ohio Experience. Precedent isn't just for court.


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By challenging California's law banning loaded open carry we would be challenging three things 1) an outright ban on open carry in populous counties where CCWs are for all intents and purposes unavailable, 2) discretionary licensing of a right, and 3) licensing of a right. If Moore doesn't get to the US Supreme Court then we'd still have better case, one that explicitly gives SCOTUS the chance to establish strict scrutiny as the standard of review and limit or better yet eliminate licensing requirements for a right which also solves the never ending legal antics of Chicago and DC - that is the holy grail. But filing and arguing a challenge to California's open carry law can't wait for Moore to play out.

I disagree that 3 things would be in play. Licensing would not (or at least, should not) be a part of the effort. Licensing (of CCW) is something Heller specifically allowed. Which means that (again) any & all effort there is going to be wasted.

I do agree that we have to hurry. People should NOT be allowed anywhere near a courtroom are already litigating this issue. People better than them (I.E., the Right People) have to get to SCOTUS first. Its already too late to start crafting a proper civil case. There's at least one already filed. Also, I'm willing to bet that there are criminal defendants appealing a conviction for some form of LOC. "Assisted" by public defenders. Our obvious & logical course is to either take over for a public defender (who will no doubt be happy to have a lighter workload), or find a defendant we like (or can at least live with) & represent that person.


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  #96  
Old 04-20-2013, 3:40 PM
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Very convincing and compelling, Mulay. Agreed. I would love that we were to be proven wrong on these points with the several upcoming cases in the pipeline already, but reasons have been given as to why we will see NO relief in CA with favorable rulings in these cases -either that, or denial of cert altogether in those cases. It seems a wise course to follow what you have advocated. A contingency case.
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Old 04-20-2013, 5:24 PM
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Originally Posted by sholling View Post
In other words you're drunk (your post looks that way) or you have no flipping clue what you're talking about so you make a personal attack. I'm not going to explain it to you again so if you have any interest in learning why you're wrong go back and reread the thread but I'm done with you.
So I pose a handful of questions that anyone professing to be a knowledgeable commenter on the law and on the Supreme Court would be able to easily address, you ignore them, continue to repeat your baseless speculations, and when I call you on your pointless rambling, you get indignant and call me a drunk.

I think that's pretty much the definition of a “personal attack.” I don't think I called you an idiot. Or unhinged. Or even fat. I just said that you didn't know what you were talking about. And given that you've admitted that you have no legal training, my assessment also has the benefit of being based in objective fact.

So, here's another question: on what legal basis does the manner of carry materially affect litigation designed to validate the core scope of the right?

You and others have presented many non-legal reasons for believing that this is a really important issue. But no one has yet offered any legal theory based upon existing precedent and established canons that lends it any credence whatsoever.

If you insist on speculating, expect to be called upon to justify yourself.
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Old 04-20-2013, 5:48 PM
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Originally Posted by Mulay El Raisuli View Post
The problem with that analysis is that SCOTUS said nothing whatsoever about the states having the power to decide the manner of carry. Words that ARE in Heller are that carrying concealed is NOT the protected Right, along with examples to show that LOC (the references to Nunn, etc) IS the protected Right.
Works for me, but I still expect that SCOTUS would simply rule in favor of 'some form of unlicensed carry to be determined by the states' is the right, but I'll take open carry over no carry.

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Given that fact, my analysis is that once we 'chart a new course' & follow the lead SCOTUS gave us 5 years ago, we'll wind up with unlicensed LOC as the protected Right.
I agree, and I think it would move relatively lightening fast.

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Discretionary licensing of CCW will be something we will have regardless. Again, CCW is not the protected Right. Heller tells us this. All the effort that has been put into making "Shall Issue" CCW the protected Right has failed. Any & all further effort into doing so will also fail. Because SCOTUS has already said that carrying concealed isn't the protected Right. This also applies to all the effort to have "strict scrutiny" applied to CCW. It has failed & further effort will also fail. Because strict scrutiny cannot be applied to something that is not a protected Right. That's just the way it is.
IANL but I would think that getting unlicensed loaded open carry declared the constitutional right would also make it the right nationwide. No more waiting a lifetime for congress to pass reciprocity inorder to carry in any state. In fact I would expect Republicans and Democrats in Congress to race to pass concealed carry reciprocity so that out of staters wouldn't open carry on the streets of Manhatten.

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So, CCW is going to remain discretionary. Is this a bad thing? Not necessarily. Unlicensed LOC is something that makes those on The Left VERY unhappy. If they're unable to ban LOC, they will fall over themselves to make CCW easy & reasonable. How I can say this? Because we've seen this before. In Ohio. That's why I keep referring to the Ohio Experience. Precedent isn't just for court.
This is where you and I agree. Unlicensed loaded open carry as the right forces even the most stubborn antis in the legislature to try to encourage us to play nice by covering up our guns.

Quote:
I disagree that 3 things would be in play. Licensing would not (or at least, should not) be a part of the effort. Licensing (of CCW) is something Heller specifically allowed. Which means that (again) any & all effort there is going to be wasted.
A challenge to loaded open carry licensing has to come into the LOC case to head off the legislature countering any ruling with reworded discretionary may-issue or onerous (8 million hours of training) shall-issue licensing. It also heads off license to keep arms, license to buy arms, and license to buy ammo legislation. The current cases do nothing for that.

Quote:
I do agree that we have to hurry. People should NOT be allowed anywhere near a courtroom are already litigating this issue. People better than them (I.E., the Right People) have to get to SCOTUS first. Its already too late to start crafting a proper civil case. There's at least one already filed. Also, I'm willing to bet that there are criminal defendants appealing a conviction for some form of LOC. "Assisted" by public defenders. Our obvious & logical course is to either take over for a public defender (who will no doubt be happy to have a lighter workload), or find a defendant we like (or can at least live with) & represent that person.
Unfortunately, those with tunnel vision (who I still respect an awful lot) would rather stubbornly continue to throw reworded versions of the same arguments that the court has refused to hear up until now at the Court over and over and over again for another 10 years in a vein hope that they'll somehow change their minds, than file a challenge to California's LOC ban now. They'll willingly risk losing any shot at ever getting LOC for Californians because they think they'll eventually be able to trick the Supreme Court into giving them shall-issue concealed carry if they can just find the right magic words and the right case. Some few might even welcome losing LOC at the hands of an unqualified attorney if it forces us to follow the shall-issue concealed carry case after case herd.
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Old 04-20-2013, 9:09 PM
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Originally Posted by bussda View Post
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.
We DON'T HAVE five years, Hillary is the next President.
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Old 04-20-2013, 9:11 PM
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Originally Posted by VAReact View Post
Yes, as per Heller, one form of carry must be permitted, presumably by States' choice -but the right itself cannot be totally denied.
NO! Heller DID NOT deal with carry outside the home.
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Old 04-20-2013, 9:34 PM
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Originally Posted by mud99 View Post
............real men carry a gun on their waste so that their intentions are obvious.
OMG! Whatta mess that would be!
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Old 04-20-2013, 10:04 PM
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Originally Posted by Mulay El Raisuli View Post
If unlicensed LOC becomes the Minimum Constitutional Standard (which I stole from Gene, btw), then a state couldn't prohibit LOC under any circumstances, emergency or whatever. That's the point.
Which is why SCOTUS will not make this ruling.



Quote:
Originally Posted by Mulay El Raisuli View Post
Your analysis is flawed. "Non-prohibited" people have the Right to do anything protected by the Constitution. Of course. The point I keep making is that carrying concealed is NOT the Right protected by the Constitution. Since Kachalsky was all (and strictly) about regs for concealed carry, & since that's NOT the Right, there was no need for SCOTUS to look at the case.
Then why do CA, MA, MD, NY, HI, D.C. limit the right of non-prohibited people to carry in public. SCOTUS needs to clarify the issue precisely because several states are infringing the rights of non-prohibited people. Again, read the petition in Kachalsky. I previously posted a link and NIR quoted the actual questions posed. CC is not at issue.


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Originally Posted by Mulay El Raisuli View Post
Again, non-prohibited people have the Right to do anything protected by the Constitution, so there's no reason for SCOTUS to say anything of the kind.
Again, CA, HI, MA, MD, NY, D.C. all are infringing the right of non-prohibited people from carrying. These jurisdictions must be told, by SCOTUS, that they are infringing the fundamental civil rights of their citizens. This is STEP ONE (well, actually step 3 after individual right and applies to states).

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Originally Posted by Mulay El Raisuli View Post
Second, there's no language at all in Heller that to the effect that states have the ability to decide how the Right can be exercised.
Hmm, I thought I remembered something about reasonable restrictions. Must be the the hallucinogens I've never used.

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Originally Posted by Mulay El Raisuli View Post
If that were so, then they would have taken up Kachalsky.
Kachalsky asked 2 questions. Moore only asks 1.


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Originally Posted by Mulay El Raisuli View Post
But we keep hitting the same 'rocks' again & again & again. My suggestion is that it's time to seek clear water.
What? I repeat, WHAT? How many non-criminal cases dealing with carriage outside the home have been presented to SCOTUS? What's that? I can't hear you? One? Really? So, how many times have we hit these rocks? Once?

You, sholling, and KCBrown keep acting as though the denial of cert. in Kachalsky was surprising. It was not. If you actually bothered reading what a bunch of people with legal training (or in communication with people with legal training) were saying, you would have seen that denial of cert. in Kachalsky was pretty darn likely. Not desirable, but pretty likely.

There's an outside chance that IL's AG will petition for cert. in Moore. If that doesn't happen, then Woollard will be in front of SCOTUS. If SCOTUS doesn't bite at either of those, we can discuss this again.
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  #103  
Old 04-21-2013, 12:17 AM
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Originally Posted by Kid Stanislaus View Post
NO! Heller DID NOT deal with carry outside the home.
That is correct, not directly in the ruling itself -the ruling was confined to "keep" in the home. However, "bear" was defined and its history was explored, but has yet to be "fleshed out" -as it was beyond the narrow question of Heller. It was implied in the ruling (or others' analysis of the dicta? in the ruling) that the states would have to allow LOC, CC or both regarding "bear" but could not totally deny "bear" altogether. Several others have alluded to this earlier in this thread.
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Old 04-21-2013, 2:46 AM
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While Gura's petition simply noted "handgun carry licenses", NY's reply noted correctly "concealed carry license". Enough of a distinction to get the court to pass on this one possibly.
MD, NJ, and HI will not be able to claim this distinction.
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Old 04-21-2013, 4:59 AM
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Very convincing and compelling, Mulay. Agreed. I would love that we were to be proven wrong on these points with the several upcoming cases in the pipeline already, but reasons have been given as to why we will see NO relief in CA with favorable rulings in these cases -either that, or denial of cert altogether in those cases. It seems a wise course to follow what you have advocated. A contingency case.

Worth doing for that reason alone.


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Originally Posted by navyinrwanda View Post
So, here's another question: on what legal basis does the manner of carry materially affect litigation designed to validate the core scope of the right?

On the basis of what was actually said in Heller, open carry is the protected Right. Going for that therefore has a better chance of success.


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Originally Posted by sholling View Post
I agree, and I think it would move relatively lightening fast.

Yes, it would. More so if its a criminal case.


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Originally Posted by sholling View Post
IANL but I would think that getting unlicensed loaded open carry declared the constitutional right would also make it the right nationwide. No more waiting a lifetime for congress to pass reciprocity inorder to carry in any state. In fact I would expect Republicans and Democrats in Congress to race to pass concealed carry reciprocity so that out of staters wouldn't open carry on the streets of Manhatten.

Well, there would be at least one a-hole strolling thru Times Square with heat on his hip (that would be me).


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Originally Posted by sholling View Post
This is where you and I agree. Unlicensed loaded open carry as the right forces even the most stubborn antis in the legislature to try to encourage us to play nice by covering up our guns.

Yup!


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Originally Posted by sholling View Post
A challenge to loaded open carry licensing has to come into the LOC case to head off the legislature countering any ruling with reworded discretionary may-issue or onerous (8 million hours of training) shall-issue licensing. It also heads off license to keep arms, license to buy arms, and license to buy ammo legislation. The current cases do nothing for that.

Could you clarify this a bit?


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Originally Posted by sholling View Post
Unfortunately, those with tunnel vision (who I still respect an awful lot) would rather stubbornly continue to throw reworded versions of the same arguments that the court has refused to hear up until now at the Court over and over and over again for another 10 years in a vein hope that they'll somehow change their minds, than file a challenge to California's LOC ban now. They'll willingly risk losing any shot at ever getting LOC for Californians because they think they'll eventually be able to trick the Supreme Court into giving them shall-issue concealed carry if they can just find the right magic words and the right case. Some few might even welcome losing LOC at the hands of an unqualified attorney if it forces us to follow the shall-issue concealed carry case after case herd.

Allow me to speak heresy. I think (based on the attitudes I see here) that unlicensed carry isn't loved at the top as much as I love the idea.


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Originally Posted by Kukuforguns View Post
Which is why SCOTUS will not make this ruling.

True, I could have taken the wrong meaning from the actual words used in Heller. Only time will tell.


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Originally Posted by Kukuforguns View Post
Then why do CA, MA, MD, NY, HI, D.C. limit the right of non-prohibited people to carry in public. SCOTUS needs to clarify the issue precisely because several states are infringing the rights of non-prohibited people. Again, read the petition in Kachalsky. I previously posted a link and NIR quoted the actual questions posed. CC is not at issue.

The law attacked concerned itself with concealed carry.


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Originally Posted by Kukuforguns View Post
Again, CA, HI, MA, MD, NY, D.C. all are infringing the right of non-prohibited people from carrying. These jurisdictions must be told, by SCOTUS, that they are infringing the fundamental civil rights of their citizens. This is STEP ONE (well, actually step 3 after individual right and applies to states).

Those states are preventing people from carrying concealed. Which Heller told them was acceptable.


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Originally Posted by Kukuforguns View Post
Hmm, I thought I remembered something about reasonable restrictions. Must be the the hallucinogens I've never used.

If you saw those words coupled with "concealed" carry, then maybe you got a contact high?


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Originally Posted by Kukuforguns View Post
Kachalsky asked 2 questions. Moore only asks 1.

Ya lost me. What are you going for here?


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Originally Posted by Kukuforguns View Post
What? I repeat, WHAT? How many non-criminal cases dealing with carriage outside the home have been presented to SCOTUS? What's that? I can't hear you? One? Really? So, how many times have we hit these rocks? Once?

Did I limit my analysis to presented to SCOTUS? Did I limit my analysis to non-criminal?


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Originally Posted by Kukuforguns View Post
You, sholling, and KCBrown keep acting as though the denial of cert. in Kachalsky was surprising. It was not. If you actually bothered reading what a bunch of people with legal training (or in communication with people with legal training) were saying, you would have seen that denial of cert. in Kachalsky was pretty darn likely. Not desirable, but pretty likely.

Where did you see me being surprised by Kalchalsky? Of course a loss here was expected (by me, anyway). The whole basis of the suit was to make concealed carry the protected Right. Which, I keep pointing out, ain't gonna happen. Not no way. Not no how.


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Originally Posted by Kukuforguns View Post
There's an outside chance that IL's AG will petition for cert. in Moore. If that doesn't happen, then Woollard will be in front of SCOTUS. If SCOTUS doesn't bite at either of those, we can discuss this again.

If there's time.

Which is kind of the point. The Heller-5 ain't getting any younger. Discovering that taking the hint is the way to go & starting anew months from now runs the risk of presenting a case to a changed SCOTUS.


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  #106  
Old 04-21-2013, 11:32 AM
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Originally Posted by Mulay El Raisuli View Post
On the basis of what was actually said in Heller, open carry is the protected Right. Going for that therefore has a better chance of success.
Please quote where SCOTUS said that there is a right to carry a handgun openly outside the home. Just because the Court said: "You can prohibit concealed carry," it does not logically follow that open carry is a constitutional right. Another interpretation (and I believe a more likely interpretation) is that states can regulate the manner of carriage (i.e., either open or concealed), but that carriage outside the home is required.


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Originally Posted by Mulay El Raisuli View Post
Allow me to speak heresy. I think (based on the attitudes I see here) that unlicensed carry isn't loved at the top as much as I love the idea.

I agree, that's heresy. If unlicensed carry was unwanted, why would SAF have filed Palmer and Moore? Given the total carry bans at issue in IL and D.C., this is a possible outcome. Read the Moore opinion, do you see the 7th Circuit ever stating that IL can condition the carriage of a weapon on a license? From my perspective, it appeared as though Palmer was intended to be the lead case and Moore the secondary case. SAF won Moore. The SAF cannot force the D.D.C. to make a ruling in Palmer.


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Originally Posted by Mulay El Raisuli View Post
Those states are preventing people from carrying concealed. Which Heller told them was acceptable.
These states also are preventing the open carriage of handguns. The courts recognize this, as the following quote from the Kachalsky opinion makes clear:

Quote:
This case targets the license available under section 400.00(2)(f). That section provides that a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof.” N.Y. Penal Law § 400.00(2)(f). This is the only license available to carry a concealed handgun “without regard to employment or place of possession.” Given that New York bans carrying handguns openly, applicants—like Plaintiffs in this case—who desire to carry a handgun outside the home and who do not fit within one of the employment categories must demonstrate proper cause pursuant to section 400.00(2)(f).
You seem to believe a court (including SCOTUS) is more like to say: "Unlicensed open carry outside the home is a constitutional right" than "Carriage outside the home is a constitutional right." Given that the first option unnecessarily limits states' ability to regulate carriage, I think the second option is more likely.

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Originally Posted by Mulay El Raisuli View Post
Ya lost me. What are you going for here?
There is an alternative reason why SCOTUS denied cert. in Kachalsky (as opposed to the CC issue). Namely, that Kachalsky raises two questions. SCOTUS knows that Moore is out there. The possibility of getting a petition in Moore adequately explains SCOTUS's denial of cert. in Kachalsky.

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Originally Posted by Mulay El Raisuli View Post
Did I limit my analysis to presented to SCOTUS? Did I limit my analysis to non-criminal?
We already won Moore, so I assumed you were talking about SCOTUS. When SCOTUS says public carriage is a fundamental right, I want it to be in the context of an Otis McDonald, not a murderer.

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Originally Posted by Mulay El Raisuli View Post
Where did you see me being surprised by Kalchalsky? Of course a loss here was expected (by me, anyway). The whole basis of the suit was to make concealed carry the protected Right. Which, I keep pointing out, ain't gonna happen. Not no way. Not no how.
First, to the extent I conflated your and KCBrown's positions, I apologize. Nevertheless, I disagree with you regarding the purpose of Kachalsky. Kachalsky challenged NY's statutory scheme that prohibits all carriage outside the home without a license issued only on proper cause. Look at the questions asked, concealed carry is not the relief sought by plaintiffs. Carriage outside the home without a showing of proper cause was what was requested.
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  #107  
Old 04-21-2013, 12:48 PM
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Originally Posted by Mulay El Raisuli View Post
Could you clarify this a bit?
I did word that rather poorly. In Heller the court told us several things, among them that there is an individual right to keep and bear arms, and that we have a right to own weapons that are in common use including handguns, and finally that we have the right to have a firearm, including a handgun, in our homes that is ready for use. What we also know is that in Heller the majority agreed that there is a right to bear arms, but that concealed carry is not a right. For that reason I don't think it's too much ask for our side to challenge a licensing requirement for a fundamental right in an open carry case. Maybe they'll punt on the licensing part but we can ask while challenging the law banning open carry.

There are several reasons that it's critical to challenge the power to license a fundamental right but for this discussion we need look no further than Chicago for our answer. Unless the power to require a license to exercise the right to keep and bear arms is struck down Chicago will just keep mooting cases as they come close to losing and throwing up new roadblocks just as they have done in Ezell. I'm afraid that the California legislature's answer to shall-issue a license for 'some form of carry' will be to create onerous licensing requirements. Sure we can sue to overturn a requirement but they'll just replace (for example) 100 hours of training with 20 hours of training from an off duty LEO with an unobtainable training certificate, and when the court tosses that as excessive, they'll come back with making traffic and parking violations a reason to refuse a license, and when we beat that they'll come up with something else. The legal eagles here will point out that none of that will hold up in court - but nobody will expect them to, the purpose will be to obstruct and delay issuing more than a handful licenses for as long as possible, and each consecutive case will take 1-2 years of litigation depending on how anti the trial judge is. The endless litigation strategy also risks that cases will still be pending after one or two of the Heller 5 are retired, and that will give the new anti-Heller majority a vehicle to roll back our rights.

If the fundamental right is loaded open carry then a ruling that the government may not require a license to exercise a fundamental right then we head off years and years and years of litigation. It also heads off other things that our commissars are considering like a license to buy or possess ammunition (killing off IL's FOID) and things that they'll try to license later like possession of guns and purchasing guns. Why not head off a decade or more of roadblocks and litigation by asking for unlicensed open carry?

Quote:
Allow me to speak heresy. I think (based on the attitudes I see here) that unlicensed carry isn't loved at the top as much as I love the idea.
I think you're very right. In most cases I suspect it's just well intentioned tunnel vision, and with some few I suspect it's a matter of already having a CCW, and while really wanting others to have them too, they feel that we can afford to drag this out for another decade or more in a stubborn legal system pursuit of getting the courts to grant some flavor of shall-issue concealed carry. Finally I think there is also a very small cadre that the would rather see no carry than unlicensed open carry and they will brook no discussion of the subject.
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  #108  
Old 04-21-2013, 1:47 PM
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Originally Posted by Kukuforguns View Post
Please quote where SCOTUS said that there is a right to carry a handgun openly outside the home. Just because the Court said: "You can prohibit concealed carry," it does not logically follow that open carry is a constitutional right. Another interpretation (and I believe a more likely interpretation) is that states can regulate the manner of carriage (i.e., either open or concealed), but that carriage outside the home is required.
I'm in the "some form" opinion camp but, and this is just my opinion, I think they want to tackle a no carry case, or no readily available form of carry case that doesn't involve asking for shall-issue concealed carry. I doubt Palmer is going anywhere for years to come, and if Moore is appealed (unlikely) it still doesn't address licensing and licensing requirements or may issue vs shall-issue. It's true that they could if they choose fill in some of those blanks but even if they do some courts will call that just more Heller like "dicta". If they don't fill in the blanks than we're still left with may-issue (really almost no-issue) to litigate for years to come before the majority of Californians will have access to a legal means to carry a loaded gun.

Quote:
I agree, that's heresy. If unlicensed carry was unwanted, why would SAF have filed Palmer and Moore?
Those are low hanging fruit that may still leave years of litigation flesh out and where the hoped for end result is shall-issue concealed carry licenses. That's a laudable goal but years and years away. What the legal experts have avoided is challenging bans that cover open carry only - where no other means are realistically available - like California or when traveling to states that don't have CCW reciprocity. I just happen to be of the opinion that the shortest distance to winning everything we want is to go after California's ban on unlicensed loaded open carry. It addresses carry "in some form" without asking for a CCW and it challenges licensing a fundamental right.

Quote:
You seem to believe a court (including SCOTUS) is more like to say: "Unlicensed open carry outside the home is a constitutional right" than "Carriage outside the home is a constitutional right." Given that the first option unnecessarily limits states' ability to regulate carriage, I think the second option is more likely.
States may regulate time place and manner but not the basic exercise of a right. For example they can require a parade permit inorder to ready themselves for traffic and crowd control but they may not require a permit to walk down the street with a "Jesus Saves" shirt on or while discussing politics with friends. The state may regulate the place by setting aside a very few sensitive places and manner by saying no concealed carry, or concealed carry only, or concealed carry by license only as long as (in my opinion) there is some form of unlicensed carry readily available. In my layman's opinion the best vehicle is a civil case that challenges a law that only bans loaded open carry in a state where it's almost impossible for the average citizen to get a CCW, or by challenging no unlicensed loaded open carry in states that do no have reciprocity for CCWs.
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Old 04-21-2013, 7:46 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.
Yes you can. "Rudely" displaying a long-gun is a made up crime.

The defeatist attitude in Texas scares me. Temple PD unlawfully disarming an active duty soldier scares the absolute shat out of me.

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Old 04-21-2013, 10:19 PM
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Originally Posted by Mulay El Raisuli View Post
On the basis of what was actually said in Heller, open carry is the protected Right.
There were never any questions raised about public carry of arms anywhere in the Heller litigation. The Court considered the meaning of the phrase “to bear” only to the extent that the appellants (and dissent) argued that it denoted a purely military application.

Ruling on the manner of carry in the Heller opinion would have been a flagrant violation of the avoidance principle of the justiciability canon. The Court did not make that mistake.
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Old 04-22-2013, 10:28 AM
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Please quote where SCOTUS said that there is a right to carry a handgun openly outside the home. Just because the Court said: "You can prohibit concealed carry," it does not logically follow that open carry is a constitutional right. Another interpretation (and I believe a more likely interpretation) is that states can regulate the manner of carriage (i.e., either open or concealed), but that carriage outside the home is required.

Actually, it DOES logically follow that LOC is the protected Right. There are after all only two ways to carry. If one can be prohibited, that only leaves the other.

But that's just logic. In addition, Heller also quoted Nunn & those other cases from the 19th century that prohibited concealed carry but forbade prohibitions of open carry. That may be merely dicta, but its extremely telling dicta. Also telling, that there isn't a single word about the Court allowing the states to regulate the manner of carry.


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I agree, that's heresy. If unlicensed carry was unwanted, why would SAF have filed Palmer and Moore? Given the total carry bans at issue in IL and D.C., this is a possible outcome. Read the Moore opinion, do you see the 7th Circuit ever stating that IL can condition the carriage of a weapon on a license? From my perspective, it appeared as though Palmer was intended to be the lead case and Moore the secondary case. SAF won Moore. The SAF cannot force the D.D.C. to make a ruling in Palmer.

Given that "its checkers, not chess" I wouldn't automatically conclude that unlicensed concealed carry is the goal. My reading is that making Shall Issue concealed carry the protected Right is the goal. Along with this, Gura did admit during oral argument (in a case that I can't recall the name of right now) that the state can require a license, but that it must do so fairly. That's not exactly working for unlicensed carry of any kind. See below also.


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These states also are preventing the open carriage of handguns. The courts recognize this, as the following quote from the Kachalsky opinion makes clear:

The 2nd did say that. But, the court can't rule on an issue not presented to it. I.E., they didn't strike down the ban on open carry because they weren't asked to. See below also.


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You seem to believe a court (including SCOTUS) is more like to say: "Unlicensed open carry outside the home is a constitutional right" than "Carriage outside the home is a constitutional right." Given that the first option unnecessarily limits states' ability to regulate carriage, I think the second option is more likely.

Limiting the options of a state to limit carriage is (I believe) the goal. It isn't just Heller that makes me think that. There's something from the 10th Circuit, back in February, (Peterson v. Martinez, 11-1149). The court said,

"In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections."

But elsewhere, they also said, "By contrast, had Peterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry."

What I see is A: yet another example of why any & all effort to make concealed carry the protected Right will fail. And B: that not only will the Federal Courts courts make unlicensed LOC the protected Right, by going out of their way to comment on the matter, they're actually looking for the opportunity to do so.


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There is an alternative reason why SCOTUS denied cert. in Kachalsky (as opposed to the CC issue). Namely, that Kachalsky raises two questions. SCOTUS knows that Moore is out there. The possibility of getting a petition in Moore adequately explains SCOTUS's denial of cert. in Kachalsky.

Ah! I get it now. Thank you.

I don't completely rule that out. I don't accept that this is the case either, mind, but do admit the possibility.


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We already won Moore, so I assumed you were talking about SCOTUS. When SCOTUS says public carriage is a fundamental right, I want it to be in the context of an Otis McDonald, not a murderer.

SCOTUS is always on my mind, but the post is about getting to SCOTUS, so you weren't too far off.

As for context, I just want them to say it. I don't care about the context. Just as I don't care that the "context" for the 5th Amendment is Ernesto Miranda. Besides, "criminal case" doesn't have to equal bad guy. Good people get tagged with open carry too, you know. All we have to do is find one.


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First, to the extent I conflated your and KCBrown's positions, I apologize. Nevertheless, I disagree with you regarding the purpose of Kachalsky. Kachalsky challenged NY's statutory scheme that prohibits all carriage outside the home without a license issued only on proper cause. Look at the questions asked, concealed carry is not the relief sought by plaintiffs. Carriage outside the home without a showing of proper cause was what was requested.

Well, KCBrown & I are both arguing against you, so conflating is certainly understandable.

No (and, this is the "below" referred to above), "carriage outside the home" was NOT the issue Kachalsky. The section of the NY Penal Code that was challenged related only to concealed carry. The ban on open carry is in another section. That means that any & all arguments relating to non-concealed matters could not be raised by Kachalsky. If it were a matter of merely "carriage outside the home," then BOTH sections would have been challenged. As only the the ban on concealed carry was challenged, the intent of the effort completely clear. And, as was the case with Gray, was just as big a mistake.



From your other post:
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There were never any questions raised about public carry of arms anywhere in the Heller litigation. The Court considered the meaning of the phrase “to bear” only to the extent that the appellants (and dissent) argued that it denoted a purely military application.

Ruling on the manner of carry in the Heller opinion would have been a flagrant violation of the avoidance principle of the justiciability canon. The Court did not make that mistake.

Not quite. There were other ways to address the 'military application' question. The deliberately chose to use civilian analogies.


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Old 04-22-2013, 10:33 AM
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I did word that rather poorly. In Heller the court told us several things, among them that there is an individual right to keep and bear arms, and that we have a right to own weapons that are in common use including handguns, and finally that we have the right to have a firearm, including a handgun, in our homes that is ready for use. What we also know is that in Heller the majority agreed that there is a right to bear arms, but that concealed carry is not a right. For that reason I don't think it's too much ask for our side to challenge a licensing requirement for a fundamental right in an open carry case. Maybe they'll punt on the licensing part but we can ask while challenging the law banning open carry.

There are several reasons that it's critical to challenge the power to license a fundamental right but for this discussion we need look no further than Chicago for our answer. Unless the power to require a license to exercise the right to keep and bear arms is struck down Chicago will just keep mooting cases as they come close to losing and throwing up new roadblocks just as they have done in Ezell. I'm afraid that the California legislature's answer to shall-issue a license for 'some form of carry' will be to create onerous licensing requirements. Sure we can sue to overturn a requirement but they'll just replace (for example) 100 hours of training with 20 hours of training from an off duty LEO with an unobtainable training certificate, and when the court tosses that as excessive, they'll come back with making traffic and parking violations a reason to refuse a license, and when we beat that they'll come up with something else. The legal eagles here will point out that none of that will hold up in court - but nobody will expect them to, the purpose will be to obstruct and delay issuing more than a handful licenses for as long as possible, and each consecutive case will take 1-2 years of litigation depending on how anti the trial judge is. The endless litigation strategy also risks that cases will still be pending after one or two of the Heller 5 are retired, and that will give the new anti-Heller majority a vehicle to roll back our rights.

If the fundamental right is loaded open carry then a ruling that the government may not require a license to exercise a fundamental right then we head off years and years and years of litigation. It also heads off other things that our commissars are considering like a license to buy or possess ammunition (killing off IL's FOID) and things that they'll try to license later like possession of guns and purchasing guns. Why not head off a decade or more of roadblocks and litigation by asking for unlicensed open carry?


I think you're very right. In most cases I suspect it's just well intentioned tunnel vision, and with some few I suspect it's a matter of already having a CCW, and while really wanting others to have them too, they feel that we can afford to drag this out for another decade or more in a stubborn legal system pursuit of getting the courts to grant some flavor of shall-issue concealed carry. Finally I think there is also a very small cadre that the would rather see no carry than unlicensed open carry and they will brook no discussion of the subject.

Thank you for clarifying. And, yes, I think you completely correct. ESPECIALLY about what Chicago is doing. The anti-Constitutionalists are certainly going to take inspiration from all of that.

You're on the money in your other post as well.


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Old 04-22-2013, 11:19 AM
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Actually, it DOES logically follow that LOC is the protected Right. There are after all only two ways to carry. If one can be prohibited, that only leaves the other.

But that's just logic. In addition, Heller also quoted Nunn & those other cases from the 19th century that prohibited concealed carry but forbade prohibitions of open carry. That may be merely dicta, but its extremely telling dicta. Also telling, that there isn't a single word about the Court allowing the states to regulate the manner of carry.
I disagree with your train of logic. The Court cited several cases that held that states may prohibit concealed carry where open carry is available. These cases can be read the way you are reading them (open carry is a constitutional right) or for the proposition that states can regulate the manner of carriage so long as some type of carriage is legal. Under the second view (mine), SCOTUS's reference to these cases was the Court's discussion "allowing the states to regulate the manner of carrying." The Court's citation to the 19th C. cases took place in the context of its discussion of reasonable restrictions (place and manner).

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Given that "its checkers, not chess" I wouldn't automatically conclude that unlicensed concealed carry is the goal. My reading is that making Shall Issue concealed carry the protected Right is the goal. Along with this, Gura did admit during oral argument (in a case that I can't recall the name of right now) that the state can require a license, but that it must do so fairly. That's not exactly working for unlicensed carry of any kind. See below also.
The immediate goal, as I see it, is an order similar to that in Moore: the state's prohibition on carriage outside the home for the general public is unconstitutional. If the states revise their laws to provide for licensed carriage, we attack the laws if the licensing scheme is onerous. Otherwise we move on to more pressing issues. We can always come back to attack licensing.

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The 2nd did say that. But, the court can't rule on an issue not presented to it. I.E., they didn't strike down the ban on open carry because they weren't asked to. See below also.
I think you misread the relief requested in Kachalsky, Moore, etc. They are challenging the states' prohibition on providing any method for carriage outside the home.

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Originally Posted by Mulay El Raisuli View Post
Limiting the options of a state to limit carriage is (I believe) the goal. It isn't just Heller that makes me think that. There's something from the 10th Circuit, back in February, . . .
I'd rather discuss this case not on a public forum.

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Originally Posted by Mulay El Raisuli View Post
What I see is A: yet another example of why any & all effort to make concealed carry the protected Right will fail. And B: that not only will the Federal Courts courts make unlicensed LOC the protected Right, by going out of their way to comment on the matter, they're actually looking for the opportunity to do so.
I think you are misinterpreting SCOTUS's reference to the 19th C. cases, as discussed above.

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Originally Posted by Mulay El Raisuli View Post
No (and, this is the "below" referred to above), "carriage outside the home" was NOT the issue Kachalsky. The section of the NY Penal Code that was challenged related only to concealed carry. The ban on open carry is in another section. That means that any & all arguments relating to non-concealed matters could not be raised by Kachalsky. If it were a matter of merely "carriage outside the home," then BOTH sections would have been challenged.
Your interpretation of the relief sought in Kachalsky is flawed:

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17. The States retain the ability to regulate the manner of carrying handguns, prohibit the carrying of handguns in specific, narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment protection, and disqualify specific, particularly dangerous individuals from carrying handguns.

18. The States may not completely ban the carrying of handguns for self-defense, deny individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.4Case 7:10-cv-05413-CS Document 15 Filed 11/04/10 Page 4 of 11

19. New York Penal Code § 265.01(1) prohibits the possession of firearms. A violation of this provision constitutes “Criminal Possession of a Firearm in the Fourth Degree,” a class A misdemeanor.

20. New York Penal Code § 265.03(3) provides that possession of a loaded firearm outside one’s home or place of business constitutes “Criminal Possession of a Firearm in the Second Degree,” a class C felony.

21. The prohibitions of sections 265.01(1) and 265.03(3) do not apply to the“[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01.” New York Penal Code § 265.20.

22. For most civilians who are not otherwise barred from possessing and carrying weapons, the only permit to carry handguns in public for self-defense is a permit “to have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof,” pursuant to New York Penal Code § 400.00(2)(f).
These allegations state that NY is infringing on the right to carry outside one's home - these allegations are not limited to a claim that the Licensing scheme is unconstitutional. The allegations specifically identify the general prohibition on carriage outside the home. I've communicated with sholling via personal message, and I understand your concern given prior cases. All I can say is that the relief requested in Kachalsky/Woollard/et al. is broader than that requested in the case that concerns you.
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Old 04-22-2013, 12:19 PM
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The immediate goal, as I see it, is an order similar to that in Moore: the state's prohibition on carriage outside the home for the general public is unconstitutional. If the states revise their laws to provide for licensed carriage, we attack the laws if the licensing scheme is onerous. Otherwise we move on to more pressing issues. We can always come back to attack licensing.
As mentioned before, if the issue of requiring a license to exercise a fundamental right is not attacked in Moore then it leaves our current may-issue (defacto no-issue) system in place through many-many more years of suits and appeals. The thing that frightens me is that by the court not addressing licensing in a firm way, the California legislature will feel empowered to require a license to buy or possess ammo and a license to buy or possess firearms and that those licenses will have to be renewed annually.

It also leaves Illinois a minefield of conflicting carry laws. One county may decide on constitutional carry, while the next decides on licensed open carry only, while the next decides on shall-issue concealed carry only, and Chicago decides may-issue (defacto no-issue) concealed carry is okay once you've completed several hundred hours of training. Depending on the commute that could mean transitioning from open to concealed to a locked box and back again a few times while driving to work. But I guess if enough good hard working citizens are sent to jail then the legislature will eventually compromise on a state wide may-issue law. May-issue because the pro's need to fix the patchwork will leave the antis in the driver's seat.

Hopefully the court will use Woollard to address all of the above so that we can move on to an interstate carry case and NY's SAFE Act. It would be nice to be able to move forward instead of the court leaving us fighting a year in and year out losing rear guard battle to hang onto what few rights we still have here in California, but I'm not holding out much hope. Meanwhile because we waited the Nichols case (good or bad) will be the one that establishes licensing and carry case laws in 10CA.

I have a couple of letters to write today.
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Old 04-22-2013, 12:48 PM
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Kuku, I think Mulay was referencing Peterson in your quoted reply above, not Heller. Here is the full quote by Mulay for context:

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Limiting the options of a state to limit carriage is (I believe) the goal. It isn't just Heller that makes me think that. There's something from the 10th Circuit, back in February, (Peterson v. Martinez, 11-1149). The court said,

"In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner,we holdthatthis activity does not fall within the scope of the Second Amendment’s protections."

But elsewhere, they also said, "By contrast,hadPeterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry."

What I see is A: yet another example of why any & all effort to make concealed carry the protected Right will fail. And B: that not only will the Federal Courts courts make unlicensed LOC the protected Right, by going out of their way to comment on the matter, they're actually looking for the opportunity to do so.
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Old 04-22-2013, 2:06 PM
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Through the course of this thread, I have heard lots of reasons why Moore, Woolard, Peruta, etc will hopefully be granted cert and the reasons why said cases are likely to get us bear in a meaningful way. What I haven't heard are reasons why pursuing a case going after unlicensed LOC is bad, with the exception of "people will freak out at Open Carry, so SCOTUS will not touch with a ten foot pole" -a reason I find to be not very compelling. What would be the HARM in going forward with an unlicenced LOC case if we can find a relatively clean defendant or plaintiff?
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Old 04-22-2013, 2:23 PM
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I disagree with your train of logic. The Court cited several cases that held that states may prohibit concealed carry where open carry is available. These cases can be read the way you are reading them (open carry is a constitutional right) or for the proposition that states can regulate the manner of carriage so long as some type of carriage is legal. Under the second view (mine), SCOTUS's reference to these cases was the Court's discussion "allowing the states to regulate the manner of carrying." The Court's citation to the 19th C. cases took place in the context of its discussion of reasonable restrictions (place and manner).
No, you were right the first time. The Heller Court simply did not address carry except to determine that the disputed phrase “to bear” did not have an exclusively military context.

Those arguing that the particular manner of carry matters before the courts have first established a Second Amendment right to carry misunderstand the judicial process. Litigation is not legislation. Courts only consider the controversy before them and purposely leave as much as possible for future decisions. Cass Sunstein's 2001 book, One Case at a Time: Judicial Minimalism on the Supreme Court explains it so:

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The Constitution speaks broadly and abstractly about some of our highest aspirations. Many of the great constitutional issues involve the meaning of the basic ideas of “equality” and “liberty.” When, if ever, might the government discriminate on the basis of race or sex or sexual orientation? Does the government restrict free speech by, for example, regulating expenditures on campaigns, or controlling the Internet, or requiring educational programming for children or free air time for candidates?

These are large questions. Sometimes the Supreme Court answers them. We will have occasion to discuss the substance of those answers. For the moment let us notice something equally interesting: frequently judges decide very little. They leave things open. About both liberty and equality, they make deliberate decisions about what should be left unsaid. This is a pervasive practice: doing and saying as little as is necessary in order to justify an outcome.

Consider some recent examples. When the Court ruled that the Virginia Military Institute could not exclude women, it pointedly refused to say much about the legitimacy of other single-sex institutions; it left the general question undecided. When the Court struck down an affirmative action program in Richmond, Virginia, it self-consciously refused to impose a broad ban on race-conscious programs; it left that question for another day. When the Court invalidated a Colorado law forbidding measures banning discrimination on the basis of sexual orientation, it said almost nothing about how the Constitution bears on other issues involving homosexuality.

Let us describe a phenomenon of saying no more than necessary to justify an outcome, and leaving as much as possible undecided as “decisional minimalism.” Decisional minimalism has two attractive features. First, it is likely to reduce the burdens of judicial decision. It may be very hard, for example, to obtain a ruling on the circumstances under which single-sex education is legitimate. It may be especially hard to do this on a multimember court, consisting of diverse people who disagree a great deal. A court that tries to agree on that question may find itself with no time for anything else. And a court that tries to agree on that question may find itself in the position of having to obtain and use a great deal of information, information that may not be available to courts (and perhaps not to anyone else).

Second, and more fundamentally, minimalism is likely to make judicial errors less frequent and (above all) less damaging. A court that leaves things open will not foreclose options in a way that may do a great deal of harm. A court may well blunder if it tries, for example, to resolve the question of affirmative action once and for all, or to issue definitive rulings about the role of the First Amendment in an area of new communications technologies. A court that decides relatively little will also reduce the risks that come from intervening in complex systems, where a single-shot intervention can have a range of unanticipated bad consequences.

There is a relationship between judicial minimalism and democratic deliberation. Of course minimalist rulings increase the space for further reflection and debate at the local, state and national levels, simply because they do not foreclose subsequent decisions. And if the Court wants to promote more democracy and more deliberation, certain forms of minimalism will help it do so. If, for example, the Court says that any regulation of the Internet must be clear rather than vague, and that a ban on “indecent” speech is therefore unconstitutional simply because it is vague, the Court will, in a sense, promote democratic processes by requiring Congress to legislate with specificity. Or if the Court says that any discrimination against homosexuals must be justified in some way, it will promote political deliberation by ensuring that law is not simply a product of unthinking hatred or contempt.

An understanding of minimalism helps to illuminate a range of important and time-honored ideas in constitutional law: that courts should not decide issues unnecessary to the resolution of a case; that courts should refuse to hear cases that are not “ripe” for decision; that courts should avoid deciding constitutional questions; that courts should respect their own precedent; that courts should not issue advisory opinions; that courts should follow prior holdings but not necessarily prior dicta; that courts should exercise the “passive virtues” associated with maintaining silence on great issues of the day. All of these ideas involve the constructive use of silence. Judges often use silence for pragmatic, strategic, or democratic reasons. Of course it is important to study what judges say; but it is equally important to examine what judges do not say, and why they do not say it. As we shall see, the question whether to leave things undecided helps unite a series of otherwise disparate debates in constitutional law.

[In this book] I offer two preliminary suggestions about a minimalist path. The first suggestion is that certain forms of minimalism can be democracy-promoting, not only in the sense that they leave issues open for democratic deliberation, but also and more fundamentally in the sense that they promote reason-giving and ensure that certain important decisions are made by democratically accountable actors. Sometimes courts say that Congress, rather than the executive branch, must make particular decisions; sometimes they are careful to ensure that good reasons actually underlie challenged enactments. In so doing, courts are minimalists in the sense that they leave open the most fundamental and difficult constitutional questions; they also attempt to promote democratic accountability and democratic deliberation. Judge-made doctrines are thus part of an effort to ensure that legitimate reasons actually underlie the exercise of public power.

My second suggestion is that a minimalist path usually – not always, but usually – makes a good deal of sense when the Court is dealing with a constitutional issue of high complexity about which many people feel deeply and on which the nation is divided (on moral or other grounds). The complexity may result from a lack of information, from changing circumstances, or from (legally relevant) moral uncertainty. Minimalism makes sense first because courts may resolve those issues incorrectly, and second because courts may create serious problems even if their answers are right. Courts thus try to economize on moral disagreement by refusing to take on other people’s deeply held moral commitments when it is not necessary for them to do so in order to decide a case. For this reason courts should usually attempt to issue rulings that leave things undecided and that, if possible, are catalytic rather than preclusive. They should indulge a presumption in favor of minimalism.

We can link the two points with the suggestion that in such cases, courts should adopt forms of minimalism that can improve and fortify democratic processes. Many rules of constitutional law attempt to promote political accountability and political deliberation. Minimalism is not by any means democracy-promoting by its nature; but it is most interesting when it is democracy-promoting in this way.
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Old 04-22-2013, 2:50 PM
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Through the course of this thread, I have heard lots of reasons why Moore, Woolard, Peruta, etc will hopefully be granted cert and the reasons why said cases are likely to get us bear in a meaningful way. What I haven't heard are reasons why pursuing a case going after unlicensed LOC are bad, with the exception of "people will freak out at Open Carry, so SCOTUS will not touch with a ten foot pole" -a reason I find to not be very compelling. Wwhat would be the HARM in going forward with an unlicenced LOC case if we can find a relatively clean defendant or plaintiff?
I'm not against an LOC case. I think Moore and Palmer are, potentially, such cases. Nor am I opposed to filing new LOC cases in theory. In practice, I am slightly against filing new cases focused on LOC. Check out the big book of 2d Amendment litigation (Librarian's got a link somewhere, which I can never find easily). There's a lot going on. There are relatively few attorneys I want to trust with Big Issue 2d Amendment litigation (I think SAF should probably be developing new attorneys with minor league cases). I suspect that Gura is operating near capacity. Moreover, when an attorney takes a case, the attorney is making a commitment to see the case to completion, which can be several years. I do not want our best attorneys cluttering up their future schedule when I believe that the Court will address carriage outside the home using one of the cases already filed. In addition, I don't what to have an endless supply of cert. worthy cases on this issue. If there is an endless supply, the Court can wait for the perfect case. I don't want SCOTUS waiting for the "perfect" case. I want the Court to grant cert. to a good case NOW. One of my mentors explained that better can be the enemy of good. I firmly believe that there are members of SCOTUS that want to develop 2d Amendment precedent and that SCOTUS will grant cert. in a public carriage case that has already been filed. Why waste scarce resources when it's not necessary?
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Old 04-22-2013, 3:11 PM
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Originally Posted by VAReact View Post
Through the course of this thread, I have heard lots of reasons why Moore, Woolard, Peruta, etc will hopefully be granted cert and the reasons why said cases are likely to get us bear in a meaningful way. What I haven't heard are reasons why pursuing a case going after unlicensed LOC are bad, with the exception of "people will freak out at Open Carry, so SCOTUS will not touch with a ten foot pole" -a reason I find to not be very compelling. Wwhat would be the HARM in going forward with an unlicenced LOC case if we can find a relatively clean defendant or plaintiff?
In order to have standing to challenge the prohibition on carrying a loaded firearm in public in California (PC § 25850), it would be necessary for the plaintiff to apply for and be denied a license to (openly) carry a firearm. If the license were available and denied, then the legal issues in the case would be mostly indistinguishable from existing litigation such as Richards and Peruta.

If the license was unavailable, it it likely that the case would be dismissed for failure to state a claim upon which relief can be granted because concealed carry was statutorily available. Depending upon how the complaint was drafted, there might be a slight possibility that a ruling on the constitutional issues could be forced, wherein the case would be dismissed because the Second Amendment does not protect a right to openly carry firearms — just like it doesn't protect a right to carry concealed firearms.

It's not as if this hasn't been thought through before.
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Old 04-22-2013, 4:35 PM
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Originally Posted by Kukuforguns View Post
You, sholling, and KCBrown keep acting as though the denial of cert. in Kachalsky was surprising. It was not.
You mistake my position.

I did not find their denial of cert to be surprising. I found it to be dismaying, precisely for the reasons you've been arguing: it asked the right questions, and yet the Court refused to take it.


Quote:
There's an outside chance that IL's AG will petition for cert. in Moore. If that doesn't happen, then Woollard will be in front of SCOTUS. If SCOTUS doesn't bite at either of those, we can discuss this again.
I predict that Madigan will not petition for cert in Moore, and that SCOTUS will not bite at Woollard.
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