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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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  #121  
Old 04-22-2013, 4:38 PM
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Quote:
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.
There is one problem with this particular line of thinking:

Quote:
Originally Posted by Heller decision
In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.”
(emphasis mine)


A firearm cannot be carried in the clothing or in a pocket without being concealed.

While the definition above also covers open carry, it includes concealed carry. To state that the 2nd Amendment does not protect concealed carry (at least when open carry is forbidden), therefore, flies in the face of the very definition SCOTUS is using for "bear" unless the 2nd Amendment does not protect carry at all.
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  #122  
Old 04-22-2013, 5:03 PM
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^

What the heck am I doing posting here?
I'll return to just reading.
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  #123  
Old 04-23-2013, 7:06 AM
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Originally Posted by Kukuforguns View Post
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).

The problem here is that the availability of open carry was not a factor in the Rulings that were quoted. It's not a matter of how I "read" them. The Supreme Courts quoted all said that carrying concealed = bad, NOT the protected Right; carrying openly = good, IS the protected Right. Now, if SCOTUS had added commentary about the states being allowed to choose the manner of carry (or even any commentary at all), then you'd have something. But to quote a Ruling w/o commentary is to accept the logic of that Ruling as well.


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Originally Posted by Kukuforguns View Post
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.

Maybe. Or maybe the Court will be packed after we lose one of the Heller-5 & the time to protect the 2A will have passed. Time matters & I think we've wasted enough of it.


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Originally Posted by Kukuforguns View Post
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.

Again, if that were true then they would have challenged the section banning open carry as well.


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Originally Posted by Kukuforguns View Post
I'd rather discuss this case not on a public forum.

You can always PM me.


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Originally Posted by Kukuforguns View Post
Your interpretation of the relief sought in Kachalsky is flawed:

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.

No. Because, again, no challenge was made against the ban against open carry. And there's this question:


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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 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?

I wonder the same thing. Peterson explicitly refused to attack Denver's ban on open carry. Kachalsky implicitly refused to attack NY's ban. I'm not seeing any good reason to pass on the issue of unlicensed LOC. It isn't a matter of 'throwing everything in & see what sticks.' My interpretation that LOC is the protected Right isn't a 'out in left field' kind of thing. After all, both the 2nd & 10th Circuits have come to the same conclusion. So have other courts & lawyers. Sholling has listed a bunch of good that comes our way with a win on LOC. Its hard to avoid the conclusion that unlicensed LOC is NOT desired by the "right people."


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Originally Posted by navyinrwanda View Post
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.

Not true. Being arrested also provides standing.


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Originally Posted by navyinrwanda View Post
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.

As pointed out above, SCOTUS (by quoting the 19th Century carry cases) has said that concealed isn't the protected Right, but that open carry is.


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Originally Posted by navyinrwanda View Post
It's not as if this hasn't been thought through before.

That's the part that worries me.


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Originally Posted by sholling View Post
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.

Yes, our enemies are not standing still. And neither are our "friends." Yielding the field only means that others step in. If we're not happy with their warplan, we've only ourselves to blame.


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Originally Posted by navyinrwanda View Post
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:

Al the more reason to NOT limit what we ask for.


Quote:
Originally Posted by kcbrown View Post
There is one problem with this particular line of thinking:



(emphasis mine)


A firearm cannot be carried in the clothing or in a pocket without being concealed.

While the definition above also covers open carry, it includes concealed carry. To state that the 2nd Amendment does not protect concealed carry (at least when open carry is forbidden), therefore, flies in the face of the very definition SCOTUS is using for "bear" unless the 2nd Amendment does not protect carry at all.

The problem here is that 'ways a weapon can be borne' is not the same thing as 'what is the Constitutionally protected method of bearing a weapon.' I.E., just because SCOTUS is saying that a pistol can be carried in a pocket is NOT the same thing as SCOTUS saying that carrying in a pocket is the protected Right.

And again, there are other ways of making the point that the Right is unconnected to service in a militia. By choosing those particular cases, SCOTUS was saying what is the Constitutionally protected manner of "and bear."


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  #124  
Old 04-23-2013, 12:07 PM
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Originally Posted by Mulay El Raisuli View Post
The problem here is that 'ways a weapon can be borne' is not the same thing as 'what is the Constitutionally protected method of bearing a weapon.' I.E., just because SCOTUS is saying that a pistol can be carried in a pocket is NOT the same thing as SCOTUS saying that carrying in a pocket is the protected Right.
But SCOTUS isn't just saying that a pistol can be carried in a pocket, it is saying that the definition of "bear" for the purpose of the 2nd Amendment includes it. In other words, it's saying the very thing you claim it is not.

For that to not be the case, that entire part of the discussion in Heller must be considered null and void. You can't say that only part of the definition they used is valid. Either all of it is or none of it is.
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  #125  
Old 04-23-2013, 1:48 PM
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Originally Posted by Mulay El Raisuli View Post
I wonder the same thing. Peterson explicitly refused to attack Denver's ban on open carry. Kachalsky implicitly refused to attack NY's ban. I'm not seeing any good reason to pass on the issue of unlicensed LOC. It isn't a matter of 'throwing everything in & see what sticks.' My interpretation that LOC is the protected Right isn't a 'out in left field' kind of thing. After all, both the 2nd & 10th Circuits have come to the same conclusion. So have other courts & lawyers. Sholling has listed a bunch of good that comes our way with a win on LOC. Its hard to avoid the conclusion that unlicensed LOC is NOT desired by the "right people."
My conclusion is that neither unlicensed carry or LOC are considered desirable outcomes by at least by some of the "right people" and I think that the combination is so completely off their radar that they are fine with allowing less qualified attorneys to kill off that option for all of us. I'm finally convinced that for the next several years the only approved direction will remain 'licensed concealed carry or bust'. Unfortunately "bust" sucks for all of us in California. If Moore isn't appealed and Woolard is denied cert they'll just tell us to be patient for a Richards cert in 2014 and a hoped for ruling in 2015, and if Richards is denied cert they'll tell us to be patient and wait for a 2016 ruling on some other case, and when that case is denied cert then lather, rinse, and repeat for 2017, 2018, 2019 etc.

As I've said before "unlicensed" is a strict scrutiny ruling which we can use to fight all of the nastiness currently moving through the California legislature and all that they come up with next year, and the next. No matter how you dress it up or what the court calls it, licensed carry without some form of unlicensed loaded carry available is intermediate scrutiny and leaves the probability that lower courts will apply intermediate scrutiny (or rational basis dressed up as intermediate scrutiny) to the bullet button ban, the AWB, the safe handgun list, as well as gun and ammo purchase and possession licensing. It also solves interstate carry while traveling.

Quote:
Highest Level: Governmental interference with these liberties only permitted with proof of a “compelling state interest” by the government. The burden thus is on the government to show the compelling interest and to show how the regulation of liberty serves the compelling interest and is “narrowly tailored” to serve that end or is not an “overbroad” regulation of liberty.
At this level licensing the purchase and possession (including in your home or on your hip) do not hold up, nor do bans on commonly held but scary looking arms.

Intermediate Scrutiny
Quote:
Intermediate Level. Governmental interference with these liberties permitted only when the classifications “serve an important governmental objective” and are “substantially related to the achievement of those [governmental] objectives” or are “narrowly tailored.”
Licensing of the purchase and possession of arms and ammunition with annual training requirements, and storage restrictions become arguably constitutional because they serve the interest of safety and the only limitation on rights is the difficulty and cost of getting and maintaining a license.

Rational Basis
Quote:
Lower Level. Governmental interference with these liberties permitted when there is a “rational” or “reasonable” and “valid” need to regulate the liberty “in the public interest.” The burden is on the rights-claimant to show the governmental interference is no rational or reasonable
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Last edited by sholling; 04-23-2013 at 3:49 PM..
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  #126  
Old 04-23-2013, 3:13 PM
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Frankly I like the idea of LOC being beyond control.
That would quickly change their minds about CCW.

Just because I wouldn't choose to OC, having it guaranteed available would be good.
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  #127  
Old 04-23-2013, 4:04 PM
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Originally Posted by sholling View Post
My conclusion is that neither unlicensed carry or LOC are considered desirable outcomes by at least by some of the "right people" and I think that the combination is so completely off their radar that they are fine with allowing less qualified attornies to kill off that option for all of us. I'm finally convinced that for the next several years the only approved direction will remain 'licensed concealed carry or bust'. Unfortunately "bust" sucks for all of us in California. If Moore isn't appealed and Woolard is denied cert they'll just tell us to be patient for a Richards cert in 2014 and a hoped for ruling in 2015, and if Richards is denied cert they'll tell us to be patient and wait for a 2016 ruling on some other case, and when that case is denied cert then lather, rinse, and repeat for 2017, 2018, 2019 etc.
That is a suspicion I have had since I started this thread. One of my motivations in starting the thread was a hope of teasing out the position of the "right people" on this. I'd have to agree that there are undercurrents or intimations in many of the responses in this thread that are less than supportive of taking a different tack.

On a separate note:

To quote Mulay:
Quote:
I'm not seeing any good reason to pass on the issue of unlicensed LOC. It isn't a matter of 'throwing everything in & see what sticks.'
Honestly, this WAS my thought in a way, or at least the thought of taking a different approach. I'm not so concerned in HOW our rights are secured, just that they ARE secured. There are more than 3 cases already in the pipeline. It will take time to work an alternative case through. A contingency against the possible failure of what is already proceeding.
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Last edited by VAReact; 04-23-2013 at 4:13 PM..
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  #128  
Old 04-23-2013, 4:10 PM
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Originally Posted by Mulay El Raisuli View Post
Not true. Being arrested also provides standing.
Sure. But that's not civil litigation anymore. And the constitutional issues would still be indistinguishable from Richards and Peruta.
Quote:
Originally Posted by Mulay El Raisuli View Post
It's not a matter of how I "read" them. ...to quote a Ruling w/o commentary is to accept the logic of that Ruling as well...

My interpretation that LOC is the protected Right isn't a 'out in left field' kind of thing. After all, both the 2nd & 10th Circuits have come to the same conclusion. So have other courts & lawyers...

As pointed out above, SCOTUS (by quoting the 19th Century carry cases) has said that concealed isn't the protected Right, but that open carry is...
No U.S. court in the post-Heller regime has ever ruled that one or another manner of carry is the “protected right.” Nor has any reputable scholar, litigator or other legal commentator suggested that the Second Amendment prescribes any particular manner of carry. Even the handful of court opinions favorable towards public carry (Woolard and Moore) were remarkably circumspect in their pronouncements on the scope of the Second Amendment; they were totally silent on permissible manner regulations.

And no, quoting another opinion does not mean that the current opinion accepts, imports or sustains the logic, reasoning or facts of the quoted opinion wholesale.

You are not employing logic. You're not even making interpretive leaps. This is pure fantasy driven by a willful ignorance of the law and by a manic investment in a particular outcome. While this “approach” is commonplace in political activism and can even be appropriate in legislative lobbying and issue advocacy, it is beyond counterproductive in litigation.
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  #129  
Old 04-23-2013, 4:34 PM
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I didn't read all 128 posts but if this hasn't been brought up yet, there is already a LOC lawsuit going through the courts:

http://blog.californiarighttocarry.org
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  #130  
Old 04-23-2013, 4:42 PM
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I didn't read all 128 posts but if this hasn't been brought up yet, there is already a LOC lawsuit going through the courts:

http://blog.californiarighttocarry.org
Yes, this case has been referenced in the thread.
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  #131  
Old 04-23-2013, 5:28 PM
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I'm of the belief that a case involving open carry is a necessity for the purpose of "defense in depth", as it were. Which is to say, it should come behind other cases that could get us concealed carry as a protected method of carry, but it should nevertheless be there in case those cases are passed upon, as a hedge with respect to the possibility (however unlikely) that the Court regards open carry as the most protected means of carry.

If the Court passes on that, too, then it means that the Court is not interested in protecting carry in public at all, and that would render the 2nd Amendment essentially nonexistent.
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  #132  
Old 04-23-2013, 5:43 PM
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Originally Posted by kcbrown View Post
I'm of the belief that a case involving open carry is a necessity for the purpose of "defense in depth", as it were. Which is to say, it should come behind other cases that could get us concealed carry as a protected method of carry, but it should nevertheless be there in case those cases are passed upon, as a hedge with respect to the possibility (however unlikely) that the Court regards open carry as the most protected means of carry.
Yes, agreed. This is what I am advocating as a matter of pure practicality. I am still analyzing the arguments that LOC is the protected right as presented by Sholling and Mulay, but my point throughout this entire thread has been contingency -a backup, if you will.
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  #133  
Old 04-23-2013, 6:33 PM
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Originally Posted by kcbrown View Post
But SCOTUS isn't just saying that a pistol can be carried in a pocket, it is saying that the definition of "bear" for the purpose of the 2nd Amendment includes it. In other words, it's saying the very thing you claim it is not.

For that to not be the case, that entire part of the discussion in Heller must be considered null and void. You can't say that only part of the definition they used is valid. Either all of it is or none of it is.

I still disagree. I'm not going to say that you're way out in left field, but I believe that the references to those 19th Cent. cases are pretty instructive. That the 2nd & 10th Circuits agree with me helps as well.


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Originally Posted by sholling View Post
My conclusion is that neither unlicensed carry or LOC are considered desirable outcomes by at least by some of the "right people" and I think that the combination is so completely off their radar that they are fine with allowing less qualified attorneys to kill off that option for all of us. I'm finally convinced that for the next several years the only approved direction will remain 'licensed concealed carry or bust'. Unfortunately "bust" sucks for all of us in California. If Moore isn't appealed and Woolard is denied cert they'll just tell us to be patient for a Richards cert in 2014 and a hoped for ruling in 2015, and if Richards is denied cert they'll tell us to be patient and wait for a 2016 ruling on some other case, and when that case is denied cert then lather, rinse, and repeat for 2017, 2018, 2019 etc.

That's my fear as well.


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Originally Posted by navyinrwanda View Post
Sure. But that's not civil litigation anymore. And the constitutional issues would still be indistinguishable from Richards and Peruta.

That's right! You've completely nailed it! The issues would be exactly the same! That it wouldn't be "civil litigation" is why its such a good idea. Criminal cases move thru the system MUCH faster.


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Originally Posted by navyinrwanda View Post
No U.S. court in the post-Heller regime has ever ruled that one or another manner of carry is the “protected right.” Nor has any reputable scholar, litigator or other legal commentator suggested that the Second Amendment prescribes any particular manner of carry. Even the handful of court opinions favorable towards public carry (Woolard and Moore) were remarkably circumspect in their pronouncements on the scope of the Second Amendment; they were totally silent on permissible manner regulations.

But Peterson & Kachalsky did BOTH say that concealed is NOT the Right. Again, there's only two manners if carry. If one isn't protected, then other must be. See also, what the 10th said in Peterson. True, that isn't a Ruling, but it is a pretty good hint.


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Originally Posted by navyinrwanda View Post
And no, quoting another opinion does not mean that the current opinion accepts, imports or sustains the logic, reasoning or facts of the quoted opinion wholesale.

So, they quoted it because they disagreed with it?


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Originally Posted by kcbrown View Post
I'm of the belief that a case involving open carry is a necessity for the purpose of "defense in depth", as it were. Which is to say, it should come behind other cases that could get us concealed carry as a protected method of carry, but it should nevertheless be there in case those cases are passed upon, as a hedge with respect to the possibility (however unlikely) that the Court regards open carry as the most protected means of carry.

If the Court passes on that, too, then it means that the Court is not interested in protecting carry in public at all, and that would render the 2nd Amendment essentially nonexistent.

Agree that passing on both would be as bad as you say. Disagree that LOC should come after CCW. We've HAD CCW cases make it to the Circuits. Kachalsky even made it to SCOTUS. And got shot down. CCW has had its chance. Time for LOC to step up to the plate.


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  #134  
Old 04-23-2013, 6:46 PM
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Originally Posted by Mulay El Raisuli View Post
I still disagree. I'm not going to say that you're way out in left field, but I believe that the references to those 19th Cent. cases are pretty instructive. That the 2nd & 10th Circuits agree with me helps as well.
Perhaps, but that would put SCOTUS at odds with its own definition.

The only interpretation that is consistent with both the cases that SCOTUS cited and the definition of "bear" that they used is that states may forbid one manner of carry so long as the other is treated as a right.

To argue, as you are here, that open carry is the only method of "bear" that is protected is to outright ignore the definition of "bear" that SCOTUS itself claimed to agree with.


Quote:
So, they quoted it because they disagreed with it?
No, they quoted it because they wanted to illustrate that manner of carry may legitimately be limited by the state.



Quote:
Agree that passing on both would be as bad as you say. Disagree that LOC should come after CCW. We've HAD CCW cases make it to the Circuits. Kachalsky even made it to SCOTUS. And got shot down. CCW has had its chance. Time for LOC to step up to the plate.
You misunderstand my statement.

My belief is that we should already have an open carry case in the pipeline, but that said case should be positioned after the concealed carry cases. I believe the fact that we don't have such a case in the pipeline to be a monumental strategic error.
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Old 04-23-2013, 7:10 PM
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As Mulay can tell you I was vehemently opposed to the unloaded open carry movement because I knew it was just going to trigger more legislation and cost us more of what little we retain of our rights. We argued a LOT over the subject. I'm not one of those that would open carry if concealed carry were easily available, I'm older and just prefer to be low key. What brought me into this camp is that Palmer is going nowhere for years and years, and I have serious doubts that Moore will be appealed just because of home rule and Chicago's ability to (with the help of judges) game the system for many years to come just as they have with McDonald and Ezell. Madigan would be a fool to appeal when she knows that carry licenses valid within Cook County will be kept as rare as hen's teeth for at least the next 3-5 years. She also knows that SCOTUS has rejected cert in criminal cases and now it's rejected cert in civil cases and by doing nothing she still keeps carry out of Chicago without the risk of setting SC precedent she doesn't like. In our situation the definition of insanity isn't just doing the same thing over and over while expecting different results, it's doing the same thing over and over while expecting different results - while rejecting any other approach because of what appears to be tunnel vision. It just seems foolish to reject unlicensed open carry even if it means the court rejecting our carry cases for years to come and people in California, NY, and MD are left helpless outside the home.

The other thing that's brought me over to Mulray's camp is that if we don't get strict scrutiny soon we're pretty quick going to have to figure out what to do with suddenly illegal semiautomatic rifles and shotguns and grandfathered magazines.
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Old 04-23-2013, 7:38 PM
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I’m afraid that navyinrwanda has us over the legalistic barrel on this one. Read what he actually posted and not just what you want to hear. The Supreme Court has not tipped its hand, so all of this has become pointless speculation.
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Old 04-23-2013, 8:20 PM
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Originally Posted by M. D. Van Norman View Post
I'm afraid that navyinrwanda has us over the legalistic barrel on this one. Read what he actually posted and not just what you want to hear. The Supreme Court has not tipped its hand, so all of this has become pointless speculation.
Even if they have not tipped their hand we have little choice but to try a different approach while continuing Gura's current cases. Our legislature is just not going to leave us much in the way of choices other than to 1) try to find a case that will firm up our rights, or 2) become instant felons for possessing semiautomatic rifles, or 3) leave the state.
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Old 04-24-2013, 9:27 AM
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I didn't read all 128 posts but if this hasn't been brought up yet, there is already a LOC lawsuit going through the courts:

http://blog.californiarighttocarry.org
Charles Nichols' pro se case is pretty much exactly what Messrs. Mulay El Raisuli and sholling are asking for.

The federal magistrate is treating Nichols fairly and his performance so far is no better or worse that CGF's local attorneys. Nichols is only on his second amended complaint and he's managed to overcome AG Harris' motions to dismiss. However, since he's being criminally prosecuted by the City of Redondo Beach for violating their local ordinances, Nichols' federal constitutional claims against these local defendants were dismissed pending Younger abstention (Nichols must assert and exhaust his federal constitutional claims in state court before federal courts can exercise jurisdiction). And his damages claims against the local police officers (for confiscating his openly carried weapons, etc.) were dismissed on qualified immunity grounds.

If his second (or third or fourth) amended complaint(s) survives, Nichols may even get an opinion on the merits. But following the Peruta court, any final opinion is likely to conclude that California's open carry ban does not operate as a total prohibition because concealed carry is available as an alternative. Nichols' second amended complaint also challenges several other aspects of California's carry statutes and appears not to be responsive to the magistrate's findings that earlier versions violated FRCP 8(a)(2), i.e., it contained so many rambling and irrelevant facts and allegations that it failed to “‘give the defendant fair notice of what the... claim is and the grounds upon which it rests.”

But who knows? Nichols might someday find himself (2015, 2016?) at the Supreme Court, successfully arguing that the Second Amendment really does protect open carry and nothing else. I've never claimed to be able to predict the future — just that I can rationally, professionally and in consensus with other legal scholars interpret existing law and court precedent. And no modern court has yet said that the Second Amendment says anything about open or concealed carry.
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Old 04-24-2013, 6:33 PM
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Originally Posted by Mulay El Raisuli View Post
Again, there's only two manners if carry. If one isn't protected, then other must be.
No, the either/or nature of open vs. concealed carry does not confer upon it any special significance. Neither manner is “protected.”

There's no First Amendment right to speak in public at 1:00PM. There's also no right to speak at 11:00AM or 3:51PM or any other particular time. Time (or place or manner) regulations that are content neutral and allow ample alternative means for expression are not in conflict with the First Amendment*.

It would take a rewrite (or a wholesale repudiation of existing expressive conduct jurisprudence) to interpret the Second Amendment as “the right of the people to keep and openly bear arms shall not be infringed.” No modern court has ever hinted that such thinking is plausible.

[*Content-neutral time, place and manner regulations also cannot be arbitrary or irrational. They must further an important government interest in a way that is substantially related to that interest. Hopefully, similar regulations on Second Amendment activity will receive similar judicial scrutiny.]
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Old 04-25-2013, 12:00 AM
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Sure. But that's not civil litigation anymore. And the constitutional issues would still be indistinguishable from Richards and Peruta.
No U.S. court in the post-Heller regime has ever ruled that one or another manner of carry is the “protected right.” Nor has any reputable scholar, litigator or other legal commentator suggested that the Second Amendment prescribes any particular manner of carry. Even the handful of court opinions favorable towards public carry (Woolard and Moore) were remarkably circumspect in their pronouncements on the scope of the Second Amendment; they were totally silent on permissible manner regulations.

And no, quoting another opinion does not mean that the current opinion accepts, imports or sustains the logic, reasoning or facts of the quoted opinion wholesale.

You are not employing logic. You're not even making interpretive leaps. This is pure fantasy driven by a willful ignorance of the law and by a manic investment in a particular outcome. While this “approach” is commonplace in political activism and can even be appropriate in legislative lobbying and issue advocacy, it is beyond counterproductive in litigation.
This may come as shocking, but I agree with you 100%.

The only people pushing the "OC is the right" tome are people with a vested interest in OC as the right, crazy people like Mr. Nichols.

Example, with Mr. Nichols:

Redondo Beach MTD

If you're charged in the state court system, and are still charged with something, Younger abstenion applies.
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Old 04-25-2013, 12:08 AM
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There is an interesting open carry case in FL: http://www.floridacarry.org/litigation

A FL appeals court in 1989 ruled the CCW permit was a privilege. If OC is banned, and CCW is a privilege, where's the right to bear arms?
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Old 04-25-2013, 2:53 AM
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Originally Posted by navyinrwanda View Post
[*Content-neutral time, place and manner regulations also cannot be arbitrary or irrational. They must further an important government interest in a way that is substantially related to that interest. Hopefully, similar regulations on Second Amendment activity will receive similar judicial scrutiny.]
Yes, but can it, for instance, require an "elevated need" on the part of every person who wishes to exercise it in public? Can it require that all who wish to exercise it be able to show greater than average ability in some fashion? No other right is treated in that way, but I have no trouble believing that the judiciary will insist on treating this one thusly.

Is preventing exercise of a right itself a valid "important government interest", most especially when misuse of that right can cause grievous harm or death?


I am incredibly skeptical of the application of intermediate scrutiny to the right to keep and bear arms, because the very things the right purports to protect are by design dangerous. If "public safety" is the "important government interest" and direct interference with the exercise of the right to keep and bear arms is substantially related to that interest (and if one ignores the fact that criminals by definition spit in the face of the law, then how can one argue that it is not?), then there is absolutely no hope for the right if intermediate scrutiny is the standard of choice to use for deciding whether or not a given law is valid in the face of the right.

And note that scrutiny is itself a means by which the judiciary decides, on a case by case basis, whether the right is really worth insisting upon. I fully expect that the wording for that was merely the Supreme Court waxing poetic, and that it didn't really mean what it said. And in my mind, that casts grave doubt upon whether the Supreme Court meant any of what it said in Heller, save for the "longstanding prohibition" language and "sensitive places" language (i.e., the language which would uphold restrictions on the right).
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Old 04-25-2013, 2:57 AM
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There is an interesting open carry case in FL: http://www.floridacarry.org/litigation

A FL appeals court in 1989 ruled the CCW permit was a privilege. If OC is banned, and CCW is a privilege, where's the right to bear arms?
In the modern world, there is no difference between a right and a privilege except for the ink on some page somewhere.
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I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...

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Old 04-25-2013, 6:12 AM
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Perhaps, but that would put SCOTUS at odds with its own definition.

The only interpretation that is consistent with both the cases that SCOTUS cited and the definition of "bear" that they used is that states may forbid one manner of carry so long as the other is treated as a right.

To argue, as you are here, that open carry is the only method of "bear" that is protected is to outright ignore the definition of "bear" that SCOTUS itself claimed to agree with.

If that was their intent, then they would have included language to that effect. By saying that "bear" includes open or in a pocket, & then referring to the 19th Cent cases that ALL said that concealed carry can be banned, but that open carry cannot be, SCOTUS sent a pretty clear message.


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You misunderstand my statement.

My belief is that we should already have an open carry case in the pipeline, but that said case should be positioned after the concealed carry cases. I believe the fact that we don't have such a case in the pipeline to be a monumental strategic error.

It sounds like you don't regard my theory as completely unsound then.

As for timing, "after" the CCW cases is what we have now. There's not just a lot of CCW cases in the pipeline, we've had one make it to SCOTUS. And get rejected. So, is now the time to try LOC?


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Originally Posted by sholling View Post
As Mulay can tell you I was vehemently opposed to the unloaded open carry movement because I knew it was just going to trigger more legislation and cost us more of what little we retain of our rights. We argued a LOT over the subject. I'm not one of those that would open carry if concealed carry were easily available, I'm older and just prefer to be low key. What brought me into this camp is that Palmer is going nowhere for years and years, and I have serious doubts that Moore will be appealed just because of home rule and Chicago's ability to (with the help of judges) game the system for many years to come just as they have with McDonald and Ezell. Madigan would be a fool to appeal when she knows that carry licenses valid within Cook County will be kept as rare as hen's teeth for at least the next 3-5 years. She also knows that SCOTUS has rejected cert in criminal cases and now it's rejected cert in civil cases and by doing nothing she still keeps carry out of Chicago without the risk of setting SC precedent she doesn't like. In our situation the definition of insanity isn't just doing the same thing over and over while expecting different results, it's doing the same thing over and over while expecting different results - while rejecting any other approach because of what appears to be tunnel vision. It just seems foolish to reject unlicensed open carry even if it means the court rejecting our carry cases for years to come and people in California, NY, and MD are left helpless outside the home.

The other thing that's brought me over to Mulray's camp is that if we don't get strict scrutiny soon we're pretty quick going to have to figure out what to do with suddenly illegal semiautomatic rifles and shotguns and grandfathered magazines.

Its true. Sholling was VERY much against me on this. If what I predicted back then hadn't come to pass, he would still be VERY much against me.

And yes, time is very much against us. If I'm as right as the Peterson & Kachalsky Rulings suggest that I am, then the PRK will have us all reduced to flintlocks in pretty short order if we don't present SCOTUS with something they like. And they like LOC.


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Originally Posted by Gray Peterson View Post
This may come as shocking, but I agree with you 100%.

The only people pushing the "OC is the right" tome are people with a vested interest in OC as the right, crazy people like Mr. Nichols.

Example, with Mr. Nichols:

Redondo Beach MTD

If you're charged in the state court system, and are still charged with something, Younger abstenion applies.

Well, Mr Nichols may be crazy, but he may also be right (yes, that IS a Billy Joel reference) on the basics. That doesn't mean that I support his efforts.

As for the possibility that I am crazy, my "agenda" is that We The People have the freest possible exercise of the Right. Where we don't have to get permission of any kind to protect ourselves.


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Originally Posted by press1280 View Post
There is an interesting open carry case in FL: http://www.floridacarry.org/litigation

A FL appeals court in 1989 ruled the CCW permit was a privilege. If OC is banned, and CCW is a privilege, where's the right to bear arms?

Interesting!

Along with that, given the strong hint by the 10th Circuit, maybe we should find a good guy charged with the same thing in Denver?


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  #145  
Old 04-25-2013, 7:05 AM
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Originally Posted by Mulay El Raisuli View Post

Interesting!

Along with that, given the strong hint by the 10th Circuit, maybe we should find a good guy charged with the same thing in Denver?


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No, because Younger abstention would apply, and the state courts would just simply rule that 2A doesn't apply because the Denver local can just get a concealed carry permit.

Also, the state judiciary itself doesn't have to honor the 10th Circuit's decision on the matter. They could rule, as they did in Trinen v. City/County of Denver, that despite only concealed carry being excluded by the state constitution, Denver could exclude OC based on density and urbanity factors.

Denver courts also have a history of excluding constitutional rights arguments by defense attorneys gun carry charges, neccesitating a trip up to the court of appeals or the state district court on an interlocutory to even raise the argument.

Challenging on LOC grounds via state criminal courts is a fools errand, and will not accomplish what you want.
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Old 04-25-2013, 7:40 AM
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Im hesitant to jump into this but I have to point out that neither LOC or CCW as a single option are likely to meet all scenarios the justices could be presented with. They have to be thinking that the status quo is just about right except where both options are off the table or majorlly infringed. I dont think they will ever rule on LOC for every state, especially ones with big cities or suburban areas. I also think they would have taken Kachalsky if they wanted everyone, everywhere to Conceal Carry.

I believe the court conservatives are very much States Rights oriented. Roberts vote on Obamacare as a Tax could have been interpreted as such. If this is the case, then I thnk the court is punting and will likely take Moore because Illinois wants No Bear and thats something the court wont allow.

Shoot my conclusion but I think they want both LOC AND CCW TBD by the States and furthermore wont be too interested in any case unless it flatout infringes both.
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Old 04-25-2013, 8:17 AM
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Challenging on LOC grounds via state criminal courts is a fools errand, and will not accomplish what you want.
This is why I've been hoping that a competent and motivated gun rights group would take on California's loaded open carry ban in federal court. But it's become obvious that the feeling is 'shall-issue concealed carry or bust'.
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  #148  
Old 04-25-2013, 8:26 AM
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You can't really use a concealed weapon to protect against tyranny.

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

IMO we want concealed, because it is more convenient in our broken society, but we should really want open carry. Societal issues and soccer moms be damned, real men carry a gun on their waste so that their intentions are obvious.
I like you already. I feel the same way. However we do have to deal with the reality of the broken society in which we live...
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Old 04-25-2013, 8:40 AM
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This is why I've been hoping that a competent and motivated gun rights group would take on California's loaded open carry ban in federal court. But it's become obvious that the feeling is 'shall-issue concealed carry or bust'.
Many of those so called 'gun rights' groups actually oppose open carry and support open carry bans. A few even go as far as filing a lawsuit to get open carry banned or keep a ban in place, during concealed carry cases they often argue that states can and should ban open carry. It's disgusting.
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Old 04-25-2013, 9:49 AM
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Well, with the LOC criminal case in FL and the Nichols case, it seems to me we have already "yielded the field" on this...
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Old 04-25-2013, 10:00 AM
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I agree with NIR. I think it's futile to argue for LOC. I agree with Gura's 2A arguments in that:
  1. The right to carry does exist
  2. States may regulate the manner of carry.
  3. States may not extinguish the right by prohibiting all forms of carry.
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Old 04-25-2013, 10:02 AM
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Looking at the carry issue from a very simple perspective, it could be argued that "concealment" of a firearm only has nefarious purposes, and it might be the "color" that prevented SCOTUS from hearing Kachalsky.
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Old 04-25-2013, 10:09 AM
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Mud99, some people have read Heller that way. (i.e. Heller casts a dark shadow on concealed carry). However, how does one reconcile that with the fact that so many states have passed shall issue concealed carry permit systems?

The answer of course is that most Americans prefer concealed carry over open carry. That's it. It's just a preference. It doesn't mean its right or wrong. It's just what most people prefer.
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Old 04-25-2013, 10:10 AM
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If that was their intent, then they would have included language to that effect.
That doesn't necessarily follow. But even if it did, that logic applies just as soundly to explicit protection of open carry as anything else. Our problem is that the Supreme Court remained entirely silent except for the definition they used and the set of cases they cited.

Has it occurred to you that they may have cited the cases they did, and not a case which upheld concealed carry as a right in the face of a total ban on open carry, because the latter case doesn't exist? The Supreme Court cannot cite, as evidence that the mode of carry can be prescribed by the state, cases which do not exist.


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By saying that "bear" includes open or in a pocket, & then referring to the 19th Cent cases that ALL said that concealed carry can be banned, but that open carry cannot be, SCOTUS sent a pretty clear message.
I wouldn't call it "clear". If they only meant open, then why didn't they say so in their definition? It makes absolutely no sense to say that the definition of "bear" includes concealed carry, and that the 2nd Amendment protects "bear" as previously defined, and then turn around and claim, in so many words, that the 2nd Amendment does not protect concealed carry! And yet, that is precisely what you are saying the Supreme Court has done here.

I don't buy it. Anything's possible, of course, so it's possible that the Court intends to protect only open carry, but if that is their intention, then Heller is a very poor indicator of it.



Quote:
It sounds like you don't regard my theory as completely unsound then.
I don't regard your legal theory as terribly sound in the face of what was actually said in Heller. I do believe it to be a wise move to arrange for that possibility to be explored by the Court, because it is unwise to leave combinations of the right unaddressed when one does not know which combinations the Court will support.


Quote:
As for timing, "after" the CCW cases is what we have now. There's not just a lot of CCW cases in the pipeline, we've had one make it to SCOTUS. And get rejected. So, is now the time to try LOC?
I believe it is. The sooner, the better. And it should be multiple cases, if possible, because we do not know what specific combination of factors will make the case sufficiently compelling for the Supreme Court to grant cert to it and because we have to account for the possibility of unforeseen events taking the cases out of play (see, e.g., Moore).
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I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...

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  #155  
Old 04-25-2013, 10:58 AM
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At this point, I must point out that concealed carry also falls within the right to privacy.
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Old 04-25-2013, 12:50 PM
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This is why I've been hoping that a competent and motivated gun rights group would take on California's loaded open carry ban in federal court.
This is now my hope as well...
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Old 04-25-2013, 1:12 PM
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Originally Posted by Dantedamean View Post
Many of those so called 'gun rights' groups actually oppose open carry and support open carry bans. A few even go as far as filing a lawsuit to get open carry banned or keep a ban in place, during concealed carry cases they often argue that states can and should ban open carry. It's disgusting.
The above underlined is a lie. There has been no lawsuit for keeping an open carry ban filed by the NRA, SAF, or CGF. The only thing remotely close is an amicus brief filed by SAF in the case of Embody v. State of Tennessee, which describes that the manner of open carry done by Mr. Embody (TN is an licensed open carry state) was within the meaning of "affray" in common law historical/categorical. Holstered OC of handguns were not the issue there.

The only thing disgusting here is your complete lack of knowledge and your willingness to essentially libel people.

That opinion, that states could ban OC for CC, is shared by Gura, Clement, Michel, Donald Kates, Dave Kopel, the entirety of the upper scholarship on 2A matters. Moore v. Madigan decision cited "Hidden or on the Hip", a treatise by a man named James Bishop, which explored this issue.
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Old 04-25-2013, 1:33 PM
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Yes, but can it, for instance, require an "elevated need" on the part of every person who wishes to exercise it in public? Can it require that all who wish to exercise it be able to show greater than average ability in some fashion? No other right is treated in that way, but I have no trouble believing that the judiciary will insist on treating this one thusly.

Is preventing exercise of a right itself a valid "important government interest", most especially when misuse of that right can cause grievous harm or death?


I am incredibly skeptical of the application of intermediate scrutiny to the right to keep and bear arms, because the very things the right purports to protect are by design dangerous. If "public safety" is the "important government interest" and direct interference with the exercise of the right to keep and bear arms is substantially related to that interest (and if one ignores the fact that criminals by definition spit in the face of the law, then how can one argue that it is not?), then there is absolutely no hope for the right if intermediate scrutiny is the standard of choice to use for deciding whether or not a given law is valid in the face of the right.

And note that scrutiny is itself a means by which the judiciary decides, on a case by case basis, whether the right is really worth insisting upon. I fully expect that the wording for that was merely the Supreme Court waxing poetic, and that it didn't really mean what it said. And in my mind, that casts grave doubt upon whether the Supreme Court meant any of what it said in Heller, save for the "longstanding prohibition" language and "sensitive places" language (i.e., the language which would uphold restrictions on the right).
Licensing, like manner of carry, is a separate issue. Under existing First Amendment doctrine, it's not permissible for the government to require an “elevated need” before permitting certain expression (and conduct) in public. But that doctrine was developed over a long line of cases over several decades. FindLaw has an excellent note on prior restraint.

There's nothing inherently wrong with applying intermediate scrutiny to many aspects of the Second Amendment — the key is applying it appropriately and properly. A few courts (notably, the Woolard panel) simply have not properly applied intermediate scrutiny. Others courts seem to be dismissing the distinction between flat bans versus regulatory friction cases and apply balancing tests when categorical invalidation is more appropriate.

Some of this is an understandable response to the very early stage of Second Amendment jurisprudence that we are in coupled with the extraordinary number of cases winding their way through the legal system. As I have said many times before, Supreme Court Justices are generalists and they go out of their way to decide only the minimum necessary in order to reach a decision. Those who are unfamiliar with the legal system and temperamentally more comfortable with settled issues will obviously find this uncertainty distressing and attempt to over-interpret opinions and administrative decisions.

A fair reading of both Heller and McDonald makes it clear that the Court's majority was tenuous. The “presumptively lawful” caveat in both opinions were transparent add-ons, incorporated at the last minute to secure a fifth vote. This may be the reason why the Court has not yet decided to hear another Second Amendment case. Or the Justices may be waiting for the circuit appeals courts to fully weigh in on the current round of litigation before stepping back into the fray. Or the Justices may not be ready to answer all of the questions raised in some of the more prominent cases. Nobody really knows why the Court decides or declines to hear a particular case because the process is opaque. But it's highly unlikely that secondary issues like manner of carry have anything to do with their cert decisions (or criminal vs. civil, etc.).

The bottom line is: if you want fast finality, go to your state legislature. Or Congress.
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Old 04-25-2013, 1:38 PM
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Old 04-25-2013, 3:26 PM
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Originally Posted by Gray Peterson View Post
The above underlined is a lie. There has been no lawsuit for keeping an open carry ban filed by the NRA, SAF, or CGF. The only thing remotely close is an amicus brief filed by SAF in the case of Embody v. State of Tennessee, which describes that the manner of open carry done by Mr. Embody (TN is an licensed open carry state) was within the meaning of "affray" in common law historical/categorical. Holstered OC of handguns were not the issue there.
I have no idea why SAF would want to insert itself in this case. What Embody did was stupid but I'm not sure his stupidity warranted SAF offending its membership by taking the Brady position.

Quote:
That opinion, that states could ban OC for CC, is shared by Gura, Clement, Michel, Donald Kates, Dave Kopel, the entirety of the upper scholarship on 2A matters. Moore v. Madigan decision cited "Hidden or on the Hip", a treatise by a man named James Bishop, which explored this issue.
I don't think many of us have a problem with the state having the choice between unlicensed or shall-issue loaded open carry (statewide) or shall issue licensed concealed carry as long as it's truly easily obtainable shall-issue and the legislature doesn't use it as a trap for the unwary - e.g. printing = disqualifying offence for 10 years. I think what bothers us is the tunnel vision that seems to be on display. The single minded pursuit of concealed to the exclusion of everything else is what is so frustrating. California has two laws that needed to be challenged in federal court: 1) may-issue concealed carry, and 2) the ban on loaded open carry so that if the court rejects shall-issue concealed carry as a right, they can still throw out the ban on open carry because some form of carry must be readily available, or he/she can reject open carry in favor of shall-issue CCW. We keep going after shall-issue concealed carry and keep getting slapped down. Correct me if I'm wrong, but in Woolard the only relief is the same as Kachalsky which seems to be to make concealed carry permits shall-issue and if concealed carry is not a right then the judge can (easy out) just say sorry concealed carry is not a right.

I'll drop out of the discussion and let you guys figure it out. I just don't see a reason to get my blood pressure up when I don't expect to see a positive resolution for carry in my lifetime.
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Last edited by sholling; 04-25-2013 at 3:34 PM..
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