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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #2161  
Old 05-16-2022, 8:07 PM
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There is nothing to reverse here as nothing was decided on the issue in Heller. Anyone who argues otherwise is flat out clueless.
  #2162  
Old 05-17-2022, 10:29 AM
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Originally Posted by abinsinia View Post
I don't totally understand what he's getting at here, but this appears to be the person writing the opinion. These comments are relevant.

It sounds like what he's getting at has to do with what regulations on concealed carry would be allowed. From Heller we know concealed carry is open for regulation (maybe a complete ban).

If they drill down on concealed carry and force issuance of permits, they will likely allow additional regulation beyond what is allow on open carry. I suspect Thomas has a specific thing in mind which was regulated similar to how he see's concealed carry being regulated.
In order for concealed carry to be able to be regulated the court is going to have to first determines if there's a Right to Bear Arms in public or not.

If there isn't then States can regulate any way they want, to the point of a total ban. Or just ban and be done with it.

On the other hand, if there is a Right to Bear Arms in public, THEN you get to discuss whether States can regulate that Right by eliminating OC in favor of CC and if so, can they regulate who gets to CC.

Either way, the first issue is bear in public. Per the text, and some fairly clear dicta in Heller as well as the actual holding regarding the HTT of the 2A, I don't see the court saying there isn't a Right to Bear Arms in public. Which next leads us directly to the certified question.

I'm fairly confident that the court isn't going to hand us everything we want. I'm also fairly confident that the RTKBA is going to be upheld and that while States can regulate who gets to CC, they can't regulate who gets to OC. The question of "where" is still open and will remain so. GFSZ and "sensitive places" are going to have to be fleshed out with some specificity and limitations on what the State (and feds) can do in that regard.
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  #2163  
Old 05-17-2022, 10:39 AM
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Given the court's composition, their desire to take a 2A case, and all the 2A cases stacked up pending this case, it seems fairly clear SCOTUS is going to recognize the right to carry in public is a right and it cannot be blanket banned. It's not clear to me how deep they'll go into the mode of carry and where, but they will find the right is not unlimited. My worry is the opinion won't be specific enough and legislators will continue their games post-opinion. I have to assume SCOTUS knows this, but they'll have some reluctance to get too specific.
  #2164  
Old 05-17-2022, 2:10 PM
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Originally Posted by Citizen_B View Post
Given the court's composition, their desire to take a 2A case, and all the 2A cases stacked up pending this case, it seems fairly clear SCOTUS is going to recognize the right to carry in public is a right and it cannot be blanket banned. It's not clear to me how deep they'll go into the mode of carry and where, but they will find the right is not unlimited. My worry is the opinion won't be specific enough and legislators will continue their games post-opinion. I have to assume SCOTUS knows this, but they'll have some reluctance to get too specific.
My concern with this type of thinking is that it obviously ignores the 4 worded elephant in the Amendment - "shall not be infringed."

The only rational way around that is to decide that the Right can't be limited BUT CC isn't "the Right." Under HTT this would fly. It would also fly under "longstanding regulation." It also fits within the parameters of the certified question.

How that meshes with GFSZ and "sensitive places" would have to be discussed and determined, but as to "bear" it's obvious that there is a Right to bear arms in public and that such a right cannot be limited through regulation (see Heller: "certain policy choices are off the table"). Thus the ability of the State to regulate bearing arms through a mandatory permitting process which prohibits the general population from being able to exercise such a right unless granted a permit by the State would be unconstitutional. The State must allow the people to bear arms and it may not enact a regulatory scheme to limit who among the population may do so.

Part of the outcome will be how the court words its decision as to whether the State can ban OC in favor of CC or not. Given the makeup of the court, the text of the Amendment, Heller's language, and the test the court created, I don't see how that can happen but, as I already said, I don't believe the court will give us everything we want or expect. Nor will it give NY everything it wants or expects.
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  #2165  
Old 05-17-2022, 2:55 PM
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Originally Posted by rplaw View Post
My concern with this type of thinking is that it obviously ignores the 4 worded elephant in the Amendment - "shall not be infringed."
I don't think this conflicts with HTT nor originalist thinking. Scalia himself said the 2A isn't unlimited. The same applies to the 1A.

Quote:
The only rational way around that is to decide that the Right can't be limited BUT CC isn't "the Right." Under HTT this would fly. It would also fly under "longstanding regulation." It also fits within the parameters of the certified question.
I don't think that is the only way. CC does have a history of regulation, but that doesn't mean everything else must be unregulated. The tricky business will always be figuring out the details, and it will be a continuous process between the legislators and the courts.

The court could simply say:

"The right to bear arms is a right with limits. This doesn't imply that a specific method and place of carry must be allowed, but a restriction on carrying in public for all people in every public place is unconstitutional and cannot stand. NY's licensing frame work that essential blanket prohibits carrying a firearm in public is unconstitutional."

How much more they say and how good they define things will be the starting point for more legislative games and court challenges. Just the process.
  #2166  
Old 05-17-2022, 3:08 PM
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Originally Posted by rplaw View Post
My concern with this type of thinking is that it obviously ignores the 4 worded elephant in the Amendment - "shall not be infringed."

The only rational way around that is to decide that the Right can't be limited BUT CC isn't "the Right." Under HTT this would fly. It would also fly under "longstanding regulation." It also fits within the parameters of the certified question.

Part of the outcome will be how the court words its decision as to whether the State can ban OC in favor of CC or not. Given the makeup of the court, the text of the Amendment, Heller's language, and the test the court created, I don't see how that can happen but, as I already said, I don't believe the court will give us everything we want or expect. Nor will it give NY everything it wants or expects.
The amendment itself, which right shall not be infringed, says nothing about open or concealed carry, nor does the certified question address open carry, so it is entirely feasible that we will get a narrow opinion addressing only whether the issuance of a CCW can be restricted by the unbridled discretion of a government functionary. Anything else opens cans of worms far outside the scope of the question or the briefs presented.

Just for example, the federal GFSZA bans open carry or unlicensed concealed carry within 1000' of a school campus, but not licensed concealed carry. It is sticky wicket to ascertain how that law can remain constitutional if the right to bear is open carry. As people here already know, it is literally impossible to open carry a firearm anywhere within an urban environment without violating the Act (or its California State analogue). Given the limitations of the briefing, I cannot see the court going there.

Further, as California has previously held, there is no right to a concealed carry permit. To conclude that open carry, not concealed carry, establishes that CCW is a privilege, and as a privilege, may be granted or withheld in the discretion of a government functionary.

Putting these two examples together disestablishes a right to openly carry firearms in cities and towns, functionally eliminating the right in exactly the places where a right to carry is most needed.
  #2167  
Old 05-17-2022, 3:09 PM
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In my opinion, Heller was made intentionally soft, probably to keep Roberts from getting scared into voting against it. When the individual rights were written in the Bill of Rights, their limitations were included. No such limitations were included for the 2nd.
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  #2168  
Old 05-17-2022, 3:22 PM
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(Insert speculation here)

We'll know when we know.
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  #2169  
Old 05-17-2022, 3:27 PM
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Originally Posted by LonghornBob View Post
What should we read into the question as changed by the Supreme Court - “Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment”?
The Court changed the question from a "facial" challenge of the statute (i.e., that the statute is unconstitutional "on its face" and is completely invalidated) to an "as-applied" challenge (i.e., that the statute itself is not declared invalid, but the way the local authorities are applying it is unconstitutional, thus resulting in an order telling the local authorities how to apply it going forward). The Court has tended to prefer as-applied challenges to facial challenges in recent years. Changing the question does not hint at how they are going to resolve the issue, but it is clear from the previous statements of the Justices and the questions they raised at oral argument how they are leaning and why.
  #2170  
Old 05-17-2022, 3:48 PM
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Originally Posted by Bhobbs View Post
In my opinion, Heller was made intentionally soft, probably to keep Roberts from getting scared into voting against it. When the individual rights were written in the Bill of Rights, their limitations were included. No such limitations were included for the 2nd.
Stevens said in his book that he convinced Kennedy to include language that soften the decision.
  #2171  
Old 05-17-2022, 3:57 PM
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Originally Posted by Citizen_B View Post
The court could simply say:

"The right to bear arms is a right with limits. This doesn't imply that a specific method and place of carry must be allowed, but a restriction on carrying in public for all people in every public place is unconstitutional and cannot stand. NY's licensing frame work that essential blanket prohibits carrying a firearm in public is unconstitutional."
Here is where things get sticky. The declaration you suggest will accomplish nothing in the 9th and maybe other circuits. I don't think you can challenge or declare unconstitutional "a framework", just individual laws, and in this situation multiple laws are involved. It isn't just "a restriction" So in Young, the en banc court ruled there was no right to OC, they only looked at OC. In Peruta they ruled there is no right to CC and would only consider that law by itself despite the explicit argument by Peruta that the CC restrictions effectively extinguished the right to bear completely given the background of a statewide ban on OC. (I believe Thomas called the 9th out specifically on this point in his dissent from the court's vote to not take the case.) The 9th has already upheld each of those restrictions.

It is as if a court admits you have a right to vote but upholds a law saying you can't vote on even numbered days of the month because there is no explicit right to that and separately upholds a second law that prohibits voting on odd numbered days because there is no explicit right to that. That sort of two-step denial of rights should not be allowed, but that is where things stand today in the 9th.

The ruling you suggest does not impose an affirmative burden on anybody to change any specific law or policy or stop enforcing any specific law, so the result will be no change at all and citizens in CA and elsewhere will still be at risk of arrest and prosecution for OC and for CC without a permit despite permits being essentially unavailable to most. The 9th has already upheld both of those restrictions.

As I've said in prior posts, the only way we actually get our rights back is for the court to specify at least one form of carry and declare it must be allowed without any permit whatsoever. If any permit requirement is left in place, our rights will still be denied, but the tool will simply change from good cause to any number of endless delays, requirements, restrictions, expenses, inconveniences, and other bureaucratic obstructions.
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  #2172  
Old 05-17-2022, 4:29 PM
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Quote:
Originally Posted by MajorCaliber View Post
Here is where things get sticky. The declaration you suggest will accomplish nothing in the 9th and maybe other circuits. I don't think you can challenge or declare unconstitutional "a framework", just individual laws, and in this situation multiple laws are involved.
It seems obvious SCOTUS will find specifically that the Good Cause requirement, as the practical impediment to carry a firearm in public under NY's licensing framework, unconstitutional. Now to say that, they'll have to provide the background and justification on why. The connecting issue is how can the specific requirement be unconstitutional without it linked to a constitutional right. Now the question is, what exactly is the right that's protected? That's the gray area. I think it's the right to carry a firearm in public, specifics unmentioned, though it could be more.

Quote:
It is as if a court admits you have a right to vote but upholds a law saying you can't vote on even numbered days of the month because there is no explicit right to that and separately upholds a second law that prohibits voting on odd numbered days because there is no explicit right to that. That sort of two-step denial of rights should not be allowed, but that is where things stand today in the 9th.
But SCOTUS did not uphold a law for CC nor OC yet, only the 9th did. If SCOTUS says there is a right to carry, new litigation now goes through the system challenging CA's blanket ban on both OC and CC. The writing is on the wall at that point. If the anti-2A crowd wants to take that one up to SCOTUS, the direction question will be asked and it will be answered, now codifying method(s) of carry. Not a smart move for them.

Quote:
The ruling you suggest does not impose an affirmative burden on anybody to change any specific law or policy or stop enforcing any specific law, so the result will be no change at all and citizens in CA and elsewhere will still be at risk of arrest and prosecution for OC and for CC without a permit despite permits being essentially unavailable to most. The 9th has already upheld both of those restrictions.
No, what specifically would change in CA is the GC requirement gets neutered and forced to allow "self-defense" as adequate. If the issuing agency wants to continue the games with Good Moral Character or something else, that's up to them. GMC is harder to apply fairly and equally by any common definition. GC on the other hand was easy to justify a denial - "I don't think you have a good reason to carry".

Quote:
As I've said in prior posts, the only way we actually get our rights back is for the court to specify at least one form of carry and declare it must be allowed without any permit whatsoever. If any permit requirement is left in place, our rights will still be denied, but the tool will simply change from good cause to any number of endless delays, requirements, restrictions, expenses, inconveniences, and other bureaucratic obstructions.
I seriously doubt any court will say permitless/unrestricted carry is the right. The games legislators play with the courts will be played, that's just the process.
  #2173  
Old 05-17-2022, 5:28 PM
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From the transcript:

CHIEF JUSTICE ROBERTS: Well, I'm not
sure that's right. I mean, you would --
regardless of what the right is, it would be
surprising to have it depend upon a permit
system. You can say that the right is limited
in a particular way, just as First Amendment
rights are limited, but the idea that you need a
license to exercise the right, I think, is
unusual in the context of the Bill of Rights.
  #2174  
Old 05-17-2022, 5:53 PM
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When I heard that it seemed more like a probing question (he did use the word "unusual"), rather than a statement suggesting he thinks permits are unconstitutional. I would be floored and eat crow if SCOTUS ruled that carry permits are unconstitutional.
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Old 05-17-2022, 6:13 PM
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Originally Posted by Citizen_B View Post

...I seriously doubt any court will say permitless/unrestricted carry is the right. The games legislators play with the courts will be played, that's just the process.
Thanks for the thoughtful and detailed response, and I don't disagree with your prediction about what will or won't happen. I think my major point still stands that short of declaring some form of carry to be a right that cannot require a permit, the infringements will continue and we still will not have our rights back.
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  #2176  
Old 05-17-2022, 6:37 PM
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No, what specifically would change in CA is the GC requirement gets neutered and forced to allow "self-defense" as adequate. If the issuing agency wants to continue the games with Good Moral Character or something else, that's up to them. GMC is harder to apply fairly and equally by any common definition. GC on the other hand was easy to justify a denial - "I don't think you have a good reason to carry".

I seriously doubt any court will say permitless/unrestricted carry is the right. The games legislators play with the courts will be played, that's just the process.
I agree that eliminating "good cause" by saying there cannot be a good cause requirement or self-defense must be accepted as sufficient good cause is almost certainly going to be included in the decision. On "good moral character," I think there is a strong chance they (Kavanaugh at least) will say it cannot be in the discretion of a government official and must instead be objective. I think it likely Barrett and Kavanaugh will take the position that a permit can only be denied for violent felonies or other evidence of danger to themselves or others (domestic violence, etc.). I doubt they will say the Constitution requires permitless carry because you need an application and permit to check for violent felonies, domestic violence, threats against neighbors, etc., and it is also reasonable to require some minimal safety training. I think they will draw the line there.
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Old 05-17-2022, 8:04 PM
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...I doubt they will say the Constitution requires permitless carry because you need an application and permit to check for violent felonies, domestic violence, threats against neighbors, etc., ...
I think that is ultimately a bit of a circular argument. It amounts to "you need to apply for a permit so we can check XYZ before we issue a permit".

Constitutional Carry states for either or both forms of carry get by just fine without applications, checking, or permits. Felons and people subject to relevant court orders are already prohibited from purchase, and can have any existing guns taken by law enforcement, and if you are a felon carrying a gun, you get arrested for being a felon with a gun, carry laws notwithstanding. As far as I know, it works just fine everywhere it is tried.
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  #2178  
Old 05-17-2022, 8:10 PM
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I think that is ultimately a bit of a circular argument. It amounts to "you need to apply for a permit so we can check XYZ before we issue a permit".

Constitutional Carry states for either or both forms of carry get by just fine without applications, checking, or permits. Felons and people subject to relevant court orders are already prohibited from purchase, and can have any existing guns taken by law enforcement, and if you are a felon carrying a gun, you get arrested for being a felon with a gun, carry laws notwithstanding. As far as I know, it works just fine everywhere it is tried.
So you think they will say that all 50 states must allow concealed carry without a permit. That would be great, but I think that's a bridge too far for them. We will see soon.
  #2179  
Old 05-17-2022, 8:17 PM
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So you think they will say that all 50 states must allow concealed carry without a permit. That would be great, but I think that's a bridge too far for them. We will see soon.
No, I'm not predicting what they will do, although I agree, that would be great. I'm simply saying that the argument that applications must be required in order to allow for checking things is not really a valid argument.
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  #2180  
Old 05-17-2022, 10:09 PM
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On "good moral character," I think there is a strong chance they (Kavanaugh at least) will say it cannot be in the discretion of a government official and must instead be objective.
On constitutional grounds, a Good Moral Character requirement seems like a joke with little to stand on. I think the originalists would think as much also, though it's not the direct question before them so I don't think will touch it directly. Indirectly, it could get caught up together with other permit requirements that don't pass constitutional muster.
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Old 05-17-2022, 11:48 PM
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So you think they will say that all 50 states must allow concealed carry without a permit. That would be great, but I think that's a bridge too far for them. We will see soon.
That would be a fed gov power grab - a takeway of a state power.

Furthermore...

People in this thread seem to have lost sight of the reason why we have regulations for those types of exercises under a right that are not natural exercises.

Ugh...full circle we go again.

=8-(
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Old 05-18-2022, 5:52 AM
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The amendment itself, which right shall not be infringed, says nothing about open or concealed carry, nor does the certified question address open carry...
For clarity, I suggest an analogy where you apply the same logic to the other Amendments. The First Amendment says nothing about the contents of your private mail/email being "free speech. The Second Amendment is silent on whether 9 mm is better than .45 or even if bores larger than 1/2" are within the meaning of the Amendment. The 4th Amendment doesn't say squat about your medical records or exigent circumstances. The list can go on but hopefully you get the point that the Bill of Rights isn't either inclusive or exclusive based solely on the TEXT.

What's worse is that here you are using the "but the text doesn't say that!" argument advanced by the anti-gun lobby as a basis to ban everything newer than a flintlock.

History, Text, and Tradition is the test. In our History, our society frowned upon the carrying of arms concealed. Our Tradition is to not accept concealment of arms as anything other than nefarious intent. The text being silent on this defers to the other 2 prongs as to the understanding of the Amendment at the tie of ratification.

That is the test. Not whether the text actually lists what is and what isn't included.
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  #2183  
Old 05-18-2022, 5:59 AM
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When I heard that it seemed more like a probing question (he did use the word "unusual"), rather than a statement suggesting he thinks permits are unconstitutional. I would be floored and eat crow if SCOTUS ruled that carry permits are unconstitutional.
They won't.

Parade permits, time limits on speaking to representatives, and so on are all Constitutional because they are regulatory.

A permit to carry concealed has been part of the gun landscape since forever. It's regulatory on it's face. How it's being applied is the problem. That doesn't make it unconstitutional.
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Old 05-18-2022, 6:04 AM
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That would be a fed gov power grab - a takeway of a state power.
I don't believe this is so. No more so than saying the other Amendments also apply to all the States.

Or do you believe that the BoR only applies to the FedGov (despite the incorporation doctrine)? And therefore the States can compel you to testify against yourself, inflict cruel and unusual punishment, deny you the Right to counsel, etc on the basis that the BoR being applied to the all the States is a "fed power grab"?
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  #2185  
Old 05-18-2022, 8:46 AM
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I don't believe this is so. No more so than saying the other Amendments also apply to all the States.

Or do you believe that the BoR only applies to the FedGov (despite the incorporation doctrine)? And therefore the States can compel you to testify against yourself, inflict cruel and unusual punishment, deny you the Right to counsel, etc on the basis that the BoR being applied to the all the States is a "fed power grab"?
Stooge made the "bridge too far" point.

Concealed carry has been regulated for centuries by those polities that exercise it.

SCOTUS recognized that in DC v. Heller as it pertains to our polities. So did SCOTUS before that in Robertson v. Baldwin.

Any attempt to enforce shall-issue or straight up no-permit CCW nationwide would be a straight up ripping away of a State right and handing it over to FedGov.

It's an odd position to be in to claim to be a promoter of the 2nd Amendment AND advocate the increasing handing over of power to the Federal Government.

=8-|
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  #2186  
Old 05-18-2022, 9:22 AM
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That’s false. The 2nd amendment gives no restriction on the means of carrying a firearm.
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Old 05-18-2022, 9:50 AM
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Originally Posted by mrrabbit View Post
Stooge made the "bridge too far" point.

Concealed carry has been regulated for centuries by those polities that exercise it.

SCOTUS recognized that in DC v. Heller as it pertains to our polities. So did SCOTUS before that in Robertson v. Baldwin.

Any attempt to enforce shall-issue or straight up no-permit CCW nationwide would be a straight up ripping away of a State right and handing it over to FedGov.

It's an odd position to be in to claim to be a promoter of the 2nd Amendment AND advocate the increasing handing over of power to the Federal Government.

=8-|
Actually, if the SCOTUS were to decide that the 2A includes CC, then any permitting restriction on CC would be unconstitutional.

This wouldn't be a power grab, it would be a decision on the scope of the means of bearing arms to include all manner and method of bearing said arms. If the scope includes CC then States would be required to issue CC permits without regard to need or cause.

Effectively, that's shall issue without the Feds seizing power because that power is already theirs via the BoR and the incorporation doctrine.

I don't believe the SCOTUS is going to go there, however. HTT is against such a determination.
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  #2188  
Old 05-18-2022, 9:57 AM
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That’s false. The 2nd amendment gives no restriction on the means of carrying a firearm.
The test, per Heller, is History, Text, and Tradition. If the text is silent, then we must look to our past to determine what the understanding of the Right was at the time it was ratified.

Merely saying that the text doesn't delineate the manner of bearing arms fails to acknowledge that at the time one couldn't carry arms into the voting booth or courtroom. Although the text is silent on those points, that doesn't mean that the understood restrictions on bearing arms aren't real or Constitutional. It means that the BoR isn't an exhaustive list of what is and isn't included. Attempting to make it so, is articulating same false argument of "automatic weapons didn't exist at the time of the framers and aren't mentioned in the Amendment text, therefore they aren't covered" the anti-gun orgs use. It's false for them, it's false for you too.
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Old 05-18-2022, 10:56 AM
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The test, per Heller, is History, Text, and Tradition. If the text is silent, then we must look to our past to determine what the understanding of the Right was at the time it was ratified.

Merely saying that the text doesn't delineate the manner of bearing arms fails to acknowledge that at the time one couldn't carry arms into the voting booth or courtroom. Although the text is silent on those points, that doesn't mean that the understood restrictions on bearing arms aren't real or Constitutional. It means that the BoR isn't an exhaustive list of what is and isn't included. Attempting to make it so, is articulating same false argument of "automatic weapons didn't exist at the time of the framers and aren't mentioned in the Amendment text, therefore they aren't covered" the anti-gun orgs use. It's false for them, it's false for you too.

Any standard you apply will be abused by anti gunners because their objective is to disarm you. Any ground you voluntarily give is ground they will gladly take.
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Old 05-18-2022, 11:50 AM
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Actually, if the SCOTUS were to decide that the 2A includes CC, then any permitting restriction on CC would be unconstitutional.

This wouldn't be a power grab, it would be a decision on the scope of the means of bearing arms to include all manner and method of bearing said arms. If the scope includes CC then States would be required to issue CC permits without regard to need or cause.

Effectively, that's shall issue without the Feds seizing power because that power is already theirs via the BoR and the incorporation doctrine.

I don't believe the SCOTUS is going to go there, however. HTT is against such a determination.

It would be the absolute tearing away of the right of Polities to regulate those behaviors that are most prone in their usage to:

1. Violent criminal acts.
2. Non-violent criminal acts such as fraud.
3. Civil violations such as libel, copyright infringement and petty theft.
4. Public nusiance.
5. Infringe on the rights of others.

A Know-It-All Guru didn't just sit on top of a mountain one morning several hundred years ago and wave a magic wand declaring on a whim:

"Concealed carry may be regulated, even to the point of prohibtion."

"One must legally petition before a court and the public to use a name other than their own."

"Come up with your own unique cattle brand..."

"Want to use a public space for your own exclusive event, well...not so fast..."


Our country consists of 50+ real polities and one overarching polity. And for 200+ years they have regulated various particulars of our various rights - many inherited from 400+ years of practice by their predecesors during Colonial times and before, English, French, Spanish and even Dutch.


You don't promote and defend the 2nd Amendment by taking away power from one party and giving it to another.


You promote the 2nd Amendment by making the case for the following:

1. That it's a preexisting invididual right to keep and bear arms suitable for self-defense for the purpose of confronting an aggressor.

2. That it's a preexisting militia right to bring the same arms to suppress domestic insurrection and repel foreign invaders.

3. That states (polities) have the right to protect and regulate those in order to ensure the security of their polity.


SCOTUS made it crystal clear that organized miltias, unusually dangerous arms, concealable arms, and weapons of war do not fall under 2nd Amendment protections. Some if not all fall under Article I, Sec. 8.

And SCOTUS made it clear that some practices utilized under the various rights come under suspicion, because they are prone to criminal use or become a nusiance - hence their heightened scrutiny when regulated.

Moreso by some states, less so by others.

The Constitutional Carry Lobby, the very same lobby that actually WON in DC v. Heller took the hint . . .

. . . that's why their campaign targets the states.


States, a.ka., Polities already have the right to concealed carry under the 2nd Amendment - as a regulated exercise.


And the Constitutional Carry campaign has been a very successful if you follow Paladin regular updates.

=8-|
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  #2191  
Old 05-18-2022, 12:42 PM
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Originally Posted by mrrabbit View Post
It would be the absolute tearing away of the right of Polities to regulate those behaviors that are most prone in their usage to:

1. Violent criminal acts.
2. Non-violent criminal acts such as fraud.
3. Civil violations such as libel, copyright infringement and petty theft.
4. Public nusiance.
5. Infringe on the rights of others.
I absolutely do not agree with you on this. The States have no power/authority to do anything if it's in conflict with the Constitution. The 10th Amendment isn't an overarching premise which cancels the Constitution, it's a part of the Constitution and must be held to it's text which limits the powers/authority/rights of the States/people to those not granted to the Fed Gov.

If the SCOTUS determines that the 2A in its original envisioning encompasses the granting of the powers/authority regarding CC, then the States don't have the power/authority to regulate CC because they never did have it. Any regulation that the States may have been doing was unconstitutional both at the time and now. This isn't creating new Fed Gov powers, it's delineating that the Fed Gov always HAD those powers and the States didn't.

Quote:
A Know-It-All Guru didn't just sit on top of a mountain one morning several hundred years ago and wave a magic wand declaring on a whim:

"Concealed carry may be regulated, even to the point of prohibtion."

"One must legally petition before a court and the public to use a name other than their own."

"Come up with your own unique cattle brand..."

"Want to use a public space for your own exclusive event, well...not so fast..."


Our country consists of 50+ real polities and one overarching polity. And for 200+ years they have regulated various particulars of our various rights - many inherited from 400+ years of practice by their predecesors during Colonial times and before, English, French, Spanish and even Dutch.
That doesn't mean that the regulations promulgated by those States were "legal" under the Constitution. There are many examples of the States overreaching.


Quote:
You don't promote and defend the 2nd Amendment by taking away power from one party and giving it to another.


You promote the 2nd Amendment by making the case for the following:

1. That it's a preexisting invididual right to keep and bear arms suitable for self-defense for the purpose of confronting an aggressor.

2. That it's a preexisting militia right to bring the same arms to suppress domestic insurrection and repel foreign invaders.

3. That states (polities) have the right to protect and regulate those in order to ensure the security of their polity.
No, they do not. If the SCOTUS says that the activities the States are attempting to regulate are constitutionally protected the States no longer have the power to regulate them because those powers have been delegated to the Federal Government.

For example: States don't have the power/authority to "regulate" who gets an attorney and who doesn't. They don't have the power/authority to regulate when/if you can be compelled to bear witness against yourself. They don't have the power/authority to seize your property for public use without compensation either. The power to "regulate" any of those things has been removed from the States and delegated to the Federal Government via the BoR.

Which tells us that the States cannot just "regulate" whatever they please whenever they please.

Nor can the States claim that they have authority to regulate federally guaranteed rights within their borders because of State security concerns. That was put to rest in the immigration cases which came out of Az. Those powers delegated to the Federal Government are their powers exclusively and the States have ZERO ability to do anything regarding them. It would be the same in the case of CC regulations IF the SCOTUS were to determine that CC was within the guarantees of the 2A.


Quote:
SCOTUS made it crystal clear that organized miltias, unusually dangerous arms, concealable arms, and weapons of war do not fall under 2nd Amendment protections. Some if not all fall under Article I, Sec. 8.

And SCOTUS made it clear that some practices utilized under the various rights come under suspicion, because they are prone to criminal use or become a nusiance - hence their heightened scrutiny when regulated.

Moreso by some states, less so by others.

The Constitutional Carry Lobby, the very same lobby that actually WON in DC v. Heller took the hint . . .

. . . that's why their campaign targets the states.


States, a.ka., Polities already have the right to concealed carry under the 2nd Amendment - as a regulated exercise.


And the Constitutional Carry campaign has been a very successful if you follow Paladin regular updates.

=8-|
At this point, what has been "accepted" in the past may not be what "IS", in the future. We won't know until we can read the ink on the paper. However, I do believe it to be unlikely that the SCOTUS will include CC in the guarantees of the 2A. HTT doesn't support it.
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Old 05-18-2022, 12:54 PM
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It should be apparent to anyone who can read that there isn't a genuine interest on the parts of those directly involved in the process of determining a decision, be they judges or lawyers to realize any result that changes anything.

All of this is not much different than the peace process in the Middle East where those who love the process have a vested interest both personally and just as important, financially to make sure there are no results that eliminate the continuing and never-ending debate.

It is unreasonable to think that those involved directly in the arguments, judges and lawyers, are willing to give up what amounts to lifelong guaranteed jobs, prestige and legacy in exchange for some finality of judgement for a question that even a child could read, understand and conclude in 5 minutes or less.

The 2nd/A wasn't written to be ambiguous, difficult to understand or impossible to relate to the state of affairs when it was written or hundreds of years later. It is as it has always been the judges and lawyers who take even single words and argue over it's meaning who create abortions of thought so that only they are deemed fit to decide things.

As I've said before, put them all into a room without food and they'd all starve to death before they would come to simple agreement like "lets go out for lunch".

None of what SCOTUS decides will make any difference and in case no one is looking, fewer and fewer people care.

It isn't doom and gloom, it's just the way it is. Without taking any risk, it's easy enough to predict that in 20 years whatever is said today about this issue could be repeated and it wouldn't make any more of a difference then than it does now.















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Old 05-18-2022, 2:25 PM
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Originally Posted by SharedShots View Post
It should be apparent to anyone who can read that there isn't a genuine interest on the parts of those directly involved in the process of determining a decision, be they judges or lawyers to realize any result that changes anything.

All of this is not much different than the peace process in the Middle East where those who love the process have a vested interest both personally and just as important, financially to make sure there are no results that eliminate the continuing and never-ending debate.

It is unreasonable to think that those involved directly in the arguments, judges and lawyers, are willing to give up what amounts to lifelong guaranteed jobs, prestige and legacy in exchange for some finality of judgement for a question that even a child could read, understand and conclude in 5 minutes or less.

The 2nd/A wasn't written to be ambiguous, difficult to understand or impossible to relate to the state of affairs when it was written or hundreds of years later. It is as it has always been the judges and lawyers who take even single words and argue over it's meaning who create abortions of thought so that only they are deemed fit to decide things.

As I've said before, put them all into a room without food and they'd all starve to death before they would come to simple agreement like "lets go out for lunch".

None of what SCOTUS decides will make any difference and in case no one is looking, fewer and fewer people care.

It isn't doom and gloom, it's just the way it is. Without taking any risk, it's easy enough to predict that in 20 years whatever is said today about this issue could be repeated and it wouldn't make any more of a difference then than it does now.


.
I doubt it. We have a sample size of three cases with a completely different court composition. Virtually every other issue that SCOTUS rules on has meaningful change. The teeth that Heller and McDonald lacked was due entirely to Kennedy, Roberts, and Stevens. Two of those justices are no longer on the court and the third has lost most of his power to moderate decisions. As far as I know, the lower courts openly adopting the dissent and thumbing their nose at a SCOTUS majority is unprecedented. I do not expect SCOTUS to allow that to continue. Not to mention, if Alito's opinion in Dobbs is anywhere close to the final opinion, there is zero evidence that the current court composition will put out an opinion as lackluster as Heller, Mcdonald, and Caetano.

While I don't expect huge change nationwide, I do think we will become de facto shall issue once we read the majority opinion, whether that's open or concealed I can't say for sure. California and other states will quickly draft legislation that isn't much different than when OC originally went virtual shall issue (long wait, interview, training fees, but eventually you get your permit).

SCOTUS judges have a lifetime appointment. The idea that their opinions will be swayed greatly because of a potential private sector job at the end of their retirement and pension doesn't pass the smell test.
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Old 05-18-2022, 3:29 PM
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I doubt it. We have a sample size of three cases with a completely different court composition. Virtually every other issue that SCOTUS rules on has meaningful change. The teeth that Heller and McDonald lacked was due entirely to Kennedy, Roberts, and Stevens. Two of those justices are no longer on the court and the third has lost most of his power to moderate decisions. As far as I know, the lower courts openly adopting the dissent and thumbing their nose at a SCOTUS majority is unprecedented. I do not expect SCOTUS to allow that to continue. Not to mention, if Alito's opinion in Dobbs is anywhere close to the final opinion, there is zero evidence that the current court composition will put out an opinion as lackluster as Heller, Mcdonald, and Caetano.

While I don't expect huge change nationwide, I do think we will become de facto shall issue once we read the majority opinion, whether that's open or concealed I can't say for sure. California and other states will quickly draft legislation that isn't much different than when OC originally went virtual shall issue (long wait, interview, training fees, but eventually you get your permit).

SCOTUS judges have a lifetime appointment. The idea that their opinions will be swayed greatly because of a potential private sector job at the end of their retirement and pension doesn't pass the smell test.
I never mentioned nor implied SCOTUS judges sought private sector jobs. They have jobs for life and aren't going to ever give them up. Lawyers though, the ones who argue before them while engaged in life long slow walking issues are another animal.

Lifetime appointments do not isolate nor insulate judges from being swayed and there is no proof it does. The swaying, to use that word, starts long before they are appointed and continues throughout their careers. It would be wonderful to believe that these people so arduously sought, vetted and then confirmed are beyond the pressures of the society we live in today but that is wishful hope at best. This is not the days before 24x7x365 pressures or when there was some national respect for their office, those days are long gone. They are human beings not divine entities or saints, immune from their environment.

Why hasn't the leaker of the roe v wade draft decision been discovered? If all the SCOTUS judges made it imperative that the effort to find that person(s) existedl the entire planet would already know that persons identity. Who wants to not know? The SCOTUS judge who might have that person among their staff, assistants or clerks. It would call into question the very credibility of that persons entire career and who doesn't know that SCOTUS judges rely a great deal on the duties those people perform and rely upon them as trusted confidants? A word said one way or another, a research brief formulated one way or another, a frown, a smile a laugh - all of those things sway people, it's called life. For some reason we might think the SCOTUS judges sit cloistered and have barriers up to make sure no such pressures exist, it can't happen that way.

This all comes back to this case and the 2nd/A. Nothing is ever as it seems and why what should and could be as simple as the words which made up the 2nd/A get twisted to include all things having little to do with it and ending with a decision that answers such a narrow question it's meaningless.

It doesn't matter what SCOTUS decides. Society has changed while some cling to an outdated thought that it still matters. A significant percentage of the country doesn't care, another portion won't and yet the remainder will cheer and empty victory on one side or another. The end result will be that States like California will continue to do what they want and it's residents will continue to go about their lives as if nothing happened, because nothing happened.

I am sure the replies will be that "you don't understand how things work" yet I'd say I understand more than those who relish in the process. The 2nd/A wasn't written so that lawyers and judges needed to interpret what is says, children can understand it. That is likely one reason it isn't taught in schools anymore, kids might figure it all out. Why make it that simple when it can be infinitely more complex and two entire industries can evolve to make it so, for and against.

Specifically what part of the constitution or BOR says in any way that one person can sit in judgement of another and decide absent a trial or a matter of due process that another person should or should not have a right? That is the only real question regarding the right to bear that matters and it answers all questions.

You see, there is a reason, having nothing to do with reason that the decision should not be so clear that the very simple question above remains unanswered. The entire process is designed to avoid that question, it will never be answered because to do so would mean the collapse of numerous careers, firms and interests all focused on continuing the process. The arguments ceased being about the 2nd/A a long time ago.


There will be peace on earth long before the question of the 2nd/A gets answered. Place your bets.

But WTF do I know, I'm not a lawyer, a judge, or anyone really, just someone with an observation that doesn't mean squat in the scheme of things.


.
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  #2195  
Old 05-18-2022, 4:22 PM
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The test, per Heller, is History, Text, and Tradition. If the text is silent, then we must look to our past to determine what the understanding of the Right was at the time it was ratified.

Merely saying that the text doesn't delineate the manner of bearing arms fails to acknowledge that at the time one couldn't carry arms into the voting booth or courtroom. Although the text is silent on those points, that doesn't mean that the understood restrictions on bearing arms aren't real or Constitutional. It means that the BoR isn't an exhaustive list of what is and isn't included. Attempting to make it so, is articulating same false argument of "automatic weapons didn't exist at the time of the framers and aren't mentioned in the Amendment text, therefore they aren't covered" the anti-gun orgs use. It's false for them, it's false for you too.
Whatever is the test, it was not applied by SCOTUS, thus you can’t speculate what they will soon decide.
Same test applied by 9th resulted in them claiming there’s no right to bear arms outside at all. So it ain’t automatic this test will be good for us.
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Old 05-18-2022, 4:48 PM
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I will say it again. SCOTUS needs to establish that the 2A recognizes our individual right to carry "Arms" openly, anywhere that is not specifically true sensitive places, like court houses . Public transportation, personal automobiles, walking or places that serve the public is unrestricted. If states want to denture that, they must issue Conceal Carry permits with a simple background check and perhaps a very nominal fee; under $50 total.

Anything else is an infringement of our fundamental, individual right to Keep and Bear.. That should not be tolerated.

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Old 05-18-2022, 5:36 PM
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^^^^^^^^^^^^^^^^^^^^^^^^^^ We can hope. ^^^^^^^^^^^^^^
  #2198  
Old 05-18-2022, 6:49 PM
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Folks might do me a favor once the opinion is released.

1) We really need just one thread on the result, and that thread should be here in this forum.

2) A really good thread will be titled something like "NYSRPA Opinion 6-12-22 - WIN/LOSS!" and include a link to the opinion and ideally a quote or two with the conclusion language.

Many folks will read this and say 'But Librarian, you take care of this for us'. That's ultimately true, but I'm retired, and I do not get up on East Coast time - by 10 am or so Pacific, we can easily have a dozen threads scattered all over the forums, and folks replying to all of them. Merging all the threads is one way to preserve all the content, but that does give a really disconnected conversation until there is just one active thread. Picking a winner thread and closing all the rest also works, with a reference link in the closure message.

Either way the ruling goes, I'll be sweeping up for a few hours ...

Advthanksance.
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  #2199  
Old 05-19-2022, 5:47 AM
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Whatever is the test, it was not applied by SCOTUS, thus you can’t speculate what they will soon decide.
Same test applied by 9th resulted in them claiming there’s no right to bear arms outside at all. So it ain’t automatic this test will be good for us.
The test, per SCOTUS is HTT. They created it in Heller and applied it in Caetano. You can argue that the companion opinion to the per curiam order wasn't the actual decision, but the fact is, the test is HTT and that test was applied in that case.

The 9th has yet to apply that test in any of their final appellate decisions re: the 2A.

I, like you and everyone else, can speculate to my heart's content. I believe that in order to answer the certified question, the SCOTUS is going to have to answer the basic premise first - is there a Right to bear arms in public? The answer to that question will determine and shape the rest of the decision as well as its scope and breadth.
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Old 05-19-2022, 6:39 AM
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Originally Posted by Librarian View Post
Folks might do me a favor once the opinion is released.

1) We really need just one thread on the result, and that thread should be here in this forum.

2) A really good thread will be titled something like "NYSRPA Opinion 6-12-22 - WIN/LOSS!" and include a link to the opinion and ideally a quote or two with the conclusion language.

Many folks will read this and say 'But Librarian, you take care of this for us'. That's ultimately true, but I'm retired, and I do not get up on East Coast time - by 10 am or so Pacific, we can easily have a dozen threads scattered all over the forums, and folks replying to all of them. Merging all the threads is one way to preserve all the content, but that does give a really disconnected conversation until there is just one active thread. Picking a winner thread and closing all the rest also works, with a reference link in the closure message.

Either way the ruling goes, I'll be sweeping up for a few hours ...

Advthanksance.

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