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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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  #881  
Old 07-23-2021, 3:25 PM
press1280 press1280 is offline
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This is what happened in the Wrenn case. The court did not get into the mode of carry since neither side made an issue of it. Just like here.
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  #882  
Old 07-23-2021, 3:40 PM
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Originally Posted by ShadowGuy View Post
This was not something I expected to read in MSM. I think the title is misleading.



New York gun rights case before Supreme Court with massive consequences
About the Author:

Stephen P. Halbrook is a senior fellow with the Independent Institute in Oakland, Calif., and the author of 10 books, including the recently released, “The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?” His work was cited by the U.S. Supreme Court in both District of Columbia v. Heller and McDonald v. City of Chicago.
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  #883  
Old 07-23-2021, 4:12 PM
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Originally Posted by mrrabbit View Post
DC v. Heller already covered the right to bear....

...and consistently, precedents reference by SCOTUS made it clear:

1. Convictions for open carrying OUT AND ABOUT IN PUBLIC were overturned or remanded.

2. Convictions for conceal carrying and possessing concealable arms OUT AND ABOUT IN PUBLIC were upheld.

There was even one person who was carrying CONCEALED ON THEIR OWN PRIVATE PROPERTY whose convictions was upheld!!!

And Jamie Caetano as a homeless person was carrying concealed without a permit OUT AND ABOUT IN PUBLIC 100% OF THE TIME and SCOTUS didn't bat an eye examination wise as to the carry question.


SCOTUS has taken the general carry claim by the petitioner in this case and narrowed it down to a concealed carry question upon cert.


And what are all the PRO-CCW parties and lawyers doing that have been CRYING OR BEGGING FOR A CHANCE FOR A SHOT BEFORE SCOTUS SINCE TWO THOUSAND AND FRICKING EIGHT???


Ducking . . . literally ducking . . . straight up refusing to answer the question and instead running with the pre-cert "carry" arguments and briefs.


SCOTUS has given these PRO-CCW parties exactly the toilet that they want - and they refuse to sit on it and actually crap in it.


You know what, I'm tired of all this bull****...I'm going to stop being all diplomatic about it and come right out and say it:

The real reason this crap is happening is because they know that if they make the actual arguments they need to make to get some kind of win for concealed carry - they will have to argue for in favor of open carry to do so.

That is exactly what they DON'T WANT...they don't want a repeat of DC v. Heller.

=8-|
OK, so if you were on the Supreme Court, how would you write the opinion?

Concealed carry is not a right under the Second Amendment. Petitioners should have challenged New York's prohibition on open carry instead. You lose, so sorry, too bad.

Last edited by LonghornBob; 07-23-2021 at 4:19 PM..
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  #884  
Old 07-23-2021, 6:11 PM
mrrabbit mrrabbit is offline
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Originally Posted by LonghornBob View Post
OK, so if you were on the Supreme Court, how would you write the opinion?

Concealed carry is not a right under the Second Amendment. Petitioners should have challenged New York's prohibition on open carry instead. You lose, so sorry, too bad.
I already gave that answer....

=8-|
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  #885  
Old 07-24-2021, 3:49 AM
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Originally Posted by mrrabbit View Post
Buckeye didn't answer the question . . .

Claudia Tenney et. al. ALMOST answered the question . . .

Law Enforcement group brief did not answer the question . . .

CCRKBA did not answer the question . . .

Pink Pistols kinds heads in the equal protection direct a little bit , but didn't answer the question . . .


In other words, more "carry" briefs instead of briefs specifically answering directly SCOTUS question.

Ugh...

=8-|
The SCOTUS question is just a straight forward question based on the facts. Petitioners were denied a CCW, they applied for the permit using self defense as a reason, and does this violate the 2A? You may be reading way too much into them changing the question which they do quite frequently.

It may be helpful to see what SCOTUS did in some other cases that were also granted cert for the upcoming term. Were questions re-written into the bare facts or did they allow them to stand as extremely broad?
And this may be in the weeds but who re-writes the questions? The whole court? A majority of the court? A clerk?
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  #886  
Old 07-24-2021, 5:40 AM
Foothills Foothills is offline
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Originally Posted by press1280 View Post
The SCOTUS question is just a straight forward question based on the facts. Petitioners were denied a CCW, they applied for the permit using self defense as a reason, and does this violate the

And this may be in the weeds but who re-writes the questions? The whole court? A majority of the court? A clerk?
I think this is exactly right. When you look at Caetano you see unanimous agreement on the fundamental human right to self defense. And the 9th Circuit explicitly ruling that Young had no right to carry the tools for effective self defense. Meanwhile in the middle of the country many states are switching to Constitutional Carry because they recognize this right to self defense.

So there’s a clear circuit split.

And the Court is trying to get all the interested parties to grapple with the question. And as we can see many of the stakeholders in this policy discussion can’t think outside the box of their pet arguments.

The Black Legal Aid society in the Bronx also filed a brief asserting that the NY law had disparate outcomes when it came to prosecuting gun crimes in NY.

https://www.wsj.com/articles/progres..._copyURL_share

Note that the organization is in the news for other reasons.

https://bariweiss.substack.com/p/a-w...2wdewWGNIgE3J0
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  #887  
Old 07-24-2021, 5:59 AM
Foothills Foothills is offline
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You know, Missouri’s brief on behalf of several states is very good at answering the question. I like their construction comparing objective-issue to subjective-issue. They have plenty of empirical data to show that objective-issue does not create a public safety risk. That makes it even easier for the Court to find that NY, CA and HI have no data to back of their position that permit holders are extra dangerous.

And they filed their brief back before cert was granted. The case was distributed for conference several times afterward. Now I would conclude that their brief triggered the re-writing of the question, which asked all parties to weigh in on this subjective vs. ibjective issuance idea and, essentially, whether a subjective issuance policy is unconstitutional.

Last edited by Foothills; 07-24-2021 at 6:03 AM.. Reason: Objective vs. Subjective Issuance
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  #888  
Old 07-24-2021, 6:02 AM
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Originally Posted by mrrabbit View Post
DC v. Heller already covered the right to bear....

...and consistently, precedents reference by SCOTUS made it clear:

1. Convictions for open carrying OUT AND ABOUT IN PUBLIC were overturned or remanded.

2. Convictions for conceal carrying and possessing concealable arms OUT AND ABOUT IN PUBLIC were upheld.

There was even one person who was carrying CONCEALED ON THEIR OWN PRIVATE PROPERTY whose convictions was upheld!!!

And Jamie Caetano as a homeless person was carrying concealed without a permit OUT AND ABOUT IN PUBLIC 100% OF THE TIME and SCOTUS didn't bat an eye examination wise as to the carry question.


SCOTUS has taken the general carry claim by the petitioner in this case and narrowed it down to a concealed carry question upon cert.


And what are all the PRO-CCW parties and lawyers doing that have been CRYING OR BEGGING FOR A CHANCE FOR A SHOT BEFORE SCOTUS SINCE TWO THOUSAND AND FRICKING EIGHT???


Ducking . . . literally ducking . . . straight up refusing to answer the question and instead running with the pre-cert "carry" arguments and briefs.


SCOTUS has given these PRO-CCW parties exactly the toilet that they want - and they refuse to sit on it and actually crap in it.


You know what, I'm tired of all this bull****...I'm going to stop being all diplomatic about it and come right out and say it:

The real reason this crap is happening is because they know that if they make the actual arguments they need to make to get some kind of win for concealed carry - they will have to argue for in favor of open carry to do so.

That is exactly what they DON'T WANT...they don't want a repeat of DC v. Heller.

=8-|

The problem with your analysis here is that Heller isn't being obeyed by the lower courts because it wasn't clear.

Cataeno is a perfect example of how Heller is being disobeyed and how much the court didn't like it. The thing is, the court still isn't being obeyed even though Cataeno was more than perfectly clear.

The court needs a vehicle to clarify what they meant in Heller and tried to tell the States in Cataeno. Pre ACB, there wasn't enough judicial will to do that in the cases that were being presented to the SCOTUS.

There is now.

Corlett is actually fairly perfect if the intent of the court is to chastise the lower courts and establish that they "mean what they said in Heller."

Which is that the 2a is an individual Right and States don't get to restrict the right without a really, really good reason that's narrowly tailored in the least restrictive manner possible to address the perceived problem. They can also articulate clearly this time that the test isn't the two-step BS that the lower courts are using to rubber stamp Blue State infringements on the 2a.

But you don't get there without actually saying that the people have the Right to bear arms in public. They can't imply it in dictum like they did in Heller, they're going to have to actually come out and say it. Once they do, they can say that the manner of bearing those arms can be left up to the individual States, but they cannot restrict the manner of bearing arms to the point that the people cannot exercise their Right.

This is Corlett.

Interestingly enough, the parties in Corlett may not get what they want even if the decision goes their way. I can see at least 1 scenario where NY gets told to allow it's citizens to bear arms which results in the appellants not getting CCW permits. So a "win" for Corlett isn't necessarily going to get them permits. Not that I believe for a nanosecond that's what appellants really want.
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Last edited by rplaw; 07-24-2021 at 6:06 AM..
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  #889  
Old 07-24-2021, 7:47 AM
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Originally Posted by Foothills View Post
You know, Missouri’s brief on behalf of several states is very good at answering the question. I like their construction comparing objective-issue to subjective-issue. They have plenty of empirical data to show that objective-issue does not create a public safety risk. That makes it even easier for the Court to find that NY, CA and HI have no data to back of their position that permit holders are extra dangerous.

And they filed their brief back before cert was granted. The case was distributed for conference several times afterward. Now I would conclude that their brief triggered the re-writing of the question, which asked all parties to weigh in on this subjective vs. ibjective issuance idea and, essentially, whether a subjective issuance policy is unconstitutional.
NYS / NYC was the party that straight up called it a concealed carry case.

=8-|
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  #890  
Old 07-24-2021, 8:50 AM
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The cases in the Black Public Defenders brief paint a grim picture if the way NYPD applies the licensing laws in a discriminatory way. It actually blends well with the Republican congresscritters who pointed out that NY only grants licenses to the elitists.

By phrasing the question as they did, the Court changes this from a historical 2A case to an equal-protection case. And the remedy for a long history of using discretion in a racially discriminatory way is to take away that discretion and require the issuing agency to change to the objective issuance that so many other states use.

Honestly they’ve done the best job so far of answering the question directly.

Last edited by Foothills; 07-24-2021 at 9:05 AM..
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  #891  
Old 07-24-2021, 10:01 AM
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Originally Posted by Foothills View Post
The cases in the Black Public Defenders brief paint a grim picture if the way NYPD applies the licensing laws in a discriminatory way. It actually blends well with the Republican congresscritters who pointed out that NY only grants licenses to the elitists.

By phrasing the question as they did, the Court changes this from a historical 2A case to an equal-protection case. And the remedy for a long history of using discretion in a racially discriminatory way is to take away that discretion and require the issuing agency to change to the objective issuance that so many other states use.

Honestly they’ve done the best job so far of answering the question directly.
The best briefs will be those that:

1. DIRECTLY ANSWER THE QUESTION BY recognizing as a general matter the right of the States to regulate concealed carry per DC v. Heller.

2. Call out the States abuse of its right to regulate concealed carry.

- By not recognizing and trusting "law abiding" citizens per se.
- Using it to ban open carry.
- Using it to ban arms that by design or intent that are non-concealable.
- Using it to discriminate on the basis of race, ethnicity, socioeconomic status, etc.
- Using it to discriminate on the basis of physical medical problems and stature, sex, etc.
- Using it as part of a "graft" system - for the corrupt.

The problem with the right to regulate concealed carry just like other rights that States have is that - and history shows this - States have a tendency to take their right to regulate ONE subject and turn it into an UMBRELLA that reaches over into and casts burdens upon or creates problems in other subjects and areas.

Humans have this nasty tendency to take something simple - and turn it into a nasty complex unnecessary mess - too often because someone gave 'em a little power.

=8-|
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  #892  
Old 07-24-2021, 10:53 AM
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If we get a good decision, and this case equals, or nearly so, the level of historical analysis of Heller, we should expect the following (hopefully not all in dicta):

• Analysis of historical norms of firearms carried outside the home and for what purposes

• Analysis of historical norms of how weapons were carried, what laws were upheld in restricting time, place and manner.

• Analysis of historically prevented groups denied their constitutional rights to carry (in whatever means)

• Analysis of historically sensitive areas that may be denied carry

• Analysis of the near majority of states that have decided to eliminate permitting and proceed to constitutional carry, without significant increase in crime

• And, finally, analysis of how concealed carry has become the dominant mode of carry

A lot of that analysis was already performed in Heller, so can readily be cited. A possible outcome of such a set of analyses, such as above, might deliver:

• A right exists, that can not be legislated to zero

• The right allows individuals to carry outside their home, except in a limited number of sensitive areas, including limited time restrictions for certain events

• The right can not be denied arbitrarily and in violation of the 14th amendment

• The right must encompass open-carry if any curtailment of the right is placed upon concealed-carry, noting that concealed-carry brings with it the inability to identify a weapon and approach a situation differently, such that the state is within means to deny the ability to those that have had their 2A rights removed, which might otherwise be more easily identified with open-carry

• Which then ultimately sets the scene to properly answer the appellant’s question: does the restriction of concealed-carry for self-defense violate 2A.

Fingers crossed for a good read!
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  #893  
Old 07-24-2021, 10:54 AM
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Default SCOTUS Concealed Carry Case — NYSRPA v. Corlett — CERT GRANTED, 4-26-21

Quote:
Originally Posted by Foothills View Post
The Black Legal Aid society in the Bronx also filed a brief asserting that the NY law had disparate outcomes when it came to prosecuting gun crimes in NY.

https://www.wsj.com/articles/progres..._copyURL_share
The brief from the criminal defense lawyers, which includes the Bronx Defenders and the Brooklyn Defender Services, argues against the state’s gun laws from a progressive position.

“In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases,” the brief says.
It notes that for a defendant, separately having ammunition makes a gun loaded—and that possessing a “loaded” gun without a permit, even if not used, is a “violent felony” that carries a 3.5 to 15-year prison sentence.

While the plaintiffs in the case mainly attack New York’s gun “carry” rules, the defense lawyers also argue that their indigent clients have been wrongfully punished for having guns at home.
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  #894  
Old 07-24-2021, 12:29 PM
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Originally Posted by Robotron2k84 View Post
If we get a good decision, and this case equals, or nearly so, the level of historical analysis of Heller, we should expect the following (hopefully not all in dicta):

• Analysis of historical norms of firearms carried outside the home and for what purposes <<<< DC v. Heller

• Analysis of historical norms of how weapons were carried, what laws were upheld in restricting time, place and manner. <<<< DC v. Heller

• Analysis of historically prevented groups denied their constitutional rights to carry (in whatever means) <<<< DC v. Heller

• Analysis of historically sensitive areas that may be denied carry <<<< DC v. Heller

• Analysis of the near majority of states that have decided to eliminate permitting and proceed to constitutional carry, without significant increase in crime <<<< PROBLEM

• And, finally, analysis of how concealed carry has become the dominant mode of carry <<<< PROBLEM

A lot of that analysis was already performed in Heller, so can readily be cited. A possible outcome of such a set of analyses, such as above, might deliver:

• A right exists, that can not be legislated to zero

• The right allows individuals to carry outside their home, except in a limited number of sensitive areas, including limited time restrictions for certain events

• The right can not be denied arbitrarily and in violation of the 14th amendment <<<< PROBLEM

• The right must encompass open-carry if any curtailment of the right is placed upon concealed-carry, noting that concealed-carry brings with it the inability to identify a weapon and approach a situation differently, such that the state is within means to deny the ability to those that have had their 2A rights removed, which might otherwise be more easily identified with open-carry

• Which then ultimately sets the scene to properly answer the appellant’s question: does the restriction of concealed-carry for self-defense violate 2A.

Fingers crossed for a good read!
1. There is no such thing as "constitutional carry" as a legal, philosophical or political term for all jurisprudence covered up to DC v. Heller.

It is a marketing label for a state level campaign created by a group out of Arizona in 2010 unhappy that they did not get a CCW win in DC v. Heller.


2. As Scalia noted, SCOTUS is not going to redefine or reinterpret a right just because of an advancement in technology, a finger moving in the wind, or because Orange Kool-Aid is the flavor of the day.

3. We're dealing with two things: The right...an individual right...and a right of the States to regulate a privilege for individuals in its State.


Will the Supreme Court say that when a State's regulation of the privilege of CCW fails scrutiny, that the individual's 2nd Amendment right has been violated?

Under DC v. Heller, that would be true if that scrutiny shows that:

1. Possession of legal / lawful arms has been denied.

2. Open carry has been denied.

3. AND / OR arms suitable for open carry have been banned.

=8-|
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  #895  
Old 07-24-2021, 12:42 PM
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I wish my browser didn’t log me out…

Lagomorph, as ALWAYS, you ignore the purpose of the court and basis of Heller and the role that the court will play.

Only SCOTUS can re-interpret SCOTUS, and they are an end unto themselves in our Constitution.

What you describe as problems are their domain to flesh out how they see it comport with the Constitution. What you cite from Heller is reasoning and not judgement.

Thankfully you are not a Justice, and shall remain on ignore.
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Old 07-24-2021, 3:32 PM
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But whether Kavanaugh and Barrett refuse to take part in adding a standard of scrutiny for 2A related cases as a whole is what really matters here.
Speaking of Barrett, I wonder if there is any chance she'd be chosen to write the opinion. Her "virtue limitation" riff in Kanter is an interesting line of reasoning; only the chosen few who convince police that they are good people (who also have good cause) are allowed to bear arms outside of their homes?

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If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the “civic right” argument on which a virtue limitation depends.
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  #897  
Old 07-25-2021, 5:14 AM
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Originally Posted by Foothills View Post
The cases in the Black Public Defenders brief paint a grim picture if the way NYPD applies the licensing laws in a discriminatory way. It actually blends well with the Republican congresscritters who pointed out that NY only grants licenses to the elitists.

By phrasing the question as they did, the Court changes this from a historical 2A case to an equal-protection case. And the remedy for a long history of using discretion in a racially discriminatory way is to take away that discretion and require the issuing agency to change to the objective issuance that so many other states use.

Honestly they’ve done the best job so far of answering the question directly.
The problem with a straight equal protection argument (2A is put aside completely) is then it's a rational basis argument. While it's historically true that blacks were denied based on race, plaintiffs here are not making the case that they were denied based on race.
It only becomes a heightened scrutiny scenario if the equal protection involves a constitutional right. Public carry is either protected under the 2A or it isn't.
There's almost always going to be a rational basis argument for restricting public carry short of accepting only last names beginning with certain letters or only accepting applicants who applied on Tuesday, exc.
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  #898  
Old 07-25-2021, 7:02 AM
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Originally Posted by press1280 View Post
The problem with a straight equal protection argument (2A is put aside completely) is then it's a rational basis argument. While it's historically true that blacks were denied based on race, plaintiffs here are not making the case that they were denied based on race.
It only becomes a heightened scrutiny scenario if the equal protection involves a constitutional right. Public carry is either protected under the 2A or it isn't.
There's almost always going to be a rational basis argument for restricting public carry short of accepting only last names beginning with certain letters or only accepting applicants who applied on Tuesday, exc.
I still suspect that they were persuaded by the objective vs. subjective brief to look closer as to whether there might be an equal protection issue. There is a lot more public support for equal protection claims these days. As they probably suspected, people came out of the woodwork to show how NY’s current system harms all sorts of people. NY can’t “moot” those harms.

They might even get a unanimous decision for equal protection demanding a change to objective issue even if it’s 5-4 for strict scrutiny. I could see Breyer writing a concurring opinion that once a state decides it’s going to issue permits at all, then they need to be objective and not limit it to favored demographic groups/corrupt issuance.
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Old 07-25-2021, 11:50 AM
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And again, folks drifting off again to the "public carry" focus that was tossed when SCOTUS took the case up on cert.

Again the question SCOTUS presented upon taking the case up on cert is:

Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

NOT "denial" "license" "violated" "constitution".
NOT "denial" "license" "violated" "act"
NOT "denial" "license" "violated" "rights"
NOT "denial' "license" "violated" "law"

The question presented was put forth in a very very narrow fashion:

"denial" "license" "violated" "2nd Amendment"

Any argument put forth of the "I'm the fly on the wall type" or "I really know what they're thinking" or "The political wind is blowing this way..." is just guessing and posturing - of which most will be wrong and maybe ONE person might get lucky.

Again:

"denial" "license" "violated" "2nd Amendment"

All you have to go with to make a valid argument is the following:

Robertson v. Baldwin 1876
DC v. Heller 2008
McDonald v. Chicago 2010
Caetano v. Massachusetts 2016

...and all the authorities / precedents referenced in them.

You specifically have to argue that denial of a license violated the 2nd Amendment.

For a violation to have occurred you have to demonstrate that:

1. That ownership of "commonly held arms suitable for self-defense for the purpose of confrontation" protected under the 2nd Amendment was being denied.

1a. That access was being denied to "non-concealable, non-unusually dangerous, non-military-delegated, non-solely-weapons-of-war" arms.

2. That the open carrying (natural exercise of the 2nd Amendment) of the above was being denied.

3. That a racial, religious, political or socioeconomic regime is being enforced that in a caste manner is denying an identifiable group #1, #1a and #2 apart from the general population of law abiding citizens.

Understand that as good as the briefs are from those groups covering the ugly history of the Sullivan Act and of course the various acts that were passed and later struck down shortly after the American Civil War - you still have to show specifically that the individual right to own and carry "commonly held arms suitable for self-defense for the purpose of confrontation" is being denied.

And what is the first hurdle?

States may regulate concealed carry, and prohibitions thereon may be upheld.

That's the wall you have to get over, around or bust through first as part of making your case.

You cannot ignore that in your argument.

=8-|
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Old 07-25-2021, 2:07 PM
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Ok, not a lawyer but grew up in New York State. (not city)

Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

OK, As I understood the law in NYS if you didn't have a Pistol Permit you are not allowed to touch a pistol. Not at the range or have one in your home! If you are denied then you are out of luck and no pistol for you. So looking at the question posed then....a denial of permit then it has violated your right to a pistol. Yes even to touch one. I would take this as a 2nd amendment violation. This single fact should be enough to kill the NY law. In all of the briefs has anyone brought this up?

Doesitgobang
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  #901  
Old 07-25-2021, 2:17 PM
mrrabbit mrrabbit is offline
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Quote:
Originally Posted by DoesItGoBang View Post
Ok, not a lawyer but grew up in New York State. (not city)

Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

OK, As I understood the law in NYS if you didn't have a Pistol Permit you are not allowed to touch a pistol. Not at the range or have one in your home! If you are denied then you are out of luck and no pistol for you. So looking at the question posed then....a denial of permit then it has violated your right to a pistol. Yes even to touch one. I would take this as a 2nd amendment violation. This single fact should be enough to kill the NY law. In all of the briefs has anyone brought this up?

Doesitgobang
In part or in whole?

In other words, does NYS / NYC statutes and codes pertaining to handguns get struck entirely?

OR

Does SCOTUS remand or direct for a revision of NYS / NYC statues and codes?


NYS / NYC treats all handguns as concealable. Can they really do that - ban an entire class of firearm behind a permit requirement? Or only those that can actually be considered as concealable by design or intent?

=8-|
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Justice Thomas: " I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. "
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  #902  
Old 07-27-2021, 11:40 AM
Foothills Foothills is offline
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Originally Posted by mrrabbit View Post

And what is the first hurdle?

States may regulate concealed carry, and prohibitions thereon may be upheld.

That's the wall you have to get over, around or bust through first as part of making your case.

You cannot ignore that in your argument.

=8-|
It's standard for equal-protection cases to tie to another amendment, right or power in the Constitution. It can violate their 2nd Amendment rights because the way their permit scheme is implemented, and has historically been implemented, it denies those 2nd Amendment rights to anyone not an elitist. You can always make the equal protection argument that it is the lack of equal protection resulting in a Constitutional right being denied or abridged.
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