Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > POLITICS, LITIGATION AND ACTIVISM > 2nd Amend. Litigation Updates & Legal Discussion
Register FAQ Members List Calendar Mark Forums Read

2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

Reply
 
Thread Tools Display Modes
  #161  
Old 06-04-2021, 3:54 AM
press1280 press1280 is offline
Veteran Member
 
Join Date: Mar 2009
Location: WV
Posts: 3,017
iTrader: 0 / 0%
Default

Quote:
Originally Posted by TruOil View Post
I agree. I think that the Court is unlikely to address the right in the context of open carry versus concealed carry. I think it is more likely that the Court will simply conclude that there is a right to bear arms in public in some manner without a showing of special need, but leave it to the individual states to determine what that manner will be, i.e., open carry or concealed, or both. Total bans on carrying will go by the wayside, although restrictions as to "sensitive places" will remain in place as well as possession/bearing of arms by felons. So for states like NY and California and Hawaii that ban open carry and wish to continue doing so, the Court will strike down the "special need" requirement of obtaining a CCW, and those will become "shall issue" concealed carry jurisdictions.

It will not further explore or opine on the myriad issues raised in current case law, as is its practice. For example, if a state enacts an open carry law, how will that effect carrying if that state has a gun free school zone law in place? Such laws ban openly carried firearms within 1000' of a school--and there is no realistic way to openly bear arms in any urban area without violating that law.
Also we have to remember that in this immediate case before the court, NY is not even pushing the OC-is-the-right theory. They can't do that at this point. They have always held that CCW is a valid means to exercise the right, the difference being of course that they can limit this to only people that meet a specific, narrow standard that obviously disqualifies the public at large. In addition, they have no open carry, so essentially the only explanation they would have is say that CA9 was correct in Young and there is NO right to public carry. hardly a winner IMO.
Reply With Quote
  #162  
Old 06-04-2021, 1:52 PM
TruOil TruOil is offline
Senior Member
 
Join Date: Jul 2017
Posts: 1,844
iTrader: 0 / 0%
Default

Quote:
Originally Posted by press1280 View Post
Also we have to remember that in this immediate case before the court, NY is not even pushing the OC-is-the-right theory. They can't do that at this point. They have always held that CCW is a valid means to exercise the right, the difference being of course that they can limit this to only people that meet a specific, narrow standard that obviously disqualifies the public at large. In addition, they have no open carry, so essentially the only explanation they would have is say that CA9 was correct in Young and there is NO right to public carry. hardly a winner IMO.
Young did say no right to carry at all outside the home, but before that Peruta held that there is no right to a concealed carry permit. The latter is the road that NY will plow; absent a right, issuance is completely discretionary by the state or its agents. Next it will argue that the interest of public security trumps the right to bear. (This is a not so subtle application of the balancing test rejected in Heller, but is what is really happening in the liberal circuits.)

I would suspect that it will try to avoid the fact that open carry is banned and that therefore there is no alternative means to bear except concealed, but I also suspect that if it does so, it will get nailed at oral argument on that subject. In other words, "Counsel, if there is no right under the Second Amendment to carry a concealed firearm, how are citizens in NY able to exercise their Second amendment right to bear arms when open carry is banned by state law?" "So, if the only avenue open is to apply for a discretionary permit, are you saying that there is no right to bear arms in public under the Second Amendment?"
Reply With Quote
  #163  
Old 10-24-2021, 10:16 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Well, I may as well finish what I started. There's only two cases left to go here: English v State and Bliss v Commonwealth. So ...

In English v. State, 35 Tex. 473, 476 (1871), the Texas Supreme Court held that the law governing the carry of various concealable weapons ("pistols, dirks, and certain other deadly weapons") was not an affront to the 2nd Amendment:

Quote:
To refer the deadly devices and instruments called in the statute "deadly weapons," to the proper or necessary arms of a "well-regulated militia," is simply ridiculous. No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the constitution of the United States, as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults have sprung, and which it was doubtless the intention of the legislature to punish and prohibit. The word "arms" in the connection we find it in the constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine; of the artillery, the field piece, siege gun, and mortar, with side arms.(p.477)

The terms dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives, belong to no military vocabulary. Were a soldier on duty found with any of these things about his person, he would be punished for an offense against discipline.

The act referred to makes all necessary exceptions, and points out the place, the time and the manner in which certain deadly weapons may be carried as means of self-defense, and these exceptional cases, in our judgment, fully cover all the wants of society. There is no abridgement of the personal rights, such as may be regarded as inherent and inalienable to man, nor do we think his political rights are in the least infringed by any part of this law.
The case doesn't state the text of the law in question, but this appears to be it (from https://www.dailykos.com/stories/201...of-the-1800s):

Quote:
Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purpose of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the state, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor, and, on conviction thereof, shall, for the first offense, be punished by fine of not less than twenty-five nor more than one hundred dollars, and shall forfeit to the county the weapon or weapons so found on or about his person; and for every subsequent offense may, in addition to such fine and forfeiture, be imprisoned in the county jail for a term not exceeding sixty days; and in every case of fine under this section the fines imposed and collected shall go into the treasury of the county in which they may have been imposed: Provided, That this section shall not be so construed as to prohibit any person from keeping or bearing arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or other revenue officers, and other civil officers, from keeping or bearing arms while engaged in the discharge of their official duties, nor to prohibit persons traveling in the state from keeping or carrying arms with their baggage: Provided further, that members of the legislature shall not be included under the term “civil officers” as used in this act.
While the above law is specific in the weapons it forbids, and thus wouldn't necessarily cover all concealable arms, it does sweep broadly.

The decision is cited only once, in the passage where the Court is showing that the protection of the right is limited to weapons "in common use at the time" and refers to the tradition of prohibiting carry of "dangerous and unusual weapons":

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2817
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N.C. 381, 383-384 (1824); O'Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N.C. 288, 289 (1874).
Clearly, the above does not refer to concealed or open carry specifically, only to what weapons can be carried. The implication is that the Court here thinks of the prohibited arms in English as "dangerous and unusual weapons" in the context of that case, meaning that at the time of that decision, it may well be that they were "dangerous and unusual". That is certainly not the case for concealable handguns today, because the decision in Heller explicitly protects those.

--

Next, and last, is Bliss v. Commonwealth, 12 Ky. 90, 2 Litt. 90, 91-92 (1822). This, of course, is the historical case that upheld concealed carry as being protected by the 2nd Amendment:

Quote:
Originally Posted by Bliss v. Commonwealth, 12 Ky. 90, 2 Litt. 90, 91-92 (1822)
1. The right of the citizens to bear arms in defence of themselves and the state, must be preserved entire.

2. Not merely all legislative acts, which purport to take it away; but all which diminish or impair it, as it existed when the constitution was formed, are void.

3. The act to prevent persons from wearing concealed arms, is unconstitutional and void.
This is referenced in footnote 9 of Heller, which is referred to here:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2793 - 2794
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that "bear arms" had in the 18th century. In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to "bear arms in defense of themselves and the state" or "bear arms in defense of himself and the state."[8] It is clear from those formulations that "bear arms" did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution's arms-bearing right, for example, as a recognition of the natural right of defense "of one's person or house"—what he called the law of "self preservation." 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds.2007) (citing Pa. Const., Art. IX, ยง 21 (1790)); see also T. Walker, Introduction to American Law 198 (1837)
("Thus the right of self-defence [is] guaranteed by the [Ohio] constitution"); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.[9] These provisions demonstrate—again, in the most analogous linguistic context—that "bear arms" was not limited to the carrying of arms in a militia.
(the reference to the footnote is bolded above)

Here, Heller directly talks about carry of weapons and bearing of arms. Footnote 9 references several cases, not just Bliss. Most of the other cases in footnote 9 are the ones that upheld bans on concealed carry. What, then, are they doing right alongside Bliss if the purpose of their use was to show that concealed carry is prohibitable when Bliss explicitly says otherwise?

No, quite clearly, the Court's use of Bliss and these other cases is something other than to answer the question of whether or not concealed carry is legitimately prohibitable. As used here, it's clear that the Court intended to show that the "bear arms" means carry outside of an organized militia. It says so right there in black and white.


But if there's any historical carry case that is the most relevant to the question of whether or not concealed carry is protected, it's Bliss. The reason for this is that it's the only historical case that could have been decided by founding-generation judges. While the Kentucky constitution was changed in response to that, it wasn't until 1850 that the change took place. Which means that the change was not made by the founding generation. As such, if you're going to insist that the use of these historical cases in Heller was for the purpose of defining the scope of the right to bear, Bliss is the only case that is informative as to the founding generation's belief. And Heller is explicit that the scope of the right is that which was understood at the time of its adoption:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2821
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
Notable too is that during the founding era, there was only one law forbidding concealed carry, a law passed in New Jersey in 1686 (source: https://fedsoc.org/commentary/public...t-to-bear-arms). As such, while the founding generation may have had some amount of disdain for concealed carry, that apparently wasn't enough to translate into sufficient approval of widespread prohibitions. Bliss, it seems, is at least somewhat consistent with the founding generation's understanding of the right.

And as I've argued before, if the scope of the right includes the reasoning behind the scope (which it clearly must, as the Supreme Court itself implicitly acknowledges, since otherwise the scope of the right really would be limited to founding-era weapons), then the reasoning behind insisting that concealed carry prohibitions are valid (which is that it's only something that would be entertained for unlawful reasons) has been eviscerated by the tens of millions of people who carry concealed in a peaceful manner every day, many of whom do so without a permit. Even if concealed carry was at one time something that only those with criminal intent would entertain, that is clearly no longer the case.


So: you either (incorrectly) insist that these cases were used by Heller to indicate the current proper scope of the right to bear, and thus must use Bliss as the primary indicator of the founding generation's understanding of the scope of the right as regards concealed carry (since you can't use cases decided by later generations to indicate the scope of the right at its adoption), or you use them in the same way that Heller did: to indicate that the right was not regarded as unlimited, to indicate that the exercise of the right was regarded as being independent of militia duty, etc.


One other thing: that the people as a whole may regard something with disdain doesn't mean that it's not protected. KKK rallies and marches are obviously regarded with great disdain by the population, and have been for quite some time. And yet, despite that, they are protected by the 1st Amendment. This is just as applicable to the 2nd Amendment as it is the 1st Amendment. People may regard a particular exercise of the right with disdain or suspicion, but that does not make prohibition of that exercise Constitutional.


--

Footnote 9 also references State v Schoultz, but I cannot find the complete text of that decision, and what I am able to find doesn't reference carry at all. So I cannot discuss that here, even though the Court cited it in footnote 9.


And that's it. So what are we to conclude from all this?

I think that should be clear: the contextual use of all of these cases was for some other purpose than to state what the current limitations of the right are as regards concealed carry or open carry. Where there are references to limitations, they appear to be with respect to weapons, not modes of carry, and the decision itself clearly protects concealable handguns.

So the bottom line is that there is no contextual statement in Heller that concealed carry can be prohibited today, only that it was regarded by most (but not all!) previous state courts as being prohibitable.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 10-31-2021 at 4:00 PM..
Reply With Quote
  #164  
Old 10-25-2021, 9:25 AM
abinsinia's Avatar
abinsinia abinsinia is offline
Veteran Member
 
Join Date: Feb 2015
Posts: 3,717
iTrader: 1 / 100%
Default

My reading of Heller was that at the founding of the country concealed carry was disfavored over open carry.

Why do you think Justice Kavanaugh believes concealed carry can be regulated as one item in a small list of items which can have regulation ?

I think concealed carry should be protect under common use, even if it wasn't favored at the founding similar to how handgun are protected after the Heller case.
Reply With Quote
  #165  
Old 10-25-2021, 2:21 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
My reading of Heller was that at the founding of the country concealed carry was disfavored over open carry.
And that may be. But there is a huge gulf between something being disfavored (e.g., KKK marches) and something being legitimately prohibitable. And even if concealed carry was disfavored at the time, the reasons behind that view are obviously no longer applicable. And the reasoning behind the scope of the right is obviously part of the scope of the right, since otherwise we'd all be limited to muskets and other muzzle-loaded weapons.


Quote:
I think concealed carry should be protect under common use, even if it wasn't favored at the founding similar to how handgun are protected after the Heller case.
I think the whole "common use" thing is garbage, frankly. The very notion that the only things that are protected are those in "common use" clearly implies that a prohibition can bootstrap itself into Constitutionality merely by being imposed early enough that whatever it prohibits never manages to become "common".

No, as with any other thing, the proper approach here is to look to the purpose of the right. Why do we have it at all? The 2nd Amendment itself makes one of those reasons clear: to preserve the security of a free State. Which means ensuring that the citizenry retains its liberty. This shouldn't be a surprise: the founders had just come out of a shooting war over that very thing, using many privately owned weapon types that were not "commonly" used (e.g., artillery, gunships, etc.). You'd have to believe that the founders were morons of the highest order to argue that they would have agreed to bans on the very weapons they used to win their liberty.

We have the right to liberty and the right to life. Both of those yield the right to arms. How?

For the right to liberty, it's because that right means the citizenry has the right to be free of tyranny. That is meaningless without the right to prevail in a contest against a tyrannical government. The right to prevail against a tyrannical government is meaningless unless the citizenry has the right to the means to prevail against a tyrannical government. Which means the right to those arms that are sufficiently capable to ensure that the citizenry will prevail against a well-armed and well-armored government.

For the right to life, it's because that right means you have the right to self-defense, to defend yourself against someone who means to take your life. The right to self-defense is meaningless without the right to prevail in self-defense. And the right to prevail is meaningless without the means to prevail. And hence, you have the right to arms, because it is only through arms that you can ensure to the greatest degree that you will prevail in a self-defense encounter.


Each purpose of the right to arms has implications as to the nature of the arms we have a right to. The right to self-defense means we have the right to effective arms that we can easily carry with us, and the right to carry them wherever we go where we might need to use them to defend our lives. The right to liberty means we have the right to arms that will be effective against a well-armed and well-armored government.


It doesn't matter how "common" an arm is. That is an arbitrary thing, a matter of happenstance. What matters is, with respect to bear, whether or not that arm can be used by its bearer for any of the purposes behind the right. If it can, then bear of that arm clearly should be protected, as long as its use would not pose as much danger to innocent bystanders as it does to its target. And with respect to keep, what matters is whether or not its mere possession, after considering how it's stored, poses substantial danger to others.


At the end of the day, we have the right to life and liberty, period. And the founders of the country obviously valued liberty over life because they intentionally started killing people, at great risk to their own lives, in order to secure their liberty. That choice is the foundation of our country. It is not a suicide pact, of course, but neither is the proper understanding of the right to arms.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
Reply With Quote
  #166  
Old 10-25-2021, 2:29 PM
Friesland's Avatar
Friesland Friesland is offline
Senior Member
 
Join Date: Mar 2014
Posts: 873
iTrader: 2 / 100%
Talking for later review

Review later

Quote:
Originally Posted by kcbrown View Post
And that may be. But there is a huge gulf between something being disfavored (e.g., KKK marches) and something being legitimately prohibitable. And even if concealed carry was disfavored at the time, the reasons behind that view are obviously no longer applicable. And the reasoning behind the scope of the right is obviously part of the scope of the right, since otherwise we'd all be limited to muskets and other muzzle-loaded weapons.




I think the whole "common use" thing is garbage, frankly. The very notion that the only things that are protected are those in "common use" clearly implies that a prohibition can bootstrap itself into Constitutionality merely by being imposed early enough that whatever it prohibits never manages to become "common".

No, as with any other thing, the proper approach here is to look to the purpose of the right. Why do we have it at all? The 2nd Amendment itself makes one of those reasons clear: to preserve the security of a free State. Which means ensuring that the citizenry retains its liberty. This shouldn't be a surprise: the founders had just come out of a shooting war over that very thing, using many privately owned weapon types that were not "commonly" used (e.g., artillery, gunships, etc.). You'd have to believe that the founders were morons of the highest order to argue that they would have agreed to bans on the very weapons they used to win their liberty.

We have the right to liberty and the right to life. Both of those yield the right to arms. How?

For the right to liberty, it's because that right means the citizenry has the right to be free of tyranny. That is meaningless without the right to prevail in a contest against a tyrannical government. The right to prevail against a tyrannical government is meaningless unless the citizenry has the right to the means to prevail against a tyrannical government. Which means the right to those arms that are sufficiently capable to ensure that the citizenry will prevail against a well-armed and well-armored government.

For the right to life, it's because that right means you have the right to self-defense, to defend yourself against someone who means to take your life. The right to self-defense is meaningless without the right to prevail in self-defense. And the right to prevail is meaningless without the means to prevail. And hence, you have the right to arms, because it is only through arms that you can ensure to the greatest degree that you will prevail in a self-defense encounter.


Each purpose of the right to arms has implications as to the nature of the arms we have a right to. The right to self-defense means we have the right to effective arms that we can easily carry with us, and the right to carry them wherever we go where we might need to use them to defend our lives. The right to liberty means we have the right to arms that will be effective against a well-armed and well-armored government.


It doesn't matter how "common" an arm is. That is an arbitrary thing, a matter of happenstance. What matters is, with respect to bear, whether or not that arm can be used by its bearer for any of the purposes behind the right. If it can, then bear of that arm clearly should be protected, as long as its use would not pose as much danger to innocent bystanders as it does to its target. And with respect to keep, what matters is whether or not its mere possession, after considering how it's stored, poses substantial danger to others.


At the end of the day, we have the right to life and liberty, period. And the founders of the country obviously valued liberty over life because they intentionally started killing people, at great risk to their own lives, in order to secure their liberty. That choice is the foundation of our country. It is not a suicide pact, of course, but neither is the proper understanding of the right to arms.
__________________
"It does not take a majority to prevail... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men."-
Samuel Adams
Reply With Quote
  #167  
Old 10-25-2021, 3:42 PM
abinsinia's Avatar
abinsinia abinsinia is offline
Veteran Member
 
Join Date: Feb 2015
Posts: 3,717
iTrader: 1 / 100%
Default

Quote:
Originally Posted by kcbrown View Post
And that may be. But there is a huge gulf between something being disfavored (e.g., KKK marches) and something being legitimately prohibitable. And even if concealed carry was disfavored at the time, the reasons behind that view are obviously no longer applicable. And the reasoning behind the scope of the right is obviously part of the scope of the right, since otherwise we'd all be limited to muskets and other muzzle-loaded weapons.




I think the whole "common use" thing is garbage, frankly. The very notion that the only things that are protected are those in "common use" clearly implies that a prohibition can bootstrap itself into Constitutionality merely by being imposed early enough that whatever it prohibits never manages to become "common".

I would agree "common use" is arbitrary. However, it's what the courts have used. I think common use is mostly going to apply to things which didn't exist at the founding like stun guns. Also Heller is largely a common use case because it protects semi automatic weapons which also didn't exist at the founding.

I think if you throw out common use as an argument then you turn this into a much more difficult argument to make because concealed carry was disfavored and banning it may be fair.
Reply With Quote
  #168  
Old 10-25-2021, 4:59 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
I would agree "common use" is arbitrary. However, it's what the courts have used. I think common use is mostly going to apply to things which didn't exist at the founding like stun guns. Also Heller is largely a common use case because it protects semi automatic weapons which also didn't exist at the founding.
But look at Heller's reasoning for protecting weapons that didn't exist at the founding:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2792 - 2793
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Rights are operative against all of the things, modern and historical alike, that are relevant to them. Heller's justification for protection of semiautomatic weapons has nothing to do with the fact that they're common but rather because they're arms, and those arms fall within the historically understood purposes (e.g., self-defense) for the protected right.


Quote:
I think if you throw out common use as an argument then you turn this into a much more difficult argument to make because concealed carry was disfavored and banning it may be fair.
Not really. Concealed carry was disfavored for reasons that the historical courts explicitly stated. Even if we presume that concealed carry really was disfavored by the founding generation (something that is disputable), and that those historical courts accurately described the reasons for that disfavor, those reasons are part of the scope and thus are operative at most only to the degree they are still valid. But as I noted, those reasons aren't valid, because tens of millions of people every day prove that those reasons aren't valid. So even if you presume that the founding generation disfavored concealed carry, that fact is insufficient by itself to state that concealed carry is disfavored today precisely because the reasoning behind that understanding is no longer valid.

Precedent is only valid to the degree that the reasoning behind it is valid. Here, the precedent in question is invalid because the reasoning behind it is now invalid. A court which uses invalid precedent to justify a decision is a court that is acting in an arbitrary and capricious manner, because any decision can be justified with invalid precedent.

Courts aren't just tasked with deciding cases, they're tasked with deciding cases properly. Anything else is arbitrary and capricious, and an affront to ordered liberty.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
Reply With Quote
  #169  
Old 10-25-2021, 5:59 PM
abinsinia's Avatar
abinsinia abinsinia is offline
Veteran Member
 
Join Date: Feb 2015
Posts: 3,717
iTrader: 1 / 100%
Default

Quote:
Originally Posted by kcbrown View Post
But look at Heller's reasoning for protecting weapons that didn't exist at the founding:



Rights are operative against all of the things, modern and historical alike, that are relevant to them. Heller's justification for protection of semiautomatic weapons has nothing to do with the fact that they're common but rather because they're arms, and those arms fall within the historically understood purposes (e.g., self-defense) for the protected right.




Not really. Concealed carry was disfavored for reasons that the historical courts explicitly stated. Even if we presume that concealed carry really was disfavored by the founding generation (something that is disputable), and that those historical courts accurately described the reasons for that disfavor, those reasons are part of the scope and thus are operative at most only to the degree they are still valid. But as I noted, those reasons aren't valid, because tens of millions of people every day prove that those reasons aren't valid. So even if you presume that the founding generation disfavored concealed carry, that fact is insufficient by itself to state that concealed carry is disfavored today precisely because the reasoning behind that understanding is no longer valid.

Precedent is only valid to the degree that the reasoning behind it is valid. Here, the precedent in question is invalid because the reasoning behind it is now invalid. A court which uses invalid precedent to justify a decision is a court that is acting in an arbitrary and capricious manner, because any decision can be justified with invalid precedent.

Courts aren't just tasked with deciding cases, they're tasked with deciding cases properly. Anything else is arbitrary and capricious, and an affront to ordered liberty.


Quote:
It is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential self-defense weapon.

Common use was a main point in Heller, they use the Miller statement "in common use for lawful purposes" several times.

I don't think you can compare concealed carry at the founding to concealed carry today. It's like comparing semi automatic handguns to flint locks, the reasons for concealed carry today are very different. Criminals do still carry concealed for the same reasons they did at the founding.
Reply With Quote
  #170  
Old 10-25-2021, 6:55 PM
BAJ475's Avatar
BAJ475 BAJ475 is offline
Veteran Member
 
Join Date: Jul 2014
Location: Kootenai County Idaho (Hayden)
Posts: 4,672
iTrader: 6 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
Common use was a main point in Heller, they use the Miller statement "in common use for lawful purposes" several times.

I don't think you can compare concealed carry at the founding to concealed carry today. It's like comparing semi automatic handguns to flint locks, the reasons for concealed carry today are very different. Criminals do still carry concealed for the same reasons they did at the founding.
While I liked the common use argument to the extent it counters libtard laws like those in CA, NY, NJ, MD, HI and other states, I see nothing in the 2A that refers to common use, thus undermining Miller, which was erroneously based on a militia rather than and individual right. Likewise, I see nothing about the mode of carry. To me, the 2A is perfectly clear and it should be held to mean exactly what is says. The right to keep and bear arms shall not be infringed. Thus, you should be able to keep and bear any arms you choose and carry in anyway way you choose, unless your purpose is to commit a crime against another, there being no such right in the Constitution, or you have lost such right as a result of your violet or felonious conduct or lack of mental competence. Will SCOTUS adopt my views? I don't think so. But that is OK, because I live in Idaho that has pretty much adopted these views. Oh, I almost forgot. Lets Go Brandon!
.

Last edited by BAJ475; 10-25-2021 at 7:07 PM.. Reason: Correct punctuation
Reply With Quote
  #171  
Old 10-25-2021, 7:34 PM
abinsinia's Avatar
abinsinia abinsinia is offline
Veteran Member
 
Join Date: Feb 2015
Posts: 3,717
iTrader: 1 / 100%
Default

Quote:
Originally Posted by BAJ475 View Post
While I liked the common use argument to the extent it counters libtard laws like those in CA, NY, NJ, MD, HI and other states, I see nothing in the 2A that refers to common use, thus undermining Miller, which was erroneously based on a militia rather than and individual right. Likewise, I see nothing about the mode of carry. To me, the 2A is perfectly clear and it should be held to mean exactly what is says. The right to keep and bear arms shall not be infringed. Thus, you should be able to keep and bear any arms you choose and carry in anyway way you choose, unless your purpose is to commit a crime against another, there being no such right in the Constitution, or you have lost such right as a result of your violet or felonious conduct or lack of mental competence. Will SCOTUS adopt my views? I don't think so. But that is OK, because I live in Idaho that has pretty much adopted these views. Oh, I almost forgot. Lets Go Brandon!
.
Sure we should have the right to concealed carry, machine guns, and all other 2A related things.

I'm just working within established cases that I'm familiar with.
Reply With Quote
  #172  
Old 10-25-2021, 8:50 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
Common use was a main point in Heller, they use the Miller statement "in common use for lawful purposes" several times.
Right, they certainly do. But they do so for the purpose of recognizing a limitation. They don't do so for the purposes of showing that the right applies to modern weapons.


Quote:
I don't think you can compare concealed carry at the founding to concealed carry today. It's like comparing semi automatic handguns to flint locks, the reasons for concealed carry today are very different. Criminals do still carry concealed for the same reasons they did at the founding.
I completely agree, and that's why the reasoning behind concealed carry prohibitions in the past is no longer applicable today. Far from being something that law-abiding citizens would hardly ever contemplate doing due to its inherent criminality, it's actually now something that law-abiding citizens do routinely without any criminal intent at all.

Honestly, I'm of the opinion that the reasoning of the historical courts was incorrect out of the gate. You can't generally (if ever) determine the purpose of an act from the act alone. Context is everything. Even the killing of another is no exception to this, which is why we distinguish between murder and legitimate self-defense (as but one example). But those state courts presumed that the act of carrying concealed was inherently criminal by its nature, and thus legitimately subject to prohibition. That presumption is facially incorrect, and the actions of tens of millions of people each day prove not just how incorrect that reasoning is, but how incorrect it was from the beginning.


Finally, as I mentioned, the mere fact that something is looked upon unfavorably is not sufficient grounds for claiming that prohibiting it is Constitutional when said thing falls under the umbrella of a Constitutionally-protected right. That goes for historical views as well as modern ones. A right simply can't be a right unless it can be exercised despite the wishes of the government, even if that government has the support of the majority of people with respect to said prohibition. Only actions on private property against the wishes of the property owner are exempt from this general proposition.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
Reply With Quote
  #173  
Old 10-25-2021, 9:04 PM
BAJ475's Avatar
BAJ475 BAJ475 is offline
Veteran Member
 
Join Date: Jul 2014
Location: Kootenai County Idaho (Hayden)
Posts: 4,672
iTrader: 6 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
Sure we should have the right to concealed carry, machine guns, and all other 2A related things.

I'm just working within established cases that I'm familiar with.
I understand. In the real world we have to deal with the way things are, not how they should be. And, I appreciate you not trying to knock me off of my soap box.
Reply With Quote
  #174  
Old 10-26-2021, 12:15 AM
pacrat pacrat is offline
I need a LIFE!!
 
Join Date: May 2014
Location: Socialist Republic of SoCal
Posts: 10,220
iTrader: 11 / 100%
Default

Gentlemen IMHO as KC aptly opined;

Quote:
Finally, as I mentioned, the mere fact that something is looked upon unfavorably is not sufficient grounds for claiming that prohibiting it is Constitutional when said thing falls under the umbrella of a Constitutionally-protected right.
I cannot help but agree. "Social mores" are not grounds to deny "inalienable rights". Such as Self Defense.

And social mores of that era were all about, what is now seen as an inflated and antiquated sense of honor. Hence OC = OK, and CC = nefarious. [AT THAT TIME]
Reply With Quote
  #175  
Old 10-26-2021, 4:12 AM
abinsinia's Avatar
abinsinia abinsinia is offline
Veteran Member
 
Join Date: Feb 2015
Posts: 3,717
iTrader: 1 / 100%
Default

Quote:
Originally Posted by kcbrown View Post
Finally, as I mentioned, the mere fact that something is looked upon unfavorably is not sufficient grounds for claiming that prohibiting it is Constitutional when said thing falls under the umbrella of a Constitutionally-protected right. That goes for historical views as well as modern ones. A right simply can't be a right unless it can be exercised despite the wishes of the government, even if that government has the support of the majority of people with respect to said prohibition. Only actions on private property against the wishes of the property owner are exempt from this general proposition.
And yet at least one SCOTUS justice doesn't agree with you. We might have a very good understanding of 2A and it's cases, but SCOTUS justices may not. A good opinion from them won't be perfect.
Reply With Quote
  #176  
Old 10-26-2021, 9:37 AM
Librarian's Avatar
Librarian Librarian is offline
Administrator
CGN Contributor - Lifetime
 
Join Date: Oct 2005
Location: Cottage Grove, OR
Posts: 44,418
iTrader: 4 / 100%
Default A linguistic analysis - COFEA

Quote:
INTRODUCTION
Constitutional litigation is inevitably binary: the Supreme Court
will select one of two competing readings of the Constitution. District
of Columbia v. Heller1 held that the Second Amendment protects an
individual right to keep and bear arms.2 The dissent countered that
the right was collective.3 In NLRB v. Noel Canning,4 the Court
concluded that the Recess Appointments Clause applies to intersession
recesses, as well as intra-session recesses.5 The concurrence
insisted it only applied to the former.6 And the Court found in
Zivotofsky ex rel. Zivotofsky v. Kerry7 that the Recognition Power
belongs exclusively to the President.8 Chief Justice Roberts’ dissent
maintained that the President and Congress share this authority.9
Were these cases rightly decided? Or did the dissents have the
better arguments? In these cases of first impression, there were no
binding precedents.10 Rather, the Court had to interpret
constitutional text from a blank slate. The majority and dissenting
opinions considered a range of factors, including text, history,
structure, and practice.11 No single factor was dispositive.
It is difficult to grade the accuracy of such complex decisions in
their entirety. But each case heavily relied on textualist arguments.
Now, scholars can use corpus linguistics, a method for studying
language, to assess the accuracy of those textualist claims.12 Here,
we will analyze the Supreme Court’s landmark Second Amendment
decision.

This Article proceeds in five parts. Part I revisits Heller. The
Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.”13 Justice Scalia wrote the
majority opinion in Heller.14 He concluded that the Second
Amendment “protects an individual right to possess a firearm
unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.”15
In short, an individual right. Justice Stevens, in his dissent,
contended that the Second Amendment “is most naturally read to
secure to the people a right to use and possess arms in conjunction
with service in a well-regulated militia.”16 That is, a collective right.
Justice Scalia and Justice Stevens each made linguistic claims
about four elements of the Second Amendment: right of the people,
keep and bear arms, keep arms, and bear arms.17 Both the majority
and the dissent used various textualist approaches to consider these
four phrases, but their toolkit in 2008 was limited. They considered
only a fairly narrow range of sources to interpret the text. Justice
Scalia admitted that his analysis was limited to the “written
documents of the founding period that we have found.”18 Likewise,
Justice Stevens’s dissent cited “dozens of contemporary texts.”19 Over
a decade later, big data allows us to perform much more sophisticated
queries.

Part II introduces corpus linguistics and the Corpus of Founding
Era American English (“COFEA”)....
https://papers.ssrn.com/sol3/papers....act_id=3949818

77 pages; I just read the intro, so far.
Reply With Quote
  #177  
Old 10-26-2021, 10:33 AM
TruOil TruOil is offline
Senior Member
 
Join Date: Jul 2017
Posts: 1,844
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Librarian View Post
https://papers.ssrn.com/sol3/papers....act_id=3949818

77 pages; I just read the intro, so far.
Tow things:
1. The intro is wrong is suggesting that the dissenters concluded that the 2A protected a collective right. Instead, all nine agreed that it was an individual right. What the dissent actually said was that it was an individual right to participate in collective (militia) actions. Or to put it another way, there has to be an individual right to keep and bear in order to participate, an interpretation consistent with, for example, Virginia law, that required all able bodied men to maintain a musket and a specified amount of powder and ball so as to be ready when called out for service.

Second, there is at least one if not two amicus briefs filed in the current case that argue Heller was wrongly decided based on a linguistics analysis. One of those analyses does a macro analysis of the number of times words were used as indicating a specific meaning, the details of which are complicated--and escape me at this time. The author was an individual and an attorney, according to his brief.
Reply With Quote
  #178  
Old 10-27-2021, 6:21 AM
dawgcasa dawgcasa is offline
Member
 
Join Date: Jul 2009
Posts: 450
iTrader: 0 / 0%
Default

Quote:
Originally Posted by TruOil View Post
I agree. I think that the Court is unlikely to address the right in the context of open carry versus concealed carry. I think it is more likely that the Court will simply conclude that there is a right to bear arms in public in some manner without a showing of special need, but leave it to the individual states to determine what that manner will be, i.e., open carry or concealed, or both. Total bans on carrying will go by the wayside, although restrictions as to "sensitive places" will remain in place as well as possession/bearing of arms by felons. So for states like NY and California and Hawaii that ban open carry and wish to continue doing so, the Court will strike down the "special need" requirement of obtaining a CCW, and those will become "shall issue" concealed carry jurisdictions.

It will not further explore or opine on the myriad issues raised in current case law, as is its practice. For example, if a state enacts an open carry law, how will that effect carrying if that state has a gun free school zone law in place? Such laws ban openly carried firearms within 1000' of a school--and there is no realistic way to openly bear arms in any urban area without violating that law.
I agree that the court is unlikely to foray broadly beyond the question posed in NYSRPA into that sea of myriad issues. It is my โ€˜hopeโ€™ though that they do also use the opportunity in NYSRPA to finally provide definitive guidance on the level of scrutiny required for cases impinging upon core 2A rights and to put an end to lower courts embrace of Breyerโ€™s โ€œinterest balancingโ€ dissent in Heller as the liberal judge tool of choice to hollow out the Heller decision.
Reply With Quote
  #179  
Old 10-30-2021, 5:21 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Quote:
Originally Posted by abinsinia View Post
And yet at least one SCOTUS justice doesn't agree with you. We might have a very good understanding of 2A and it's cases, but SCOTUS justices may not. A good opinion from them won't be perfect.
It's up to those arguing the case to provide the necessary argumentation for the purpose of "schooling" the justices on the issue.

The primary problem is that judges refuse to be absolutely consistent with respect to rights. Where they would insist that the preferences of the citizenry as expressed through government aren't sufficient to overcome the Constitutional protection of the right to speech (e.g., as applied to KKK marches and the like), they will turn around and insist the opposite when it comes to protection of the right to arms (e.g., as applied to open carry or concealed carry). Where they would insist that a permit cannot be required as a prerequisite for all exercise of one fundamental right (speech, voting, etc.), they simultaneously insist that it can be required for all exercise of another (keep and bear of arms).

There is no overcoming that. There are consequences to insisting that the judicial branch is the final word as to the proper meaning of the Constitution and its provisions. This is one of the reasons I argue that we need an additional mechanism that places final authority back onto the citizenry (in particular, to minority subsets that are small enough to result in proper protection of most liberties) without enabling tyranny of the majority.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
Reply With Quote
  #180  
Old 10-31-2021, 4:07 AM
press1280 press1280 is offline
Veteran Member
 
Join Date: Mar 2009
Location: WV
Posts: 3,017
iTrader: 0 / 0%
Default

Quote:
Originally Posted by TruOil View Post
Tow things:
1. The intro is wrong is suggesting that the dissenters concluded that the 2A protected a collective right. Instead, all nine agreed that it was an individual right. What the dissent actually said was that it was an individual right to participate in collective (militia) actions. Or to put it another way, there has to be an individual right to keep and bear in order to participate, an interpretation consistent with, for example, Virginia law, that required all able bodied men to maintain a musket and a specified amount of powder and ball so as to be ready when called out for service.

Second, there is at least one if not two amicus briefs filed in the current case that argue Heller was wrongly decided based on a linguistics analysis. One of those analyses does a macro analysis of the number of times words were used as indicating a specific meaning, the details of which are complicated--and escape me at this time. The author was an individual and an attorney, according to his brief.
These were definitely out there. NY isn't even signing on to this as an alternate theory.
Reply With Quote
  #181  
Old 10-31-2021, 4:12 AM
press1280 press1280 is offline
Veteran Member
 
Join Date: Mar 2009
Location: WV
Posts: 3,017
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kcbrown View Post
It's up to those arguing the case to provide the necessary argumentation for the purpose of "schooling" the justices on the issue.

The primary problem is that judges refuse to be absolutely consistent with respect to rights. Where they would insist that the preferences of the citizenry as expressed through government aren't sufficient to overcome the Constitutional protection of the right to speech (e.g., as applied to KKK marches and the like), they will turn around and insist the opposite when it comes to protection of the right to arms (e.g., as applied to open carry or concealed carry). Where they would insist that a permit cannot be required as a prerequisite for all exercise of one fundamental right (speech, voting, etc.), they simultaneously insist that it can be required for all exercise of another (keep and bear of arms).

There is no overcoming that. There are consequences to insisting that the judicial branch is the final word as to the proper meaning of the Constitution and its provisions. This is one of the reasons I argue that we need an additional mechanism that places final authority back onto the citizenry (in particular, to minority subsets that are small enough to result in proper protection of most liberties) without enabling tyranny of the majority.
I think that can be overcome at some point, obviously right now judges are reflectively backing licensing (some crazy burdens have been struck down though).
Reply With Quote
  #182  
Old 11-01-2021, 2:11 PM
lairdb lairdb is offline
Member
 
Join Date: Jan 2006
Posts: 157
iTrader: 3 / 100%
Default

Quote:
Originally Posted by TruOil View Post
Second, there is at least one if not two amicus briefs filed in the current case that argue Heller was wrongly decided based on a linguistics analysis. One of those analyses does a macro analysis of the number of times words were used as indicating a specific meaning, the details of which are complicated--and escape me at this time. The author was an individual and an attorney, according to his brief.
Quote:
Originally Posted by press1280 View Post
These were definitely out there. NY isn't even signing on to this as an alternate theory.
Two of them, Baron and Goldfarb.
https://www.supremecourt.gov/DocketP...us%20Brief.pdf
https://www.supremecourt.gov/DocketP...0corrected.pdf

David Kopel did an analysis and commentary at Reason breaking them down: https://reason.com/volokh/2021/10/31...ond-amendment/

My summary: Corpus linguistics is mostly a new-fangled term for old-school original public meaning, and these guys are 1)bad at it, and 2)wrong.

Quote:
Corpus linguistics can be a valuable tool for legal scholars. Future scholars intending to employ corpus linguistics can usefully study the New York State Rifle & Pistol Association amicus briefs as models of errors to avoid: ignoring usages that don't support an author's theory, failure to understand that a words can have multiple meanings at once, separating phrases from context that clearly shows their meaning, not considering the most precisely relevant context (here, the use of words in constitutions), and imposing twenty-first century usage (e.g., "war" is national defense but not personal defense) on earlier generations who used words differently from how modern Americans do.
__________________
Reply With Quote
  #183  
Old 11-02-2021, 6:53 AM
Phiremin Phiremin is offline
Member
 
Join Date: Apr 2014
Posts: 226
iTrader: 0 / 0%
Default

Quote:
Originally Posted by dawgcasa View Post
I agree that the court is unlikely to foray broadly beyond the question posed in NYSRPA into that sea of myriad issues. It is my โ€˜hopeโ€™ though that they do also use the opportunity in NYSRPA to finally provide definitive guidance on the level of scrutiny required for cases impinging upon core 2A rights and to put an end to lower courts embrace of Breyerโ€™s โ€œinterest balancingโ€ dissent in Heller as the liberal judge tool of choice to hollow out the Heller decision.

I agree. If you look at the way SCOTUS reframed the question asked, they seem to be starting from a place of โ€œwe are okay with the concept of a concealed carry permitโ€ or at least โ€œwe arenโ€™t going to discuss open vs concealed or the concept of needing a permit at this timeโ€, just whether or not a state may insist on a permit application demonstrating a โ€˜needโ€™ to carryโ€.
I am hopeful they get into scrutiny issue, but itโ€™s no guarantee. It may depend on whether or not they care if Roberts joins the majority.
Reply With Quote
  #184  
Old 11-02-2021, 7:58 AM
lairdb lairdb is offline
Member
 
Join Date: Jan 2006
Posts: 157
iTrader: 3 / 100%
Default

Quote:
Originally Posted by Phiremin View Post
It may depend on whether or not they care if Roberts joins the majority.
Duke Center for Firearms Law called this out late yesterday, in https://firearmslaw.duke.edu/2021/11...ral-arguments/. They tend anti-, but it's interesting analysis.
__________________
Reply With Quote
  #185  
Old 11-02-2021, 10:46 AM
Citizen_B's Avatar
Citizen_B Citizen_B is offline
Senior Member
 
Join Date: Mar 2014
Posts: 1,427
iTrader: 1 / 100%
Default

Quote:
Originally Posted by kcbrown View Post
Not really. Concealed carry was disfavored for reasons that the historical courts explicitly stated. Even if we presume that concealed carry really was disfavored by the founding generation (something that is disputable), and that those historical courts accurately described the reasons for that disfavor, those reasons are part of the scope and thus are operative at most only to the degree they are still valid. But as I noted, those reasons aren't valid, because tens of millions of people every day prove that those reasons aren't valid. So even if you presume that the founding generation disfavored concealed carry, that fact is insufficient by itself to state that concealed carry is disfavored today precisely because the reasoning behind that understanding is no longer valid.

Precedent is only valid to the degree that the reasoning behind it is valid. Here, the precedent in question is invalid because the reasoning behind it is now invalid. A court which uses invalid precedent to justify a decision is a court that is acting in an arbitrary and capricious manner, because any decision can be justified with invalid precedent.

Courts aren't just tasked with deciding cases, they're tasked with deciding cases properly. Anything else is arbitrary and capricious, and an affront to ordered liberty.
Bolded is where the games and varied interpretations get justified. Gun control advocates use this approach to say the 2A is outdated because the reasoning for it is obsolete today (ie guns in the public reduce general safety, and an insurrection with small arms is absurd/impossible). Obviously those claims are legitimately debatable, but their basic position is framed using that approach of an invalid/outdated reason.
Reply With Quote
  #186  
Old 11-02-2021, 10:53 AM
Citizen_B's Avatar
Citizen_B Citizen_B is offline
Senior Member
 
Join Date: Mar 2014
Posts: 1,427
iTrader: 1 / 100%
Default

Quote:
Originally Posted by Phiremin View Post
I agree. If you look at the way SCOTUS reframed the question asked, they seem to be starting from a place of โ€œwe are okay with the concept of a concealed carry permitโ€ or at least โ€œwe arenโ€™t going to discuss open vs concealed or the concept of needing a permit at this timeโ€, just whether or not a state may insist on a permit application demonstrating a โ€˜needโ€™ to carryโ€.
I am hopeful they get into scrutiny issue, but itโ€™s no guarantee. It may depend on whether or not they care if Roberts joins the majority.
The more I think about this, the more I think SCOTUS may have taken the safest approach. I think there's little doubt they will find self-defense as an appropriate justification for a CCW permit. That leaves the deeper question open ended. I'm guessing they will vaguely opine that reasonable restrictions on OC/CC are constitutional, but crosses the line when it results in an effective complete ban. Kind of how Heller addressed bearing in the home while leaving the rest vague. Heller is kind of a different situation though given the court's composition at the time. The majority may be more bold this time around.

While I hope they touch on scrutiny, I think it's a lower probability. That would be a big can of worms to open.
Reply With Quote
  #187  
Old 11-03-2021, 7:49 AM
Offwidth Offwidth is offline
Senior Member
 
Join Date: May 2018
Posts: 1,212
iTrader: 0 / 0%
Default

There is a HuGE difference between precedent (judicial fiat) and written law. Donโ€™t conflate the two.
Reply With Quote
  #188  
Old 11-04-2021, 11:04 AM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Quote:
Originally Posted by Citizen_B View Post
Bolded is where the games and varied interpretations get justified. Gun control advocates use this approach to say the 2A is outdated because the reasoning for it is obsolete today (ie guns in the public reduce general safety, and an insurrection with small arms is absurd/impossible).
That's because they don't even know the reasoning for it in the first place.

The right to keep and bear arms derives from at least two even more fundamental rights: the right to life, and the right to liberty. There may be others, but these are sufficient to make the point.

The reasoning for it is as follows: a given right is no right at all unless one is likely to successfully assert it. To assert your right to life, for instance, you need to be able to successfully defend your life against attempts to take it. Such successful defense is what it means to assert your right to life, and it requires that you be able to possess and carry the tools needed for it, so that they can be deployed against someone who is attempting to take your life. Hence, you have the right to keep and bear arms, because without it your right to life is nothing but empty words.

Similarly, for the citizenry to assert its right to liberty, it needs to have the tools at its disposal to ensure that it can prevail over a well-armed and well-armored government that is insistent on depriving the citizenry of its liberty, a.k.a. a tyrannical government. Hence, the citizenry has the right to keep those weapons that are necessary to ensure that it will prevail over the government in the event the government attempts to deprive the citizenry of liberty. And because the citizenry has that right in the face of the government, it follows that said citizenry has the right to those arms independent of control of them on the part of the government. Which is to say, the citizenry has the right to keep them in such a way that the government cannot deprive them of those arms when the chips are down. That means private ownership.

As for when the two rights come into conflict, it's clear the founders of the country chose liberty over life, because they elected to fight a shooting war (i.e., kill people) in order to secure liberty. This country owes its very existence to that choice, and the only way to ensure that liberty remains existent is to make the same choice when it comes down to that same choice.


For the opposition to insist that the right to arms is outdated is for them to insist that people do not have the right to life and that they do not have the right to be free, for those things cannot be successfully asserted without the right to the arms that make asserting those rights possible. The right to arms derives directly from those two rights. It is inseparable from them.

A ban on either keep or bear of arms which the individual needs to prevail in any given self defense encounter is tantamount to an assertion that said individual does not have the right to his own life. And a ban on keep of arms which the citizenry would need to prevail against a well-equipped tyrannical government is tantamount to an assertion that the citizenry does not have the right to liberty.


Oh, one other thing: the purposes behind the right to arms dictate its minimum scope. The right to life purpose dictates that the scope of the right to keep and bear includes arms that are easy to carry and easy to use in a self-defense encounter. The right to liberty purpose dictates that the scope of the right to keep includes any and all weapons that the citizenry would need in order to defeat any tyrannical government they may find themselves faced with. The latter clearly means that any ban is invalid if, were it applied at the time of the founding, it would result in a ban of any privately owned weapon that the founders brought to bear against the British, since to insist that it doesn't is to insist that the founders were morons who would agree to a ban on the very weapons they used to win their liberty. That means the right to arms protects things like artillery, grenades, armor piercing rounds, and anything else that the citizenry would need to defeat a well-equipped military force, as those things are the modern equivalent of what the founders used to win their liberty, and history is replete with instances where the military was turned against the citizenry.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 11-04-2021 at 6:23 PM..
Reply With Quote
  #189  
Old 11-04-2021, 8:36 PM
guntrust's Avatar
guntrust guntrust is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Jun 2009
Location: Morro Bay, CA
Posts: 757
iTrader: 0 / 0%
Default

Quote:
Originally Posted by kcbrown View Post
That's because they don't even know the reasoning for it in the first place.

The right to keep and bear arms derives from at least two even more fundamental rights: the right to life, and the right to liberty. There may be others, but these are sufficient to make the point.

The reasoning for it is as follows: a given right is no right at all unless one is likely to successfully assert it. To assert your right to life, for instance, you need to be able to successfully defend your life against attempts to take it. Such successful defense is what it means to assert your right to life, and it requires that you be able to possess and carry the tools needed for it, so that they can be deployed against someone who is attempting to take your life. Hence, you have the right to keep and bear arms, because without it your right to life is nothing but empty words.

Similarly, for the citizenry to assert its right to liberty, it needs to have the tools at its disposal to ensure that it can prevail over a well-armed and well-armored government that is insistent on depriving the citizenry of its liberty, a.k.a. a tyrannical government. Hence, the citizenry has the right to keep those weapons that are necessary to ensure that it will prevail over the government in the event the government attempts to deprive the citizenry of liberty. And because the citizenry has that right in the face of the government, it follows that said citizenry has the right to those arms independent of control of them on the part of the government. Which is to say, the citizenry has the right to keep them in such a way that the government cannot deprive them of those arms when the chips are down. That means private ownership.

As for when the two rights come into conflict, it's clear the founders of the country chose liberty over life, because they elected to fight a shooting war (i.e., kill people) in order to secure liberty. This country owes its very existence to that choice, and the only way to ensure that liberty remains existent is to make the same choice when it comes down to that same choice.


For the opposition to insist that the right to arms is outdated is for them to insist that people do not have the right to life and that they do not have the right to be free, for those things cannot be successfully asserted without the right to the arms that make asserting those rights possible. The right to arms derives directly from those two rights. It is inseparable from them.

A ban on either keep or bear of arms which the individual needs to prevail in any given self defense encounter is tantamount to an assertion that said individual does not have the right to his own life. And a ban on keep of arms which the citizenry would need to prevail against a well-equipped tyrannical government is tantamount to an assertion that the citizenry does not have the right to liberty.


Oh, one other thing: the purposes behind the right to arms dictate its minimum scope. The right to life purpose dictates that the scope of the right to keep and bear includes arms that are easy to carry and easy to use in a self-defense encounter. The right to liberty purpose dictates that the scope of the right to keep includes any and all weapons that the citizenry would need in order to defeat any tyrannical government they may find themselves faced with. The latter clearly means that any ban is invalid if, were it applied at the time of the founding, it would result in a ban of any privately owned weapon that the founders brought to bear against the British, since to insist that it doesn't is to insist that the founders were morons who would agree to a ban on the very weapons they used to win their liberty. That means the right to arms protects things like artillery, grenades, armor piercing rounds, and anything else that the citizenry would need to defeat a well-equipped military force, as those things are the modern equivalent of what the founders used to win their liberty, and history is replete with instances where the military was turned against the citizenry.
Great post. But i wouldn't say the Founders chose liberty over life, or that they chose to kill. In self-defense (or just war) we never intend to kill. We intend to stop. Even though the force may be lethal. (Thomas Aquinas' theory of double effect.)
__________________
David R Duringer JD LL.M (Tax), CA/WA/TX atty, @guntrust on social nets.
Protective Law Corporation *Estate Planning for Gun Owners* (zoom or office)
Become an affiliated attorney/advisor: http://guncounsel.com
CRPA Mag Must Retract Erroneous Bulletin Slamming Gun Trusts
Radio ads: http://Protect.FM
FREE training: http://guntrust.org
FREE design meeting: http://Protect.LIFE
Reply With Quote
  #190  
Old 11-04-2021, 9:03 PM
splithoof splithoof is offline
Veteran Member
 
Join Date: May 2015
Posts: 4,123
iTrader: 0 / 0%
Default

Quote:
Originally Posted by guntrust View Post
Great post. But i wouldn't say the Founders chose liberty over life, or that they chose to kill. In self-defense (or just war) we never intend to kill. We intend to stop. Even though the force may be lethal. (Thomas Aquinas' theory of double effect.)
I believe that the main purpose of the military is to kill people and break things. In war, we absolutely intend to kill the enemy.
Civilian self-defense is another matter.
Reply With Quote
  #191  
Old 11-04-2021, 11:28 PM
guntrust's Avatar
guntrust guntrust is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Jun 2009
Location: Morro Bay, CA
Posts: 757
iTrader: 0 / 0%
Default

Quote:
Originally Posted by splithoof View Post
I believe that the main purpose of the military is to kill people and break things. In war, we absolutely intend to kill the enemy.
Civilian self-defense is another matter.
Principle is the same. Nation defends itself and soldier follows orders.

Killing occurs, but is not the objective. If excessive (eg, 100k iraqis) it's not just war.
__________________
David R Duringer JD LL.M (Tax), CA/WA/TX atty, @guntrust on social nets.
Protective Law Corporation *Estate Planning for Gun Owners* (zoom or office)
Become an affiliated attorney/advisor: http://guncounsel.com
CRPA Mag Must Retract Erroneous Bulletin Slamming Gun Trusts
Radio ads: http://Protect.FM
FREE training: http://guntrust.org
FREE design meeting: http://Protect.LIFE
Reply With Quote
  #192  
Old 11-05-2021, 1:57 AM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
 
Join Date: Apr 2009
Posts: 9,097
iTrader: 1 / 100%
Default

Quote:
Originally Posted by guntrust View Post
Great post. But i wouldn't say the Founders chose liberty over life, or that they chose to kill. In self-defense (or just war) we never intend to kill. We intend to stop. Even though the force may be lethal. (Thomas Aquinas' theory of double effect.)
The difference is in the ultimate objective. The founders weren't fighting a war in order to save their own lives, they fought the war in order to secure their liberty. Fighting a war always involves taking lives. The reason we know the founders chose liberty over life is precisely because that's the reason they initiated the American Revolution in the first place, and they did so knowing that many of them would be going to their graves in doing so. That above all else shows that they valued liberty over life itself: they laid down their own lives willingly for the purpose of securing liberty.

So yes, they did choose liberty over life. We know this not merely because of the nature of the action they took, but also because of what they risked, and many lost, in doing so.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
Reply With Quote
  #193  
Old 11-05-2021, 7:50 PM
johncage johncage is offline
Banned
 
Join Date: Dec 2018
Posts: 993
iTrader: 5 / 100%
Default

Quote:
Originally Posted by guntrust View Post
Principle is the same. Nation defends itself and soldier follows orders.

Killing occurs, but is not the objective. If excessive (eg, 100k iraqis) it's not just war.
millions died in ww2, there's no such thing as "excessive" casualty in a war. if people are willing to continue fighting, more people will die. it's as simple as that
Reply With Quote
  #194  
Old 11-05-2021, 8:16 PM
pacrat pacrat is offline
I need a LIFE!!
 
Join Date: May 2014
Location: Socialist Republic of SoCal
Posts: 10,220
iTrader: 11 / 100%
Default Chuck Michel's view of NYSRPA v Bruen

Member "Kokopelli" posted this video in a GENERAL DISCUSSION thread.

https://youtu.be/LBc9h1e6UsE

WELL WORTH THE WATCH.

PARAPHRASED;

NO direct help overturning existing Ca bad 2A law.

All about "SCRUTINY" and making all the Ca cases on hold, easier to win.

AND ...... CRPA has a plethora of cases set to file as soon as a positive finding in NYSRPA.

He also predicts 5-4 or maybe even 6-3 split.
Reply With Quote
  #195  
Old 11-06-2021, 5:59 PM
press1280 press1280 is offline
Veteran Member
 
Join Date: Mar 2009
Location: WV
Posts: 3,017
iTrader: 0 / 0%
Default

Quote:
Originally Posted by pacrat View Post
Member "Kokopelli" posted this video in a GENERAL DISCUSSION thread.

https://youtu.be/LBc9h1e6UsE

WELL WORTH THE WATCH.

PARAPHRASED;

NO direct help overturning existing Ca bad 2A law.

All about "SCRUTINY" and making all the Ca cases on hold, easier to win.

AND ...... CRPA has a plethora of cases set to file as soon as a positive finding in NYSRPA.

He also predicts 5-4 or maybe even 6-3 split.
Actually he pointed out that if SCOTUS rules for a text/history/tradition test, then all of those bad "intermediate scrutiny" cases are effectively wiped out and can be re-litigated.
And the immediate case will wipe out both Young & Peruta.
Reply With Quote
  #196  
Old 11-06-2021, 6:06 PM
press1280 press1280 is offline
Veteran Member
 
Join Date: Mar 2009
Location: WV
Posts: 3,017
iTrader: 0 / 0%
Default

Well we just had the oral arguments this week and I think it pretty much went the way most of us thought (with Roberts a pleasant surprise).
The majority isn't interested in the open v concealed debate, nor the "concealable weapons" case line of thinking. Baldwdin isn't standing in the way of anything.
Sotomayor & Kagan threw out open carry to try to derail the case. No way in hell they were putting it out there to get an open carry majority.
Reply With Quote
  #197  
Old 11-06-2021, 6:26 PM
guntrust's Avatar
guntrust guntrust is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Jun 2009
Location: Morro Bay, CA
Posts: 757
iTrader: 0 / 0%
Default

Quote:
Originally Posted by johncage View Post
millions died in ww2, there's no such thing as "excessive" casualty in a war. if people are willing to continue fighting, more people will die. it's as simple as that
number of casualties is just one factor in determining whether just war

again, key concept is reasonable defense of nation (or individual)

specific intent is to stop

if specific intent is to kill, that's murder
__________________
David R Duringer JD LL.M (Tax), CA/WA/TX atty, @guntrust on social nets.
Protective Law Corporation *Estate Planning for Gun Owners* (zoom or office)
Become an affiliated attorney/advisor: http://guncounsel.com
CRPA Mag Must Retract Erroneous Bulletin Slamming Gun Trusts
Radio ads: http://Protect.FM
FREE training: http://guntrust.org
FREE design meeting: http://Protect.LIFE
Reply With Quote
  #198  
Old 11-06-2021, 8:46 PM
BAJ475's Avatar
BAJ475 BAJ475 is offline
Veteran Member
 
Join Date: Jul 2014
Location: Kootenai County Idaho (Hayden)
Posts: 4,672
iTrader: 6 / 100%
Default

Quote:
Originally Posted by guntrust View Post
number of casualties is just one factor in determining whether just war

again, key concept is reasonable defense of nation (or individual)

specific intent is to stop

if specific intent is to kill, that's murder
"reasonable defense" what does this have to do with war? All wars are just so long as you win! It is only murder if the killing is done with malice of aforethought.

Consider the following. There is an expert marksman that has a .308 rifle that consistently shoots sub 1" groups at 100yds. He or she takes aim at a person 100yds away, lining up the cross-hairs at the base of the person's head, a shoot that if successful will unquestionably kill the person. The marksman pulls the trigger killing the person instantly. Clearly an intentional killing but is it murder? The correct answer is that there are not enough facts to answer the question. So lets add a few facts. The person who is killed is holding a knife to your wife's, son's or daughter's throat with the stated intent of killing them and the shooter is a SWAT team officer. So, I submit that not all intentional killings are murder.
Reply With Quote
  #199  
Old 11-07-2021, 3:50 PM
guntrust's Avatar
guntrust guntrust is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Jun 2009
Location: Morro Bay, CA
Posts: 757
iTrader: 0 / 0%
Default

Quote:
Originally Posted by BAJ475 View Post
"reasonable defense" what does this have to do with war? All wars are just so long as you win! It is only murder if the killing is done with malice of aforethought.

Consider the following. There is an expert marksman that has a .308 rifle that consistently shoots sub 1" groups at 100yds. He or she takes aim at a person 100yds away, lining up the cross-hairs at the base of the person's head, a shoot that if successful will unquestionably kill the person. The marksman pulls the trigger killing the person instantly. Clearly an intentional killing but is it murder? The correct answer is that there are not enough facts to answer the question. So lets add a few facts. The person who is killed is holding a knife to your wife's, son's or daughter's throat with the stated intent of killing them and the shooter is a SWAT team officer. So, I submit that not all intentional killings are murder.
If a head shot is necessary, you have not only my blessing but that of Thos. Aquinas (theory of double effect).
__________________
David R Duringer JD LL.M (Tax), CA/WA/TX atty, @guntrust on social nets.
Protective Law Corporation *Estate Planning for Gun Owners* (zoom or office)
Become an affiliated attorney/advisor: http://guncounsel.com
CRPA Mag Must Retract Erroneous Bulletin Slamming Gun Trusts
Radio ads: http://Protect.FM
FREE training: http://guntrust.org
FREE design meeting: http://Protect.LIFE
Reply With Quote
  #200  
Old 11-07-2021, 8:45 PM
pacrat pacrat is offline
I need a LIFE!!
 
Join Date: May 2014
Location: Socialist Republic of SoCal
Posts: 10,220
iTrader: 11 / 100%
Default

Quote:
Originally Posted by press1280 View Post
Actually he pointed out that if SCOTUS rules for a text/history/tradition test, then all of those bad "intermediate scrutiny" cases are effectively wiped out and can be re-litigated.
And the immediate case will wipe out both Young & Peruta.
When I paraphrased;

Quote:
NO direct help overturning existing Ca bad 2A law.
My intent was to point out that those laws don't just get "wiped out". They still must be run through the courts and litigated.

They don't simply disappear. As in "POOF GONE" as if they never existed.

And I believe that YOUNG, which has a cert petition pending, will be sent back down the chain, with new standard of review. And Peruta, as existing case law, will be open for re litigation. Neither is just "wiped out".
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 12:47 PM.




Powered by vBulletin® Version 3.8.11
Copyright ©2000 - 2024, vBulletin Solutions Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2021, Calguns.net an Incorporated Company All Rights Reserved.
All opinions, statements and remarks made by Calguns.net on this web site and elsewhere are solely attributable to Calguns.net.



Seams2SewBySusy