|
2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
|
Thread Tools | Display Modes |
#161
|
|||
|
|||
Quote:
|
#162
|
|||
|
|||
Quote:
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?" |
#163
|
||||||
|
||||||
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:
Quote:
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:
-- 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:
Quote:
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:
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.. |
#164
|
||||
|
||||
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. |
#165
|
||||
|
||||
Quote:
Quote:
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. |
#166
|
||||
|
||||
for later review
Review later
Quote:
__________________
"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 |
#167
|
||||
|
||||
Quote:
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. |
#168
|
||||
|
||||
Quote:
Quote:
Quote:
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. |
#169
|
||||
|
||||
Quote:
Quote:
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. |
#170
|
||||
|
||||
Quote:
. Last edited by BAJ475; 10-25-2021 at 7:07 PM.. Reason: Correct punctuation |
#171
|
||||
|
||||
Quote:
I'm just working within established cases that I'm familiar with. |
#172
|
||||
|
||||
Quote:
Quote:
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. |
#173
|
||||
|
||||
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.
|
#174
|
|||
|
|||
Gentlemen IMHO as KC aptly opined;
Quote:
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] |
#175
|
||||
|
||||
Quote:
|
#176
|
||||
|
||||
A linguistic analysis - COFEA
Quote:
77 pages; I just read the intro, so far. |
#177
|
|||
|
|||
Quote:
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. |
#178
|
|||
|
|||
Quote:
|
#179
|
||||
|
||||
Quote:
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. |
#180
|
|||
|
|||
Quote:
|
#181
|
|||
|
|||
Quote:
|
#182
|
|||
|
|||
Quote:
Quote:
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:
__________________
|
#183
|
|||
|
|||
Quote:
I agree. If you look at the way SCOTUS reframed the question asked, they seem to be starting from a place of โwe are okay with the concept of a concealed carry permitโ or at least โwe arenโt 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 โneedโ to carryโ. I am hopeful they get into scrutiny issue, but itโs no guarantee. It may depend on whether or not they care if Roberts joins the majority. |
#184
|
|||
|
|||
Quote:
__________________
|
#185
|
||||
|
||||
Quote:
|
#186
|
||||
|
||||
Quote:
While I hope they touch on scrutiny, I think it's a lower probability. That would be a big can of worms to open. |
#188
|
||||
|
||||
Quote:
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.. |
#189
|
||||
|
||||
Quote:
__________________
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 |
#190
|
|||
|
|||
Quote:
Civilian self-defense is another matter. |
#191
|
||||
|
||||
Quote:
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 |
#192
|
||||
|
||||
Quote:
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. |
#193
|
|||
|
|||
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
|
#194
|
|||
|
|||
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. |
#195
|
|||
|
|||
Quote:
And the immediate case will wipe out both Young & Peruta. |
#196
|
|||
|
|||
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. |
#197
|
||||
|
||||
Quote:
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 |
#198
|
||||
|
||||
Quote:
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. |
#199
|
||||
|
||||
Quote:
__________________
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 |
#200
|
|||
|
|||
Quote:
Quote:
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". |
Thread Tools | |
Display Modes | |
|
|