Nichols Vs. Newsom (was Brown) update...

[Librarian]

'Why do X when Y is available' is not really on topic for this thread.

Granting CC vs OC is a very large part of the legal theory of this case, let us not turn this discussion to the practical matter of that choice.

It never goes anywhere useful.

[kcbrown]

Originally Posted by Cokebottle

There is effectively no operation difference, but from a legal challenge perspective, it *should* be an easier case to fight the denied right.

It should be, yes.

But it isn't. It isn't because the judiciary is populated by political hacks who are of the belief that they and nobody else, not even the authors of the Constitution, get to say what is truly a right and what isn't.

A real right is something that the people can exercise even when the majority is against it. A garden variety liberty is something that people can exercise when the majority agrees with it, and not when the majority disagrees with it. A privilege is something that people can exercise only when the government allows it. A right's only distinguishing characteristic is that it can be exercised when other two cannot be.

In our current system as it is, a right exists as a real right only when the judiciary treats it as a right despite the most fervent wishes of the legislative and executive branches. That's a tall order even on the best of days, seeing how the members of the judiciary are there because the legislative and executive branches put them there in the first place.

All of this is exactly why , if you really want rights, you have to define the system in such a way as to give those who value them an overriding veto on legislation/regulation that would otherwise impose upon those rights. In the absence of that, rights exist at the pleasure of the judiciary.

[kcbrown]

Originally Posted by press1280

I know of one. Norman has created a split, which as we know is a huge factor in SCOTUS granting cert.

Not for 2A cases, it isn't. Caetano had no splits, while Drake most certainly did.

[Paladin]

IIRC, Nichols said his case was fully briefed as of March 1st. (~1 month ago)

Q: How long is it, usually, in CA9 between when a case is fully briefed and when oral arguments take place?

[press1280]

Originally Posted by kcbrown

Not for 2A cases, it isn't. Caetano had no splits, while Drake most certainly did.

Caetano had a small state court split (People v. YANNA Michigan), although it seems that opinion was due to flagrant disregard by the Mass supreme Court.

What split did Drake have?

[kcbrown]

Originally Posted by press1280

Caetano had a small state court split (People v. YANNA Michigan), although it seems that opinion was due to flagrant disregard by the Mass supreme Court.

What split did Drake have?

Moore, particularly with respect to applicability of the 2nd Amendment outside the home. Moore said that it applies, while Drake refused to even answer that, despite the fact that such was the primary basis of the suit in the first place (from https://www.courtlistener.com/recap/...9720.1.0.pdf):

Originally Posted by Muller v Maenza complaint

105. The invalidities of the aforesaid statute and regulations, and Defendants’ application of same, infringe Plaintiffs’ Second and Fourteenth Amendments right and damage Plaintiffs in violation of 42 U.S.C. § 1983.
.
.
.
110. Plaintiffs’ injuries are irreparable because Plaintiffs are entitled to enjoy their constitutional rights in fact.

In any case, it's most certainly true that Peruta does not split with any case that Drake did not. There is no case that holds that concealed carry is a right. As such, there is no basis for granting cert to Peruta that would not have equally applied to Drake.

Also, you're incorrect about Woollard not having a split with Moore at the point SCOTUS was considering Woollard. Moore was decided on December 11, 2012. Woollard was decided on March 21, 2013.


The bottom line is that the legal situation with respect to Peruta is so close to that of at least two other carry cases that there's no reason at all to believe that Peruta will be granted cert on the basis of the legal situation. Even the "all courts have weighed in" situation isn't present for Peruta due to the fact that Grace is still pending.

If Peruta is granted cert, it will be despite its legal situation, not because of it.

[press1280]

Originally Posted by kcbrown

Moore, particularly with respect to applicability of the 2nd Amendment outside the home. Moore said that it applies, while Drake refused to even answer that, despite the fact that such was the primary basis of the suit in the first place (from https://www.courtlistener.com/recap/...9720.1.0.pdf):




In any case, it's most certainly true that Peruta does not split with any case that Drake did not. There is no case that holds that concealed carry is a right. As such, there is no basis for granting cert to Peruta that would not have equally applied to Drake.

Also, you're incorrect about Woollard not having a split with Moore at the point SCOTUS was considering Woollard. Moore was decided on December 11, 2012. Woollard was decided on March 21, 2013.


The bottom line is that the legal situation with respect to Peruta is so close to that of at least two other carry cases that there's no reason at all to believe that Peruta will be granted cert on the basis of the legal situation. Even the "all courts have weighed in" situation isn't present for Peruta due to the fact that Grace is still pending.

If Peruta is granted cert, it will be despite its legal situation, not because of it.

That's just it, the courts in the CA 2-4 cases all used the same bogus "we assume without deciding", obviously to shield themselves from SCOTUS review.
With Norman & Peruta, you have a clear split with CA9 saying concealed isn't protected no matter what, and Fl Supremes saying OC can be banned in favor of concealed, with many mentions of shall-issue specifically.

[Kharn]

press1280:
Exactly, every Circuit has now had a bite at the apple (don't forget Hightower for the First, even though it was a disaster of a case and fell apart), for better or worse. Now the SC can decide the issue while considering all the positions while Drake was missing the 9th.

[lowimpactuser]

Originally Posted by Kharn

press1280:
Exactly, every Circuit has now had a bite at the apple (don't forget Hightower for the First, even though it was a disaster of a case and fell apart), for better or worse. Now the SC can decide the issue while considering all the positions while Drake was missing the 9th.

Why not wait for D.C. then?

[kcbrown]

Originally Posted by press1280

That's just it, the courts in the CA 2-4 cases all used the same bogus "we assume without deciding", obviously to shield themselves from SCOTUS review.
With Norman & Peruta, you have a clear split with CA9 saying concealed isn't protected no matter what, and Fl Supremes saying OC can be banned in favor of concealed, with many mentions of shall-issue specifically.

Ah. I wasn't considering splits against state court decisions.

That's a split, certainly, but the problem there is that it's against a state court, and the state's RKBA provision complicates the equation. But even if that weren't true, I'm skeptical that splits against state court decisions do much to shift the cert probability equation.

Peruta does not split against any federal court decisions in any way that differs from any of the preceding carry cases.

Seeing how Norman splits against two federal circuit decisions (Bonidy in the 10th Circuit and Peruta in the 9th), it seems more likely that Norman would be granted cert than that Peruta would.

[rplaw]

Norman has every chance for cert because the Fl supremes have played fast and loose with the 2a in favor of their particular biased view on bear. Bear has always meant OC. Fl only wants to preserve it's State shall issue CC carry scheme and not scare the tourists.

The meaning of the 2a shouldn't be decided on the basis of whether tourists get scared if they see someone lawfully bearing arms.

I think the only reason Peruta would get cert is because it's been used for precedent in just about every watershed case since it was decided the first time by the 9th. The SCOTUS needs to sort out if it's good law or not and put to rest the Heller two-step slide and shuffle.

[kcbrown]

Originally Posted by rplaw

Norman has every chance for cert because the Fl supremes have played fast and loose with the 2a in favor of their particular biased view on bear. Bear has always meant OC. Fl only wants to preserve it's State shall issue CC carry scheme and not scare the tourists.

The meaning of the 2a shouldn't be decided on the basis of whether tourists get scared if they see someone lawfully bearing arms.

I think the only reason Peruta would get cert is because it's been used for precedent in just about every watershed case since it was decided the first time by the 9th. The SCOTUS needs to sort out if it's good law or not and put to rest the Heller two-step slide and shuffle.

I agree, that's what SCOTUS needs to do. But it won't. Not until Kennedy is replaced by someone who will actually support the 2nd Amendment and all of the things it implies, and Roberts grows a spine or is replaced. Not gonna happen while Peruta is still viable. Why? Because for us to get a pro-carry decision out of SCOTUS, the dynamics of the Court will need to change in a substantial way. That can't happen merely with a replacement for Scalia.

[lowimpactuser]

Make RBG sick again!

[press1280]

Originally Posted by kcbrown

Ah. I wasn't considering splits against state court decisions.

That's a split, certainly, but the problem there is that it's against a state court, and the state's RKBA provision complicates the equation. But even if that weren't true, I'm skeptical that splits against state court decisions do much to shift the cert probability equation.

Peruta does not split against any federal court decisions in any way that differs from any of the preceding carry cases.

Seeing how Norman splits against two federal circuit decisions (Bonidy in the 10th Circuit and Peruta in the 9th), it seems more likely that Norman would be granted cert than that Peruta would.

It still meets the SCOTUS rule that a Federal appeals court and state court of last resort are in conflict. The state's RKBA provision has no bearing here, they would only review the 2A portion of the Norman opinion.

[rplaw]

Originally Posted by kcbrown

I agree, that's what SCOTUS needs to do. But it won't. Not until Kennedy is replaced by someone who will actually support the 2nd Amendment and all of the things it implies, and Roberts grows a spine or is replaced. Not gonna happen while Peruta is still viable. Why? Because for us to get a pro-carry decision out of SCOTUS, the dynamics of the Court will need to change in a substantial way. That can't happen merely with a replacement for Scalia.

I think this is likely true BUT, Gorsuch could be enough to help Roberts temporarily grow a pair. RBG's replacement will be enough to tip the court back to rationality. This is why the liberals are fighting so hard against Gorsuch.

I laugh whenever I hear some dirtbag mention that Garland should be voted on before Gorsuch. What they're REALLY saying is that they should've replaced RGB and Breyer a decade ago.

I would love to see Roberts replaced as well. His appointment was a mistake that needs rectified. From the interim style appointment to his lack of character to his inability to lead he should recognize that he has achieved the Peter Principle and step aside for the good of everyone. Unfortunately he probably won't.

[kcbrown]

Originally Posted by press1280

It still meets the SCOTUS rule that a Federal appeals court and state court of last resort are in conflict. The state's RKBA provision has no bearing here, they would only review the 2A portion of the Norman opinion.

Oh, I don't disagree with you that the "rules" give SCOTUS a reason to grant cert here. But what we're talking about is the likelihood of cert being granted, and that's a very different thing altogether.

Even so, this does add to the reasons for granting cert. It's just that the dynamics of how the Court has refused to deal with 2A cases is such that I don't see how it affects the real probability of cert being granted here, which looks to me to be dependent almost solely upon the composition of the Court and little else, seeing how the only things that really distinguished Caetano from the other 2A cases that have come before it were the plight of the plaintiff and the "nonlethal" nature of the weapon in question.

[taperxz]

Originally Posted by kcbrown

Oh, I don't disagree with you that the "rules" give SCOTUS a reason to grant cert here. But what we're talking about is the likelihood of cert being granted, and that's a very different thing altogether.

Even so, this does add to the reasons for granting cert. It's just that the dynamics of how the Court has refused to deal with 2A cases is such that I don't see how it affects the real probability of cert being granted here, which looks to me to be dependent almost solely upon the composition of the Court and little else, seeing how the only things that really distinguished Caetano from the other 2A cases that have come before it were the plight of the plaintiff and the "nonlethal" nature of the weapon in question.

Peruta is a different case all together that needs to be heard. Besides being a carry case, Peruta challenges the ability of one elected official to decide who gets a right and who doesn't. California's overall scheme for CC is not being challenged. Only San Diego's Sheriffs ability to arbitrarily approve and deny based on his/her personal feelings. Scotus will want this not just based on the 2A but for other precedence regarding rights too. Liberals on the court may even want this looked at. They may not like that its a gun case but could still intrigue them.

[baggss]

Originally Posted by rplaw

I laugh whenever I hear some dirtbag mention that Garland should be voted on before Gorsuch. What they're REALLY saying is that they should've replaced RGB and Breyer a decade ago..

I firmly believe that RBG and Breyer are still around because they believed that the left would have another 8 years of rule in DC and they could safely step down and not see their seats filled with an objectionable (in their opinion) replacement.

[kcbrown]

Originally Posted by taperxz

Peruta is a different case all together that needs to be heard. Besides being a carry case, Peruta challenges the ability of one elected official to decide who gets a right and who doesn't.

All of the 3 prior carry cases that were sent up to the Supreme Court had that as a major argument. The Court passed on all three. This isn't something that causes Peruta to stand out from the rest.

California's overall scheme for CC is not being challenged. Only San Diego's Sheriffs ability to arbitrarily approve and deny based on his/her personal feelings. Scotus will want this not just based on the 2A but for other precedence regarding rights too. Liberals on the court may even want this looked at. They may not like that its a gun case but could still intrigue them.

Maybe, but that kind of argument has been put forth for pretty much every case we've brought to the Court. Past history shows that it's not the way to bet. We've brought all manner of 2A cases before the Court. It has remained silent on every single one, save for one: Caetano. There is but one thing that really causes Caetano to stand out from all of the rest: it had a plaintiff that liberals could sympathize with. None of the rest did, and Peruta certainly doesn't (apologies to Ed Peruta, but especially to a liberal, he's not nearly as sympathetic a plaintiff as a homeless woman with a restraint order against the ex-boyfriend who had previously put her in the hospital and who wanted to use a nonlethal weapon to protect herself from that same ex-boyfriend).

[Kharn]

From my viewpoint, Caetano was so egregiously wrong that the Court was compelled into action rather than waiting for all the circuits to opine as may/shall issue. The next month should be very enlightening.

[kcbrown]

Originally Posted by Kharn

From my viewpoint, Caetano was so egregiously wrong that the Court was compelled into action rather than waiting for all the circuits to opine as may/shall issue. The next month should be very enlightening.

The same thing (being egregiously wrong) is also true of Friedman v Highland Park. The Court passed on that nonetheless. The egregiousness of the errors may be a contributing factor, but the evidence shows that it's insufficient in and of itself.

I do think it'll be quite interesting to see what transpires in the coming month, but I don't have much in the way of expectations for it. You never really know, though, when it comes to the machinations of the Supreme Court ...

[press1280]

Originally Posted by kcbrown

The same thing (being egregiously wrong) is also true of Friedman v Highland Park. The Court passed on that nonetheless. The egregiousness of the errors may be a contributing factor, but the evidence shows that it's insufficient in and of itself.

I do think it'll be quite interesting to see what transpires in the coming month, but I don't have much in the way of expectations for it. You never really know, though, when it comes to the machinations of the Supreme Court ...

I suppose the court didn't explicitly say that "feelings" weren't valid as a reason for a ban, unlike Caetano in which the Mass court said tasers can be banned because they weren't around in 1791

[Socratic]

Originally Posted by randomBytes

There is no way to read the en banc peruta ruling and have any expectation that an honest ruling will happen here.
They will say "CC is available" you lose. History, constitution, BOR all have nothing to do with it.

You're right. Justice has nothing to do with justice. It has everything to do with political.

[Mulay El Raisuli]

Originally Posted by lowimpactuser

A strong opinion (and requisite will to back it up by striking down cases that blatantly violate) isn't a gun to the head though. I still don't understand how we could get a strong court decision on OC that would lead to banned OC but shall issue CCW.

I'm confused by your question. If we get a strong (favorable) decision on OC, then OC cannot be banned.

Originally Posted by press1280

I know of one. Norman has created a split, which as we know is a huge factor in SCOTUS granting cert.
At the time Woollard went to conference I think only Kachalsky had been decided.

And of course, Wollard was not "mode-agnostic" by any means.


The Raisuli

[lowimpactuser]

Originally Posted by Mulay El Raisuli

I'm confused by your question. If we get a strong (favorable) decision on OC, then OC cannot be banned.

My question was exactly what you state- how can they ban OC after a strongly favorable decision? We're on the same page.

Originally Posted by Mulay El Raisuli

And of course, Wollard was not "mode-agnostic" by any means.


The Raisuli

School me on that.

[sfpcservice]

Originally Posted by lowimpactuser

My question was exactly what you state- how can they ban OC after a strongly favorable decision?

They can't. What would likely happen is they would RUSH shall issue through to keep the illusion that people aren't carrying guns. Then they would pass all kinds of restrictions trying to make the privilege of concealed carry next to impossible while banking on no one actually exercising the right to open carry unrestricted....

[Paladin]

On July 4th Nichols posted an article re. our 2nd A right to bear arms and the Peruta denial with dissent, but now it is gone....

http://blog.californiarighttocarry.org/?page_id=739

http://newsblaze.com/business/legal/

Anyone know why?

Anyone make a copy of it?

[Snoop Doggy Dawg]

http://newsblaze.com/business/legal/...nt-case_81960/

[Paladin]

Originally Posted by Snoop Doggy Dawg

http://newsblaze.com/business/legal/...nt-case_81960/

That one is dated June 27th, but I could have sworn it was dated July 4th a couple days ago when I looked at his case's webpage (where his articles are listed in a column on the left).

Whatever.

Thanks.

[TruOil]

My opinion, which is worth pretty much nothing:
1. If Judge Thomas can find a way to approve the ban of open carry in urban areas for the purpose of self defense, he will do so, and if he is not on the 3 judge panel deciding this appeal, he will most certainly be on the en banc panel should it go sideways.
2. Despite Heller, the opinion will argue that self defense is most acute in the home, and less so outside the home, so intermediate scrutiny applies.
3. Because of the way the Ninth applies intermediate scrutiny (which is virtually not at all as demonstrated by the recent TRO opinion and order on the mag turn in law), the court will find that the state's interest in public peace and safety is of such a high degree that "reasonable restrictions" can be placed on the carriage of firearms in cities. It will find that a restriction banning open carry is constitutional (See Tombstone) because there is a sufficient outlet for the carrying of arms by the may issue CCW law. thus, it will essentially hold that all cities and towns are "sensitive areas."
4. Unless and until the Ninth Circuit (or the Supreme Court as the case may be)finds a right to open carry in public, the California Legislature will neither consider nor pass a "shall issue" CCW bill. It will not cave simply because there is a risk of a bad result, since any carry, as far as it is concerned, is a bad thing that must be limited to the greatest extent possible.
5. IMO, and contrary to Mr. Nichols firmly held belief, the U.S. Supreme Court has implied but never held that there is a right to open carry of firearms. citing opinions with implied approval is not a holding not binding on any other court.

[press1280]

Originally Posted by Paladin

On July 4th Nichols posted an article re. our 2nd A right to bear arms and the Peruta denial with dissent, but now it is gone....

http://blog.californiarighttocarry.org/?page_id=739

http://newsblaze.com/business/legal/

Anyone know why?

Anyone make a copy of it?

No on each of those, but I'll point this out. He had mentioned in the past with quotes from Thomas and Scalia that they don't buy into the theory that the SAF and NRA were pushing (that OC can be banned IF shall issue CCW is available).
That Thomas and Scalia's successor wrote the dissent the way they did now cuts against him (maybe). So now this leaves an odd situation, where do the 5 votes for a win come from?
Norman will test this, with the FL attorneys likely arguing FOR the exact dissent's position!

[Paladin]

Originally Posted by mrrabbit

Scalia clearly said with direct cites of earlier cases and longstanding tradtion that bans on Open Carry do not pass Constitutional muster.

The problem is not "implied" or fuzzines by SCOTUS - the problem is elites running states thumbing their noses at SCOTUS daring SCOTUS to assert their authority and status AS the superior court for the United States.

=8-|

Can you direct the rest of us to where Scalia said that?

Can you use the Heller opinion found at: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Why? (1) Since that is from SCOTUS' own website, there is no question as to its authenticity & accuracy. (2) It is available to all the public (in the entire world!) for FREE. Last, (3) that way, we're all literally "on the same page" when citing the case, just state who you're citing and giving the page number of their opinion.

Syllabus: pp. 1 - 3
Scalia for the Court: pp. 1 - 61
Stevens' dissent: pp. 1 - 46
Breyer's dissent: pp. 1 - 44

Originally Posted by press1280

He had mentioned in the past with quotes from Thomas and Scalia that they don't buy into the theory that the SAF and NRA were pushing (that OC can be banned IF shall issue CCW is available).
That Thomas and Scalia's successor wrote the dissent the way they did now cuts against him (maybe). So now this leaves an odd situation, where do the 5 votes for a win come from?
Norman will test this, with the FL attorneys likely arguing FOR the exact dissent's position!

Again, if you remember the citation/s Nichols used and can post them here (using the page numbering of the linked SCOTUS .pdf of the Heller opinion), that would be most helpful and appreciated.

[press1280]

Originally Posted by Paladin

Can you direct the rest of us to where Scalia said that?

Can you use the Heller opinion found at: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Why? (1) Since that is from SCOTUS' own website, there is no question as to its authenticity & accuracy. (2) It is available to all the public (in the entire world!) for FREE. Last, (3) that way, we're all literally "on the same page" when citing the case, just state who you're citing and giving the page number of their opinion.

Syllabus: pp. 1 - 3
Scalia for the Court: pp. 1 - 61
Stevens' dissent: pp. 1 - 46
Breyer's dissent: pp. 1 - 44



Again, if you remember the citation/s Nichols used and can post them here (using the page numbering of the linked SCOTUS .pdf of the Heller opinion), that would be most helpful and appreciated.

Here's an article he wrote (he admits Gorsuch is an unknown), but thought no way Thomas would vote for Peruta: http://newsblaze.com/business/legal/...ifornia_78072/

[press1280]

Originally Posted by mrrabbit

^^^ Another person who clearly either HAS NOT read Heller or is PURPOSELY misrepresenting Heller.

Scalia clearly said with direct cites of earlier cases and longstanding tradtion that bans on Open Carry do not pass Constitutional muster.

The problem is not "implied" or fuzzines by SCOTUS - the problem is elites running states thumbing their noses at SCOTUS daring SCOTUS to assert their authority and status AS the superior court for the United States.

=8-|

Not 100 percent clear, he mentioned Nunn, which held that an OC ban violated the RKBA. One may be able to assume that but it wasn't directly on the table.

[TruOil]

Originally Posted by mrrabbit

^^^ Another person who clearly either HAS NOT read Heller or is PURPOSELY misrepresenting Heller.

Scalia clearly said with direct cites of earlier cases and longstanding tradtion that bans on Open Carry do not pass Constitutional muster.

The problem is not "implied" or fuzzines by SCOTUS - the problem is elites running states thumbing their noses at SCOTUS daring SCOTUS to assert their authority and status AS the superior court for the United States.

=8-|

Really? Show me. Cite the page. Yes, I've read Heller--more than once--and I don't see anywhere that this was a HOLDING in the case, as opposed to a recitation of the history of the right in the United States. The only HOLDING was that the District of Columbia could not ban the possession of a loaded firearm in the home. Everything else is dicta, which may be persuasive but is not binding on any other court.
Certainly, decisions of state supreme courts are not binding on any federal court (except as to matters of state law), and all that those decisions say, afaik, is that concealed carry bans are permissible when open carry is permitted. But those are not decisions by a federal court under the Second Amendment.
McDonald changes nothing, as it too was a case concerning the right to keep a firearm in one's home for the "core" Second Amendment right of self-defense. NEITHER McDonald NOR Heller case was a carry case, so to suggest that either "holds" that there is a right to open carry outside the home is simply incorrect. And without a holding as to carry outside the home, the Ninth Circuit will do whatever its liberal justices damn well please.

[surfgeorge]

Originally Posted by TruOil

Really? Show me. Cite the page. Yes, I've read Heller--more than once--and I don't see anywhere that this was a HOLDING in the case, as opposed to a recitation of the history of the right in the United States. The only HOLDING was that the District of Columbia could not ban the possession of a loaded firearm in the home. Everything else is dicta, which may be persuasive but is not binding on any other court.
Certainly, decisions of state supreme courts are not binding on any federal court (except as to matters of state law), and all that those decisions say, afaik, is that concealed carry bans are permissible when open carry is permitted. But those are not decisions by a federal court under the Second Amendment.
McDonald changes nothing, as it too was a case concerning the right to keep a firearm in one's home for the "core" Second Amendment right of self-defense. NEITHER McDonald NOR Heller case was a carry case, so to suggest that either "holds" that there is a right to open carry outside the home is simply incorrect. And without a holding as to carry outside the home, the Ninth Circuit will do whatever its liberal justices damn well please.

Do you think it's possible that the Ninth would "damn well please" to issue an opinion stating that there is also no right to bear arms outside the home, in public, openly? That is, in essence declare that the "right to bear" means to have a firearm on one's person within the home (or business (in Hawaii)) only? And that any carry outside the home is thus merely a privilege that may be regulated, just like concealed carry (also) is in Hawaii, to the point of no one being allowed to lawfully carry outside the home/business in any manner?

[Paladin]

Originally Posted by press1280

Here's an article he wrote (he admits Gorsuch is an unknown), but thought no way Thomas would vote for Peruta: http://newsblaze.com/business/legal/...ifornia_78072/

From that Nichols' article (emphasis in Nichols' article):

The Peruta lawyers have the hubris to cite this passage from the Heller decision and claim, in their cert petition, that the Supreme Court has already said that Open Carry can be banned in favor of concealed carry when SCOTUS said this:

“”Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

I read that quote from Heller (the 2nd paragraph I quoted), as support for Scalia's statement that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." I do not read it as an endorsement/adoption of any particular conclusion/opinion/holding of those courts or commentators. That's not what Scalia was using it to prove. The Heller Court was not dealing with those particular issues.

Since Thomas was for taking Peruta -- and I don't think any of us will claim Thomas to be an anti -- I think Nichols' has mistaken the law of Heller. I think Thomas and Gorsuch (and probably Alieto) understand Heller better than Nichols'.

Too bad the MA SC didn't also shoot down Caetano by saying even if pepper spray is an "arm" protected by the 2nd A, there is no right to bear it in public for self-defense. Then public carry would have been an issue in Caetano. It probably would have been an issue in Caetano II if MA legalized the ownership, but banned the public carrying of pepper spray. But my guess is the antis did not want a Carry Case to get to SCOTUS before Hillary was in office and able to replace Scalia.

Too bad!

[kcbrown]

Originally Posted by mrrabbit

And you continue to deliberately misconstrue Heller....

...by passing it off as having recognizinig a balance between OC and CCW...

Scalia did absolutely no such thing. Scalia made it clear that bans on Open Carry do not pass muster period! In no way did he condition OC on CCW, or condition CCW on OC.

That's correct. There were no conditions on OC or CCW in what Scalia wrote.

He treated them seperately, and brought history and precedent to bear when discussing both.

No. Scalia did not discuss carry at all. What he did discuss was "the way in which the operative clause of the 2nd Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right".

So again I ask, because you didn't give an answer to it the first time I asked: what, exactly, is "the way in which the operative clause of the 2nd Amendment furthers the purpose announced in the prefatory clause"? And why is neither concealed carry nor open carry mentioned in the part of the decision the Court quoted, if the nonprotected status of concealed carry is the essential takeaway from the portion of Heller that you (and others who argue as you do) seem to rely on (District of Columbia v. Heller, 128 S. Ct. 2783 at 2809)?

And now that we have a dissent from Thomas, it raises another question that I expect you'll have trouble answering in a logically consistent fashion: do you believe that Thomas' understanding of the right to arms is so different from Scalia's that he would uphold concealed carry as a matter of right whilst Scalia would insist that it is not a part of the protected right? If so, on what basis would Thomas' understanding differ in such a profound way?

[kcbrown]

Originally Posted by mrrabbit

Once again,

I

am not one of the Supreme Court justices making these decision nor was I a judge in the Heller v. DC case.

Understood. But you have the opinion you have for a reason. What is that reason in this case?

It is justices (in particular Scalia) making the case and holding that:

It is in dispute what the justices actually held. Put simply, what follows in what you've written here is your interpretation of what they held, an interpretation that has a debatable basis.

1. Practices regarding open carrying of bearable arms and concealing of bearable arms that arise from the English tradition.

Nowhere in Heller is the above actually discussed by the justices. They pull quotes from decisions that struck prohibitions on open carry, but do not actually discuss open carry at all. Nowhere in Heller will you see the justices say that open carry is explicitly protected. You will see them mention that certain decisions struck open carry bans, but you will not see them say that open carry is protected. Similarly, you will see them say that concealed carry bans have been upheld by certain decisions, but you will not see them say that concealed carry bans are Constitutional or that concealed carry is not protected.

2. That the English tradition was respected and practiced during the Colonial era.

Yes. But notably, the discussion in Heller with respect to the English tradition centers around the right being an individual one.

3. That this tradition was inherited / adopted upon the adoption of the Articles of Confederation and carried over later to the adoption of the Constitution.

Yes, where "this tradition" is the tradition of the right to arms itself. Nowhere does Heller itself say that the tradition in question allows concealed carry to be forbidden.

3. State Courts have held the same - open carry is the default practice, concealed can have prohibitions placed upon it.

Yes, state courts have held that. But Heller itself does not hold any such thing. You will not find a single word in the decision itself stating that concealed carry prohibitions are Constitutional. You will find references to decisions that stated such, but the use of those decisions was for a different purpose than to describe allowable limitations on carry. You will even find a reference to those decisions being used as an example of how the right is not unlimited. But you will not find anything stating that such prohibitions are unconditionally Constitutional.

4. Legislatures before and after these court decision have clarified or modified their laws to be in line with the honored and respected tradition with the "supposition" that it is what the 2nd Amendment intended.

Legislatures before and after have varied all over the place as regards that, and even varied massively over time (remember that carry was actually prohibited in full in much of the country for a couple of decades in the 20th century). For instance, Florida bans open carry but allows concealed carry. California bans everything as a matter of right. Arizona allows everything as a matter of right. More states allow concealed carry than allow open carry.

5. Heller v. DC with Scalia writing the majority opinion recognized the above.

No. That decision recognized that the right is an individual one, is unconnected with militia service, and is not unlimited.

That's THEIR interpretation - NOT MINE.

No, it's yours. It's yours because Heller does not explicitly state that which you claim. If it's not explicitly stated, then it must be the result of interpretation.

Both YOU and I know qualifications or distinctions regarding open or concealed are not directly written in the 2nd Amendment.

The 2nd Amendment doesn't even indirectly encode qualifications or distinctions as regards open or concealed carry. And as regards the original understanding of the right, the one court in which the question was decided by people of the founding generation is the one court which found that concealed carry is also included in the right. That court is the Kentucky supreme court, in Bliss v Commonwealth (1822). No other case after that is likely to have been decided by judges who were of the founding generation -- they came too late. If it is the original understanding of the right that defines its scope, then it is Bliss v Commonwealth which must enunciate that understanding most clearly, since it was members of the founding generation who uttered it.

You are trying to get ME to defend THEIR position. That's THEIR job, not mine.

Why? You're the one who interprets Heller in the way you state. You ascribe that interpretation to the justices who penned Heller, but they did not write anything like the words you have written. What they wrote differs markedly from what you've written.

But most importantly of all, it is illogical for Thomas to insist that the Court should have granted cert to Peruta if his interpretation of carry is what you claim the Heller interpretation to be. It would be entirely logical for him to insist such if his interpretation matches that of the Bliss court. As the most originalist member of the Court, he is more likely to agree with Bliss than perhaps any of the rest.

As to Thomas, perhaps he is a Justice who agrees with the gist of YOUR question. Perhaps he is one who thinks keep is keep, bear is bear, and that open v. carry is irrelevant.

That would be consistent with his dissent against Peruta's denial of cert.

But there's another factor that argues strongly against the claims you've made. Thomas has no reservations about writing a concurrence when his interpretation differs from that of his colleagues. He did so, after all, in McDonald. If Thomas' interpretation is that of Bliss, and Heller really stated what you claim it does, then Thomas would almost certainly have written a concurrence that stated his opinion on carry. But he didn't. He didn't because he didn't believe there was a need to. But the only logical reason for him to not believe that such was necessary is if Heller's holdings and reasoning do not include the interpretation of carry that you claim it does.

And yes, carry was discussed. Scalia, in pointing out that open carry bans do not pass constitutional muster while in the same breath pointing out that prohibitions on concealed do IS TO DISCUSS CARRY - a very short discussion to boot.

Scalia didn't point out that concealed carry prohibitions pass Constitutional muster. He pointed out that prior state decisions held that. But he was clear and direct about those prohibitions that he believed actually do pass muster, e.g. prohibitions on felons and the mentally ill. Scalia was perfectly capable of directly stating that concealed carry prohibitions are Constitutional and didn't. Pointing out that someone else did something is not the same as adopting that something for yourself.

[kcbrown]

Originally Posted by mrrabbit

KC, now you are selectively cherry picking - trying to argue that one cite is being use at a precendent - and another is not....

No. I'm not the one who is claiming that the Court is using the quotes as precedent. You are.

My claim is actually that the quotes themselves are not precedential, that rather they are used to illustrate a specific point about the right, namely that it is an individual right that is unconnected with militia service, and that the 2nd Amendment forecloses the possibility of blanket bans on the exercise of the right.

...and in the process making the claim that the short discussion by Scalia about previous treatment of open v carry meant nothing at all...while every other parargraph in the decision did.

No. I'm saying that the quotes about open carry mean no more than the specific context of the quotes dictates. Specifically, that the quotes show "the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause", and more specifically "an individual right unconnected to militia service". That is the specific point of the part of the discussion in which you see the quotes about open carry.

If YOU are going to argue at all that his short discussion meant absolutely nothing or had no bearing at all - then you have get Scalia to clarify that himself. But you can't....he's dead.

Scalia is dead, but Thomas isn't. And Thomas signed onto Scalia's decision. He didn't pen an independent concurrence. That has significance when combined with the Peruta dissent to denial of cert.

I on other hand in supporting the idea that IT did mean something merely have to point out that he wrote it - it plain simple english. It's there IN WRITING. I don't have to defend it. I just merely have to point to it.

It's not what you point to that is at issue, it's what you conclude from that which you point to that is. What you are doing is drawing conclusions by taking the quotes out of the context in which they were made. Your claim amounts to one that says that if one quotes from a source in a decision, then one is importing the entirety of that source into the decision as if it were your own, or that you are importing the quote itself as if it were your own. No, that is not how quoting works or what its purpose is. Quoting is for illustrative purposes, for making a specific point. You cannot presume that the mere presence of a quote is automatic approval of everything from which the quote is taken, or even everything within the quote itself. Such a presumption is ludicrous on its face, especially when the quotes in question exist within a discussion framework that is different from that which the source of the quote is addressing.


The specific context in which the quotes were used is not about carry at all. It is about the individual, militia-independent nature of the right, and how the 2nd Amendment forecloses bans on exercise of the right.

It is very likely that CA9 looking for a way to trash Peruta saw that . . . and used it - to squash Peruta en banc.

The 9th Circuit would have squashed Peruta in its en banc proceedings no matter what. It would go to any lengths, including pulling bits and pieces of Heller out of context for the purpose of using them against the right. If the 9th Circuit were faced with a de facto ban on handguns in the home, it would use bits and pieces of Heller to support that ban. It is irrelevant to the 9th Circuit whether its interpretation of a Supreme Court decision is correct or not. It will use whatever interpretation suits its whims.

There's a danger in what you are trying to do and that is:

You're making the argument of the Antis AND the pro-CCW only.

"They didn't mean anything in such and such part of the decsion..."

No. There is language in Heller that logically cannot be interpreted in any other way than to say that carry outside the home is protected by the 2nd Amendment. Specifically, the language talking about "sensitive places" is wholly nonsensical if 2nd Amendment protections do not extend to public spaces. And furthermore, the very definition of "bear" that the Supreme Court adopted in Heller makes plain that it includes both open carry and concealed.

But to claim that the 2nd Amendment protects "bear", and that "bear" includes both open and concealed carry by its definition, and then to state that one specific mode of carry is not protected despite the fact that your very own originally-understood definition of bear includes that mode is disingenuous at best. It is flat-out contradictory to claim that the understood meaning of "bear arms" at the founding includes concealed carry while simultaneously claiming that the 2nd Amendment's protection does not include concealed carry, since the 2nd Amendment unequivocally states "bear arms". That is a claim that the authors of the 2nd Amendment didn't write what they meant.

1. To do so is to make the argument of Florida, Calguns Foundation, SAF, CRPA, NRA, etc . . . that open carry can be banned in favor of concealed carry.

That is not the only possible interpretation of the argument I raise. My argument is that Heller does not address "bear" at all except to define what it is and to say that it is protected by the 2nd Amendment, and that it cannot be banned wholesale. That's it. That's all it says. Maybe that implies that you can ban one mode in favor of another, but I would not argue that, especially since Heller flat out states that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them" and the people who were of the founding generation decided Bliss, not any of the followup cases. Bliss doesn't stand for the proposition that you can ban one mode in favor of another, it stands for the proposition that a ban on any mode is infringement upon the right.

2. That English tradtion, Colonial practice of the English tradtion doesn't matter...

Where in English tradition is it stated that concealed carry is not a part of the right? Cite your source.

historical precedent got it all wrong, that previous court cases establishing precedent are irrelevant.

They are irrelevant if they decided things differently than the founding generation would have. And Bliss is the only historical carry case decided by the founding generation. Why, then, do you insist that Bliss is of lesser importance than are cases that were decided by people who were not of the founding generation?

If SCOTUS denies cert on Norman and Nichols - we lose. Heller has been tossed. Period.

Oh, I quite agree. But for a reason different from yours. We lose under those circumstances because it would mean that the Court is allowing, and tacitly agreeing with, infringement upon the right to bear, period. We lose whenever the Supreme Court refuses to uphold the right, be it with respect to concealed carry or open carry. We lose because for the Court to do that is for the Court to allow the lower courts, and the state governments, to restrict our essential liberty. That is a loss no matter how you slice it.