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

[Paladin]

Originally Posted by mrrabbit

Nichols didn't make an interpretation mistake...he LIKE THE REST OF US are having a hard time getting a "read" on the justices.

Well, Nichols said Heller "held" that OC "is the right" to bear arms.

All of the so called gun-rights groups have been in Federal court for years arguing to uphold California’s Open Carry bans and have been since shortly after the US Supreme Court issued its landmark decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago which held that Open Carry is the right guaranteed by the Constitution and which held that concealed carry is not a right and can therefore be banned.

From: http://newsblaze.com/business/legal/...-public_59576/

Nichols' obviously did misinterprete Heller because Thomas, who is VERY pro-2nd A RKBA, in his Peruta dissent says Heller only "suggested" that there was a right to bear arms "in some fashion." (Gorsuch agreed with Thomas' interpretation of Heller by signing on to his Peruta dissent.)

This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

From carry over paragraph bottom of p.4 of: https://www.supremecourt.gov/opinion...6-894_p86b.pdf

Originally Posted by mrrabbit

Even an 8th grader can read the Heller decision and get exactly what Scalia was explaining about OC, CCW, bearable arms, the individual right, etc.

I'm still looking forward to you citing where in Heller Scalia said that. Again, please us the page numbering of the Heller decision hosted by SCOTUS so that we all can easily read it.

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

[kcbrown]

Originally Posted by mrrabbit

http://www.scotusblog.com/wp-content.../06/07-290.pdf

Decision p.10 (pdf p.13) to Decision p.18 (pdf p. 18)

bear = carry on the person - discussed IN DETAIL

More precisely, bear = carry "upon the person or in the clothing or in a pocket". You do not get to cherry pick the meaning of "bear".

Decision p.39 (pdf p. 42) to Decision p.40 (pdf p. 43)

Open Carry discussed...in detail.

No. The way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause is what is discussed there. Open carry is discussed by the quotes in that part of the decision, not by Heller.

Decision p.54 (pdf p. 57)

Begins the historical discussion of lawful prohibitions - including concealed carry.

No. It starts by stating that the right is not unlimited and uses the decisions that said that prohibitions on concealed carry were lawful to illustrate that the right was not historically understood to be unlimited. More specifically, it uses those examples to illustrate that "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". It did not call out the concealed carry prohibitions themselves as unconditionally lawful. There is a difference between citing an historical example that shows a belief that the right is not unlimited and explicitly calling out the limitation itself as unconditionally allowed. That part of the decision calls out "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" as being explicitly allowed, because those are within the "nothing in our opinion should be taken to case doubt on ..." statement, but prohibitions on concealed carry are absent from the list of prohibitions that Heller casts no doubt upon.

The difference in wording between an example to show that the right was not historically understood to be unlimited and a list of explicitly allowed prohibitions matters. You treat it as if the difference in wording doesn't matter. How can your reading of Heller not be a misreading if you refuse to impart meaning to that difference?

If someone wants argue they didn't mean what they wrote then THAT person has to provide evidence to that effect....NOT ME.

They mean what they wrote. But they didn't mean what you believe they meant. Because context matters. That's the difference: you are interpreting what they quoted as if it were what they wrote. What they quoted is not what they wrote, it is illustrative of the point they're attempting to make, and that point is not about carry at all.

[TruOil]

Originally Posted by surfgeorge

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?

AS I said above, I think the court will rule that the right is less protected outside the home, that restrictions on the exercise of the right are analyzed under intermediate scrutiny, and that ultimately the right is subject to regulations/restriction in the public interest. Because "more guns means more crime," it is reasonable to restrict the exercise of the right in urban areas to those who have a "demonstrated need," and who will therefore qualify to obtain an CCW, notwithstanding that fact that a CCW is a privilege and not a right. I mean, really, can you imagine that the liberal members of the circuit would, in a million years, rule that a right to openly carry a loaded firearm is a right that cannot be infringed? I just can't see that happening. These guys fear guns, they don't want to see guns, and they don't want people carrying guns. So they must act in a way that reduces fear and assures "the keeping of the peace."

[kcbrown]

Originally Posted by mrrabbit

I stated no belief, merely pointed to what they said. PERIOD!

Call it what you want. A belief, an interpretation, or a claim. It's all the same in the end. You stated a claim, and you did so by pointing at what they quoted. Merely pointing at some bit of text that doesn't say what you claim it says does your position (which is shorthand for the position you promote) no good. This is especially true when you ignore what was directly written by the authors of the text you point at. A perfect example of that is the definition of "bear", which is one that includes concealed carry as well as open carry.

Words have meaning, and quotes have context. The position you state (whether it's yours or not, it's one that you promote) ignores both the meaning and the context of what you point at. How, then, can the position you promote possibly be valid in the face of that?

[surfgeorge]

Vs. mrrabbit

[Paladin]

Originally Posted by mrrabbit

I and OTHERS have posted the link to the SCOTUS .pdf on Heller v. DC - and have quoted the related passages MULTIPLE times in the original thread for PERUTA.

Stop pretending that we haven't...

=8-|

I'm not pretending anything. Never said you/others never posted it over there/anywhere else. I didn't keep up the the Peruta thread. If you/others did, all you would have to say is "See post# xxxx in the Peruta thread." Which brings up the related: that Peruta thread was huge. Expecting someone to go thru it (using search would be futile since no distinctive wording for that post/s), to find where it was posted is unrealistic.

Besides, this is the Nichols thread: what better place to put that info than here?

Originally Posted by mrrabbit

http://www.scotusblog.com/wp-content.../06/07-290.pdf

Decision p.10 (pdf p.13) to Decision p.18 (pdf p. 18)

bear = carry on the person - discussed IN DETAIL


Decision p.39 (pdf p. 42) to Decision p.40 (pdf p. 43)

Open Carry discussed...in detail.


Decision p.54 (pdf p. 57)

Begins the historical discussion of lawful prohibitions - including concealed carry.



It's the public record as far as SCOTUS goes. I don't have to prove anything - it's in writing - they own it - not me.

If someone wants argue they didn't mean what they wrote then THAT person has to provide evidence to that effect....NOT ME.

=8-)

Thank you very much! I'll check it out and make a reply post in the next few days.

FWIW the conflict I saw in the Peruta thread and the conflict that I hope does not migrate to this Nichols thread is, IMO, a direct result of us CA gunnies having been robbed of our RKBA birthright as Americans by our own state for pretty much half of a century. While I'm sure some of us have strong feelings pro-OC, anti-OC, pro-CCW, whatever, I think many of us, as we approach a DECADE after Heller and seeing very slim practical benefit to it in CA (no SI CCWs, no hicaps, roster still in place, etc), just want some frickin' RKBA! As I once posted shortly after Peruta went en banc and pulled the 3-judge decision, the gravest risk we run is our side attacking each other in our frustration rather than focusing on opposing the antis.

[surfgeorge]

Originally Posted by Paladin

<snip>

As I once posted shortly after Peruta went en banc and pulled the 3-judge decision, the gravest risk we run is our side attacking each other in our frustration rather than focusing on opposing the antis.

The "gravest risk"? I'd think that adopting a legal strategy that is unlikely to succeed, and/or incompetently executing a legal strategy has been the "gravest risk", aka "shooting oneself in the foot". "Attacking each other" regarding what the proper strategy is/should have been doesn't take anything away from us, as the other side already knows what they're doing independent of any reflections on our part.

The part that cannot be disputed is that after nearly eight years (and untold dollars) spent on Peruta/Richards, nothing has been gained, and it could be argued something has been lost (CCA ruling that there is no right to bear arms concealed in public).

[kcbrown]

Originally Posted by surfgeorge

The "gravest risk"? I'd think that adopting a legal strategy that is unlikely to succeed, and/or incompetently executing a legal strategy has been the "gravest risk", aka "shooting oneself in the foot". "Attacking each other" regarding what the proper strategy is/should have been doesn't take anything away from us, as the other side already knows what they're doing independent of any reflections on our part.

In the face of a circuit court that is absolutely hostile to the right and is essentially guaranteed to be for decades to come, combined with a Supreme Court that will not act except under the most heart-wrenching and innocuous circumstances (homeless woman with a stun gun), there is no such thing as as a competently executed legal strategy. All strategies lead to failure in the face of that no matter how brilliantly executed they may be.

The part that cannot be disputed is that after nearly eight years (and untold dollars) spent on Peruta/Richards, nothing has been gained, and it could be argued something has been lost (CCA ruling that there is no right to bear arms concealed in public).

It needs to be made clear that the only alternative is to not challenge the laws at all. And doing that for a sufficiently long period of time bootstraps them into "longstanding" status (meaning that you have to challenge them at some point if only to ensure that future generations do not come away with the belief that that law in question was regarded by everyone as "acceptable" at or near the time of passage), while simultaneously generating identical end results.

There is nothing that can be won until the Supreme Court composition changes. The only reason for bringing challenges in this environment is the anticipation that the Supreme Court composition will change in a favorable manner. That the circuit court's decisions may affect future cases is irrelevant if the jurisprudence in question is ultimately overridden by the Supreme Court. And it is also irrelevant if it is not overridden by a later Supreme Court, since the jurisprudence would end up being established under those circumstances at a later time if it isn't established now.

Put another way, the only real difference that waiting makes is to minimize the amount of resources put into the overall effort. That's not a trivial difference, to be sure, but it means that the failures to this point do not represent any sort of grievous injury to later efforts.

[kcbrown]

Originally Posted by mrrabbit

Wrong...

"The only alternative is to not challenge the the laws at all..."


^ That's a false dichotomy or a posing of a choice scenario in which all options have not been exhausted.

Of course, I'm speaking of our judicial options. I suppose I should have made that more clear. Even so, some of what you write includes judicial options, so let's look at those.

The following options are available:

1. Bring a pure Open Carry case before SCOTUS - pure as in, no CCW baggage or wrappers or "gotcha's".

This has already been done a couple of times. We'll know within a few months whether that makes any difference (the petition for cert in Norman was filed today, apparently: https://www.floridacarry.org/images/...rman-Final.pdf).

You already know my prediction on this one. Norman will be denied cert in the absence of a change in the composition of the Court. There is no reason to believe that Kennedy is more of an originalist than Thomas on this front, and Thomas has already shown that he believes a case like Peruta should have been granted cert. That's not to say that Thomas won't vote for cert in Norman -- he almost certainly will -- but Kennedy won't. And without Kennedy, there's no way Norman, or any other 2A case for that matter, gets cert (because there's no way the pro-2A justices will ensure that cert is granted if they can't count on actually getting a favorable decision out of it).

2. Bring an Equal Protection case before SCOTUS - one that challenges clear inconsistencies in policy that discriminate among what are supposed to be otherwise equal citizens deserving of equal treatment.

"Equal protection" has proven to be immensely difficult to litigate, because "similarly situated" is used by the courts to achieve whatever outcome they desire. Which is to say, if a court wants the plaintiff to win, then it will find that the plaintiff is "similarly situated", but if it wants the plaintiff to lose, then it'll interpret "similarly situated" to mean identically situated, and thus decide against the plaintiff.

So such a case would clearly turn on the Supreme Court disagreeing with the lower court as to the "similarly situated" question. But save for Caetano, the Court has already refused to hear every firearm case involving a challenge to a state law. Why in the world should we believe the Court will suddenly change its mind when faced with a different kind of argument?

3. Vote legislators out of office.

^^^Knowing that SCOTUS ability to enforce a decsion is only as good as the system's willingness to go along with it - knowing that the system's momentum is toward more control (statism) - not less control (liberty), option #3 is the best option.

No disagreement with you on that. The problem is that doing so isn't really possible in California, so that leaves only the national angle.

It won't be until the "peasants revolt" and bounce a dozen or so anti-gun legislators out onto the pavement via the ballot box that the "elites" who think they run this country have a change in attitude.

And that can't happen unless the way primaries are done changes, because a "revolt" can't happen if the peasants don't have control over which choices they're presented with.

Our courts can make brilliant pro-gun / pro-2A decision over and over - it doesn't matter so long as a propoderance of anti-gun actors remain in office.

They can just throw 12 different flavors of mustard onto the legistlative calendar for passage into law - as in California - and those that survive an injuction will simply force us right back into the all time famous Calgun's exclamation:

Two Weeks!

I completely, unequivocally agree with you on this. And those anti-rights actors will have the backing of the 9th Circuit as well.

There's a reason I said, a long time ago, that it would be many years, and likely decades, before we get any meaningful changes. My view on that has not changed, and events are proving that prediction to be correct.

[Elgatodeacero]

I hope Mr. Nichols will object to the State's attempt to insert a very dubious study into the appellate record, especially at this very late time.

John Lott has a critique of the Donahue study, and I suspect John Lott would ghost write a short criticism of the study as a response for Nichols to file.

Article on the Donahue study here:

http://www.breitbart.com/2nd-amendme...violent-crime/

[surfgeorge]

Originally Posted by Elgatodeacero

I hope Mr. Nichols will object to the State's attempt to insert a very dubious study into the appellate record, especially at this very late time.

He filed a response the same day California submitted their letter:

http://blog.californiarighttocarry.o...uly-7-2017.pdf

[Drivedabizness]

His last sentence is laughable.

California courts HAVE NOT upheld open carry. (please cite where they have struck down the open carry prohibition)

[surfgeorge]

Originally Posted by Drivedabizness

His last sentence is laughable.

California courts HAVE NOT upheld open carry. (please cite where they have struck down the open carry prohibition)

The statement in question: "The California courts have always upheld prohibitions on concealed carry and required that arms be carried openly in the interest of public safety."

Mr. Nichols did not write that the California Courts have struck down any Open Carry bans. They haven't because they have never before been challenged in state court. The only challenges were to carrying loaded, concealed handguns and/or by persons who were prohibited from possessing firearms.

In fifty years, there had never been a challenge to California's ban on carrying loaded firearms as it applies to Open Carry until Nichols filed his lawsuit. Not in state court and not in Federal court.

Some of those cases are cited in Nichols' briefs and in Nichols' FRAP 28(j) letters.

[surfgeorge]

Update today from Mr. Nichols:

http://blog.californiarighttocarry.org/?page_id=6922

Update by Charles Nichols, President of California Right To Carry – July 12, 2017 – It appears that oral arguments in my appeal may very well take place during the week of November 6th in Pasadena. My motion to have my appeal heard before the same panel, and on the same day, as Young v. Hawaii is still pending. Reportedly, the lawyers in that case were contacted but the attorney representing Hawaii said “No!” The court can still calendar the Young appeal to take place in Pasadena. The court has the power to schedule oral arguments anywhere in the 9th circuit. If the court wants to calendar both appeals before the same panel in Alaska in December then it has the power to do so.

I am surprised that the Hawaii county attorney reportedly gave as his reason for not coming to Pasadena as “I don’t want to.” In any event, if my motion is denied then at least we now know that oral arguments in my appeal will very likely be scheduled for the week of November 6th. When oral arguments will take place in Young is more problematic. The court of appeals holds oral arguments in Hawaii only three times a year. Court rules requires that the panel of judges be given the briefs in an appeal at least 12 weeks prior to oral arguments taking place. If the Young v. Hawaii appeal had already been assigned to a panel for oral arguments to take place in October then it is unlikely that the court would have sought to calendar the oral arguments to take place alongside my appeal in Pasadena.

This means that the Young v. Hawaii oral arguments will likely take place next February in Hawaii and oral arguments in my case will take place in November. This is fine by me as that means my case will be taken under submission for a decision first. That means the decision in my case is the one which will be binding in the 9th circuit.

[Drivedabizness]

Originally Posted by surfgeorge

The statement in question: "The California courts have always upheld prohibitions on concealed carry and required that arms be carried openly in the interest of public safety."

Mr. Nichols did not write that the California Courts have struck down any Open Carry bans. They haven't because they have never before been challenged in state court. The only challenges were to carrying loaded, concealed handguns and/or by persons who were prohibited from possessing firearms.

In fifty years, there had never been a challenge to California's ban on carrying loaded firearms as it applies to Open Carry until Nichols filed his lawsuit. Not in state court and not in Federal court.

Some of those cases are cited in Nichols' briefs and in Nichols' FRAP 28(j) letters.

Nice try. Now go call Mom and tell her you are a failure

[kcbrown]

Originally Posted by surfgeorge

The statement in question: "The California courts have always upheld prohibitions on concealed carry and required that arms be carried openly in the interest of public safety."

Mr. Nichols did not write that the California Courts have struck down any Open Carry bans. They haven't because they have never before been challenged in state court. The only challenges were to carrying loaded, concealed handguns and/or by persons who were prohibited from possessing firearms.

That's true, but that's not what's laughable. What's laughable is his claim (which I emphasized in the above) that the California courts have "required that arms be carried openly in the interest of public safety". Courts have required no such thing, and neither has any legislation. Opposition to one mode of carry does not translate to automatic endorsement of the other mode.

Charles Nichols will find out soon enough that the 9th Circuit is just as opposed to open carry as it is to concealed carry, and that no amount of brilliant argumentation will change that. Its justification for denying open carry will almost certainly differ from that for concealed carry, but it will deny open carry all the same.

[press1280]

Originally Posted by kcbrown

That's true, but that's not what's laughable. What's laughable is his claim (which I emphasized in the above) that the courts have "required that arms be carried openly in the interest of public safety". Courts have required no such thing, and neither has any legislation. Opposition to one mode of carry does not translate to automatic endorsement of the other mode.

Charles Nichols will find out soon enough that the 9th Circuit is just as opposed to open carry as it is to concealed carry, and that no amount of brilliant argumentation will change that. Its justification for denying open carry will almost certainly differ from that for concealed carry, but it will deny open carry all the same.

California courts perhaps, but the 19th century courts did do so (although they took it as a given that public safety was improved by CCW bans).

The 9th is opposed to all forms of carry, but they're in a tight box. If there's no right to OC (coupled w/Peruta), then they've just split with Moore.
I think they'll try to issue a narrow ruling and will tacitly endorse may-issue OC.

[kcbrown]

Originally Posted by press1280

California courts perhaps, but the 19th century courts did do so (although they took it as a given that public safety was improved by CCW bans).

His statement was specifically about California courts. I've changed my message to make that more clear (though it should be completely obvious from reading his quote).

[surfgeorge]

Originally Posted by kcbrown

His statement was specifically about California courts. I've changed my message to make that more clear (though it should be completely obvious from reading his quote).

Is this a California court case?

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon." People v. Mitchell, 209 Cal. App. 4th 1364 (2012) at 1371.

That case is mentioned in the Nichols original brief, as are other cases from California courts. You can read the brief for yourself and see there are other California courts cases cited.

[kcbrown]

Originally Posted by surfgeorge

Is this a California court case?

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon." People v. Mitchell, 209 Cal. App. 4th 1364 (2012) at 1371.

That case is mentioned in the Nichols original brief, as are other cases from California courts. You can read the brief for yourself and see there are other California courts cases cited.

Interesting. Learn something new every day.

I can't seem to find the original People v Mitchell decision, so I can't comment intelligently on that excerpt from it.

[ajb78]

http://www.leagle.com/decision/In%20...0v.%20MITCHELL

[ColdDeadHands1]

Originally Posted by mrrabbit

I'm sticking with my original prediction:

1. They'll strike down the ban on Unloaded Open Carry - claiming it satisfies open carry.

2. Basically sticking it to Mr. Nichols - no Loaded Open Carry action.

3. Basically sticking it to us - a neutered form of Open Carry.

4. Legislature will continues to pass every law under the sun to harass or put a ball and chain on those who try to exercise Unloaded Open Carry.

The parties involved including CA9 will bet on SCOTUS denying cert on an appeal by Mr. Nichols.

=8-|

If UOC is somehow reinstated, I will UOC everywhere, hassle or not. I did not do this last go around but will for sure if it is the court's opinion. If enough of us do it, it could be the pressure we need to get the legislature to move, similar to what they did in Illinois.

[BeAuMaN]

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?

Late reply, but for the record: At the very least, I didn't get an e-mail about an article, and I'm on both the mailing list and I have newsblaze notifications for him set.

He did send out copy of the Declaration of Independence for 4th of July though: http://mailchi.mp/ea0ae2f54121/happy...ight-to-carry?

I do wish Mr. Nichols the best of luck with his case, though I'm sure if -any- victory were to be found, it wouldn't be in the 9th, so we'll likely be waiting for a while yet. (Not that I'm particularly knowledgeable, but we've seen how the 9th rolls).

[press1280]

Originally Posted by ColdDeadHands1

If UOC is somehow reinstated, I will UOC everywhere, hassle or not. I did not do this last go around but will for sure if it is the court's opinion. If enough of us do it, it could be the pressure we need to get the legislature to move, similar to what they did in Illinois.

I doubt this will happen, no one is asking for UOC as a form of relief.

[dvcrsn]

on the open vs concealed carry--the restrictions on concealed carry were viewed as legit because carrying concealed was viewed as an indicator that the person was carrying for less than legit reasons--after all, if your rifle/shotgun/ handgun was visible, you weren't planning on robbing the bank etc

[TruOil]

Originally Posted by dvcrsn

on the open vs concealed carry--the restrictions on concealed carry were viewed as legit because carrying concealed was viewed as an indicator that the person was carrying for less than legit reasons--after all, if your rifle/shotgun/ handgun was visible, you weren't planning on robbing the bank etc

True enough, but those days are long gone. As the open unloaded demonstrators quickly learned, the soccer moms are so terrified of the sight of guns that they wi8ll immediately call 911 to report MAN WITH GUN!!!, resulting in a huuuge police response. The response wquiclkly lead to the present ban.

Today, there are some courts that will recognize that allowing shall issue concealed carry licensing is a sufficient outlet for exercise of the Second Amendment, specifically Florida in Norman v. State, further holding that this outlet validated the State's open carry ban (with exceptions of course). In California, the Ninth, while expressly avoiding the question presented by the open carry ban, that there is no right to concealed carry, relying on those old state law cases you refer to. the issue of whether that means there is a right to openly carry in public is the question at least theoretically presented by Nichols. Nichols, however, that the ban on carrying in sensitive places, such as public buildings, courthouses, and schools is valid, which to my mind leaves very few places one can carry in our cities and towns due to the breadth of the 1000' GFSZ Act limitation. (He also ignores a specific Penal Code provision that purports to authorize CCW in courthouses that all the courts in the state have attempted to overrule by local rule).

[press1280]

Originally Posted by TruOil

True enough, but those days are long gone. As the open unloaded demonstrators quickly learned, the soccer moms are so terrified of the sight of guns that they wi8ll immediately call 911 to report MAN WITH GUN!!!, resulting in a huuuge police response. The response wquiclkly lead to the present ban.

Today, there are some courts that will recognize that allowing shall issue concealed carry licensing is a sufficient outlet for exercise of the Second Amendment, specifically Florida in Norman v. State, further holding that this outlet validated the State's open carry ban (with exceptions of course). In California, the Ninth, while expressly avoiding the question presented by the open carry ban, that there is no right to concealed carry, relying on those old state law cases you refer to. the issue of whether that means there is a right to openly carry in public is the question at least theoretically presented by Nichols. Nichols, however, that the ban on carrying in sensitive places, such as public buildings, courthouses, and schools is valid, which to my mind leaves very few places one can carry in our cities and towns due to the breadth of the 1000' GFSZ Act limitation. (He also ignores a specific Penal Code provision that purports to authorize CCW in courthouses that all the courts in the state have attempted to overrule by local rule).

Other than a one off District Court ruling in IL, the FL Supremes are the ONLY court to hold this. That's why I'm somewhat optimistic it gets cert.

[TruOil]

Originally Posted by press1280

Other than a one off District Court ruling in IL, the FL Supremes are the ONLY court to hold this. That's why I'm somewhat optimistic it gets cert.

Norman is pretty much the flip side of those old 19th century cases (cited in Heller) holding that concealed carry can be banned as long as open carry is permitted.

[TruOil]

Originally Posted by mrrabbit

Heller did not condition one upon the other in general...

Read the actual decision please.

- English Tradition > Colonial Era > Post American Revolution Law and Precendent
- Individual Right
- Bearable Arms
- Keep = Own
- Bear = Carry
- Bans on OC do not pass constitutional muster.
- Prohibitons on CCW by the States can be upheld.

=8-|

Learn reading comprehension, please. I didn't say anything about Heller, only referenced as a ready source of the old 19th century court case citations, cases that are, as I stated, the flip side of Norman, and essentially hold that one method can be banned as long as the other is preserved.

Heller did not make any holdings whatsoever about carry outside the home. Heller cannot be cited for the propositions that you suggest. It did NOT conclude that OC bans do not pass constitutional muster, and it did NOT conclude that prohibitions on CCW are valid. That issue was NOT before it, and so far, it has refused to grant cert in any of the cases that have raised questions about the scope of the second amendment outside the home.

[kcbrown]

Originally Posted by mrrabbit

Heller did not condition one upon the other in general...

Correct. That's because Heller did not address carry at all, except to say what it is and to directly imply (due to the "sensitive places" doctrine) that it is protected outside the home.

Heller cited and quoted from cases which addressed carry, but those citations and quotes were in a context that was addressing whether or not the right is an individual one and whether or not the right extends beyond militia duty. Those contexts were not about carry at all and, thus, neither was the Court's intended purpose for the citations/quotes.


To argue that Heller holds that concealed carry is not protected is to insist that Clarence Thomas is incompetent, since he penned a dissent to Peruta's denial of cert (despite knowing that Norman was forthcoming) while also failing to pen a concurrence to Heller. The only way that Thomas can be competent under the current situation is for Heller to not mean that concealed carry is not protected.

One would be a fool to insist that Thomas is incompetent, so to continue to argue that Heller means that concealed carry is not protected is to argue as a fool would. The notion that Heller means that concealed carry is not protected is one that had some plausibility prior to the Peruta dissent to denial of cert, but it has none after that.


It may be that the Supreme Court ends up deciding that concealed carry is, in fact, not protected by the 2nd Amendment. But based on the above, you can bet that Clarence Thomas, at least, will not be among the justices who agree with that decision. If he is as much of an originalist as I expect, then he will recognize that it is Bliss, and not Nunn, which is the most relevant case on that question. After all, "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them", and Bliss is the only carry case that could have been decided by people of the same generation as the founders. His action on Peruta is consistent with that notion.

[kcbrown]

Originally Posted by mrrabbit

I've already provided the page numbers in the Heller v. DC descison as written by Scalia in a previous page.

And I've already shown the actual content of those pages which shows why your claims about what the Supreme Court said do not match what the Supreme Court itself was actually talking about (and thus saying) on those pages.

As I've stated very clearly to the point that a 3rd grader can understand it:

SCOTUS said it, not me.

IT IS THE PUBLIC RECORD.

Yes, it is. And that public record does not say what you claim it says.

A quote from something is not the same as saying it yourself. For instance, I quote you above in this very message, but clearly am not saying what you say in your quote above.


But most importantly, Thomas himself directly signed onto the Heller decision. His dissent to denial of cert in Peruta puts to rest any claim that Heller says that concealed carry is unprotected, since if that really is what Heller says then it would mean that Thomas would agree with the 9th Circuit. Thus, to claim that Heller says that concealed carry is unprotected is to claim that Thomas himself does not understand what Heller says. That is a laughable proposition, to put it mildly.

[kcbrown]

Originally Posted by mrrabbit

^^^^^^^^^

That's what you are claiming. I suggest you go back and re-read Justice Thomas's dissent.

I did. He said:

We should have granted certiorari in this case. The approach taken by the en banc court is indefensible

But the approach taken by the en banc court was to declare that concealed carry is not protected by the 2nd Amendment, which is exactly what you claim Heller says! Why would Thomas object to the 9th Circuit's handling of Peruta if he agreed with the 9th Circuit's conclusions? Remember: he knew Norman was forthcoming (and Nichols, and Young, and Baker, and Grace, etc.), so it's not like Peruta is the Court's last shot at dealing with open carry.

Now, Thomas does go on about how the 9th Circuit ignored the entirety of the scheme in front of it, but nowhere in that prose does he even suggest that the 9th Circuit came to the correct conclusion about concealed carry.

And further, Thomas says directly:

This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

(emphasis mine)

and then goes on to restate the Court's definition of carry which includes "in the clothing or in a pocket" (i.e., concealed).

"In some fashion" does not translate only to open carry. If Thomas intended to say that the 2nd Amendment protects only open carry, he would have said as much. To claim otherwise is to claim that Thomas is not capable or willing to say what he actually means.


And he furthermore says:

The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable.

If open carry was all that the 2nd Amendment protected, then he would have said "as opposed to the right to open carry" in that last. He didn't.

He in an abstract or paraphrased manner restated everything noted in Heller - including that which I referenced by page number.

He did more than merely restate in an "abstract or paraphrased manner". He directly stated everything that was noted in Heller about carry: that there is a right to carry in public in some fashion, and that to "bear arms" means "to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in case of conflict with another person". He did not, at any point in his dissent, state or even infer that concealed carry is not within the scope of the right that the 2nd Amendment protects.


Thomas' dissent is completely consistent with the notion that the 2nd Amendment protects carry and is agnostic about the mode. It is not consistent with the notion that only open carry is protected. Both the verbiage of his dissent and the circumstances surrounding it point strongly away from an "only open carry is protected" stance.

[kcbrown]

Originally Posted by mrrabbit

That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.



I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.



You left out a very particular quote...



Let's see if you'll put it in.



=8-)

A quote as in something that Thomas quoted, or quote as in something Thomas said directly in the dissent, and which I would be quoting?



Sent from my iPhone using Tapatalk

[surfgeorge]

In honor of the upcoming 50th anniversary of the Mulford Act (signed by governor Reagan on July 28, 1967), Mr. Nichols filed a FRAP Rule 28(j) letter regarding the relationship of that law to his lawsuit.

The letter includes 72 pages of evidence that one component of the motivation for the law was (racial) animus.

http://blog.californiarighttocarry.o...06/92-ROM1.pdf

[kcbrown]

Originally Posted by mrrabbit

That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.

So if SCOTUS refuses Norman, what will that do to your view of what Heller says?

I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.

You left out a very particular quote...

Let's see if you'll put it in.

=8-)

You're probably referring to this:

For example, in Nunn v. State, 1 Ga. 243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251.

That's the closest Thomas comes to saying what you claim he said. But that is not the same as actually saying what you claim he said, most especially when it's followed up with:

Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616–617 (1840)

(emphasis mine)

Everywhere else in the dissent, including the above regarding Reid, Thomas goes to great lengths to stress that the protection is of carry in some manner. Not once does he directly say that the protection is of open carry only.


Again, if Thomas agreed with the position you're purporting he has, then he would have every reason to call out that position directly, and every reason to avoid not doing so. If he held the position you claim, he would want lower courts and litigators in lower courts to understand that position so that they would be able to bring a proper case before the Court.


Just look at all of the facts and logic arrayed against your claim:

• Thomas knew Norman (and other carry cases as well, e.g., Baker, Grace, Young, Nichols, etc.) was forthcoming, so had no reason (if his position is as you claim) to insist that the Court should have taken Peruta in particular, especially since Peruta is no different than previous carry cases he had not dissented from denial of cert on (Woollard especially, which was completely mode-agnostic).
• Thomas went out of his way to avoid directly stating that the 2nd Amendment protects open carry only, instead stating multiple times that it protects carry in "some fashion" or "some manner", and that while "some regulation of public carry is permissible, an effective ban on all forms of public carry is not". In every such statement, Thomas had the opportunity to state the position you claim he holds directly: that the 2nd Amendment protects open carry, that while some regulation of public carry, including banning concealed carry, is permissible, a ban on open carry is not. But Thomas said no such thing. Thomas would have to be an idiot to intentionally obfuscate the Court's position here, and yet that's exactly what he is doing if your position is correct.
• Thomas could have stated that the 9th Circuit was correct with respect to its decision that concealed carry is not part of the protected right. But instead, Thomas rebuked the 9th Circuit without saying one word about agreeing with the 9th Circuit in anything it decided.
• This is a dissent to denial of cert, not an opinion of the Court. It does not require any signatories, so the usual process of manufacturing consent is absent, and therefore what the dissent says is direct and exactly what Thomas intended, no more and no less.
• The discussion in Heller with respect to Nunn was specifically about two things: (1) the protected right is not unlimited, and (2) the protected right is an individual one unconnected to militia service. That first is the most relevant to Thomas' dissent here.
• The claim from the open-carry-only crowd is that the reason the Supreme Court has repeatedly denied carry cases is that it was looking for the "right case" and that said "right case" would be one like Norman: a direct challenge to an open carry prohibition without the "taint" of concealed carry. Thomas' dissent blows that position out of the water, because Peruta is no different from the very cases the open-carry-only crowd was claiming the Court rightly refused to hear, and Thomas was one of the Heller signatories.

And what have you backing your position? A single quote from the dissent that must ignore the way everything else in the dissent was said, and especially that everything else was said exactly the way it was intended with no obfuscation, and must likewise ignore the context in which the decision it refers to was used in Heller.



Now, is it possible that you're right? Certainly. It's always possible that Thomas was stupid enough to intentionally obfuscate his meaning in order to reduce the probability that a proper case would appear before the Court, and that he really does believe that only open carry is protected by the 2nd Amendment no matter what else the situation, and that "in some manner" is "code" for "open carry". It's always possible that the Court will grant cert to Norman because it represents the perfect open carry case. But that is not the high probability bet in light of all of the above.

[press1280]

I would play devil's advocate and ask how you know that a SCOTUS justice knows some other case (which hasn't filed for cert and may not even have been decided by the court below) is coming and specifically takes it into account?
With their workload and the thousands of cases seeking cert I'm skeptical it's on their radar unless it's a super high profile case that's all over the news. Norman wouldn't qualify as one of those.
But I certainly could be wrong. The inner workings of the court are better guarded than National security secrets it seems.

[kcbrown]

Originally Posted by press1280

I would play devil's advocate and ask how you know that a SCOTUS justice knows some other case (which hasn't filed for cert and may not even have been decided by the court below) is coming and specifically takes it into account?
With their workload and the thousands of cases seeking cert I'm skeptical it's on their radar unless it's a super high profile case that's all over the news. Norman wouldn't qualify as one of those.
But I certainly could be wrong. The inner workings of the court are better guarded than National security secrets it seems.

This is a good point, but think it through. When examining a case to determine whether or not to grant cert, it is logical to want to know whether or not there exist other pending cases which are more on point than the one being examined. After all, why waste time on the current case when a better one is around the corner?

The justices have clerks who work for them. They do the research asked of them. Obviously that involves research into settled cases related to the ones the Court has been asked to decide, but because it is logical to want to know which related cases are forthcoming, it follows that the clerks would also be tasked with investigating such things.


While it's possible that the justices are blind to the legal activities around them, it seems unlikely that any justice who actually cares about the subject matter in question would allow himself to be blind to such things.


Note, however, that what we're talking about here is a dissent against denial of cert. That means that waiting for the next case had already been forced on Thomas, so even if the above logic doesn't apply with respect to deciding whether or not to take a given case, the importance of clearly telegraphing the expectations of the Court to later cases remains undiminished. If you know what's coming, you might even be able to specially tailor your message to up and coming litigation, so there is some incentive to know what's coming.

[surfgeorge]

Not that I want to derail things and get back more specifically to the topic of this thread, but... Mr. Nichols published an article today that included a brief explanation of why he filed his latest FRAP 28(j) letter with the “Notice of Supplemental Authority” regarding the Mulford Act and "animus" and the bearing that has on his lawsuit.

http://newsblaze.com/business/legal/...rry-ban_83003/

[Drivedabizness]

Another "scholarly" work that ignores multiple statutes passed after the 70's. Jesus H Christ

[kcbrown]

Originally Posted by mrrabbit

All the above is a lotta text....

...and wasted.

Because I have made NO POSITIONAL CLAIM about Thomas!

That's correct, you didn't. I brought up Thomas' dissent as strong evidence that the "open carry is the only protected form of carry" position is almost certainly an incorrect interpretation of Heller (such an interpretation prior to his dissent at least had some plausibility, but that plausibility is gone in the presence of Thomas' dissent).

Since you have no positional claim about Thomas, it therefore follows that you cannot be disagreeing with me on that point, since to disagree with a position that is derived from Thomas' dissent automatically means that you must have a position on Thomas' dissent, as said position must at least include the degree to which Thomas' dissent matters, which in turn requires a position on Thomas' dissent.

Furthermore, I have made no positional claims about SCOTUS in Heller.

Oh, yes you have. That's because you said the following:

Originally Posted by mrrabbit

- Bans on OC do not pass constitutional muster.

You said that. Not SCOTUS in Heller. Nowhere in Heller does SCOTUS say any such thing. You interpret the Heller decision as meaning the above, but there is no sentence anywhere in Heller where SCOTUS said anything like the above. The Nunn court said that. The Reid court said that. SCOTUS didn't say that, because quoting something is not the same thing as saying it.


But if you truly do not have a position on what SCOTUS said in Heller, then you cannot possibly disagree with any particular interpretation of Heller, since that most certainly requires taking a position on what Heller means, something that you claim you are not doing.

And, hence I'm back to reminding you that perhaps YOU are reading too much into his dissent.

Maybe I am, but at the very least, what I read from his dissent is completely logically consistent with the context of what Heller actually says (the decision itself, not that which it quotes) as well as with what Thomas said about the 9th Circuit and with what he didn't say about it (in particular, that he didn't give any indication whatsoever that he agrees with the 9th Circuit about its position on concealed carry).

When I read Thomas's dissent in the denial of Cert for Peruta, I come to one conclusion:


He's calling out CA9 for the chicken**** political hacks that they are in a polite and respectful manner - demonstrating the class act that he is in the process!

Yep. Completely agree. But that's not all that Thomas was doing, because his intended audience extends beyond the 9th Circuit.

Why?

He makes crystal clear the following:

1. The history of the case clearly shows a request for some kind of remedy.

2. That CA9 was heading into the same discussion that SCOTUS already held in Heller v. DC. (cited Heller v. DC particulars on bear (carry)).

3. That CA9 would have had to respect Heller v. DC on bear (carry).

4. That CA9 instead grabbed ONE particular only from Heller v. DC - "Prohibiton on Concealed Carry may be upheld. . ." and ran with that - conveniently allowing them to evade Peruta's request for some kind of remedy.


So there's my claim. Thomas isn't pointing out a need for a discussion on carry - SCOTUS already had that discussion - he repeated it in his dissent.

Yes, I agree with all of the above. He repeated exactly what Heller both says and implies: that some form of carry must be available to the citizenry. What form? He doesn't say, because SCOTUS didn't say in Heller, either.

He's calling CA9 a bunch of chicken**** political hacks for refusing to have the same discussion that SCOTUS had in Heller v. DC knowing full welll they would arrive at roughly the same particulars and conclusions.

What particulars would they arrive at that would yield some form of remedy? Would they strike the open carry ban? Or would they grant the relief requested by the plaintiffs (a declaration that "self defense" is sufficient "good cause" for a concealed carry license)? Or something else? Note that in order to answer that question, you have to take a position on what Heller says.