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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #281  
Old 01-26-2019, 3:23 PM
pacrat pacrat is online now
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How many cases cited as authorities by SCOTUS do we have to analyze where a person caught CARRYING IN ANY MANNER had their weapon examined as to whether is was suitable for MILTIA AND SELF DEFENSE PURPOSES before it becomes EXPLICITLY CLEAR that the weapons in question are expected to be those in COMMON USE AND SUITABLE FOR MILITIA USE AND FOR THE PURPOSE OF SELF-DEFENSE.

^ Think very carefully about that one . . .
Any firearm is suitable for militia and/or self defense. The easily concealable weapons in the attached link. Were deemed suitable for militia and self defense by the US-DOD. And they delivered a MILLION of them for that express purpose to an allied militia.

https://en.wikipedia.org/wiki/FP-45_Liberator
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  #282  
Old 01-26-2019, 3:29 PM
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tenemae tenemae is offline
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Originally Posted by mrrabbit View Post
How many cases cited as authorities by SCOTUS do we have
Do you like asking rhetorical questions, or have you always expected others to do your homework for you?
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Originally Posted by mrrabbit View Post
There's a reason for "an honest reading" in that article...

An honest reading of Heller v. DC doesn't end with just reading Heller v. DC, it requires also reading the cited authorities AND historical references cited as well.
Which mean jack-diddly-squat. The historical references in Miller and Heller logically end in striking the NFA as unconstitutional. But neither panel did, did they? The justices routinely pick and choose from their references, taking what they want and discarding what they don't. The references don't matter. What matters is the majority opinion and only the majority opinion.
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  #283  
Old 01-26-2019, 3:36 PM
mrrabbit mrrabbit is online now
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Originally Posted by tenemae View Post
Do you like asking rhetorical questions, or have you always expected others to do your homework for you?

Which mean jack-diddly-squat. The historical references in Miller and Heller logically end in striking the NFA as unconstitutional. But neither panel did, did they? The justices routinely pick and choose from their references, taking what they want and discarding what they don't. The references don't matter. What matters is the majority opinion and only the majority opinion.
I have already done the homework...and have posted and cited them here in multiple threads repeatedly since 2013 . . .

Now it's time for YOU to do your homework...

I really am getting of that charge you just stated which is blatantly false.

Heller v. DC pdf is available to all in a 5 second search on Google.
The cited authorities are available at http://www.guncite.com
And tons of other related references are also available at http://www.guncite.com

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  #284  
Old 01-26-2019, 4:24 PM
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The problem isn't the claim that open carry is protected. That much is quite certain. There is no doubt that the founding generation understood it to be protected.

No, the problem is the claim that concealed carry isn't protected. That is much less certain. The only concealed carry case that was decided by founding-generation judges was Bliss, and that explicitly held that concealed carry was part of the right, and that laws prohibiting it are invalid.

And guess what? Heller cites that case as well.

As such, while you can most definitely state that open carry is part of the right to bear arms, period, you cannot definitively state that concealed carry isn't. You'd have to show that founding generation people understood concealed carry to not be part of the right. Later generations do not count. The reason they don't count is that viewpoints change across generations. The people here should understand that clearly. There is a massive difference in the beliefs of the "greatest generation" and those of the baby boomers, as but one example. But it is the founding generation that drafted and ratified the Bill of Rights. It is they who were communicating intent. It is their opinions that count.

If you find substantive sources that illustrate that the founding generation on the whole believed concealed carry to not be part of the right to arms, then that counts, and would be sufficient reason to conclude that concealed carry can be legitimately prohibited. Absent that, Bliss is what we've got, and it is crystal clear.


You don't get to cherry pick which cited cases are the ones that matter. If your justification for insisting that concealed carry is unprotected is that Heller cites cases that say as much, then you must acknowledge Bliss and how it destroys your claim. Your only recourse at that point would be to claim that it's the context in which those cases are cited that matter, but to do so also destroys your argument, because if you insist that it is context that matters, then it is the full context that matters -- and that context is not an analysis of the scope of "bear", but rather a demonstration of the fact that the right isn't limited to militia service. Indeed, if anything, the context in which Bliss was cited is even stronger evidence that concealed carry is protected, because at least that context was specifically with respect to bearing arms, whilst the context in which Nunn was quoted is a discussion of how the 2nd Amendment protects the individual natural right of self-defense in a manner unconnected to, but in furtherance of, militia service.

And that's that.
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  #285  
Old 01-26-2019, 4:43 PM
Bhart356 Bhart356 is offline
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For those interested in timing I am posting the following SCOTUSblog article. I am not an authority on SCOTUS proceeding beyond an upper division Political Science course (decades ago). So comments and clarifications are welcome.

https://www.scotusblog.com/reference...urt-procedure/

Cert was granted 1/22/19
- NYSPRA has 45 days to file Merits Brief from date of Cert
- NYC has 35 days to file Respondent’s Brief from date Merits Brief is filed
- NYSPRA has 30 days to file Reply Brief from date Respondent’s Brief is filed
- Which adds up to 110 days
This puts us into early May. Given this timline, I don’t see how the case will be heard until next October at the earliest unless SCOTUS accelerates the deadlines. I am willing to be corrected on this however.

Also of interest in the article is the second to last paragraph. It is my understanding that the circulation of opinions involves discussion and negotiations between the Justices. This is where the scope of the decision can be adjusted, or where qualifying language might enter into a written opinion. For example in Heller it is reported that Scalia included his qualifying paragraph about “long-standing prohibitions...” in order to get Kennedy to agree to sign on to the opinion. I think we can all agree that the inclusion of that paragraph created a lot of wiggle room and opportunity for mischief in the lower courts.

My point is that the circulation of opinions is one of the keys to what kind of ruling we get out of this case. It establishes the scope of the ruling. And as we see from Heller, small insertions or deletions can dramatically effects the ruling itself as well as downstream interpretations in the lower courts.
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  #286  
Old 01-26-2019, 4:55 PM
CCWFacts CCWFacts is offline
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Originally Posted by kcbrown View Post
And guess what? Heller cites that case as well.
As well as citing a 17th century English law that disarms Catholics. Still waiting for Mr. Rabbit to tell me, why does Heller say that OC is "the right" because of some authorities it cited, but doesn't say that disarming Catholics is cool, because it's also citing an authority that very clearly makes that point?

Sorry Catholics, Mr. Rabbit says that every authority cited by Heller is good law!

(I'd have to re-read Heller but I wouldn't be surprised if it also has citations that disarm other groups, such as slaves / freed slaves etc, it's just that the one citation about Catholics is hilariously clear and even uses an obsolete insult.)
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  #287  
Old 01-26-2019, 5:24 PM
GDC GDC is offline
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This case is not going to be about property rights or enabling NYC residents to go to NJ shooting ranges. Even antis have figured it out and are panicking...
I don't think it is panicking. More like exaggerating to: a) fundraise and b) make gun control and the SCOTUS appointments more of an issue in the upcoming election cycle.

That is what very advocacy group, and often the media, do with any federal court play in their advocacy issue does publicly regardless of how likely or unlikely a decision is/ or how broad or narrow it is.

What is our evidence that Roberts would go for broadening to strict scrutiny? It is possible, but I think very narrow is more likely.

I don't find the GOA amicus coherent. It was the first filing I read and seems more posturing to their base. But I have to admit the main filing by the NYSRPA is cogent, and makes a compelling argument on the specif transport issue as well as for much more. That said, again it will depend on what Roberts wants to do. We are certainly better off than if Garland was on the court. Any loss of a single seat will mean chipping away at heller until states can simply ban.

On the other hand increasing the odds for abroad decision would be just how cavalier NCY has been in its laws -- and its filings. In DC with may/shall issue, DC had been much more cavalier than NY, NJ, Maryland, and DC was the weakest in justifying its may issue regime. That is why DC folded instead of going to scotus, the gun control lobby asked it to since DC was so far out on a limb arguing it could "ration" rights and could have killed may issue nationally.

Last edited by GDC; 01-26-2019 at 5:30 PM..
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  #288  
Old 01-26-2019, 5:58 PM
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Originally Posted by Bhart356 View Post
For those interested in timing I am posting the following SCOTUSblog article. I am not an authority on SCOTUS proceeding beyond an upper division Political Science course (decades ago). So comments and clarifications are welcome.

https://www.scotusblog.com/reference...urt-procedure/

Cert was granted 1/22/19
- NYSPRA has 45 days to file Merits Brief from date of Cert
- NYC has 35 days to file Respondent’s Brief from date Merits Brief is filed
- NYSPRA has 30 days to file Reply Brief from date Respondent’s Brief is filed
- Which adds up to 110 days
This puts us into early May. Given this timline, I don’t see how the case will be heard until next October at the earliest unless SCOTUS accelerates the deadlines. I am willing to be corrected on this however.

Also of interest in the article is the second to last paragraph. It is my understanding that the circulation of opinions involves discussion and negotiations between the Justices. This is where the scope of the decision can be adjusted, or where qualifying language might enter into a written opinion. For example in Heller it is reported that Scalia included his qualifying paragraph about “long-standing prohibitions...” in order to get Kennedy to agree to sign on to the opinion. I think we can all agree that the inclusion of that paragraph created a lot of wiggle room and opportunity for mischief in the lower courts.

My point is that the circulation of opinions is one of the keys to what kind of ruling we get out of this case. It establishes the scope of the ruling. And as we see from Heller, small insertions or deletions can dramatically effects the ruling itself as well as downstream interpretations in the lower courts.
If one party files prior to the allotted time, does that speed up the schedule?

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Originally Posted by GDC View Post

What is our evidence that Roberts would go for broadening to strict scrutiny? It is possible, but I think very narrow is more likely.
If you go back back and read the transcript in Heller, it is apparent that Roberts prefers text, history, and tradition over interesting balance test. He talks about 1st amendment strict scrutiny as something that had accumulated over time. I think you are right and Roberts will want to stick with text, history, and tradition, but the lower courts have defied Heller to a point in which aspects an interesting balance test might be incorporated into the final opinion.

Last edited by wireless; 01-26-2019 at 6:02 PM..
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  #289  
Old 01-26-2019, 6:29 PM
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Originally Posted by tenemae View Post
fron·tier
Dictionary result for frontier
/ˌfrənˈtir/
noun
the extreme limit of settled land beyond which lies wilderness, especially referring to the western US before Pacific settlement.
"his novel of the American frontier"

Because no supreme court case has specifically and directly addressed it yet.
That whole law journal article is specifically about exactly what was addressed in Heller and what it means re mode of carry. Yeah, it's just one guy's opinion, and he happens to be a legal scholar, not that that bears any weight, BUT he IS addressing what was specifically and directly in Heller, as were the quotes from Heller.

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Originally Posted by tenemae View Post
But not the majority opinion. So it depends on who is making the argument which is exactly why there is a split on it in the first place, thus requiring the supreme court to directly address it.
Uh, yeah, that law journal article is exactly addressing the majority opinion, and the quotes that followed were from the majority opinion. They weren't footnotes or parenthetical comments. The whole of section III, about the acceptable limits of the right, begins with the first example: the fact that concealed carry can be banned precisely because it is not a right protected by the Second Amendment. How much clearer could Scalia have been?

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Originally Posted by tenemae View Post
Which was not stated in the majority opinion, only heavily hinted at in the supporting materials. Hence the reason we are here today.
Same response as above. It's in black and white in the main body of the majority opinion, not parenthetical and not footnotes. Leads off the whole section of the opinion on permissible regulations. Plain as day.

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Originally Posted by tenemae View Post
Further, you seem to be under the delusion someone on this thread stated something to the effect of "The supreme court will find concealed carry protected by the second amendment". Which literally nobody has done.
Quote me where I said that, or even implied that. You are making that up out of your own delusion. I posted the quote to which my post was a response:

Originally Posted by Offwidth
You [directed to mrrabbit] still can’t stop worshipping some unrelated dicta that you misinterpreted?

So all those circuits that have rendered decisions that there is no right to carry outside the home concealed, and that it is a mere privilege that may be regulated to any degree in any manner by the government have been "wrong" in their interpretation of Heller ("worshipping some unrelated dicta"), and yet SCOTUS has refused to grant any of those cases cert, because why? If it is just "implied", and there really is a right to carry concealed outside the home, wouldn't those justices who signed on to the majority opinion in Heller want to correct the circuit courts of appeal who have rendered decisions stating otherwise, including the quotes from Heller? Those circuit courts weren't citing "dicta" or footnotes in Heller to support their opinions. See: Peruta II (there is no right to bear arms concealed in public).

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Originally Posted by tenemae View Post
My argument (and I believe others as well) is that the right to bear outside the home is only implied by previous cases. It has never been explicitly stated. Which is exactly why we're all so jazzed about the possibilities coming from NYSRPA v. CNY.

The rest is speculation and that has been stated multiple times. Speculation: When the right to carry is explicitly addressed (god willing), the pretext of Heller indicates it will likely be "some form of carry must be available". Some states will decide their preferred form of carry will be open. Some states will decide to offer concealed. But some form must be available, applied within the confines of strict scrutiny.

As it stands today, there is no explicitly stated right as supported by the majority opinion of Supreme Court to carry a weapon in any manner on public property.

Last edited by surfgeorge; 01-26-2019 at 6:32 PM..
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  #290  
Old 01-26-2019, 7:02 PM
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Originally Posted by surfgeorge View Post
So all those circuits that have rendered decisions that there is no right to carry outside the home concealed, and that it is a mere privilege that may be regulated to any degree in any manner by the government have been "wrong" in their interpretation of Heller ("worshipping some unrelated dicta"), and yet SCOTUS has refused to grant any of those cases cert, because why? If it is just "implied", and there really is a right to carry concealed outside the home, wouldn't those justices who signed on to the majority opinion in Heller want to correct the circuit courts of appeal who have rendered decisions stating otherwise, including the quotes from Heller? Those circuit courts weren't citing "dicta" or footnotes in Heller to support their opinions. See: Peruta II (there is no right to bear arms concealed in public).
Your line of reasoning here falls over in the face of the denial of cert of Norman -- a denial that, I might add, saw not a single word of dissent on the part of the very people (those who signed on to the majority decision) you claim would interpret Heller in the way you do.

Unless, that is, your contention is that there is no right to openly carry handguns. Is that your claim? That the right to bear arms excludes any right to carry handguns or other concealable weapons?

If that is your claim, then so be it. But if your claim is that the right to openly carry arms includes handguns, then Norman blows your above reasoning regarding concealed carry out of the water.
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The real world laughs at optimism. And here's why.

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  #291  
Old 01-27-2019, 8:50 AM
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I'm cautiously optimistic we get a strong ruling following along with KC's logic.

My only real concern is what shenanigans the lower courts will pull after the ruling.

Either way, it's nice to see the SCOTUS taking a 2A case.
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  #292  
Old 01-27-2019, 9:10 AM
mrrabbit mrrabbit is online now
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Originally Posted by kcbrown View Post
Your line of reasoning here falls over in the face of the denial of cert of Norman -- a denial that, I might add, saw not a single word of dissent on the part of the very people (those who signed on to the majority decision) you claim would interpret Heller in the way you do.

Unless, that is, your contention is that there is no right to openly carry handguns. Is that your claim? That the right to bear arms excludes any right to carry handguns or other concealable weapons?

If that is your claim, then so be it. But if your claim is that the right to openly carry arms includes handguns, then Norman blows your above reasoning regarding concealed carry out of the water.
KC, I've have already told you once...and I'll say it again:

Norman was a CCW licensee who was supposed to be carrying CONCEALED, but instead ended up carrying OPENLY what could be considered CONCEALABLE firearm.

When SCOTUS declined cert - they gave no reason, made NO COMMENT.

WE DON'T KNOW WHY THEY DIDN'T TAKE UP THE CASE.

Therefore, you can't use SCOTUS declining cert for NORMAN as evidence to support YOUR argument.

=8-/
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  #293  
Old 01-27-2019, 9:15 AM
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Originally Posted by mrrabbit View Post
I'm going to bookmark this very thread and post...

The fact is you are wrong. No final decision protecting OC or any form of bear exists. Nobody was flaunting it as you continue to imply. End of story.
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  #294  
Old 01-27-2019, 9:20 AM
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Originally Posted by CCWFacts View Post
As well as citing a 17th century English law that disarms Catholics. Still waiting for Mr. Rabbit to tell me, why does Heller say that OC is "the right" because of some authorities it cited, but doesn't say that disarming Catholics is cool, because it's also citing an authority that very clearly makes that point?

Sorry Catholics, Mr. Rabbit says that every authority cited by Heller is good law!

(I'd have to re-read Heller but I wouldn't be surprised if it also has citations that disarm other groups, such as slaves / freed slaves etc, it's just that the one citation about Catholics is hilariously clear and even uses an obsolete insult.)
Quite being juvenile and read:

Heller v. DC

II A 1. b.

"Examples of "keep arms""


Jesus de Christo!

=8-/
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  #295  
Old 01-27-2019, 9:50 AM
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Originally Posted by mrrabbit View Post
KC, I've have already told you once...and I'll say it again:

Norman was a CCW licensee who was supposed to be carrying CONCEALED, but instead ended up carrying OPENLY what could be considered CONCEALABLE firearm.
You obviously failed to read my entire comment. In it, I explicitly say:

Quote:
Originally Posted by kcbrown View Post
Unless, that is, your contention is that there is no right to openly carry handguns. Is that your claim? That the right to bear arms excludes any right to carry handguns or other concealable weapons?

If that is your claim, then so be it
It is apparent now that you believe that the right to bear arms excludes concealable arms, whether or not they are carried openly. That's actually something I hadn't realized in my prior discussions with you, until the previous comment you referred to here. But my comment above was directed at surfgeorge, not you, and his views on concealable arms are not clear to me yet.


Quote:
When SCOTUS declined cert - they gave no reason, made NO COMMENT.

WE DON'T KNOW WHY THEY DIDN'T TAKE UP THE CASE.

Therefore, you can't use SCOTUS declining cert for NORMAN as evidence to support YOUR argument.

=8-/
I agree that the denial itself cannot be used as that kind of evidence (at least, as a standalone thing -- the combination of that and other denials, and particularly the absence of grants, does constitute a sort of evidence, but only to illustrate that SCOTUS hadn't been willing to support the 2nd Amendment). But the absence of dissent to denial of Norman combined with the presence of dissent to denial of concealed carry cases can.

But regardless, I'm not using that SCOTUS declined cert to Norman as evidence to support my argument here. I'm using it to dispute surfgeorge's argument, since his argument is based on denial of cert of concealed carry cases. That's not the same thing.

Indeed, you can't make use of SCOTUS' denial of cert of concealed carry cases to buttress your argument, either, if I can't do the same.
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The real world laughs at optimism. And here's why.

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  #296  
Old 01-27-2019, 10:17 AM
mrrabbit mrrabbit is online now
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"Indeed, you can't make use of SCOTUS' denial of cert of concealed carry cases to buttress your argument, either, if I can't do the same."

I don't have to:

Heller v. DC and the cited authorities for which it was made explicitly clear that concealed carry is not the right is all I need.

The same is all I need to make it clear that open carry is the right. But even then I don't have to, because the majority opinion in Heller v. DC does it for me.

I've told you before, and I'll tell you again. Don't argue with me, take it up with the justices of the SCOTUS who composed the Heller v. DC majority opinion.

YOUR argument is with THEM, not me. I'm simply referencing them and the cited authorities.

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Old 01-27-2019, 10:48 AM
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Originally Posted by mrrabbit View Post
"Indeed, you can't make use of SCOTUS' denial of cert of concealed carry cases to buttress your argument, either, if I can't do the same."

I don't have to:

Heller v. DC and the cited authorities for which it was made explicitly clear that concealed carry is not the right is all I need.
Except that it also cited an authority (Bliss) that made explicitly clear that concealed carry is part of the right.


Quote:
The same is all I need to make it clear that open carry is the right. But even then I don't have to, because the majority opinion in Heller v. DC does it for me.
If citation of cases is sufficient to make clear what is and isn't in the right, then open carry is quite obviously protected.

But saying that open carry is protected is not the same thing as saying that concealed carry isn't. The two aren't mutually exclusive.


Quote:
YOUR argument is with THEM, not me. I'm simply referencing them and the cited authorities.
=8-/
You're referencing some of the cited authorities, not all. Like I said, you don't get to pick and choose which cited authorities to use in order to make your case. You either have to reference all of them or none of them. Anything more nuanced than that requires context, and as I already pointed out, when you include full context, your argument against concealed carry also fails.
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  #298  
Old 01-27-2019, 12:11 PM
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Originally Posted by kcbrown View Post
Except that it also cited an authority (Bliss) that made explicitly clear that concealed carry is part of the right.




If citation of cases is sufficient to make clear what is and isn't in the right, then open carry is quite obviously protected.

But saying that open carry is protected is not the same thing as saying that concealed carry isn't. The two aren't mutually exclusive.




You're referencing some of the cited authorities, not all. Like I said, you don't get to pick and choose which cited authorities to use in order to make your case. You either have to reference all of them or none of them. Anything more nuanced than that requires context, and as I already pointed out, when you include full context, your argument against concealed carry also fails.
Again, you are arguing with SCOTUS - and in particular Antonin Scalia.

I did not cherry pick out Bliss, or examine from the totality of the history nor reference corrections made after Bliss . . .

SCOTUS and Scalia did that!

I am simply referencing THEM!!!

And I just like YOU have issues with Heller v. DC.

This is now the THIRD time I'm having to tell you this KC Brown.

Everyone here who is pushing for a "pro carry" case, or trying to find a "CCW win" understand what is very simple:

You are not fighting ME.

You are fighting SCOTUS and the cited authorities and their justices as listed and discussed in Heller v. DC going back 600 years!


The same applies on another related issue:

Everyone here who like me believes that if you are not in jail, buried in a worm farm, frying on an electric chair, or chilling in a supervised care home for the dangerously mentally ill . . .

. . . that you enjoy the free exercise of your civil right even as an EX-FELON . . .

are fighting SCOTUS and Antonin Scalia as well . . . because they bootstrapped GCA 1968 as longstanding - when anyone with an IQ 75 can see that was total absolute activism BS on the part of a supposed conservative traditionalist judge.


=8-/
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Old 01-27-2019, 12:41 PM
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Old 01-27-2019, 2:58 PM
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Originally Posted by mrrabbit View Post
Again, you are arguing with SCOTUS - and in particular Antonin Scalia.
No, I'm not. I'm not because SCOTUS, i.e. Scalia, cited Bliss in Heller.

Either you failed to read and comprehend my statements, or you failed to read and comprehend Heller.

Read it again: SCOTUS (Scalia in particular) cited Bliss in Heller. I'm not making this up. If you don't believe me on that, I can prove they did.


Quote:
I did not cherry pick out Bliss, or examine from the totality of the history nor reference corrections made after Bliss . . .

SCOTUS and Scalia did that!
Yes, you did cherry pick out Bliss, because Bliss was cited by SCOTUS just as the other cases were. That means it is you, not SCOTUS, that is cherry picking out Bliss.


Quote:
I am simply referencing THEM!!!
You are referencing part of what they said, NOT THE TOTALITY! And that is what makes what you're doing "cherry picking".



Quote:
And I just like YOU have issues with Heller v. DC.
Yes, I'm fully aware that we both have issues with the decision. But the plain fact of the matter is that you are putting words into the mouth of SCOTUS that they didn't explicitly say. They didn't say that the right does not encompass concealed carry. If they did, you would have explicitly quoted the section in the decision itself (not merely a citation) where they said that. Other cases they referenced did, of course, say that, but one said the opposite. Citing something is not the same thing as saying it, no matter how much you want to believe otherwise. But if you insist that it is, then you have to deal with all citations, not merely the ones that support your argument.


And yes, I agree with you that SCOTUS has, within Heller, improperly bootstrapped some prohibitions into Constitutionality.
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Old 01-27-2019, 3:42 PM
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I'm not sure why there is an argument about much of this. It's not like we are going to influence what SCOTUS will do with the upcoming cases.

And in the meantime we have lower courts who disrespect just about every aspect of liberty.

Donate to or lobby for politicians who favor freedom. Donate to the litigating arms of the NRA/CRPA/Second Amendment Foundation, etc.

In the meantime we don't know exactly who voted for cert, why they voted for cert or what kind of opinion they will shape.

Thank Donald Trump for at least a decent chance that we will have a decision which favors liberty. Shudder when you think about what a Hillary appointee would have done to gut your liberty at many, many levels.
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Old 01-27-2019, 4:06 PM
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Originally Posted by BryMan92 View Post
If the core of the 2A is self-defense and this bearing is part of it, why would they go from history, text, and tradition (which Kavanaugh used in his dissent) to some tier of scrutiny?
I’m not sure the 2 are mutually exclusive, in fact they address different issues.

“History, text, and tradition” are first used to first used to determine if a core constitutional right are being burdened by a gun control law (or if a gun control law is presumptively lawful because its “longstanding”). But if a core part of the right is being burdened, then Heller is less clear on what happens next. We know the majority opined that D.C.’s total ban on handguns would not meet any level of scrutiny. We know they rejected a rational basis test. We know they rejected Breyer’s suggestion for a “balancing test”. A big part of Breyer’s dissent was that the majority failed provide a framework in which to evaluate gun control laws (ie a level of scrutiny).

But I’d suggest the majority couldn’t agree on a level of scrutiny.

So, what have the lower courts done? They have generally adopted intermediate scrutiny (or a very lose version that, in reality, is something closer to rational basis or even less). They, more often than not, fail to conduct the “textual analysis” opining that it’s not necessary because whatever silly law is at question passes intermediate scrutiny anyway, making the analysis superfluous.

So, my belief is that this case will be used to establish a level scrutiny, which Heller failed to do. Consistent with Heller, history, text, and tradition will still be used to determine if a core right is being burdened and will be used to protect “longstanding” prohibitions. I would not be surprised to see a new level of scrutiny that falls between intermediate and strict.
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Old 01-27-2019, 4:14 PM
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Red face WHY OC V CC KEYBOARD PISSING CONTESTS?

Quote:
2. This case involves a challenge to an extraordinary New York City
regulation that prohibits law-abiding citizens from transporting an unloaded firearm, locked in a container and separated from its ammunition, outside of city limits—even
to a second home for the core Second Amendment purpose of self-defense, or to a
convenient out-of-city shooting range where they would use it to hone the safe and
effective exercise of that constitutional right. As required by the Constitution, the
City permits law-abiding residents to keep a handgun for defense of their home, but
only after they obtain a license. While a resident who obtains such a license is allowed
to transport her firearm to one of seven shooting ranges that serve the city’s
8.5 million residents, she is forbidden from transporting her firearm to a shooting
range or even a second home outside the city.
The above quote is from the original filing. THIS IS A TRANSPORT CASE. There isn't any mention of contesting a means of CARRYING. The plaintiffs aren't even contesting the "UNLOADED-LOCKED IN CONTAINER" portion of the law.

ONLY the portion that restricts TRANSPORT OUTSIDE CITY LIMITS.

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  #304  
Old 01-27-2019, 4:30 PM
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Originally Posted by kcbrown View Post
No, I'm not. I'm not because SCOTUS, i.e. Scalia, cited Bliss in Heller.

Either you failed to read and comprehend my statements, or you failed to read and comprehend Heller.

Read it again: SCOTUS (Scalia in particular) cited Bliss in Heller. I'm not making this up. If you don't believe me on that, I can prove they did.

Never said otherwise...



Yes, you did cherry pick out Bliss, because Bliss was cited by SCOTUS just as the other cases were. That means it is you, not SCOTUS, that is cherry picking out Bliss.

That wasn't me...that was someone else in a previous post...I merely responded to them - pointing out the the "system" made later corrections to keep certain states in line with the opinions of other courts.


You are referencing part of what they said, NOT THE TOTALITY! And that is what makes what you're doing "cherry picking".


I'm not cherry, picking . . . others are. I MYSELF EVEN ACKNOWLEDGED THE EXISTENCE OF BLISS!!! PAY ATTENTION!!!


Yes, I'm fully aware that we both have issues with the decision. But the plain fact of the matter is that you are putting words into the mouth of SCOTUS that they didn't explicitly say. They didn't say that the right does not encompass concealed carry. If they did, you would have explicitly quoted the section in the decision itself (not merely a citation) where they said that. Other cases they referenced did, of course, say that, but one said the opposite. Citing something is not the same thing as saying it, no matter how much you want to believe otherwise. But if you insist that it is, then you have to deal with all citations, not merely the ones that support your argument.

I am NOT putting words in the mouth of SCOTUS. They said what they said - and the cited authorities say what they say ALL of which are available for EVERYONE HERE TO PERUSE.

http://www.guncite.com


And yes, I agree with you that SCOTUS has, within Heller, improperly bootstrapped some prohibitions into Constitutionality.
What you keep accusing me of is what OTHER people are doing, not I. People keep doing the following:

1. Misrepresenting SCOTUS and cited authorities.
2. Cherry picking SCOTUS in Heller v. DC and from within cited authorities.
3. Cherry picking between the cited authorities.
4. Claiming to know the "why" on the basis of a declined cert for which no comments were issued.

#1-3 is why I keep telling people to read Heller v. DC and the cited authorities.

#4. is why I keep telling people, "you don't really know."

We really don't know why Norman was declined cert. I have a conspiracy theory that is was a case with baggage. It's just a theory, nothing more.

You have theory something along the lines that support of OC is not a strong as suggested in Heller v. DC. It's just a theory, nothing more.

=8-/
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Old 01-27-2019, 4:38 PM
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Originally Posted by Phiremin View Post
I’m not sure the 2 are mutually exclusive, in fact they address different issues.
Scrutiny differs from text/history/tradition because scrutiny is a means of determining whether or not a given infringement of the right is somehow allowable anyway. Text, history, and tradition tell us whether or not the right itself encompasses the forbidden action.

Scrutiny is a recent invention, along with "Constitutional avoidance" and "standing". They all were adopted by the Supreme Court during roughly the same time period, the 1920s and 1930s.


The problem with "scrutiny" as applied to the 2nd Amendment is that the very nature of the right to arms results in laws which infringe upon it automatically passing the primary hurdle that has seen "scrutiny" protect other rights, namely whether or not the "government interest" is "compelling". For laws imposing on the right to arms, that "interest" is always "public safety", and that is always "compelling".

This renders "scrutiny" largely ineffective as a means of properly protecting the right to arms. Scrutiny, as applied to the right to arms, amounts to a declaration that the government may infringe upon it nearly at will, despite the clear prohibiting language in the Constitution that says otherwise.

The entire point of a right is that the government may not infringe upon it except when there is a more important right at stake. But here, the right encompasses self-protection, which in itself is really just the assertion of the right to life. There is no more important right than that.
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Old 01-27-2019, 5:03 PM
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Quote:
Originally Posted by kcbrown View Post
Scrutiny differs from scrutiny because scrutiny is a means of determining whether or not a given infringement of the right is somehow allowable anyway. Text, history, and tradition tell us whether or not the right itself encompasses the forbidden action.

Scrutiny is a recent invention, along with "Constitutional avoidance" and "standing". They all were adopted by the Supreme Court during roughly the same time period, the 1920s and 1930s.


The problem with "scrutiny" as applied to the 2nd Amendment is that the very nature of the right to arms results in laws which infringe upon it automatically passing the primary hurdle that has seen "scrutiny" protect other rights, namely whether or not the "government interest" is "compelling". For laws imposing on the right to arms, that "interest" is always "public safety", and that is always "compelling".

This renders "scrutiny" largely ineffective as a means of properly protecting the right to arms. Scrutiny, as applied to the right to arms, amounts to a declaration that the government may infringe upon it nearly at will, despite the clear prohibiting language in the Constitution that says otherwise.

The entire point of a right is that the government may not infringe upon it except when there is a more important right at stake. But here, the right encompasses self-protection, which in itself is really just the assertion of the right to life. There is no more important right than that.
Not to steal your boat, but notice the difference in reading cases before and after.

Before, easy to read, comprehend, short and simple.

Early carry cases, "Test 1, Test 2, Test 3, guilty on Test 2..." done.

After, it seems each "tool" invented by any "body" has the effect of making the simple less tenable, the published more convoluted - a house of cards effect.

I find reading post-depression era cases damn tedious.

=8-(
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Old 01-27-2019, 5:05 PM
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Originally Posted by mrrabbit View Post
What you keep accusing me of is what OTHER people are doing, not I. People keep doing the following:

1. Misrepresenting SCOTUS and cited authorities.
Then show that I have misrepresented SCOTUS and the cited authorities. As I said, one of the cited authorities is Bliss.

It is you who misrepresent SCOTUS here, precisely because you refuse to acknowledge the significance of Bliss as a cited authority.


Quote:
2. Cherry picking SCOTUS in Heller v. DC and from within cited authorities.
This is something you are doing by your steadfast refusal to recognize the significance of Bliss. That's not something the Court did. It explicitly recognized Bliss in Heller, specifically as one of the cases that establishes that the right to bear arms is not limited to carrying of arms in a militia. In fact, Bliss was mentioned FIRST in the list of those cases.

(Edit: I altered the above to say "the signficance of Bliss" because I didn't notice that you replied to some of my commentary within the quote itself. As such, I missed your statement that you were aware of the citation of Bliss. Sorry about that)


Quote:
3. Cherry picking between the cited authorities.
If that is your assertion about the arguments I raise, then justify it. Show how I'm doing that.


Quote:
4. Claiming to know the "why" on the basis of a declined cert for which no comments were issued.
My claim is that the fact that comments were issued for some specific cases where cert was declined but not for others, in a way that is the exact opposite of what one would expect if your assertions about Heller were true, is an indication that your assertions are incorrect. It is not dispositive in and of itself.


Quote:
#1-3 is why I keep telling people to read Heller v. DC and the cited authorities.
You don't get it. I have read Heller and the cited authorities, multiple times.

There is no "cherry picking" in Heller as regards concealed carry, because the Court never asserted anything about concealed carry within Heller in the first place, except to note that previous courts did not regard the right to keep and bear arms as unlimited, and used as evidence the fact that those previous courts upheld prohibitions on concealed carry as a result of their belief that the right was not unlimited. That is not the same as agreeing with those courts as regards concealed carry.


Quote:
#4. is why I keep telling people, "you don't really know."

We really don't know why Norman was declined cert. I have a conspiracy theory that is was a case with baggage. It's just a theory, nothing more.
So what? It's not merely that it was declined cert that is noteworthy. What is noteworthy is that it was declined without comment from anyone who signed onto Heller.


Quote:
You have theory something along the lines that support of OC is not a strong as suggested in Heller v. DC. It's just a theory, nothing more.
No. You keep putting words in my mouth. Much like you do seem to do with SCOTUS, I might add.

I said nothing about the strength of support of OC not being as strong as suggested in Heller. I said Heller does not rule out concealed carry as being part of the right.


You seem to be of the mindset that the protected mode of carry must be one or the other. That it cannot be both. That is an indefensible position.


Let me make it plain: it may be that SCOTUS ends up deciding that prohibitions on concealed carry are permissible. But Heller simply is not dispositive on any of that. I think it's more accurate to say that Heller is consistent with the notion that prohibitions of open carry are flat-out off the table. But that is not the same thing as saying that prohibitions of concealed carry are permissible.

Heller makes it plain:

Quote:
Originally Posted by District of Columbia v Heller
Constitutional rights are enshrined with the scope they were understood to have WHEN THE PEOPLE ADOPTED THEM, whether or not future legislatures or (yes) even future judges think that scope too broad.
(emphasis mine). The only question with respect to concealed carry is whether or not the founding generation understood it to be part of the right. Bliss is the only case that informs us on that, and it says that concealed carry is part of the right. Argue all you want, but the view you have of Heller is irreconcilable with their own statement above, unless you can show that the founding generation didn't, despite Bliss, regard concealed carry as part of the right. I've found nothing in Heller or anything it references that indicates any such thing, only cases that were decided by later generations. And those don't count, because they weren't decided by members of the founding generation. Insisting that they count is tantamount to insisting that beliefs do not change on a generational basis, something that is demonstrably false.

The only reading of Heller that I can think of that is consistent with both the above and their reference to the various cases we've been discussing is one in which the scope of the usage of those cases, and the meaning derived therefrom, is limited strictly to the context in which they were used and nothing more. That means that, in Heller, the cases in question illustrate that the right was not limited to militia duty and that the right is not unlimited (but only that -- not how the right is limited).
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The real world laughs at optimism. And here's why.

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Old 01-27-2019, 5:40 PM
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Mrrabbit, I've made some edits to my message above because I didn't see some of your reply (it was buried in the quoted section -- if you want me to see what you write, it's probably best to close the quote, put in your response, and then open the quote again. I can describe how to do that if you'd like). Please be sure to re-read it and, if needed, edit your response to account for the changes.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

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Old 01-27-2019, 5:46 PM
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Quote:
Originally Posted by kcbrown View Post
Then show that I have misrepresented SCOTUS and the cited authorities. As I said, one of the cited authorities is Bliss.

It is you who misrepresent SCOTUS here, precisely because you refuse to acknowledge the significance of Bliss as a cited authority.




This is something you are doing by your steadfast refusal to recognize the significance of Bliss. That's not something the Court did. It explicitly recognized Bliss in Heller, specifically as one of the cases that establishes that the right to bear arms is not limited to carrying of arms in a militia. In fact, Bliss was mentioned FIRST in the list of those cases.

(Edit: I altered the above to say "the signficance of Bliss" because I didn't notice that you replied to some of my commentary within the quote itself. As such, I missed your statement that you were aware of the citation of Bliss. Sorry about that)




If that is your assertion about the arguments I raise, then justify it. Show how I'm doing that.




My claim is that the fact that comments were issued for some specific cases where cert was declined but not for others, in a way that is the exact opposite of what one would expect if your assertions about Heller were true, is an indication that your assertions are incorrect. It is not dispositive in and of itself.




You don't get it. I have read Heller and the cited authorities, multiple times.

There is no "cherry picking" in Heller as regards concealed carry, because the Court never asserted anything about concealed carry within Heller in the first place, except to note that previous courts did not regard the right to keep and bear arms as unlimited, and used as evidence the fact that those previous courts upheld prohibitions on concealed carry as a result of their belief that the right was not unlimited. That is not the same as agreeing with those courts as regards concealed carry.




So what? It's not merely that it was declined cert that is noteworthy. What is noteworthy is that it was declined without comment from anyone who signed onto Heller.




No. You keep putting words in my mouth. Much like you do with SCOTUS, I might add.

I said nothing about the strength of support of OC not being as strong as suggested in Heller. I said Heller does not rule out concealed carry as being part of the right.


You seem to be of the mindset that the protected mode of carry must be one or the other. That it cannot be both. That is an indefensible position.


Let me make it plain: it may be that SCOTUS ends up deciding that prohibitions on concealed carry are permissible. But Heller simply is not dispositive on any of that. I think it's more accurate to say that Heller is consistent with the notion that prohibitions of open carry are flat-out off the table. But that is not the same thing as saying that prohibitions of concealed carry are permissible.

Heller makes it plain:



(emphasis mine). The only question with respect to concealed carry is whether or not the founding generation understood it to be part of the right. Bliss is the only case that informs us on that, and it says that concealed carry is part of the right. Argue all you want, but the view you have of Heller is irreconcilable with their own statement above, unless you can show that the founding generation didn't, despite Bliss, regard concealed carry as part of the right. I've found nothing in Heller or anything it references that indicates any such thing, only cases that were decided by later generations. And those don't count, because they weren't decided by members of the founding generation. Insisting that they count is tantamount to insisting that beliefs do not change on a generational basis, something that is demonstrably false.

The only reading of Heller that I can think of that is consistent with both the above and their reference to the various cases we've been discussing is one in which the scope of the usage of those cases, and the meaning derived therefrom, is limited strictly to the context in which they were used and nothing more. That means that, in Heller, the cases in question illustrate that the right was not limited to militia duty and that the right is not unlimited (but only that -- not how the right is limited).
KC Brown, take your copy of Heller v. DC and put it through the shredder.

You're taking the "they didn't mean what they said" position, as though every statement, case cite, historical cite AND follow-up cite, observation and analysis was just off the cuff coffee chat with no bearing or wait . . . even though they form the basis of a written and published decision for the record.


I'm going pause my participation in this and other threads at least a day, as I have accounting to finish. But:


Heller v. DC PDF

https://www.scotusblog.com/wp-conten.../06/07-290.pdf


Place to Read "Authorities" Utilized Therein

http://www.guncite.com


...for those who haven't already.

=8-|
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Old 01-27-2019, 5:53 PM
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Originally Posted by Bhart356 View Post
For those interested in timing I am posting the following SCOTUSblog article. I am not an authority on SCOTUS proceeding beyond an upper division Political Science course (decades ago). So comments and clarifications are welcome.

https://www.scotusblog.com/reference...urt-procedure/

Cert was granted 1/22/19
- NYSPRA has 45 days to file Merits Brief from date of Cert
- NYC has 35 days to file Respondent’s Brief from date Merits Brief is filed
- NYSPRA has 30 days to file Reply Brief from date Respondent’s Brief is filed
- Which adds up to 110 days
This puts us into early May. Given this timline, I don’t see how the case will be heard until next October at the earliest unless SCOTUS accelerates the deadlines. I am willing to be corrected on this however.

Also of interest in the article is the second to last paragraph. It is my understanding that the circulation of opinions involves discussion and negotiations between the Justices. This is where the scope of the decision can be adjusted, or where qualifying language might enter into a written opinion. For example in Heller it is reported that Scalia included his qualifying paragraph about “long-standing prohibitions...” in order to get Kennedy to agree to sign on to the opinion. I think we can all agree that the inclusion of that paragraph created a lot of wiggle room and opportunity for mischief in the lower courts.

My point is that the circulation of opinions is one of the keys to what kind of ruling we get out of this case. It establishes the scope of the ruling. And as we see from Heller, small insertions or deletions can dramatically effects the ruling itself as well as downstream interpretations in the lower courts.
Thanks for trying to get this thread back on track. Although I find the debate entertaining.
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Old 01-27-2019, 5:57 PM
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Originally Posted by mrrabbit View Post
KC Brown, take your copy of Heller v. DC and put it through the shredder.

You're taking the "they didn't mean what they said" position,
Am I now?

Did they "mean what they said" when they said:

Quote:
Originally Posted by District of Columbia v Heller
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
If they really meant that, then it immediately takes most of their cited post-ratification-era cases out of the equation as regards whether or not concealed carry is part of the right. Bliss is the only cited case that would be left standing for that determination under their own standard.


So: did they mean what they said above or not?


I should note that not once have I seen you actually back your position with direct quotes from Heller. But we've been at this a while, and I may be missing something or misremembering.

It makes me wonder whether we'd be better off backing off and starting from scratch, with quotes and everything that demonstrate the validity of our arguments. We might come to a better understanding of each other's positions that way, and might even change some minds in the process. But for that to work, you'd have to show passages from the relevant sources that demonstrate the validity of your position (as would I). It won't do to just say "read Heller", for instance, when the person you're talking to has already done that. You'll need to be specific in order to make your case properly.
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The real world laughs at optimism. And here's why.

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Old 01-27-2019, 6:07 PM
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Originally Posted by mrrabbit View Post
From the PDF you linked to, page 12 (as numbered in the document -- it's the 15th page of the PDF):

Quote:
Justice James Wilson interpreted the Pennsylvania Constitution’s arms-
bearing right, for example, as a recognition of the natural
right of defense “of one’s person or house”—what he called
the law of “self preservation.” 2 Collected Works of James
Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing
Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Intro-
duction to American Law 198 (1837) (“Thus the right of
self-defence [is] guaranteed by the [Ohio] constitution”);
see also id., at 157 (equating Second Amendment with
that provision of the Ohio Constitution). That was also
the interpretation of those state constitutional provisions
adopted by pre-Civil War state courts. [9] These provisions
demonstrate—again, in the most analogous linguistic
context—that “bear arms” was not limited to the carrying
of arms in a militia.

[9] See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v.
Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155
(1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (inter-
preting similar provision with “common defence” purpose); State v.
Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga.
243, 250–251 (1846) (construing Second Amendment); State v. Chan-
dler, 5 La. Ann. 489, 489–490 (1850) (same).
Do tell how Bliss could possibly be cited for illustrating that "bear arms" was not limited to the carrying of arms in a militia if the form of bear it covered was not part of the right in the first place.
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Old 01-27-2019, 6:10 PM
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Not to steal your boat, but notice the difference in reading cases before and after.

Before, easy to read, comprehend, short and simple.

Early carry cases, "Test 1, Test 2, Test 3, guilty on Test 2..." done.

After, it seems each "tool" invented by any "body" has the effect of making the simple less tenable, the published more convoluted - a house of cards effect.

I find reading post-depression era cases damn tedious.

=8-(
I completely agree.

I mean, the text of the 2nd Amendment is plain. The right "shall not be infringed". We know what "infringed" means, because we have the definition of that term from dictionaries written at the time. We generally know the scope of the right as it was understood at the time of ratification. And we know the purpose behind the ratification of the right, something which provides clear guidance as to the scope of the right when nothing else is available.

Deciding these cases should be straightforward. I dare say that nearly every law that has been challenged would have been buried by a judiciary applying the standard of understanding as it was at the time of ratification. But instead we get "scrutiny" this and "government interest" that. The people deciding these cases don't belong on the judiciary because they refuse to even attempt to apply the original intended meaning and purpose of the Constitution to the laws facing them, when it is only the original intended meaning and purpose that matters. If we don't like the original intended meaning and purpose, we can amend the Constitution -- that's what the amendment process is for. It is not the judiciary's place to substitute their own preferences for the stated and understood preferences of the authors of the Constitution. But that is precisely what the judiciary has done, by hiding behind procedure and precedent (all the while ignoring that precedent is invalid if it conflicts with the original meaning and purpose of the Constitution).
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

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Old 01-27-2019, 6:12 PM
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It makes me wonder whether we'd be better off backing off and starting from scratch, with quotes and everything that demonstrate the validity of our arguments. .
Yes, probably - and it deserves its own thread, as that discussion, while both interesting and significant, is well off topic for the NY case thread which now groans under the weight of the threadjack.
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The details only count after the Governor signs the bills.


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Old 01-27-2019, 6:17 PM
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Yes, probably - and it deserves its own thread, as that discussion, while both interesting and significant, is well off topic for the NY case thread which now groans under the weight of the threadjack.
Fair enough.

Which forum should it go into?

If you have the ability to move individual messages to different threads, then it might be a good use of that capability if you were to move the OC-related messages from this thread to that one (once it's created, of course).
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

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

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Old 01-27-2019, 6:19 PM
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The problem with "scrutiny" as applied to the 2nd Amendment is that [...]laws imposing on the right to arms, that "interest" is always "public safety", and that is always "compelling".

This renders "scrutiny" largely ineffective as a means of properly protecting the right to arms.
I agree that “scrutiny” as applied by the courts today is s joke. And, unless SCOTUS is willing to take a more active role is stemming judicial activism, any level of scrutiny is subject to abuse.

I also agree “public safety” will meet the “compelling interest” test of strict scrutiny. However, strict scrutiny also comes with a presumption of the law being unconstitutional. The government has the burden to prove effectiveness. Also, the law must be narrowly tailored and the least intrusive means of meeting the objective.

In Breyer’s dissent from Heller, he opined almost gun control no laws, even long-standing prohibitions, would survive strict scrutiny.

Whether it’s a higher level of scrutiny or something else, it’s means of effectiveness in protecting the 2A is only as good as lower courts respecting it and SCOTUS being willing to defend it.
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Old 01-27-2019, 6:38 PM
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I agree that “scrutiny” as applied by the courts today is s joke. And, unless SCOTUS is willing to take a more active role is stemming judicial activism, any level of scrutiny is subject to abuse.

I also agree “public safety” will meet the “compelling interest” test of strict scrutiny. However, strict scrutiny also comes with a presumption of the law being unconstitutional.
That's true as far as it goes. From https://legal-dictionary.thefreedict...Scrutiny+Test:

Quote:
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.
But that flies in the face of the lower courts' insistence that it is not their place to dispute the weighing of evidence considered by the legislatures (or, it seems, any other evidence for that matter). Which is to say, the lower courts will simply claim that the fact that the legislature passed the law is all the proof it needs to say that the law will achieve a compelling state interest (the "compelling state interest" part is automatically met by the "public safety" claim).

That leaves only "narrowly tailored". And as I've noted elsewhere, that is a subjective judgment and is not rigorously applied, either. The permit requirement for public demonstration is an excellent example of something that passed "strict scrutiny" despite the fact that it's not the least restrictive means of achieving the compelling state interest (prior notification is less restrictive).


No, I stand by my claim that "strict scrutiny" will yield scant protection for the right to arms. More than "intermediate", perhaps, but in light of the above, I rather doubt it. In any case, "scrutiny" here is truly a means of determining, on a case by case basis, whether the right is really worth insisting upon, since it yields different results for infringement of the same right across multiple cases. That's something the Court explicitly said is disallowed. I'm skeptical that they really meant it. I hope I'm wrong about that last.

In essence, the nature of the command of the 2nd Amendment is such that if the right is being infringed, that alone should be enough to strike the infringing law. To do anything less would be to disobey a direct Constitutional command.


Quote:
Whether it’s a higher level of scrutiny or something else, it’s means of effectiveness in protecting the 2A is only as good as lower courts respecting it and SCOTUS being willing to defend it.
Which, in the case of the 2nd Amendment, boils down to "it's only as good as SCOTUS being willing to defend it", since the lower courts have unequivocally demonstrated their willingness to bend over backwards to ensure that the right to arms is buried deep in the ground.

It'll be interesting to see how much SCOTUS has changed in this regard since Kennedy's departure.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

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

Last edited by kcbrown; 01-27-2019 at 6:46 PM..
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  #318  
Old 01-27-2019, 6:50 PM
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Any chance we can have a thread that isn’t a pissing match of speculation and instead just gets updated when, you know, there are UPDATES to the case this thread is about?
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Old 01-27-2019, 7:21 PM
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Any chance we can have a thread that isn’t a pissing match of speculation and instead just gets updated when, you know, there are UPDATES to the case this thread is about?
No.
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Old 01-27-2019, 7:22 PM
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Any chance we can have a thread that isn’t a pissing match of speculation and instead just gets updated when, you know, there are UPDATES to the case this thread is about?
I think speculation about this case and possible implications is great.

But the open carry vs concealed carry argument has gone on with the same 8-15 people ~4 years in many different threads.
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