Richards v Prieto answering brief filed

[wildhawker]

one other question, are you charged with brandishing if you are holding your weapon in response to a threat or is brandishing only charged when you are trying to intimidate someone thus abusing your 2nd amendment rights?

You could be charged for a ham sandwich.

The real question is, "is it Constitutionally permissible to charge someone with brandishing a weapon if they willfully displayed it in response to what a reasonable person woud consider a threat?" A potential (and, I think, important) follow-on question is, "is it Constitutionally permissible for states and/or local governments to charge an otherwise lawful bearer of arms for the unintentional show or display of a self-defense weapon?"

For the answer to the Federal 2A questions, we probably won't know the answer to those for at least a few years. Most of these sort of issues have been fleshed out in the state courts for years.

-Brandon

[wildhawker]

Further the First Amendment doesn't start talking about a "well regulated militia."

***

Put your name on the list. How else do you think you got enrolled? Rolls are the Oracle database of the 1790's and recall that you, if you were over 18, had to show up with your rifle to prove you owned it.

Look, I'm not laying out my preferred policy position. I'm instead trying to have people understand the constitutional reality - even in the first amendment context.

-Gene

Exactly. It's a virtual certainty that the Courts will find Congress to have the power to compel some form of registration for militia purposes, even going to the point of a state-level registration system that is reported back to the Federal government. (The Militia Acts are one obvious point of information; U.S. v. Miller has pertinent discussion of militias under the U.S. Const. and historical regulation of same.) I'm equally certain that mustered militia forces would be expected to bear arms, as Miller and Heller have already spoken to, so clearly states cannot ban the bearing of arms for official militia service (Fed. preemption).

However, under the Fed. Const. militia powers, I'm not sure that there's a strong governmental interest in requiring more than the basics (much like the Militia Acts did). For example, for firearm reporting: type (rifle, handgun, shotgun, other), action (auto, semi-auto, bolt, pump, lever, single-shot, other), caliber, barrel length, and capacity; for ammo: estimated quantity by caliber by zip/location.

If the purpose of registration/rolls is [for the states and Fed. Gov't] to understand how many of what kind of arms and ammo "I" can bring to the table if needed, what possible interest is make, model, and serial (especially considering I might change calibers (x) times over the course of my ownership/possession, such as with a T/C)? I presume Congress would also need to establish some standards for militia arms (so that the miltia doesn't show up with rare wildcat calibers that can't be 'fed'), with a corresponding requirement that all unorganized militia-members possess some number (but at least one, either by personal ownership, or loan, or governmental program). I cannot see any sort of program being effective for Militia purposes without either A) timely notice to gov't of any status change, or B) complete militia census every (x) years. It certainly would be more resisted than the U.S. Census, far less accurate, and far more costly. Nationally, it's a political 3rd-rail, and I'm not going to be worried about Congressionally-established militia rolls anytime soon.

I am, however, very interested in fleshing out the states' and local governments' powers for this and other individual 2A permits, discretion, fees, and related where not compelled by Congressional action. May a state without firearms-area pre-emption, for example, require a "keep" or "bear" permit when lower political subdivisions (e.g. a county, city, district) also require a "keep" or "bear" permit for all persons? Is it constitutionally permissible to burden specific individuals with fees associated with a state's firearms regulations (going to registration and training for their own and Fed. gov'ts militia purposes)? Is the right to bear arms for personal self-defense under 2A going to be treated like the yet-to-be-determined right to bear arms for militia ["mass self-defense"] purposes?

-Brandon

[ed bernay]

See Sorrell v. IMS Health. Also note that we're talking about carry out and about, not in your home - just exactly the way that supposed commercial speech supposedly got less protection. It's funny you mentioned Watchtower Bible v Stratton. The problem wasn't that it was a license statute. The problem was that it was a license statute that left full discretion to the mayor and wasn't at all narrowly tailored. Sounds like some license problem we're having with California Sheriffs in Richards v Prieto, doesn't it? Also note that it took something like 40 years to get to a point that these licensure of religious and political door to door speech would be struck. We're at year 1 or 2 of 2A litigation. And there are much stronger state interests that background checks and training that a license process would serve.

Further the First Amendment doesn't start talking about a "well regulated militia."

From the Militia Act of 1792:


Put your name on the list. How else do you think you got enrolled? Rolls are the Oracle database of the 1790's and recall that you, if you were over 18, had to show up with your rifle to prove you owned it.

Look, I'm not laying out my preferred policy position. I'm instead trying to have people understand the constitutional reality - even in the first amendment context.

-Gene

http://epic.org/free_speech/watchtower.html

In my amateur reading of Watchtower, it seems to me that the registration requirement of non commercial canvassers was exactly what SCOTUS had a problem with. From my link above...The Court stated that "it is offensive, not only to the values protected by the First Amendment, but to the very notion of a free society, that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so."

They also noted that the lack of a permit for canvassing does not preclude criminals from committing crimes. This seems analagous to me with regards to the 2nd amendment and the fact that criminals commit crimes with guns regardless of the registration requirements in certain jurisdictions.

My beef is not with the regulation regarding the commercial sale of firearms. My objection is to the requirement that law abiding citizens must register their arms to possess or carry with non compliance being prison. What other enumerated constitutional right is subject to a prior restraint when other citizens are not in imminent danger? If the argument of government is that they need to know who and what is available for militia duty, they can check the selective service registration rolls. If this is really the purpose, why is non compliance of the registration requirement a felony? When local government start calling up the milita for drills, then this argument will be a little more persuasive to me.

[hoffmang]

There are real and strong constitutional arguments against registration of firearms as being inimical to part of the right. That those are serious and honest, doesn't mean they're winners at SCOTUS (though they might be.)

Licensing and registration of the unorganized militia? Muster doesn't look all that different than a background check and training requirement. It's just a different set of "enemies foreign and domestic" that the unorganized militia is being trained for these days in states like Wisconsin or Nevada versus what was expected on the village green in Virginia in 1795.

-Gene

[hoffmang]

Yolo Amici are up: http://www.calguns.net/calgunforum/s...d.php?t=484150

-Gene

[Mulay El Raisuli]

No. You can't bear a loaded firearm in your hand. That's a carry manner restriction that you said didn't exist.

REALLY?! You'll have to point out where I did that.

Actually, the constitution does allow licensing of some speech. Quite a few municipalities have all sorts of restrictions on speech.

<Follows examples that purport to support the argument>

My point in all of this is that you're being way over simplistic about how Constitutional principles get implemented in practice.

-Gene

As pointed out by ed bernay, those are all restrictions of commercial speech, which is a bit different.

There also off-point in that they ignore my basic argument. The Basic Law regarding the 1A (free speech part) is that 'You can say whatever you want w/o a Mother May I? slip.' ALL of your examples were acknowledged by their authors as being exceptions to that Basic Law. ALL of them had to be defended, because they were exceptions, in court. That this was done successfully doesn't remove the fact that they had to be defended.

That's not what you're arguing for here. Here, your argument is that the Basic Law, as far as the 2A is concerned, is that the 'Mother May I?' slip, instead of being the exception, should be the standard. That there should be NO way to the free & unhindered exercise of the Right. That "and bear" should be different from the rest of the 1A & the rest of the BoR because that 'Mother May I?' slip should always be required.

Think of the ease with which states & municipalities can infringe on the Right then. I'm not up on the details of legislative & court histories for your examples, but I've no doubt that the authors of those restrictions had to show more than mere "Rational Basis" to get them approved by the courts. If the 'Mother May I?' slip is the standard for "and bear" though, then we have to argue from a position of weakness. Because the restriction is already approved & the rest is just details. Which in the PRK means we will lose.

Contrast that with treating "and bear" the same as the rest of the BoR. First, ALL of the legal precedents that have been fought for regarding BoR jurisprudence will apply & so we won't have to "re-invent the wheel."

Second, the PRK will have to STFU regarding Open Carry. Yes, they'll still be able to make regulations for CCW, but they won't be as onerous because the PRK won't want them to be. We'll have a club to hold over their heads.

There's a lot that is wrong with making the 'Mother May I?' slip the Constitutional Standard & nothing that is right.


The Raisuli

[Maestro Pistolero]

REALLY?! You'll have to point out where I did that.





As pointed out by ed bernay, those are all restrictions of commercial speech, which is a bit different.

There also off-point in that they ignore my basic argument. The Basic Law regarding the 1A (free speech part) is that 'You can say whatever you want w/o a Mother May I? slip.' ALL of your examples were acknowledged by their authors as being exceptions to that Basic Law. ALL of them had to be defended, because they were exceptions, in court. That this was done successfully doesn't remove the fact that they had to be defended.

That's not what you're arguing for here. Here, your argument is that the Basic Law, as far as the 2A is concerned, is that the 'Mother May I?' slip, instead of being the exception, should be the standard. That there should be NO way to the free & unhindered exercise of the Right. That "and bear" should be different from the rest of the 1A & the rest of the BoR because that 'Mother May I?' slip should always be required.

Think of the ease with which states & municipalities can infringe on the Right then. I'm not up on the details of legislative & court histories for your examples, but I've no doubt that the authors of those restrictions had to show more than mere "Rational Basis" to get them approved by the courts. If the 'Mother May I?' slip is the standard for "and bear" though, then we have to argue from a position of weakness. Because the restriction is already approved & the rest is just details. Which in the PRK means we will lose.

Contrast that with treating "and bear" the same as the rest of the BoR. First, ALL of the legal precedents that have been fought for regarding BoR jurisprudence will apply & so we won't have to "re-invent the wheel."

Second, the PRK will have to STFU regarding Open Carry. Yes, they'll still be able to make regulations for CCW, but they won't be as onerous because the PRK won't want them to be. We'll have a club to hold over their heads.

There's a lot that is wrong with making the 'Mother May I?' slip the Constitutional Standard & nothing that is right.


The Raisuli

Ding-ding, a winner. Let's hope the SCOTUS remains consistent about openly carried, functional firearms, and becomes flexible re: concealed carry. This is the best we could hope for. (Relatively) unrestricted open carry for the un-prohibited in non-sensitive place, and licensed (if the state insists) concealed carry.

The new tact of arguing only for SOME form of carry makes sense. But I have to agree that if the only form of 'bear' requires a license for the pure exercise of the core right, then it's an anomaly among fundamental civil rights, and we have a constitutional problem.

[M. D. Van Norman]

Very few are arguing for

[Mulay El Raisuli]

Ding-ding, a winner. Let's hope the SCOTUS remains consistent about openly carried, functional firearms, and becomes flexible re: concealed carry. This is the best we could hope for. (Relatively) unrestricted open carry for the un-prohibited in non-sensitive place, and licensed (if the state insists) concealed carry.

The new tact of arguing only for SOME form of carry makes sense. But I have to agree that if the only form of 'bear' requires a license for the pure exercise of the core right, then it's an anomaly among fundamental civil rights, and we have a constitutional problem.

Thanks. Its nice to know that my argument is understood & that I'm not alone.

Very few are arguing for

This confuses me. Is there anyone out there who is arguing for unlicensed carry?


The Raisuli

[M. D. Van Norman]

You are at the moment.

[Mesa Tactical]

If I had a gun with a safety, then I've already flipped it off and engaged the target (having identified one); at such point in time, if they were to take the firearm from me it [the safety] wouldn't be a factor (as it's already off). If I'm dumb and incompetent enough to allow someone to take my firearm from my holster, then I get what I get.

I love my safetied 1911s et al, but I want "ID threat>draw>confirm>engage>end encounter" my only tasks in the critical path.

Revolvers.

[wildhawker]

Revolvers.

Yep.

[bwiese]

Revolvers.

Yes, or Glocks or S&W M&Ps.

[CaliforniaCarry]

Yes, or Glocks or S&W M&Ps.

Or XDs

[Mulay El Raisuli]

You are at the moment.

Then, no.


The Raisuli