Richards v Prieto answering brief filed

[Tempus]

Actually, I rather like the idea that UOC is not useless and that we are still essentially armed.

Why?

Because then their whole (false) idea of blood in the streets goes away. If UOC is essentially the same as LOC and UOC doesn't' cause it then I'd love to see them explain how the difference leads to all this mayhem.

[Maestro Pistolero]

If we concede that the PRK has the authority to regulate the manner of carry, they will.

Yes. And we know where concessions get us in a gun rights battle.

I agree that LOC is and should remain the palladium of the right. Now, if a state wishes to to regulate the form of carry a bit more, for example requiring a shall-issue LTC with universal reciprocity for concealed carry, then the state might have a little more constitutional latitude with regard to time, manner and means.

Example: LOC generally unrestricted but licensed concealed carry may be required in parks. If it's a license anybody can get, then I don't see a constitutional hurdle.

[hoffmang]

I'll try to say it again. Just as in Heller, not all possible questions were asked of the courts, so too not all questions are asked in Richards.

All of you LOC first! folks miss something. All we're saying is that SOME LOADED CARRY must be allowed. Once we can win that point, then it's going to be up to states to deal with the full panoply of issues that a fundmental carry rights analysis will require. However that is a second step - not a first.

In Heller, registration was left as an open question. Some of us (who certainly agree that it's horrible policy) worry that the state may be able to justify it some under a militia theory. Heller II has now taken a bite at the registration apple, but that bite is there in the first place because we won both Heller and then McDonald.

The first round of carry cases WILL NOT solve all the questions about carry. While we're out solving those, we'll all be carrying a loaded firearm in public for self defense though! And by not trying to boil the ocean, we have a good chance of superheating this cup of tea.

-Gene

[stix213]

And that is the wrong issue. For that is still us giving to The State an authority that it should not have. Even the best, most fair, most liberal (in the classic sense of the word) & least expensive shall-issue system is still a matter of people having to get a 'Mother may I?' slip before they can exercise an enumerated Constitutional Right.

Which is not the way it should be.

If the courts found that LOC was the standard, you seriously believe the California legislature wouldn't create a permit system for it?

You can't even organize a group of people holding signs on a city sidewalk without getting a permit for 1A exercise. Its absolutely guaranteed that if you got your wish for LOC being the standard, there would be a permit system put in place during the very next session of the legislature. Its pure fantasy to believe otherwise.

[Mulay El Raisuli]

I'll try to say it again. Just as in Heller, not all possible questions were asked of the courts, so too not all questions are asked in Richards.

All of you LOC first! folks miss something. All we're saying is that SOME LOADED CARRY must be allowed. Once we can win that point, then it's going to be up to states to deal with the full panoply of issues that a fundmental carry rights analysis will require. However that is a second step - not a first.

In Heller, registration was left as an open question. Some of us (who certainly agree that it's horrible policy) worry that the state may be able to justify it some under a militia theory. Heller II has now taken a bite at the registration apple, but that bite is there in the first place because we won both Heller and then McDonald.

The first round of carry cases WILL NOT solve all the questions about carry. While we're out solving those, we'll all be carrying a loaded firearm in public for self defense though! And by not trying to boil the ocean, we have a good chance of superheating this cup of tea.

-Gene

The problem being that some loaded carry isn't all that is being said. 'The state has the right to regulate the manner of carry' is also being said. I disagree that any state should. The first round won't solve all questions. But the first round should solve the issue that states don't get to regulate Federal Rights.

And if the first round stuck with established precedent (instead of trying to make new law), it could establish an unlicensed means of carry that no state could "deal with." If a license was required for preaching, or going to church, or posting on the 'net, or for any other Constitutional Right, we'd all be howling like wolves. We should be just as vocal about this.

The 2A not only could, but SHOULD be treated exactly the same way. And again, judicial precedent already exists for treating it exactly the same way. SCOTUS (in Heller & in McDonald) has already favorably commented on those cases. That's why LOC First! really is the "low hanging" fruit.

Yes. And we know where concessions get us in a gun rights battle.

I agree that LOC is and should remain the palladium of the right. Now, if a state wishes to to regulate the form of carry a bit more, for example requiring a shall-issue LTC with universal reciprocity for concealed carry, then the state might have a little more constitutional latitude with regard to time, manner and means.

Example: LOC generally unrestricted but licensed concealed carry may be required in parks. If it's a license anybody can get, then I don't see a constitutional hurdle.

I generally agree. But I'm not seeing why parks should be special.

Also, I'm not really happy with the new acronym of "LTC." A license to carry concealed is something that I (and SCOTUS) have no problem with. So, the acronym "CCW" is just fine by me. But "LTC" doesn't limit itself to just concealed. By implication, it gives approval to a license to Open Carry as well. Which is anathema to the Right.

If the courts found that LOC was the standard, you seriously believe the California legislature wouldn't create a permit system for it?

You can't even organize a group of people holding signs on a city sidewalk without getting a permit for 1A exercise. Its absolutely guaranteed that if you got your wish for LOC being the standard, there would be a permit system put in place during the very next session of the legislature. Its pure fantasy to believe otherwise.

I can stroll up & down the sidewalk by myself w/o a permit from the California legislature. I can gather a bunch of friends together out of the public right-of-way & proclaim that "THE KING IS A FINK!" to my heart's content. Without a permit from the California legislature. I can set myself up out of the public right-of-way & preach the word of God. Without a permit from the California legislature. I can listen to a preacher (rabbi, mullah, priest, etc) in any town. Without a permit from the California legislature. I can do all sorts of things, Constitutionally protected things, all without a permit from the California legislature. Or from any other state legislature. That's just the normal way of things when it comes to Rights secured by the FEDERAL Constitution.

So, no, it isn't fantasy to believe that the PRK legislature can be told to STFU when it comes to this enumerated Constitutional Right as well.


The Raisuli

[dantodd]

The actual no discharge zones in Yolo are wildly complex and I don't think accurately explained in the brief by Yolo. See http://www.yolocounty.org/Modules/Sh...ocumentid=1894 starting at page 19.

-Gene

So, the county wants The base carry right to be one that is so restricted and convoluted that even county counsel, a trained professional and member of the bar, is unable to determine where one is excluded from exercising this "fundamental" right? How is a "reasonable person, expected to be able to follow the law?

[ALSystems]

So, the county wants The base carry right to be one that is so restricted and convoluted that even county counsel, a trained professional and member of the bar, is unable to determine where one is excluded from exercising this "fundamental" right? How is a "reasonable person, expected to be able to follow the law?

They aren't expected to follow the law. That's the point. Just arrest them instead seems to be the goal.

[hoffmang]

The problem being that some loaded carry isn't all that is being said. 'The state has the right to regulate the manner of carry' is also being said. I disagree that any state should.

Almost every state in the union has and always will regulate the manner of carry. Brandishing is a crime. In most states it is clear that you may not carry in a threatening manner. That's but one valid regulation on the manner of carry. I expect it would also be constitutional for a state to mandate that you must use a holster or equivalent device that keeps the trigger from accidentally being actuated...

You also can't preach using an amplified sound system in a residential zone at 1AM.

Absolutism on these issues is just generally not thinking through where reasonable, defined the way 1A reasonableness is, starts.

-Gene

[Mulay El Raisuli]

Almost every state in the union has and always will regulate the manner of carry. Brandishing is a crime. In most states it is clear that you may not carry in a threatening manner. That's but one valid regulation on the manner of carry. I expect it would also be constitutional for a state to mandate that you must use a holster or equivalent device that keeps the trigger from accidentally being actuated...

You also can't preach using an amplified sound system in a residential zone at 1AM.

Absolutism on these issues is just generally not thinking through where reasonable, defined the way 1A reasonableness is, starts.

-Gene

Red herrings. Laws against brandishing don't burden the Right. They merely forbid the misuse of the Right. Similarly, no state has seen the need to require holsters. A law that punishes accidental discharges would be fine, but to specify how that gets done? I don't think so. Does the law specify how to prevent slander? Does the law forbid anyone the means to do so? Or does it merely punish those who do?

True, I can't preach with a amplified sound system in a residential zone at 1AM. But, if a 'Mother May I?' slip were the Constitutional Standard, then I couldn't preach quietly in a remote glade on a Sunday morning either. Or in an established church. Or in my backyard at 2 in the afternoon either. Or anywhere else. Because the requirement of the 'Mother May I?' slip means that there is NO time & at NO place that I can preach w/o the permission of The State. And this is something that we don't allow when it comes to the 1A.

Applying this to the 2A, the desire for unlicensed Open Carry isn't absolutism. It's nothing more than the desire that the 2A be treated just like the rest of the Constitution. The desire that the Right can be exercised in some way w/o seeking permission from The State before doing so.


The Raisuli

[Drivedabizness]

+1!

[hoffmang]

Red herrings.

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

True, I can't preach with a amplified sound system in a residential zone at 1AM. But, if a 'Mother May I?' slip were the Constitutional Standard, then I couldn't preach quietly in a remote glade on a Sunday morning either. Or in an established church. Or in my backyard at 2 in the afternoon either. Or anywhere else. Because the requirement of the 'Mother May I?' slip means that there is NO time & at NO place that I can preach w/o the permission of The State. And this is something that we don't allow when it comes to the 1A.

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

I opened up Redwood City as just a random example:

1. No commercial handbills can be handed out. I see no distinction between commercial and non commercial speech in the 1A. You can't even get a license. (Chapter 3)

2. You can't exhibit "Adult Material" - even that which isn't obscene. You can't even get a license. (Chapter 18C)

3. You can't solicit, peddle, or make charitable sales without a permit - you can't even sell magazines or newspapers door to door without a permit. (Chapter 28)

4. You have to comply with a complex regulatory regime and get a permit to install a newsrack. (Chapter 43.)

You know - except for all those regulations, you don't need permits for speech!

Name me your town or county and I'll find much the same there.

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

-Gene

[ed bernay]

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



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

I opened up Redwood City as just a random example:

1. No commercial handbills can be handed out. I see no distinction between commercial and non commercial speech in the 1A. You can't even get a license. (Chapter 3)

2. You can't exhibit "Adult Material" - even that which isn't obscene. You can't even get a license. (Chapter 18C)

3. You can't solicit, peddle, or make charitable sales without a permit - you can't even sell magazines or newspapers door to door without a permit. (Chapter 28)

4. You have to comply with a complex regulatory regime and get a permit to install a newsrack. (Chapter 43.)

You know - except for all those regulations, you don't need permits for speech!

Name me your town or county and I'll find much the same there.

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

-Gene

These are all business related which have historically have received less protection for exercise of the 1st amendment than individuals. What about Watchtower Bible v Stratton?

Please advise which 1st amendment registration law of individuals in their own homes or in public (when not acting in a manner that is an imminent danger to others) has been found constitutional.

[ed bernay]

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?

[Smokeybehr]

You also can't preach using an amplified sound system in a residential zone at 1AM.

SCOTUS has ruled that you can regulate conduct, as long as by regulating conduct, you are not regulating content. This is what allows jurisdictions to put in x foot buffer zones around funerals to keep the Westboro kooks away, or to create "free speech areas" around major government meetings to keep the anarchists from assaulting the attendees. They can spout their hate and conspiracies all they want, but away from the main event.

This is why the idiots in NOLA are going to be eating a big ol' plate of STFU over the "diapered Obama" billboard.

[hoffmang]

These are all business related which have historically have received less protection for exercise of the 1st amendment than individuals. What about Watchtower Bible v Stratton?

Please advise which 1st amendment registration law of individuals in their own homes (if any) has been found constitutional.

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:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...

That there shall be an adjutant general appointed in each state, whose duty it shall be to ... furnish blank forms of different returns that may be required ... and .... reporting the actual situation of their arms, accoutrements, and ammunition...

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