9th rules concealed carry is not a 2nd amenment right - broad application

[California Right To Carry]

these arguments have brought me from leaning heavily to one side, to being on the fence. like, literally. i'm sitting on a fence right now on my phone.






just kidding.



but seriously.

I find them to be tedious. It is like a small child trying to justify his doing something wrong because you didn't say he couldn't do it or its okay because everyone does it.

We except this from children because their tiny little brains haven't fully developed but when we hear the same thing coming from a supposed adult...

 

[solus]

must be something in the name ~ Charles and the need to degradate and insult those who challenge their perception of reality...

per Spock: fascinating...worth of a pseudo-science research project.

ipse

 

[press1280]

Why is any infringement of our RKBA ever advanced?

If you haven't read Clayton Cramer's "Racist Roots of Gun Control" you should. There are always un-trusted, undesirable elements of society that the upper-crust would prefer not have the power of arms: Slaves, freed blacks, Catholics, Jews, Irish, recent immigrants, Mormons, the poor.

Remington manufactured something on the order of 7,000 cane guns. Cane swords were more common than that. Yet how many court cases do we see over these types of concealed weapons? Very few. Men of wealth carried canes in the Victorian era.

Working men were much more likely to carry a Bowie knife, concealable pistol, or other discrete self-defense weapon. And these are the weapons we typically see in 19th century cases involving violation of concealed carry laws.

Simply put, rich men were not subjected to anti-concealed carry laws which were aimed primarily at the working man.

The more things change...

Charles

I know about that particular history. What I was getting at is if CC was never ever considered part of the right, why did the state constitutions add in those clauses later?

 

[WalkingWolf]

The purpose of the bill of rights was to protect individual liberties FROM government, NOT protect one person from another. It was not about self defense, hunting or sport shooting, even though it has been twisted by self serving selfish people. The second is clear in it's purpose, concealed carry serves no purpose to that end. It is a pipe dream of fools that will eventually result in the loss of all gun rights by following a fool's errand.

 

[Bikenut]

If the dunce cap fits...



Your belief and 50 cents won't buy a cup of coffee.



The en banc Peruta decision just gave 59 pages of reasons. Or did you not bother to read it?



Where in the First Amendment does it say that death threats, counterfeiting and human sacrifice is protected?

Not a single Federal circuit court or state high court agrees with your ludicrous claim that there is a right to concealed carry. Not a single one of the concealed carry lawsuits brought by the so called gun-rights groups has ever cited a single case, or any historical authority, which supports your belief that there is a Second Amendment right to concealed carry.

You can ramble on all you like about the non-existent Second Amendment right to concealed carry but it won't change the fact that the right never existed. Even the four judges in the Peruta en banc minority conceded that there is no right to concealed carry. Instead, they were more than willing to ban a fundamental, enumerated right to Open Carry and substitute it for something even they said is not a right because some people don't like the Open Carry right.

Be glad they were stopped there. Just imagine what this Nation would be like if rights could be banned in exchange for something which isn't a right? For example, an all day sucker or a shiny new nickel.

If all you have is ridicule and insults along with red herrings you have nothing.

Court decisions might be law but that doesn't mean those decisions are correct nor does it mean those laws are not infringements when it comes to rights. Those decisions only define what the court interprets rights to be and is nothing but the slippery slope of saying that rights can be infringed with court decisions. But the 2nd Amendment enumerates the right of the people to bear arms and does not put any one method of bearing above another.

Buying into the concept that one method of bearing arms isn't the right to bear arms is the beginning of buying the argument that the right to bear arms can be infringed as long as some court says so.

Now if you would like to discuss without dissing and cussing.....

 

[hammer6]

It is like a small child trying to justify his doing something wrong because you didn't say he couldn't do it or its okay because everyone does it.

isn't that your argument though? it's "okay" to prohibit concealed carry because "everyone (SCOTUS decisions) does it"?

i'm well aware of the historical line of review the peruta court used. but to hit on the first part of your statement, shouldn't concealed carry be protected since neither is specified? kinda like the old KY constitution? which was conveniently re-written to "add" the legality of restricting concealed carry. leads me to believe the government has only the power that is written down..

 

[davidmcbeth]

SCOTUS only makes rules that bind the people ... the legislatures, law enforcement, and courts routinely ignore decisions when they want to.

 

[California Right To Carry]

Yeah. In Wisconsin as far back as the 1870s or so. carrying concealed was banned. But I suppose weather one can carry concealed is a 10th amendment issue.

California became a state in 1850. Its first legislature enacted a law designating how fines for carrying a weapon concealed would be allocated. In 1863, California passed a complete ban on concealed carry excepting only travelers while actually on a journey and police. It was subsequently amended to exempt judges, military and the like. It was repealed in 1870 and concealed carry permits were left up to localities, although it appears that the legislature had to approve of local laws allowing for the issuance of concealed carry permits. In 1917, California enacted its first state-wide concealed carry law and, that same year, the California courts rejected the contention of a man convicted of concealed carry that concealed carry was purely a local issue saying that it is of statewide concern and, of course, that prohibitions on concealed carry fall within the police power of the state (not to be confused with the power of police).

That law was repealed and replaced with an NRA sponsored law enacted in 1923.

Every California court has upheld prohibitions on concealed carry. Every California court has held that concealed carry is not a right. In 2012, the California Supreme Court said that there is no right to carry concealed under the Second Amendment.

Here we are in 2016 and the 9th Circuit Court of Appeals finally agreed.

The Peruta appeal was filed in 2010.

 

[California Right To Carry]

While I agree with the caselaw angle presented in this thread, it ignores the political reality. That is, will the 9th actually rule to allow meaningful OC in the state? Do we think they've gone through all the nonsense associated with Peruta (the en banc and all) just to give the people OC?

I'm thinking there's a bait and switch coming. And it won't be a ruling that'll directly split with Moore.

Given that California's 1967 ban on carrying loaded firearms in public (which the California courts extended to one's private property, all the way to one's door) was copied and pasted from the Illinois law struck down in Moore, which exempted private property, and the Moore decision also struck down Illinois' law on carrying unloaded firearms (openly and concealed)...What possible ruling can the 9th Circuit issue that would uphold the bans I am challenging and not conflict with Moore?

 

[California Right To Carry]

:cuss: :banghead: Anti-gunners salivate, gun owners brace for battle after 9[SUP]th[/SUP] Circuit ruling

It didn’t take long yesterday for gun prohibitionists to seize on the 9[SUP]th[/SUP] Circuit Court of Appeals ruling that declared American citizens do not enjoy Second Amendment protection when carrying concealed sidearms in public.

http://www.examiner.com/article/ant...ers-brace-for-battle-after-9th-circuit-ruling

And no mention of my California Open Carry appeal. :lol:

 

[California Right To Carry]

isn't that your argument though? it's "okay" to prohibit concealed carry because "everyone (SCOTUS decisions) does it"?

i'm well aware of the historical line of review the peruta court used. but to hit on the first part of your statement, shouldn't concealed carry be protected since neither is specified? kinda like the old KY constitution? which was conveniently re-written to "add" the legality of restricting concealed carry. leads me to believe the government has only the power that is written down..

My "argument" is a legal one. Not coincidentally, it is also my personal opinion.

The Kentucky constitution was not "conveniently rewritten." It was amended for the same reasons that other states banned concealed carry and for the same reasons why the Second Amendment did not in 1791, 1868 and today, protect a right to concealed carry.

 

[California Right To Carry]

What the Reid case actually said.

The dissent in the en banc decision in Peruta v. San Diego kept jabbering on and on about the "destruction of the right" from the 1840 Reid case cited in Heller.

Keeping in mind that the Reid court held that there is no right to concealed carry, here is what the Reid Court actually said when it considered the hypothetical case of the state banning Open Carry in preference to concealed carry:

"But the court say that it is a matter which will not admit of legislative regulation, and in order to test the correctness of its opinion, supposes one Legislature to prohibit the bearing arms secretly, and a subsequent Legislature to enact a law against bearing them openly; and then asks the question, whether the first, or last enactment would be unconstitutional. Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence." Id at 619.

But then the dissent apparently never even made it to the part of the decision which said:

"The question recurs, does the act, "To suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not." Id at 616 (emphasis and italics added).

As the majority in the Peruta en banc decision correctly concluded. If a right is banned, the remedy isn't to challenge a ban on something which is not a right.

 

[press1280]

Given that California's 1967 ban on carrying loaded firearms in public (which the California courts extended to one's private property, all the way to one's door) was copied and pasted from the Illinois law struck down in Moore, which exempted private property, and the Moore decision also struck down Illinois' law on carrying unloaded firearms (openly and concealed)...What possible ruling can the 9th Circuit issue that would uphold the bans I am challenging and not conflict with Moore?

They may try the urban/rural carry thing and say CA's scheme is OK that you can carry in unincorporated areas (which I believe separates CA from the old IL scheme). There's also the Woollard and Drake cases which weren't CCW cases(NJ and MD are general carry permits), which they cited with approval in Peruta. There's also the Harvie Wilkinson route, basically punting and saying that we don't know whether public carry is protected, that should be from SCOTUS alone but in the meantime you lose.
I'm not saying it'll be a particularly good opinion, but since leftist judges hate OC more than CC I believe their imaginations will run wild and they won't simply hand over what you're asking for (I hope I'm wrong), and will CAREFULLY avoid splitting with Moore.

 

[davidmcbeth]

The dissent in the en banc decision in Peruta v. San Diego kept jabbering on and on about the "destruction of the right" from the 1840 Reid case cited in Heller.

Keeping in mind that the Reid court held that there is no right to concealed carry, here is what the Reid Court actually said when it considered the hypothetical case of the state banning Open Carry in preference to concealed carry:

"But the court say that it is a matter which will not admit of legislative regulation, and in order to test the correctness of its opinion, supposes one Legislature to prohibit the bearing arms secretly, and a subsequent Legislature to enact a law against bearing them openly; and then asks the question, whether the first, or last enactment would be unconstitutional. Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence." Id at 619.

But then the dissent apparently never even made it to the part of the decision which said:

"The question recurs, does the act, "To suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not." Id at 616 (emphasis and italics added).

As the majority in the Peruta en banc decision correctly concluded. If a right is banned, the remedy isn't to challenge a ban on something which is not a right.

Alas, the government cannot grant individuals rights. They can only pass LAWS. Keep that in mind. I do not look to the gov't for rights. If they want to look at my rights they should just lookie, no touchy.

 

[California Right To Carry]

They may try the urban/rural carry thing and say CA's scheme is OK that you can carry in unincorporated areas (which I believe separates CA from the old IL scheme). There's also the Woollard and Drake cases which weren't CCW cases(NJ and MD are general carry permits), which they cited with approval in Peruta. There's also the Harvie Wilkinson route, basically punting and saying that we don't know whether public carry is protected, that should be from SCOTUS alone but in the meantime you lose.
I'm not saying it'll be a particularly good opinion, but since leftist judges hate OC more than CC I believe their imaginations will run wild and they won't simply hand over what you're asking for (I hope I'm wrong), and will CAREFULLY avoid splitting with Moore.

The district court judge assigned to my case pulled that urban/rural thing as an excuse to deny my preliminary injunction, but first he had to conclude that there is no Second Amendment right even one inch outside of the doors to the home. I also pointed out that the bans aren't based on rural/urban and gave a couple of examples. The California bans are based on population but if the court wanted to draw an inference beyond the plain text of the statutes then they are based on race.

Regardless, none of the possibilities you give would avoid a SCOTUS Rule 10 split should the 9th Circuit decide that there is no Second Amendment right either in public or in the curtilage of one's home. If I write an Opening Brief which doesn't allow the court to avoid the Second Amendment question then it must answer the Second Amendment question.

My initial and amended complaints all give valid reasons for the district court judge to strike down the Open Carry bans independent of the Second Amendment and, at the time, I would have been satisfied if the bans had been struck down for any reason.

But here we are in 2016 looking at possibly three more years of litigation.

On appeal, I am forfeiting every claim I made in the district court which would allow the court of appeals to decide my case in my favor independently of the Second Amendment.

And if I fail on appeal and SCOTUS denies my cert petition then those many valid claims can be raised by anyone but me in a separate lawsuit because district court opinions are binding only on the parties to the case.

 

[davidmcbeth]

<snip>

And if I fail on appeal and SCOTUS denies my cert petition then those many valid claims can be raised by anyone but me in a separate lawsuit because district court opinions are binding only on the parties to the case.

Gov't officials do not feel bound by previous decisions ... I have seen this time and time again.

 

[randian]

If I write an Opening Brief which doesn't allow the court to avoid the Second Amendment question then it must answer the Second Amendment question.

How do you figure? I see lots of court decisions of the form "because X, we don't have to answer question Y." They can be quite creative in coming up with X, so much so I see no meaningful ability to constrain judges in that way.

 

[utbagpiper]

I know about that particular history. What I was getting at is if CC was never ever considered part of the right, why did the state constitutions add in those clauses later?

Exactly.

Of course, those who hate CC will claim it was to overcome wrong-headed State court decisions regarding State constitutional language. But that just doesn't pass the smell test.

The 2nd amendment was adopted 1791. The original Kentucky Constitution was adopted 1792. It just doesn't make sense that the federal Framers intended to limit the RKBA to OC only, while the drafters of the Kentucky State constitution used such similar language intending to protect both OC and CC.

What is most unfortunate is to see some who are so hostile to CC that they relish in the various really bad court decisions that ruled against CC. Several of the most notable of these decisions hinged on the claim that the RKBA protected only a "collective" right to be in a militia or to use militia type firearms. Others were overtly or implicitly racist in nature seeking to disarm blacks or other untrusted groups.

I readily concede there are a lot of court cases in this nation denying any right to carry concealed. I can also look back and find no shortage of cases about blacks not being citizens and not having any rights of citizens.

We won't get where we need to be in a single step. With the rarest of exceptions, that is too much social change for the federal courts. We will need to make limited arguments and accept limited decisions moving in the right direction. But outside of formal court proceedings, we should never lose sight of our ultimate goals. And I would hope that for most who claim to support RKBA, that ultimate goal is to have our RKBA respected, free from prior restraint, and without regard to the exact method we choose to use to carry our self-defense.

Charles

 

[utbagpiper]

The purpose of the bill of rights was to protect individual liberties FROM government, NOT protect one person from another. It was not about self defense, hunting or sport shooting, even though it has been twisted by self serving selfish people. The second is clear in it's purpose, concealed carry serves no purpose to that end. It is a pipe dream of fools that will eventually result in the loss of all gun rights by following a fool's errand.

Seems to me a concealed firearm is as effective against government tyranny as is an openly carried firearm. After all, half a dozen cops or a squad of SS goons are not going to be deterred by 1 person in 10 carrying a visible handgun. Comply immediately or get shot dead is how encounters agents of oppressive governments and armed citizens go down. If a large group of persons are visibly armed--ala the Bundy standoff in Nevada--the agents can make a tactical retreat, and bide their time for better conditions. The citizens don't have justification to use deadly force, but any change in government behavior is temporary.

OTOH, if even 1 person in 100 is bearing arms discretely, the oppressive government agents have no idea who might shoot back, who might come to the aid of another and so on. They cannot tell a priori whether a group of citizens exercising other rights (press, speech, religion, assembly) are easy pickings or whether they might fight back.

Now, there may be very logical counter to my line of thinking. I'd love to hear it. I note that when the question is one of personal ownership of nukes or other WMDs, you provided a most compelling, rational explanation for why such weapons cannot be effectively borne against ones own government.

But in this case, over the issue of discrete possession of firearms, I've read only emphatic assertion and appeals to courts that have, themselves, relied on emphatic assertion, or rank racism to justify limits on concealed carry.

And all this focuses only on the 2nd itself. It ignores the interactions between the rights secured in the Bill of Rights. If the 2nd were to protect only OC, would not the 4th protect my privacy to carry discretely if I so chose?

It is one thing to discuss court precedence and current legal situation. It is quite another to be personally hostile to concealed carry or to those who choose to carry discretely.

Charles

 

[press1280]

Exactly.

Of course, those who hate CC will claim it was to overcome wrong-headed State court decisions regarding State constitutional language. But that just doesn't pass the smell test.

The 2nd amendment was adopted 1791. The original Kentucky Constitution was adopted 1792. It just doesn't make sense that the federal Framers intended to limit the RKBA to OC only, while the drafters of the Kentucky State constitution used such similar language intending to protect both OC and CC.

What is most unfortunate is to see some who are so hostile to CC that they relish in the various really bad court decisions that ruled against CC. Several of the most notable of these decisions hinged on the claim that the RKBA protected only a "collective" right to be in a militia or to use militia type firearms. Others were overtly or implicitly racist in nature seeking to disarm blacks or other untrusted groups.

I readily concede there are a lot of court cases in this nation denying any right to carry concealed. I can also look back and find no shortage of cases about blacks not being citizens and not having any rights of citizens.

We won't get where we need to be in a single step. With the rarest of exceptions, that is too much social change for the federal courts. We will need to make limited arguments and accept limited decisions moving in the right direction. But outside of formal court proceedings, we should never lose sight of our ultimate goals. And I would hope that for most who claim to support RKBA, that ultimate goal is to have our RKBA respected, free from prior restraint, and without regard to the exact method we choose to use to carry our self-defense.

Charles

Bliss must have been a far reaching case if that was the cause of the state amendments adding in the CC clauses considering it was the only one to rule in favor of CC.