Gray Peterson
Member
I concur with the determination that this will not reach SCOTUS. I tell you one thing: Judge Silberman is going to be PISSED at DC.
DOES HELLER RECOGNIZE A RIGHT TO CARRY ARMS!? - article
- Thread starter Jim March
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NickEllis
Member
This entire topic of Parker might require a new thread of its own, as I don't recall many noting that it still has standing for D.C.
NickEllis
Member
You betcha, Lonnie. Now here's hoping the other majority judge sticks with him....
Thanks - that would be helpful. As I said, I haven't re-read it since it came out (I did read it then, Sept I think last year). I was surprised then how sweeping it was - and I agree Silberman, et al will be seriously annoyed by DC from here out. And to my mind, it will be the benchmark all DC laws are held to as they are tested. It is nice to have someone else more professional to help analyze it.
I don't consider it silly. The 2A uses the term "bear arms". Somehow we have to flesh out what that means. I have a certain amount of sympathy to the position that bearing arms means to do so in an open way. It also has a closer fit to the militia issue. Militimen did not CC their arms.
No, we don't have to "flesh out" what it means. Some of the finest legal minds in the country have done so, have done it well, and it's now the law of the land. In fact, Silberman called the DC counsel's argument that "bear" DIDN'T mean "carry" risible. If that isn't damning, what the heck is? When one of the top jurists in the country calls your argument "laughable" I have to wonder about the soundness of the legal mind arguing that position!
It means what it says, just as the founders intended and the courts ruled upon. Both Silberman and Scalia were quite clear. "bear" means what it does in the dictionary - it means to "carry." This is not up for dispute or interpretation any more. How you decide to carry is your business, not the state's, in my opinion. We can waste LOTS of money and time fighting about it, but we've seen how the courts view it. They've said so. It means "carry." And these courts are not going to waste their precious time arguing about whether that means under a shirt or outside of it. That is nonsense they won't deal with. Sure, it may take years and jurisdictions will resist the unassailable logic, but they will be reversed eventually.
Also, once these cases come back to these courts, what will they find as original intent? Can they find an active industry of CC holsters and concealment impedimentia in the late 18th Century? Of course not. "Bear" means what it says - carry. Shall they tell you to wear your trousers rolled? Or to eat a peach? No, they won't waffle like Prufrock. It's been decided that that "keep and bear" are individual rights, not collective as you still seem to feel since you say "the militia issue." The applicability of the concept of militia use and the operative clause of the Amendment is not up for debate - it is settled and it is dead. The operative clause is the operative clause, the dependent, introductory clause is the just that, dependent and introductory. Sixth grade students could have diagrammed this to satisfaction years ago, but it took the Supreme Court to come down on the same side as primary school teachers to settle the debate.
If you still think militia use has anything to do with the 2nd Amendment, this concept is gone nowadays (see Parker, et al, v. D.C., 2007). It has nothing to do with militia use and that is a cold sober, binding legal fact.
I don't recall that was what was decided at all. perhaps you can show me where in the heller decision the sc actually said that.
Personally, I have been fairly clear that I consider the right to be an individual one. The militia issue comment was more along the lines of how people who think the right is somehow militia related might well consider bearing arms to mean doing so in an open way. And I could see that point of view. I am not sure I agree with it, but I can see it.
ctdonath
Member
Nope: California self-incorporates the BoR.
If you don't understand the last year's decisions as an endorsement of individual rights, both to keep and bear, just read Parker and Heller. I don't have the time to do your homework for you this morning. Read what Scalia and Silberman have set down as our law, the links are posted in this thread. Also, you now say you don't believe in the collective rights approach, but that's what you said in your prior post -
Spelling aside, I didn't see you backing away from that militia interpretation; indeed you were endorsing it - that somehow the right was tied to militia use, arms, and customs. This "hybrid right" was something that has been put down by the courts this past year.
Frankly, it's just churlish to argue whether "bear arms" means to do so openly or concealed. Again, it's like arguing about sandals vs. loafers. By engaging in the debate, you miss the point. Both are footwear. Both provide sturdy support for lengthy walks. One hides the toes, the other doesn't. Does that make it worthy of legal debate? I am trying to highlight the pointlessness of this argument to point out that the SC is not going to engage in it - it's pointless. And I think most serious jurists are going to get that, and not try to discriminate. States that currently ban OC are going to modify that. Those that ban CC or pose arbitrary restrictions on it (like CA, MI, NY, etc), are also going to fall to legal challenges and review.
Spelling aside, I didn't see you backing away from that militia interpretation; indeed you were endorsing it - that somehow the right was tied to militia use, arms, and customs. This "hybrid right" was something that has been put down by the courts this past year.
Frankly, it's just churlish to argue whether "bear arms" means to do so openly or concealed. Again, it's like arguing about sandals vs. loafers. By engaging in the debate, you miss the point. Both are footwear. Both provide sturdy support for lengthy walks. One hides the toes, the other doesn't. Does that make it worthy of legal debate? I am trying to highlight the pointlessness of this argument to point out that the SC is not going to engage in it - it's pointless. And I think most serious jurists are going to get that, and not try to discriminate. States that currently ban OC are going to modify that. Those that ban CC or pose arbitrary restrictions on it (like CA, MI, NY, etc), are also going to fall to legal challenges and review.
Igloodude
Member
If concealed carry vs open carry is a non-issue, why do some states explicitly disagree in their constitutions?
http://www.law.ucla.edu/volokh/beararms/statecon.htm
Colorado, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, North Carolina, Oklahoma, Tennessee, and Texas all make exceptions to general "bearing of arms" in their state constitutions, most of them specifically regarding concealed carry.
Don't get me wrong, I'm a big fan of CCW, but I don't think the US 2A or Heller decision can legitimately be used to directly support it as a right; leveraging the very clear right of open carry is our best bet.
http://www.law.ucla.edu/volokh/beararms/statecon.htm
Colorado, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, North Carolina, Oklahoma, Tennessee, and Texas all make exceptions to general "bearing of arms" in their state constitutions, most of them specifically regarding concealed carry.
Don't get me wrong, I'm a big fan of CCW, but I don't think the US 2A or Heller decision can legitimately be used to directly support it as a right; leveraging the very clear right of open carry is our best bet.
One interesting part of the Parker decision is "The
language from Perpich is entirely consistent, then, with the view
that the American people at large (including the residents of the
District) would be equally threatened by the presence of a
standing army. And it directly contradicts the dissent’s position
that the Second Amendment was concerned exclusively with the
preservation of state power."
language from Perpich is entirely consistent, then, with the view
that the American people at large (including the residents of the
District) would be equally threatened by the presence of a
standing army. And it directly contradicts the dissent’s position
that the Second Amendment was concerned exclusively with the
preservation of state power."
ctdonath
Member
At the time, concealed carry was widely considered presumptive evidence of criminal intent.
Supposed it made sense, as suitably useful arms were too large to easily & viably conceal, open carry was perfectly acceptable, and concealment was such an effort (esp. in contrast with the triviality of open carry) that one would reasonably be suspicious of someone going to such lengths to look unarmed.
As such, some state constitutions acknowledged a right to be armed, but drew the line at behavior (concealment) commonly & historically considered indicative of criminal intent.
As relatively compact useful arms grew common, this gave way to licensed concealed carry, allowing one to prove lack of criminal intent via paperwork showing the local gov't knew & was OK with the permit holder carrying concealed. The "presumptive criminal intent" remains, with exceptions for those licensed (i.e.: let the gov't know, and demonstrated law-abiding intent).
With open carry scaring the sheeple, and licensed concealed carry of effective arms available, open carry was increasingly discouraged. The "presumptive criminal intent" of CCW remains, but now open carry is so rare that it too has given way to "presumptive criminal intent".
Now, post-Heller, we have SCOTUS returning to historical roots by implying (pity they didn't just lay it out clearly) that unlicensed OC is OK as a means to exercise a natural inalienable right, and that CCW is licensable due to the historical basis of presumptive criminal intent.
Supposed it made sense, as suitably useful arms were too large to easily & viably conceal, open carry was perfectly acceptable, and concealment was such an effort (esp. in contrast with the triviality of open carry) that one would reasonably be suspicious of someone going to such lengths to look unarmed.
As such, some state constitutions acknowledged a right to be armed, but drew the line at behavior (concealment) commonly & historically considered indicative of criminal intent.
As relatively compact useful arms grew common, this gave way to licensed concealed carry, allowing one to prove lack of criminal intent via paperwork showing the local gov't knew & was OK with the permit holder carrying concealed. The "presumptive criminal intent" remains, with exceptions for those licensed (i.e.: let the gov't know, and demonstrated law-abiding intent).
With open carry scaring the sheeple, and licensed concealed carry of effective arms available, open carry was increasingly discouraged. The "presumptive criminal intent" of CCW remains, but now open carry is so rare that it too has given way to "presumptive criminal intent".
Now, post-Heller, we have SCOTUS returning to historical roots by implying (pity they didn't just lay it out clearly) that unlicensed OC is OK as a means to exercise a natural inalienable right, and that CCW is licensable due to the historical basis of presumptive criminal intent.
What we think really is not that important, as to whether OC or CC or both is protected bearing of arms. It is what the courts think that matters, and they seem to be leaning toward OC.
I see nothing in Heller that directly addresses bearing arms at all. Lots of dicta that would seem to support it, but the issue decided was more along the lines of keeping arms.
one thing at a time.
I see nothing in Heller that directly addresses bearing arms at all. Lots of dicta that would seem to support it, but the issue decided was more along the lines of keeping arms.
one thing at a time.
Gray Peterson
Member
Well, with OpenCarry.org, that presumption is being fought with tooth and nail. In Washington State, the cops in this state had this presumption two years ago. Not anymore (save some incident from some ignorant cops on occasion).
Jim, I myself wouldn't go for getting arrested. Go to a county, fill out an app, get denied, and then sue. Just like Heller did.
DKSuddeth
Member
Texas test case, either apply for CHL without the license fee, then sue upon denial or get busted carrying concealed and use Murdock v. Commonwealth as a defense.
anyone?
anyone?
NickEllis
Member
Don't count on it yet, anarchris.... thats a hope for the future.
publius
Member
Although that link was already provided, for those who don't know, all docs related to the Parker/Heller case can be found here:
http://dcguncase.com/blog/case-filings/
Next up:
http://chicagoguncase.com
Jim March
Member
California residents, LISTEN UP: you have two fights on your hands, or possibly three:
1) First you have to convince a court somewhere that the California Constitution's clause saying the US Constitution is supreme means that your state has voluntarily "self incorporated" the Bill Of Rights, therefore Heller's "personal right involved in the 2nd" applies NOW.
2) If the courts don't buy that, you then have to argue that the 14th Amendment incorporates the 2nd. This involves terms like "selective incorporation", "privileges and immunities clause" and "Justice Hugo Black's dissent in Adamson was correct all along". If you're puzzled by those terms, see also:
http://www.thehighroad.org/showpost.php?p=4674758&postcount=68 (attached PDF)
3) You THEN have to convince a judge that the CCW system (esp. when combined with the ban on open carry) violates the individual right to BEAR arms in the 2nd.
If it's not clear yet: that's a long fight. IF (and that's a BIG if) you're going to challenge all that, esp. on defense in criminal court, you'd best have every step of that down COLD including the ability to quote from the key cases and if your public defender is incompetent, step in and take over from him. And you'd best be a trained public speaker at a minimum. Otherwise, don't even THINK about messing around here. OK?
And whatever you do, pack something registered or bought in Cali under the DROS system. That takes it into misdemeanor territory vs. felony (this assumes you have a clean record as well).
Paradoxically, the fight when you're NOT a California resident is simpler. Because the state discriminates against out-of-staters, they're very clearly in violation of the Ward. v. Maryland and Saenz v. Roe precedents (both US Supreme Court). That knocks steps one and two off the list above, leaving only #3. Which is why we need to set up a case of that type soon, and why I'll be submitting a CCW application package to a California county close to the AZ border, naming myself as an applicant and Tucson AZ resident soon, including a $20 money order and a letter describing the case law in detail (based loosely on the document linked in post one, this thread).
At which point it'll get interesting. If the sheriff (aided I assume by his county's lawyers) agrees that I've got a point, they would then forward the app to the state DOJ, at which point we find out what Jerry Brown of all people thinks of it. A wily sheriff might approve the concept, passing the app to the state DOJ to see if they'll buy the legal liability and take the problem off his back.
Gray Peterson
Member
Would it, however, be a California State Superior Court that you would need to argue in for self incorporation?
Jim March
Member
Not certain, but I don't think so. You can argue state constitutional issues in Fed court, I *think*. That needs to be confirmed by a lawyer though.
romma
Member
I think If a state has a CCW process that is may issue, then they are in clear violation of civil rights of the people that can't obtain carry permits. No two ways about it in my book!
Technically no permit should even be needed,but for now, I think that is a crack in the door with the Heller ruling.
Technically no permit should even be needed,but for now, I think that is a crack in the door with the Heller ruling.
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