DOES HELLER RECOGNIZE A RIGHT TO CARRY ARMS!? - article

[Jim March]

See attached. The first four pages covers that issue. The support for a right to carry in Heller is MUCH more powerful than it appears at first; you have to look at Scalia's citations to really get the full picture.

HELL yeah.

There's also three pages of "what can we do with that right now?" - this is just a re-hash of what was already in my 14th Amendment incorporation document:

http://www.thehighroad.org/showpost.php?p=4674758&postcount=68

 

[ctdonath]

Unfortunately, that much of the obvious must be acquired by implication instead of blatant concise statements means that many judges will re-interpret (a la Miller) the "obvious", or just ingore it completely.

 

[Kharn]

Why the 11/14/08 date on the first page?

Kharn

 

[Jim March]

Why the 11/14/08 date on the first page?

Whaa...ooops. Screwup. Sigh.

 

[Aguila Blanca]

The .pdf won't open for me. "Unknown error." Does it work for most of you?

 

[Kentak]

Many issues are not rendered unambiguous by Heller. Heller granted a right to have a handgun for defense in the home. DC certainly doesn't believe it has to allow carry outside the home for defense, such as CCW. That will have to be challenged in court to clarify. My gut feeling is that if such a challenge is not upheld by a lower federal court, the SC won't take it. I think they've gone as far as they want to go with the 2A. But, we shall see.

K

 

[El Tejon]

Kentak, I read Heller as Scalia triple dog daring incorporation.

Heller was merely a beginning.

 

[Henry Bowman]

I read Heller as Scalia triple dog daring incorporation

Yes, but the Supremes may give the lower courts several years to sort it out and try to get it right. If a federal court of appeals will declare the 2A incorporated, then there will be a split in the circuits and it will increase the odds of the Supremes taking up the issue.

We need to identify which circuit would be most likely to go out on a limb and declare the 2A incorporated. That would truly be "judicial activism" because they would have to go against express precedent and find that "times have changed" and the SCOTUS indicated in dicta what it would do if given this issue anew.

 

[El Tejon]

You say "judicial activism", I say "original intent".

You say "tomaytoe", I say "tamatoe". Tomaytoe, tamatoe, let's call the whole thing a fundamental right deserving strict scrutiny.

 

[bogie]

I agree with the tejster...

Heller was basically a first, baby, step.

Which makes it doubly important that we don't let the supreme court get packed with folks who "know what is good for us" regarding "those guns."

 

[usmarine0352_2005]

.


We also have to have enough foresight to pick and choose the right cases, plaintiffs, and what the makeup of the Supreme Court is at the time our case finally reaches them.

We had a barely friendly court during Heller and with new justices being chosen shortly we need to be careful about the next time.


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[catoII]

JM,

I grant that your cause is shall issue CCW. And I support that too as a right (Vermont style).

But I still don't see how you can say Open Carry, the basic right alluded to in Heller and recogninzed in state court holdings, could be banned if CCW is "shall issue" (albeit taxed and regulated).

Is this potential dual approach (OC as a right but can be restricted only if CC is allowed) by the USSC used in any other interpretation of enumerated rights (a "books may be banned if magazines are allowed" approach )?

 

[ilbob]

I am unwilling to give up on OC or CC. I think there is a better choice of OC being recognized as "bearing arms", and thus being protected over CC.

In any case, we need to keep up the pressure on state legislatures to improve what we have now, while persuing the court angle. It may be 40 years before Heller is sorted out.

 

[Jim March]

Cato2: hey, I could be wrong. I'm not trying to say what the courts *should* do, I'm predicting what they probably WILL do.

That in turn is based on my reading of the various 19th century cases cites by the Heller court, and Klein which ruled on exactly the same lines a decade ago.

All say that infringement of CCW is OK so long as open carry is legal. What I'm predicting is that if somebody sued for open carry in, say, Texas, the courts would say the same thing: so long as carry is respected in some form (in TX it's CCW) then open carry can be banned.

Doesn't mean I like it, doesn't mean I'd push for it. I am NOT an opponent of open carry and in fact when visiting Nevada without a permit that state recognized, I packed open for over a week straight.

One more thing though. This idea that a state could "pick one or the other" has usefulness in some areas. Example: I'm visiting California as an AZ resident, I have an AZ CCW plus another state's permit. If I'm going to carry in Cali, and if necessary challenge the law discriminating against an out-of-state resident, how do I do it?

If I do loaded open carry, it means an immediate bust. Worse, California's open carry laws don't discriminate against out-of-staters so I'm probably going to get reamed. To survive in court I have to do a straight-up Heller-says-open-carry-is-cool argument PLUS argue for incorporation of the 2nd via the 14th.

However, if I pack concealed, I get two benefits: one, odds are nobody will ever know and two, if caught I'm now "illegal" in an area the state is very specifically discriminating in: CCW access. So my chances in court are better. And once in court, my best gameplan is to say "hey, this state made a decision to allow street carry in a concealed form ONLY - that's your choice, I followed your rules". And because of the discrimination against an out-of-stater such as myself, I don't have to worry about incorporation, that's under Federal oversight via the 14th right now. I've got zero bad precedent to fight, I'm working 100% with (instead of against) current US Supreme Court case law that has no racist baggage in it (Ward v. Maryland 1870 and Saenz v. Roe 1998).

Now which fight is easier?

 

[Jim March]

I am unwilling to give up on OC or CC. I think there is a better choice of OC being recognized as "bearing arms", and thus being protected over CC.

Agreed. But remember, we know from Ohio that OC can be leveraged into CCW (and in fairly short order, less than a year, without losing OC). Unfortunately CCW doesn't morph easily into OC as Texas has learned.

Bit of a quandry...

 

[catoII]

Jim March wrote:

Now which fight is easier?

I think the USSC will find like the Ohio SC did: CC laws stand (even WI and IL bans) because OC is constitutionally protected, and your hypothetical cc conviction will stand sadly. Ironicaly, both the Ohio defendent's and Emerson's convictions were upheld even though we generally support the consitutional language used to uphold their convictions.

Yes, illegal cc will not result in leo attention for 99.99+% of illegal carriers. I know at least 5 individuals in LA County who cc without a ccw and have done so for the last decade at least. I guarantee (almost) that you can cc in Ca. without an issue on any visit you make. Should you be arrested, however, with a loaded handgun not reg. to you in the Ca Dros system, you will be possibly fighting several felonies.

I would choose your method should I wish to defend my family in public now and not attract attention absent a need to expose and or pull the trigger. But I'd choose a misdemeanor 12031 case, fighting for a recognized Right under a 2A and a "Son of Heller" incorporation decision, as the "easier fight" to win in court.

I do, however, also look forward to a resolution of any 2nd A. / 14th A. case outlined in your above response. I just don't see cc becoming shall issue, or even a USSC protected Right (and may never be), before OC is a protected right in CA with 12031 overturned and 626.9 being restricted to affecting prohibited persons and non-public areas only.

All say that infringement of CCW is OK so long as open carry is legal. What I'm predicting is that if somebody sued for open carry in, say, Texas, the courts would say the same thing: so long as carry is respected in some form (in TX it's CCW) then open carry can be banned.

I can see this rulling coming from a circut court but not USSC. I find it more likely that a future USSC would reverse Heller and impose a Militia centric rulling then let a dual OC/CC right exist under the 2nd A. based on the choices (whims) of various state legislatures.

 

[ProguninTN]

Henry Bowman

We need to identify which circuit would be most likely to go out on a limb and declare the 2A incorporated

5th Circuit ? It handed down United States v. Emerson

 

[Kharn]

Or the DC circuit, Fenty's a great opponent, he does everything he can to sabotage his own case.

Kharn

 

[Jim March]

Should you be arrested, however, with a loaded handgun not reg. to you in the Ca Dros system, you will be possibly fighting several felonies.

Well it's questionable whether or not this can be applied to visitors, as the law says 60 days to register.

But that aside, I'm a former Cali resident and have several DROS-bought guns. Wait...heh, yeah, all four of my handguns are DROS-bought and on record already. So in my case that's a non-issue.

 

[Oro]

Or the DC circuit, Fenty's a great opponent, he does everything he can to sabotage his own case.

Bingo. Remember what is between the DC Circuit and the Supreme court - the DC Circuits Appellate division. These are the people who handed us Parker, et al v. D.C.. Remember, the SC did NOT reverse a lower court ruling, they affirmed it.

The ruling by the DC Appellate was quite clear that they viewed the 2nd Amendment as a right to both keep and bear arms. They will interpret anything done by DC from now on in that light. It is highly unlikely, I think, that the SC would agree to even hear a case on this issue, and that division is going to be tossing aside any DC roadblocks that cross the decision they already made. I think the DC circuit is going to follow the Parker as well as Heller rulings and that the appellate and SC are not going to have to get involved.

I haven't re-read the Parker decision since it came out last fall and just fried the DC junta's tiny minds, but I will this week. I think it's important to read both to understand what the current judicial thinking is and the forum the DC laws will be fought within. No where did I see Scalia say that he felt the DC Appellate had over-stretched, and their reasoning and findings were much broader than that of the S.C.

 

[Jim March]

WHOA! Yeah, good point. The appellate decisions are as binding on DC as the Heller decision.

Anybody got a link to the appellate decision?

Because it sounds like the place to argue for a right to carry is in DC, depending on how strong the carry rights are in the appellate ruling...

 

[NickEllis]

I believe this is the Parker decision here:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

 

[Oro]

Yes, that's the link. Do read this.

It is much more sweeping than Heller, and given how the courts work, I doubt the SC would pick up an appeal against a DC Circuit Appellate decision for decades.

Short of having a "shall issue" cc policy or allowing open carry, DC can't get around complying with this decision. This is the little fact I keep smiling about when I see people wringing their hands over the limits of Heller.

Scalia only had to go as far as he needed to maintain 5-4. Then he could sit back, and let Parker, et al do the rest of the work. He is a very smart man, you know.

As a total aside, I find the whole cc vs. open carry arguments and laws just insane. It's like outlawing sandals because they expose toenails. Look, they have a gun. It's a right. How and where they carry it is their business. Sorry for that little rant, but I know a huge new argument will be whether "bear" means open or CC, and it just seems so very, very silly to me. I live in a state that allows open carry without a license, and CC with a license, and has since 1961 (LONG before Florida). It's just never been a problem to anyone.

Mr. March - your tag says SF area - what state are you in now? (I think I saw your answer this in another thread a month or two back, but cant' recall).

 

[Gray Peterson]

You can also apply for a temp county residence permit and if they deny it, you can sue then.

 

[NickEllis]

Very interesting.

Pages 25-27 discusses the usage of "bear arms", and implies this is a common usage outside of military purposes. Note especially:

We also note that at least three current members (and one
former member) of the Supreme Court have read “bear Arms”
in the Second Amendment to have meaning beyond mere
soldiering: “Surely a most familiar meaning [of ‘carries a
firearm’] is, as the Constitution’s Second Amendment (‘keep
and bear Arms’) and Black’s Law Dictionary . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing or in
a pocket, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another
person.” Muscarello v. United States, 524 U.S. 125, 143 (1998)
(Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,
and Souter, J.) (emphasis in original). Based on the foregoing,
we think the operative clause includes a private meaning for
“bear Arms.”

Combine this with page 54, where they discuss the reasonable regulations on "keep and bear arms":

We take these to be the sort of
reasonable regulations contemplated by the drafters of the
Second Amendment. For instance, it is presumably reasonable
“to prohibit the carrying of weapons when under the influence
54
of intoxicating drink, or to a church, polling place, or public
assembly, or in a manner calculated to inspire terror . . . .” State
v. Kerner, 107 S.E. 222, 225 (N.C. 1921). And as we have
noted, the United States Supreme Court has observed that
prohibiting the carrying of concealed weapons does not offend
the Second Amendment.

This passage would suggest, then, that it would be unreasonable to bar the carrying of firearms for just any old reason. Note especially the following, also from page 54:

These regulations promote the government’s
interest in public safety consistent with our common law
tradition. Just as importantly, however, they do not impair the
core conduct upon which the right was premised.

This core conduct, apparently, includes the bearing arms.

Note, from page 57:

Heller does not claim a legal right to carry a handgun outside his home, so we need not consider the more difficult issue whether the District can ban the carrying of handguns in public, or in automobiles.

However, though they do not consider it in the decision, they have certainly implied quite a bit in the dicta.