Two more Federal Court 2nd Amendment victories today

[Arizona_Mike]

2nd Amendment protects carrying guns outside the home: Norman v. State: http://www.4dca.org/opinions/Feb 2015/02-18-15/4D12-3525.op.pdf
Non-violent felony form 1990 not enough to deny RKBA: Suarezv v. Holder:http://www.washingtonpost.com/news/...nt/uploads/sites/14/2015/02/SuarezvHolder.pdf

We can get a lot of results with either strict or intermediate scrutiny.

Eugene Volokh discusses both cases (behind Washington Post pay wall):
http://www.washingtonpost.com/news/...quire-concealed-carry-rather-than-open-carry/
http://www.washingtonpost.com/news/...eople-with-old-nonviolent-felony-convictions/

Just use browser private mode and you can view 5 or 6 WaPon articles every time you open a new private viewer.

Mike

 

[gc70]

Norman v State is a Florida Court of Appeals decision, while Suarez v Holder is a Federal District Court decision.

 

[eddd7]

Excellent dissection of the 2nd Amendment

Here is an excellent dissection of the 2nd Amendment that we should learn well, to answer those who try to make the usual arguments against it.

https://www.billwhittle.com/firewall/your-second-amendment

 

[Red Wind]

Good reading!

 

[T2K]

"A well-educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."

That was in the video and it's GOLD. It explains the 2nd Amendment perfectly.

 

[Mainsail]

Re: the FL case. The court is saying that open carry is properly prohibited by State law, primarily because concealed carry IS legal. In other words, the law banning open carry is constitutional because it doesn't destroy the right to bear arms, since concealed carry is available and lawful.

That opens FL up to having the permitting system challenged for a number of reasons, but cost certainly comes to mind. The $112 fee would arguably encumber the right especially if one were at or below the poverty level. If I lived in FL and didn't have the cash to pay the permit fee, my right to bear firearms for lawful defense is destroyed.

Interesting....

 

[jrmiddleton425]

Re: the FL case. The court is saying that open carry is properly prohibited by State law, primarily because concealed carry IS legal. In other words, the law banning open carry is constitutional because it doesn't destroy the right to bear arms, since concealed carry is available and lawful.

That opens FL up to having the permitting system challenged for a number of reasons, but cost certainly comes to mind. The $112 fee would arguably encumber the right especially if one were at or below the poverty level. If I lived in FL and didn't have the cash to pay the permit fee, my right to bear firearms for lawful defense is destroyed.

Interesting....

It's worth noting that $112 is less than the cost of a carton of cigarettes, which low-income people who smoke, don't seem to have trouble buying. If they want to get a carry license, they can afford it.

 

[The_Next_Generation]

It's worth noting that $112 is less than the cost of a carton of cigarettes, which low-income people who smoke, don't seem to have trouble buying. If they want to get a carry license, they can afford it.

There are a lot of obvious problems with saying this. Having to pay to exercise a right limits one's access to said right, and is therefore considered a restriction. If I have a right, I ought to be able to exercise it without any restriction whatsoever.

Why don't we apply you logic on a larger financial scale? Plenty of people make $80,000 or more and have no problem spending $1,000 (or more) on a vacation every year. If they can afford that they should be able to afford a $1,000 carry permit.

FWIW, not all people who are poor smoke. That is a pretty terrible thing to assume. I don't smoke, but because I'm enrolled in several upper-division computer science classes, I don't have extra time to maintain a job to pay for $100 permits, $300 CCW classes, etc.

 

[Styx]

It's worth noting that $112 is less than the cost of a carton of cigarettes, which low-income people who smoke, don't seem to have trouble buying. If they want to get a carry license, they can afford it.

Are you assuming that all or most low income people smoke or are on some other type of drugs? Seems like a pretentious stereotypical statement.

 

[USAF_Vet]

It's worth noting that $112 is less than the cost of a carton of cigarettes, which low-income people who smoke, don't seem to have trouble buying. If they want to get a carry license, they can afford it.

Fantastic idea, license fees commensurate with income. Let's include the IRS and the requirement to produce a W2 form when applying for a permit, just to make sure the state applies the appropriate fee/ tax.

In other words, the law banning open carry is constitutional because it doesn't destroy the right to bear arms, since concealed carry is available and lawful.

Then the process to acquire a concealed carry license should be at the cost of the state, not the people. In other words, free, since even a $5 processing fee is placing the burden on the applicant, who has no other recourse to bear arms.

I hate the application fee for my CPL, but at least I do have the open carry option, which is probably one of the excuses used to charge $100 plus the processing fee for a license. Carrying concealed is considered a privilege by the state, while open carry is a protected right. Restrict that right, and the fee system for a CPL needs to be abolished.

Personally, I'd like to see Michigan, hell, the entire nation move to Constitutional Carry.

 

[Ed N.]

The fee is part of the problem, but hardly all of it. What other right requires fingerprinting, a background check, training, skill demonstration, PLUS a fee, followed by several months of waiting, before it can be exercised? Furthermore, what other constitutional right is denied to people who are 18 years old? Florida permits are unavailable until age 21.

Imagine having to get a background check and demonstrate language competence before exercising your right to free speech, or passing a spelling and grammar test before freedom of the press became available to you. How about a class in world religions before you have the right to pray?

This guy was the wrong test case. What we need is a 19 year old unemployed college student, deep in student loan debt, who is denied a FL CCW. His 2A right to bear arms is unavailable to him in Florida, and the constitutional problem with that should be very clear.

 

[Devonai]

Are you assuming that all or most low income people smoke or are on some other type of drugs? Seems like a pretentious stereotypical statement.

It is statistically true that the lower income population smokes more cigarettes. It's not a stereotype, it's a fact. Libertarian-minded folks have been making the argument for years that onerous tobacco taxes disproportionately harm the low income population.

Cigarettes boost seratonin levels in the brain. Research suggests that it is this effect, not nicotine, that creates dependency. It follows that financial difficulties, an obvious source of stress, would lead to the use of an easily available antidepressant.

 

[Styx]

It is statistically true that the lower income population smokes more cigarettes. It's not a stereotype, it's a fact. Libertarian-minded folks have been making the argument for years that onerous tobacco taxes disproportionately harm the low income population.

Cigarettes boost seratonin levels in the brain. Research suggests that it is this effect, not nicotine, that creates dependency. It follows that financial difficulties, an obvious source of stress, would lead to the use of an easily available antidepressant.

Go back and read again. Statistically, all or most low income people do NOT smoke at all therefore a large majority of them are not blowing money that they could have spent on a conceal carry license on cigarettes as was stereotypically suggested. This was not a "vs" question between the poor and middle class pertaining to who smokes the most.

 

[Onward Allusion]

It's worth noting that $112 is less than the cost of a carton of cigarettes, which low-income people who smoke, don't seem to have trouble buying. If they want to get a carry license, they can afford it.

Why do people always say stuff like this??? This goes along the lines of "if you save a little more, you can get . . ."; "I wouldn't depend my life on a $xx gun."; "If they can spend XXX on ___, then they should . . .".; "If your neighborhood is that bad, move...".

A couple of thoughts on this...
#1 - Have you ever been dead broke?
#2 - Have you ever had to live paycheck to paycheck?
#3 - Do you know people have different responsibilities and priorities?

 

[Frank Ettin]

...That opens FL up to having the permitting system challenged for a number of reasons, but cost certainly comes to mind. The $112 fee would arguably encumber the right especially if one were at or below the poverty level. If I lived in FL and didn't have the cash to pay the permit fee, my right to bear firearms for lawful defense is destroyed.

However, that argument was not made in Norman (Norman v. State of Florida, No. 4D12-3525 (District Court of Appeals of The State of Florida, 4th District) slip op at 23):

......Defendant does not argue that the requirements to obtain a Florida permit are unreasonable to the point of making the law unconstitutional. Defendant was not prohibited from obtaining a concealed weapons permit—indeed, he possessed one at the time of his arrest. Likewise, Defendant did not argue that he was somehow precluded from the ability to lawfully carry his weapon in a concealed fashion....

...Having to pay to exercise a right limits one's access to said right, and is therefore considered a restriction. If I have a right, I ought to be able to exercise it without any restriction whatsoever....

That is not necessarily the law, and the Court of Appeals in Norman would specifically not agree (slip op at 24 -- 25):

...In our opinion, section 790.053 does not effectively enjoin responsible, law-abiding citizens from the right to carry a firearm in public for self-defense. Rather, it permits the typical responsible, law-abiding citizen the ability to bear arms in public, albeit with constitutionally permissible restrictions, for the lawful purpose of self-defense. Florida’s licensing scheme is not unduly restrictive, and is consistent with the valid use of its police powers and the dictates of the Constitution to promote safety for both the firearm carrier and the community at large. Further, open carry is not the only practical avenue by which Defendant may lawfully carry a gun in public for self-defense. Through its “shall-issue” permitting scheme, Florida has provided a viable alternative outlet to open firearms carry which gives practical effect to its citizens’ exercise of their Second Amendment rights....

....Why do people always say stuff like this??? This goes along the lines of "if you save a little more, you can get . . ."; "I wouldn't depend my life on a $xx gun."; "If they can spend XXX on ___, then they should . . .".; "If your neighborhood is that bad, move..."....

But that has nothing to do with the Norman case. You might wish to argue that to a legislature as part of lobbying for less restrictive carry rights, or in court in an appropriate case. But the economic burden of seeking a concealed carry license was not raised in Norman. It is therefore irrelevant in a discussion of that case.

 

[Frank Ettin]

Let's focus on discussion of the two cases Arizona_Mike brought to our attention instead of drifting into musing about "the way things should be."

 

[Mainsail]

Good points Frank. It could (arguably should) come down to a question of whether or not it's appropriate to charge someone money in order to exercise a civil right, and an enumerated one at that. The old poll tax was declared unconstitutional for that very reason. One's level of income isnt really the issue. This court said the permitting system wasn't a burden on the right, but doesn't address the fee specifically.

 

[Ohio Gun Guy]

I think these are all part of the Heller "Strict Scrutiny" part of the decision. It was a scary argument to have because of the possible implications, but ultimately that decision is bearing fruit.... I think we'll see continued challenges to laws & Liberal theories that removing someones 2A rights is a bit more complicated than catching someone J-Walking....

 

[leadcounsel]

In a perfect world, we should be able to carry without a permit and without fees. If you're legal to own, you're legal to carry. There are 4 states, I believe, that allow this. On principle, that's correct.

For the rest of us, the states that require a permit, I don't take issue with MINIMAL costs to exercising the right to keep/bear arms. In the states I've lived, that fee has generally worked out to about a dollar or a few dollars per month. That's completely reasonable for any permit. The waits for the permits have been a few weeks to a few months. It should be on the spot, or mailed immediately.

As for the fee, guns and ammo aren't free or provided by the state, so one does need to actually buy something (or borrow I suppose) to exercise the right... and presumably train, so there is a cost involved.

And while there may not be direct costs to exercising other rights (in public), in the real world there are actually some costs involved. If you're a member of a church, you're probably asked or expected to tithe or volunteer your time in those pursuits. If you want to exercise freedom of speech in public, there are some licenses to obtain, airwaves aren't free, newspapers articles or advertisements cost money to publish, etc.

Where I take issue is requiring relatively significant costs (several hundred dollars), expensive courses which are inconvenient, linking a license to a single gun, overly prohibitive carry restrictions, months of waiting, and arbitrary denials.

 

[Frank Ettin]

...This court said the permitting system wasn't a burden on the right, but doesn't address the fee specifically.

Yup. Let's look at some of the key points of Norman:

1. The Second Amendment protects an individual right to carry a gun for personal protection outside the home.
   
   
2. Open carry is not necessarily the constitutionally favored means of exercising that right.
   
   
3. A State may limit or restrict or prohibit one means of carry as long as some means is reasonably available.
   
   
4. A State may regulate permissible carrying of a gun outside the home for personal protection.

Off the top of my head, this seems to reflect a broad trend in positive judicial thinking on the issue. Norman seems generally consistent with Federal Circuit Courts decisions in Madigan and Peruta and the Federal District Court decision in Palmer. The open issue is the constitutional limits on the scope and extent of permissible regulation.

 

[gun_with_a_view]

A State may limit or restrict or prohibit one means of carry as long as some means is reasonably available.

That more often than not means getting a permit to carry concealed. Depending upon the state, such a permit is can be expensive and time consuming to obtain. Just because can be done does not mean it's not an unreasonable burden. In fact, a convincing argument can be made that people who need a gun the most for self-defense are the least able to acquire one due to time, distance and financial hardship. A compliant permitting scheme must be little more than than the present instant background check and cost no more than the actual cost of the process.

 

[Frank Ettin]

A State may limit or restrict or prohibit one means of carry as long as some means is reasonably available.

That more often than not means getting a permit to carry concealed. Depending upon the state, such a permit is can be expensive and time consuming to obtain. Just because can be done does not mean it's not an unreasonable burden....

However, that will be up to a court to decide when that argument is raised in a particular case with reference to a particular permitting arrangement.

...In fact, a convincing argument can be made that people who need a gun the most for self-defense are the least able to acquire one due to time, distance and financial hardship....

Whether that argument is convincing will be up to the court to which it is addressed to decide.

...A compliant permitting scheme must be little more than than the present instant background check and cost no more than the actual cost of the process.

Apparently that is your opinion, but your opinion is irrelevant. It will be up to the courts to work out the permissible scope, extent and requirements of a compliant permitting scheme. We're a long way from any certainty on that issue.

 

[gun_with_a_view]

It will be up to the courts to work out the permissible scope, extent and requirements of a compliant permitting scheme

Perhaps. But any court is going to have problems accepting a state-owned for-profit licensing procedure like those currently operated by Texas, Louisiana and Florida. I suspect those are just for openers.

 

[Frank Ettin]

It will be up to the courts to work out the permissible scope, extent and requirements of a compliant permitting scheme

Perhaps. But any court is going to have problems accepting a state-owned for-profit licensing procedure like those currently operated by Texas, Louisiana and Florida.....

Really? And on exactly what legal authority do you base that opinion? Can you cite anything in any of post-Heller Second Amendment case law to support that conjecture? And on what evidence do you base your conjecture that the current licensing procedures you've referenced are "for profit"?

 

[gun_with_a_view]

First, SCOTUS made it abundantly clear in Heller that the right to bear arms is a natural right of man. One does not need a "permit" to exercise a right.

Secondly, under strict scrutiny, licensing states will have to provide a process narrowly tailored to achieve a compelling government interest that is the least obtrusive method available. Licensing schemes with bloated excessive charges and burdensome bureaucratic hurdles likely will not survive this challenge.

Of course, there are lower levels of scrutiny the courts can attempt to use. But can they survive on appeal? The non-profits with easy access, maybe.

For-profit concealed carry licensing schemes milking the public for a buck and running interference for illegal gun law policies will fight an uphill battle.