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Drake v. Jerejian


kevinmcc

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The NRA as an organization has a lot invested in promoting...

 

 

I believe that is the important part, regardless of the dedicated NRA branches the NRA is still primarily a lobby and public relations organization promoting firearms, they tend to not stir the court battle pot they just give it nudges and then only when they deem it a promising case...

Edited by RockerXX
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The Heller case I believe stated that regulation or prohibitions on concealed firearms is presumptively lawful. They never directly addressed it specifically, only in the context of both being prohibited at the same time.

It amazes me how few people have actually read the Heller decision...

 

District of Columbia v. Heller, 554 U.S. 570, (2008)

 

Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."

 

" In Nunn v.State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol "publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid."

 

Yes it is all dicta, but if they didn't mean it, they wouldn't have said it. They laid it all out nicely, yet the NRA and SAF/Alan Gura seem to think that concealed carry is the way to go.

 

 

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The Heller case I believe stated that regulation or prohibitions on concealed firearms is presumptively lawful. They never directly addressed it specifically, only in the context of both being prohibited at the same time.

It amazes me how few people have actually read the Heller decision...

 

District of Columbia v. Heller, 554 U.S. 570, (2008)

 

Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."

 

" In Nunn v.State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol "publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid."

 

Yes it is all dicta, but if they didn't mean it, they wouldn't have said it. They laid it all out nicely, yet the NRA and SAF/Alan Gura seem to think that concealed carry is the way to go.

 

This wasn't a CCW case. NJ doesn't distinguish between open and concealed carry. I think the various orgs have been quite clear they're seeking for their clients to be able to carry, period. They apply for the CCW license to establish standing.

 

 

 

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The NRA as an organization has a lot invested in promoting...

 

 

I believe that is the important part, regardless of the dedicated NRA branches the NRA is still primarily a lobby and public relations organization promoting firearms, they tend to not stir the court battle pot they just give it nudges and then only when they deem it a promising case...

 

And I do not fault them for that. they have their own agenda like every other entity out there that they need to push for their own reasons. it just happens that in this case their agenda clearly is to focus on concealed carry and they would just as soon not deal with open carry at all.

 

I am not convinced they can avoid the open carry issue though.

 

SCOTUS has been pretty clear that concealed carry can be heavily regulated and it is hard for me to see how a right can be regulated like that. It suggests to me that the court might well be hinting that the court is far less likely to tolerate restrictions on open carry. After all, traditionally the "bearing" of arms has been almost always open carry. The phrase it self conjurs up the image of someone toting around a gun openly. It is only fairly recently that concealed carry became popular. And the court is looking at what the amendment probably meant at the time it was enacted. At that time, there just was not much in the way of concealed carry, although it was not totally unheard of, especially in inclement weather.

Edited by bob
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The Heller case I believe stated that regulation or prohibitions on concealed firearms is presumptively lawful. They never directly addressed it specifically, only in the context of both being prohibited at the same time.

It amazes me how few people have actually read the Heller decision...

 

District of Columbia v. Heller, 554 U.S. 570, (2008)

 

Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."

 

" In Nunn v.State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol "publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid."

 

Yes it is all dicta, but if they didn't mean it, they wouldn't have said it. They laid it all out nicely, yet the NRA and SAF/Alan Gura seem to think that concealed carry is the way to go.

 

This wasn't a CCW case. NJ doesn't distinguish between open and concealed carry. I think the various orgs have been quite clear they're seeking for their clients to be able to carry, period. They apply for the CCW license to establish standing.

 

 

 

 

 

And that's the problem with his cases. You don't seek a license in the exercise of a fundamental right. Gura is ok with getting the license, but doesn't like the precondition application terms. Too bad, he's seeking to do something that is illegal and unlawful(See: license definition) and they can regulate it completely. That's why the license requirement, the application for a license, needs to be the focus of argument and not the preconditions or conditions that follow once under the license. Intermingling concealed carry with open carry isn't going to cut it either, as the Heller case gave light to the fact that concealed carry is not protected under the 2nd Amendment. It's open carry without a license, that's the position he needs to take. You would think that he would have figured it out by now....He's 0-4 on seeking a license to carry.

 

Bouvier's Law Dictionary

 

LICENSE, contracts. A right given by some competent authority to do an act, which without such authority would be illegal. The instrument or writing which secures this right, is also called a license. Vide Ayl. Parerg, 353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.

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The Peruta case out of California is different: it was ruled that "may issue" was unconstitutional BECAUSE California banned the practice of open carry of both handguns and long guns, both loaded and unloaded. Therefore, it gives its citizens no legal way of carrying firearms other than a discretionary permit issuance system for concealed carry in all counties. If en banc is denied in the Peruta case, what would probably happen is that the state would be ordered to make their concealed carry permit system shall-issue or repeal their current ban on open carry, just like Illinois was given 180 days to craft a concealed carry law after Moore. This assumes that California's AG, Kamala Harris, is as risk adverse as Lisa Madigan was last year when she faced the same decision of whether to petition SCOTUS or not.

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They may be waiting for Peruta since it does deal strictly with licenses to carry due to the fact that it was originally mooted by the unlicensed open carry of firearms and due to their criminalizing the unloaded open carry the court ruled that they have to allow one form of carry to the masses whether it be open or concealed and they ruled that self defense is a valid reason for a license. With everything leading up to the ruling with open carry SCOTUS could use that as an avenue to claim that unlicensed openly carrying is a protected right.

Edited by borgranta
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How much time is left for Peruta to be appealed to SCOTUS?

 

I'm starting to think there's something to it, that the supreme court wants an open carry case because that's the traditional 2A right, IL might be a good state to find a plaintiff to run for that right :) Hilarity would ensue when/if open carry got restored for IL..

 

 

Conceal Carry makes more sens tactically *for me*, but it's not my job to determine that for other people, if people want to OC, that should be an option imo.

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How much time is left for Peruta to be appealed to SCOTUS?

 

I'm starting to think there's something to it, that the supreme court wants an open carry case because that's the traditional 2A right, IL might be a good state to find a plaintiff to run for that right :) Hilarity would ensue when/if open carry got restored for IL..

 

 

Conceal Carry makes more sens tactically *for me*, but it's not my job to determine that for other people, if people want to OC, that should be an option imo.

It would be interesting to see the weeping and gnashing of teeth that would go on.

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There's been a lot of talk here that SCOTUS I'd waiting for this case or that case, or some perfect case. I don't think they are waiting for any more gun cases and probably wish the whole subject would go away.

It would go away if they'd just take a damn case and rule already.

 

maybe they are waiting for the 'right" case.

 

A one sentence denial of cert that goes something like this: "The court concurs with the decision of the appeals and district courts in this matter and remands the case to the appeals court for implementation and thus denies cert in this case".

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How much time is left for Peruta to be appealed to SCOTUS?

 

I'm starting to think there's something to it, that the supreme court wants an open carry case because that's the traditional 2A right, IL might be a good state to find a plaintiff to run for that right :) Hilarity would ensue when/if open carry got restored for IL..

 

 

Conceal Carry makes more sens tactically *for me*, but it's not my job to determine that for other people, if people want to OC, that should be an option imo.

It would be interesting to see the weeping and gnashing of teeth that would go on.

 

If they were to rule that prohibiting unlicensed open carry was unconstitutional it would force them to make it easier to acquire a permit to reduce the amount of open carriers.
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How long do they have to file cert petition? The case is not even ripe. The panel reversed and remanded for new trial or more likely, summary judgment, pursuant to the panel's ruling. Kamala is still trying to get it reheard en banc. If that happens and the panel is overturned, then it's ripe for appeal otherwise the case has to wait for a bit longer.

 

Sent from my SCH-I545 using Tapatalk 2

 

 

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How long do they have to file cert petition? The case is not even ripe. The panel reversed and remanded for new trial or more likely, summary judgment, pursuant to the panel's ruling. Kamala is still trying to get it reheard en banc. If that happens and the panel is overturned, then it's ripe for appeal otherwise the case has to wait for a bit longer. Sent from my SCH-I545 using Tapatalk 2

ok good so there's still time.

 

I thought for sure the SCOTUS would take a carry case just to resolve the circuit split, but I guess they don't care.

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I think that case will not move past dispositive motions unless...eh I guess it has to sit on the docket for a decade or something because Judge Kennedy was the first judge assigned to the case and he did absolutely nothing. The petition was denied without prejudice though which means Gura can file ANOTHER petition for a writ of mandamus with CADC. The last petition was denied by the panel in a per curiam (took em two months to draft a per curiam containing a half dozen sentences, probably fewer, because...

 

"Petitioners have not shown that the district court’s delay in ruling on the pending cross-motions for summary judgment is so egregious or unreasonable as to warrant the extraordinary remedy of mandamus at this time. We are confident that the district court will act on the motions as promptly as its docket permits."

 

Really? What part of this is unreasonable? Asking the Circuit to do its job when the district will not or, alternatively, asking the district judge to do his job? The first district judge assigned to Palmer, Judge Kennedy, sat on it for 24 months and did nothing. I mean held a hearing and that's it, I guess he decided he'd just let the case rot on the docket. C.J. Roberts pulled him from the case (which never happens...never heard of the Circuit Justice reassigning a case) and reassigned Judge Scullin who has been sitting on it for nealy 3 years, 2 years after he promised a quick ruling on the motions. When nearly 6 years have passed without a single dispositive motion ruled on, how could anyone be confident that Judge Scullin will rule on the cross-motions? Judges Henderson (Bush I), Brown (Bush II), and Srinivasan (Obama) ruled on the petition. I'm just in awe, that case has been on the DCD docket since August 2009 and if it goes to trial, it'll take at least two more years (one year or more just to conduct discovery and all that) from right this second for any sort of appealable ruling.

 

Sent from my SCH-I545 using Tapatalk 2

 

 

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Wow yeah he did renew the petition. Last week. I missed that one. These are motions from October 2009 that the petition is asking the panel to rule on, not last week. I don't think Judge Brown is on board with denying it in the first place but it was unanimous.. He cited Peruta and that gave me a laugh since Peruta was ruled on at the district level pretty damn fast compared to Palmer (hypothetically since Palmer is still in DCD).

 

Sent from my SCH-I545 using Tapatalk 2

 

 

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Wow, Gura drafted this. Jensen wouldn't use this kind of...stern, borderline offensive language. Seems like Gura is fed up with SCOTUS passing on cases (obviously if anyone read the cert petition)....

 

"No serious person believes that people in New

Jersey today enjoy their right to “bear arms” – defined

by this Court as “carrying [arms] for a particular

purpose – confrontation.” District of Columbia v.

Heller, 554 U.S. 570, 584 (2008). Even the majority

below found that New Jersey’s “justifiable need”

requirement is incompatible with a right to carry

defensive handguns. It thus held – exactly backwards

– that the requirement’s adoption defeats an understanding

that the Second Amendment secures that

right."

transport a gun through NY or NJ and expect to have a problem with police. They will arrest you and the only recourse you have is to show up in court. Fed laws on transport be damned.

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