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Is Concealed Carry a Right Under the Second Amendment? Make your case here.

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#31 Hipshot Percussion

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Posted 24 September 2016 - 12:51 PM

The Second Amendment says what is says.  What's being argued about is like asking -"where does it say you can bear anything more than a musket?"  The beauty of the 2A lies in it's simplicity.  How the courts or ideological justices rule upon it doesn't impact my opinion.  Bear means bear.


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#32 THE KING

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Posted 24 September 2016 - 05:18 PM

mauserme - The post above is an example of incivility "I am not amused nor do I need your advice. I really don't need or want to sit and read law school text books."
 
My original post invites people to make their case for concealed carry.  His is not a logical argument.  There are many ways I could characterize what it is but I'm sure that whatever I would say in response would be labeled "uncivil."


So my comments are uncivil. Really, because as an adult I don't want your advice. My comments are logical. The second amendment should be looked at very simplistic. Individuals such as yourself are the problem. You only argue for open carry when you should be arguing for the right itself.

Edited by mauserme, 24 September 2016 - 05:50 PM.


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#33 mauserme

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Posted 24 September 2016 - 05:53 PM

...

Now that is uncivil.


Yeah, too much so.

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#34 Charles Nichols

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Posted 24 September 2016 - 07:12 PM

OP, what is your goal here? I can't figure out what your intent is other than to stir the pot and argue.

That I create a separate topic on concealed carry was suggested to me by the/an Admin.  The suggestion seemed like a good idea to me and so I created the topic and the/an Admin has pinned the topic (for now).



#35 singlecoilpickup

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Posted 24 September 2016 - 07:25 PM

That pretty much dodges the question entirely.

Again, what is your goal in this posting exactly?

#36 Charles Nichols

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Posted 24 September 2016 - 07:32 PM

That pretty much dodges the question entirely.

Again, what is your goal in this posting exactly?

And yet this follow-up post of yours does answer your question.  How ironic is that?



#37 mauserme

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Posted 24 September 2016 - 09:26 PM

It may or may not be what you intend, but it's easy to get the impression that you'd like to replace concealed carry with open carry instead of adding to it.

I understand you don't believe concealed carry is a right, but I don't think anyone can deny it's the reality in most states that concealed is the available form of carry. It's also the variety many people prefer.

Rather than speaking in terms of replacing, you might give some thought to the idea that anything that adds to our freedom is a worthy goal, including open carry as an option to other, existing methods of carry.

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Let all bitterness and wrath and anger and clamor and slander be put away from you, along with all malice. (Ephesians 4:31)

 

On 5/25/2017, Superintendent Eddie Johnson predicted a 50% reduction is Chicago violence within 3 years of SB1722 becoming law.  The bill was signed into law on 6/23/2017. The clock is now ticking.


#38 Charles Nichols

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Posted 24 September 2016 - 10:06 PM

It may or may not be what you intend, but it's easy to get the impression that you'd like to replace concealed carry with open carry instead of adding to it.

I understand you don't believe concealed carry is a right, but I don't think anyone can deny it's the reality in most states that concealed is the available form of carry. It's also the variety many people prefer.

Rather than speaking in terms of replacing, you might give some thought to the idea that anything that adds to our freedom is a worthy goal, including open carry as an option to other, existing methods of carry.

It is true that if it were up to me then I would ban concealed carry subject to the 19th century exceptions (e.g., travelers while actually on a journey) but that is not the purpose of my creating this topic.

 

There are those here who insist that the Second Amendment protects concealed carry despite nearly half a millennium of case law and prohibitory laws saying it isn't. Here is where they are provided with the opportunity to make their case that concealed carry is a right under the Second Amendment.

 

So far, not a single person has even taken a stab, as it were, at making a case.

 

I don't expect that anyone will but one never knows.  Perhaps someone here will surprise me and do something that none of the so called gun-rights lawyers were able to make in any of their concealed carry lawsuits, and that is a case which supports the proposition that concealed carry is a Second Amendment right.



#39 singlecoilpickup

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Posted 24 September 2016 - 10:23 PM

 

That pretty much dodges the question entirely.

Again, what is your goal in this posting exactly?

And yet this follow-up post of yours does answer your question.  How ironic is that?

 

 

Ok, guy. You're just here looking to pick a fight. Confirmed. Thanks.



#40 Charles Nichols

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Posted 24 September 2016 - 10:28 PM

 

 

That pretty much dodges the question entirely.

Again, what is your goal in this posting exactly?

And yet this follow-up post of yours does answer your question.  How ironic is that?

 

 

Ok, guy. You're just here looking to pick a fight. Confirmed. Thanks.

 

I find it telling that your failure to make the case that concealed carry is a Second Amendment right equates to my "looking to pick a fight."



#41 spec5

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Posted 24 September 2016 - 10:52 PM

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#42 Gamma

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Posted 24 September 2016 - 10:52 PM

It is true that if it were up to me then I would ban concealed carry subject to the 19th century exceptions (e.g., travelers while actually on a journey) but that is not the purpose of my creating this topic.

Last I checked, the understanding and appreciation for civil rights across the board has changed significantly since the 19th century - socially, legislatively, and in the courts.

I am thankful that my civil rights are not subject to your bigotry, at least in Illinois and most states. There are still some who agree with you.

Edited by Gamma, 24 September 2016 - 10:53 PM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#43 singlecoilpickup

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Posted 24 September 2016 - 11:02 PM

I find it telling that your failure to make the case that concealed carry is a Second Amendment right equates to my "looking to pick a fight."

 

 

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#44 Tip

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Posted 24 September 2016 - 11:03 PM

Carry is a right under the Second. The right to keep AND BEAR arms. The Second makes NO distinction as to open or concealed. The arguments that can be applied to one method can be equally applied UNDER THE SECOND AMENDMENT to the other. To claim otherwise is to place additions into the Second that simply do not exist.

Edited by Tip, 24 September 2016 - 11:03 PM.

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#45 Charles Nichols

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Posted 24 September 2016 - 11:51 PM

Carry is a right under the Second. The right to keep AND BEAR arms. The Second makes NO distinction as to open or concealed. The arguments that can be applied to one method can be equally applied UNDER THE SECOND AMENDMENT to the other. To claim otherwise is to place additions into the Second that simply do not exist.

Here are a few conclusions made by courts which have held that concealed carry is not a right under the Second Amendment and which highlight differences between concealed and open carry.

 

1.  "The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant's innocent intent does not make a concealed weapon any more visible."

 

2.  A weapon carried for the purpose of self-defense is only effective when carried openly.

 

3. A weapon carried concealed is carried for secret advantage and unmanly assassination.

 

Your post is the 44th post in this topic, none of which has made the case that concealed carry is a Second Amendment right.



#46 press1280

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Posted 25 September 2016 - 06:02 AM

I would ask that you check my post #26 and give your thoughts on this.

 

In addition, I'll ask another question with which I've also been confused about and that's in reference to Baldwin. That is, at the time (1897), there was no incorporation of the 2A or any of the BoR, nor any Federal CC statutes. Why would SCOTUS make in effect a ruling on CC in a case that had nothing to do with the 2A nor with a law that could even be violated at the time?



#47 Charles Nichols

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Posted 25 September 2016 - 07:17 AM

I would examine this under a different angle. While Nunn & Chandler are clear with their holdings, I would say those cases are devoid of any analysis required by modern courts. Nunn & Chandler just assumed with no empirical evidence that CC was a societal evil (no mention why the "journey" exceptions to CC made someone less evil). Obviously, as cited by Posner in Moore, we know that law abiding people who CC are not the social evil as believed in Nunn and Chandler. Further, it was pointed out actually in Norman (FL) that a person's wardrobe and weather can affect the manner of carry. CC in a FL summer is obviously not ideal for many people, yet OC in winter Alaska may be just as bad of a proposition.

 

Something else that bothers me is how the states' RKBA amendments evolved over time. The early ones made no mention of concealed carry (or regulating the manner). I believe it wasn't until after Bliss (which held CC WAS protected under the KY constitution) that this changed. The constitutions started adding in the CC regulations/prohibitions. If it's commonly understood the RKBA didn't include CC why amend the state constitution to reflect this? Other than Bliss in KY it shouldn't have happened in other states if they understood this. Now you might say that those are the state constitutions and have nothing to do with the 2A but I would beg to differ as this reflects the public's understanding.

 

I'm arguing that VT carry is the true constitutional carry. The state cannot make a good case that there's a particular evil from either mode of carry (there are time,place, manner restrictions).

Your first question was answered in the Heller decision.  Judges, including the justices, are not allowed to engage in interest balancing of the Second Amendment right. That was done by the Framers of the Second and Fourteenth Amendments and the people who voted to enact those amendments into law.  The justices could have believed that concealed carry was the best thing to come along since sliced bread but that made no difference in their analysis.  Concealed carry is not a right under the Second Amendment and they were bound by the Framers.  

 

Exceptions for travelers while actually on a journey date back 800 years or more so it shouldn't be surprising that those exceptions continued.  In California, the exception for travelers while actually on a journey extended into the first decade of so of the 20th century.

 

The early state RKBA amendments made no mention of concealed carry for the same reason that the Second Amendment made no mention of concealed carry.  Everyone knew that concealed carry was not a right until Bliss came along which answers your question why states amended their RKBA to prohibit concealed carry after Bliss was decided, including Kentucky where the Bliss case originated.

 

Vermont may have constitutional carry under the Vermont constitution but we aren't talking about Vermont or whatever any state decides to do with concealed carry.  We are talking here about the Second Amendment of the United States Constitution and it doesn't protect concealed carry, it never has.

 

As to your other question: "In addition, I'll ask another question with which I've also been confused about and that's in reference to Baldwin. That is, at the time (1897), there was no incorporation of the 2A or any of the BoR, nor any Federal CC statutes. Why would SCOTUS make in effect a ruling on CC in a case that had nothing to do with the 2A nor with a law that could even be violated at the time?"

 

The majority decision in Heller did not cite Baldwin for the proposition that concealed carry is not a right.  It cited Baldwin at 281 which said "that the Second Amendment was not intended to lay down a "novel principl[e]" but rather codified a right "inherited from our English ancestors."

 

It was Justice Breyer who cited Baldwin at 282 which said that "the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..."  A conclusion which all four justices in the Heller minority said was an appropriate conclusion of the majority.  Id at 2851.

 

All nine justices in the Heller decision said that the Second Amendment does not protect concealed carry and yet there are still people who say that the Heller decision says they have a Second Amendment right to concealed carry.

 

I think that answers all of your questions.



#48 tkroenlein

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Posted 25 September 2016 - 08:55 AM

If Heller did in fact hold that concealed carry is not the protected right, and open carry is, why were the states not compelled to fall in line and allow it?


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#49 Charles Nichols

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Posted 25 September 2016 - 09:17 AM

If Heller did in fact hold that concealed carry is not the protected right, and open carry is, why were the states not compelled to fall in line and allow it?


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If prohibitions on Open Carry are not repealed by the legislative bodies which enacted them, or those charged with enforcing the prohibitions do not voluntarily cease to enforce the laws, then it requires a court order which prohibits enforcement of those laws by a court which has jurisdiction over the laws.

 

Judges cannot simply strike down laws on their own.  There must be a lawsuit filed which seeks to overturn those laws and it must be successful.

 

The so called gun-rights groups oppose Open Carry they haven't, and won't be, filing any lawsuits seeking to overturn Open Carry prohibitions.

 

No lawsuit equals no injunction which means the Open Carry prohibitions remain standing and are enforceable.



#50 Glock23

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Posted 25 September 2016 - 10:40 AM

For those who may not have read this previously, it's an interesting read that supports open carry (not concealed) as being protected by the 2nd Amendment.

http://www.yalelawjo...econd-amendment

Edited by Glock23, 25 September 2016 - 10:40 AM.

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#51 Tip

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Posted 25 September 2016 - 12:30 PM

 
Your post is the 44th post in this topic, none of which has made the case that concealed carry is a Second Amendment right.


No, none that you are willing to accept.

The courts ruled that the Illinois outright ban on concealed carry was unconstitutional. In order to make a ruling that a ban against an action is unconstitutional the courts must first accept the premise that the action must have a constitutional basis. Sans that acceptance there is no basis for a ruling. The fact you are unwilling to accept such rulings and inferences is of no matter to me.


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#52 kwc

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Posted 25 September 2016 - 01:42 PM

I don't think most of us believe the 7th Circuit Court of Appeals in Moore ruled the ban on concealed carry was unconstitutional. Most of us would say the court ruled the ban on bearing arms (regardless of manner) outside the home was unconstitutional. I realize the OP has a different interpretation of the CA7 decision and has laid out his case many times here on IC.

Edited by kwc, 25 September 2016 - 02:24 PM.

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#53 RoadyRunner

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Posted 25 September 2016 - 02:04 PM

I understand that OP is an attorney, while most of the rest of us only play on on the interwebs.... If OP feels so strongly as it appears, I encourage OP to file suit here in Illinois against the State who (in OPs opinion) didn't satisfy the 2nd when they allowed permitted concealed carry instead of unpermitted open. As far as I can tell, there has not been precident that concealed is a right. However, I don't think there is precident that it protects open either.... Otherwise, there would be slam-dunk victories around the nation. Oh, I'm likely wrong as well... After all, I don't even pretend to be a lawyer... :)

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#54 Gamma

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Posted 25 September 2016 - 02:45 PM

I understand that OP is an attorney

Which may be why OP is unable to grasp that people can have civil rights outside the text of court decisions, and in contravention of his personal opinion of them.

We now have, what, 11 states that allow unlicensed concealed carry, the most recent being just this month. I think the tide is turning against the OPs crusade against concealed carry.

Frankly I think he's attempting to thwart carry entirely by insisting both personally and through the legal system that an unpopular and politically unviable form of carry should be the only acceptable exercise of that civil right.

Edited by Gamma, 25 September 2016 - 02:52 PM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#55 mauserme

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Posted 25 September 2016 - 06:24 PM

It may or may not be what you intend, but it's easy to get the impression that you'd like to replace concealed carry with open carry instead of adding to it.

I understand you don't believe concealed carry is a right, but I don't think anyone can deny it's the reality in most states that concealed is the available form of carry. It's also the variety many people prefer.

Rather than speaking in terms of replacing, you might give some thought to the idea that anything that adds to our freedom is a worthy goal, including open carry as an option to other, existing methods of carry.


It is true that if it were up to me then I would ban concealed carry subject to the 19th century exceptions (e.g., travelers while actually on a journey) but that is not the purpose of my creating this topic.

...


Would you go so far as to try to undermine cases already argued? Culp for example that, if found favorably for appellants, would work against the theory behind your case.

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#56 kwc

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Posted 25 September 2016 - 06:47 PM

I understand that OP is an attorney, while most of the rest of us only play on on the interwebs....


In all filed court documents, the OP files as "pro per" and his signature block doesn't contain the typical "J.D." or "Esq." that usually follow a practicing attorney's name. But the OP can certainly choose to address this if he wishes to do so.

If it isn't outside the scope of this thread, I would like to understand the OP's underlying motivation for waging a vigorous campaign against concealed carry as a right, and his apparent wish to see every RKBA lawsuit that doesn't involve open carry to go down in flames (which he celebrates). His blog is full of commentary and memes such as "[Alan Gottlieb, SAF] just realized he is going to lose another concealed carry lawsuit" (regarding Culp v. Madigan) and "Two Concealed Carry Cases Fire Blanks in U.S. Court of Appeals for the District of Columbia Circuit" (referencing the recent Wrenn and Grace arguments).

It is clear there is bad blood between the OP and the NRA, SAF, Calguns, and many other organizations, based on his statements here and on his blog. Is this campaign a personal vendetta? Or is there another motivation for wanting the courts to rule in such a way as to allow our state governments to restrict the behavior of millions of people across our nation?

Again, if this strays beyond the OP's intent for the thread, please feel free to disregard.

And to be clear, these are sincere questions based on my observations so far. In no way do I intend to misrepresent the OP's actions or words or to "flame" anyone.

I can't speak for everyone here, but I suspect most of us hold strong beliefs that personal freedom is important--freedom to make personal choices, unbound by an oppressive government. Largely, expanding freedom is good; limiting freedom is bad. IMHO waging a campaign against concealed carry as a right works against that basic principle.

Edited by kwc, 25 September 2016 - 07:19 PM.

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#57 tkroenlein

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Posted 25 September 2016 - 07:29 PM

I will take a stab at making a case that concealed carry is a constitutionally protected Right. Now, this doesn't mean that I don't still believe that OC is the "core" right, but that keeping and bearing does and should include concealed firearms, bladed weapons, tazers, etc.

So, here's my statement. Bear in mind, that I am neither a judge nor a lawyer. I'm a pragmatist.

In cases where a total ban on carry has been deemed unconstitutional by the courts, a shall issue concealed carry law has satisfied both the courts, and the *plaintiffs*.

While there are elements of many of these laws passed to relieve these flat bans that may in fact remain "unconstitutional," I, myself, am willing to accept concealed carry as a constitutional remedy to a portion of the egregious infringements levied on our second amendment freedoms.

Also, I wonder why 19th century interpretations are acceptable? I see no reason to accept any restrictions of any kind as in keeping with the constitution.


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Edited by tkroenlein, 25 September 2016 - 07:30 PM.


#58 Charles Nichols

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Posted 25 September 2016 - 08:28 PM

I understand that OP is an attorney, while most of the rest of us only play on on the interwebs.... If OP feels so strongly as it appears, I encourage OP to file suit here in Illinois against the State who (in OPs opinion) didn't satisfy the 2nd when they allowed permitted concealed carry instead of unpermitted open. As far as I can tell, there has not been precident that concealed is a right. However, I don't think there is precident that it protects open either.... Otherwise, there would be slam-dunk victories around the nation. Oh, I'm likely wrong as well... After all, I don't even pretend to be a lawyer... :)

I am not an attorney.  I did study law in college decades ago and had one course left to take before writing the bar (this was before the state required one to be a law school graduate to write the bar).  But one does not have to be a lawyer to read and understand the Heller and McDonald decisions or any of the other Federal appellate decisions upholding prohibitions on concealed carry.  All that requires is the reading and comprehension ability of a 7th grader.



#59 Charles Nichols

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Posted 25 September 2016 - 08:30 PM

 

 

It may or may not be what you intend, but it's easy to get the impression that you'd like to replace concealed carry with open carry instead of adding to it.

I understand you don't believe concealed carry is a right, but I don't think anyone can deny it's the reality in most states that concealed is the available form of carry. It's also the variety many people prefer.

Rather than speaking in terms of replacing, you might give some thought to the idea that anything that adds to our freedom is a worthy goal, including open carry as an option to other, existing methods of carry.


It is true that if it were up to me then I would ban concealed carry subject to the 19th century exceptions (e.g., travelers while actually on a journey) but that is not the purpose of my creating this topic.

...

 


Would you go so far as to try to undermine cases already argued? Culp for example that, if found favorably for appellants, would work against the theory behind your case.

 

The court in Culp could hold that Open Carry is not a right and that wouldn't hurt my case one bit.  I am in the 9th Circuit which has already held in an en banc decision that concealed carry is not a Second Amendment right.



#60 Charles Nichols

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Posted 25 September 2016 - 08:41 PM

I will take a stab at making a case that concealed carry is a constitutionally protected Right. Now, this doesn't mean that I don't still believe that OC is the "core" right, but that keeping and bearing does and should include concealed firearms, bladed weapons, tazers, etc.

So, here's my statement. Bear in mind, that I am neither a judge nor a lawyer. I'm a pragmatist.

In cases where a total ban on carry has been deemed unconstitutional by the courts, a shall issue concealed carry law has satisfied both the courts, and the *plaintiffs*.

While there are elements of many of these laws passed to relieve these flat bans that may in fact remain "unconstitutional," I, myself, am willing to accept concealed carry as a constitutional remedy to a portion of the egregious infringements levied on our second amendment freedoms.

Also, I wonder why 19th century interpretations are acceptable? I see no reason to accept any restrictions of any kind as in keeping with the constitution.


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"In cases where a total ban on carry has been deemed unconstitutional by the courts, a shall issue concealed carry law has satisfied both the courts, and the *plaintiffs*. "

 

That is not a "case."  That cannot even be liberally construed to be a "case."

 

Plaintiffs do not get to decide what is constitutional and no Federal court of Appeals or SCOTUS or any state high court has upheld a prohibition on Open Carry being constitutional.

 

I imagine you are referring to the Moore v. Madigan decision to which Judge Posner said in the subsequent appeal by the NRA that he has no idea if the new Illinois law is constitutional.  

 

Sixty posts now and not a single case has been made in support of concealed carry being a Second Amendment right.  Lots of personal opinions and personal attacks but not a single case has been made in support of this topic.







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