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

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#61 tkroenlein

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Posted 25 September 2016 - 09:24 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.


Well, the plaintiffs do get to decide to file an appeal to a decision. And it's not just M v. M. (Though it is a perfect example, as the entire uuw law was struck as noted by Myerscough on remand.) Where there have been shall issue (and even some may issue) laws passed as a remedy, the plaintiffs ceased their pursuit of a better judgement via continued appeals (not all, of course.) Yes, I understand and agree that the scope of such cases was focused for the most part on concealed carry. But my point, or my "case" if you prefer, is that if the people making the challenges and winning the judgements accept concealed carry only laws as allowing them to exercise their constitutional rights under the 2A, then practically speaking, that's what the right is. No amount of case law supporting or refuting this has an impact on what is actually happening.

To be sure, I do think pursuing OC in California is a good angle. I would love to see those commies have to choke on OC. But what I really think will become of this is, the state will be compelled to pass a much more widely accepted CC law in an effort to dodge OC. If you do prevail, what you will find is a million laws "regulating" when and where (no time and nowhere) which would no doubt lead to a whole other round of lawsuits.

#62 Charles Nichols

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Posted 25 September 2016 - 09:36 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.


Well, the plaintiffs do get to decide to file an appeal to a decision. And it's not just M v. M. (Though it is a perfect example, as the entire uuw law was struck as noted by Myerscough on remand.) Where there have been shall issue (and even some may issue) laws passed as a remedy, the plaintiffs ceased their pursuit of a better judgement via continued appeals (not all, of course.) Yes, I understand and agree that the scope of such cases was focused for the most part on concealed carry. But my point, or my "case" if you prefer, is that if the people making the challenges and winning the judgements accept concealed carry only laws as allowing them to exercise their constitutional rights under the 2A, then practically speaking, that's what the right is. No amount of case law supporting or refuting this has an impact on what is actually happening.

To be sure, I do think pursuing OC in California is a good angle. I would love to see those commies have to choke on OC. But what I really think will become of this is, the state will be compelled to pass a much more widely accepted CC law in an effort to dodge OC. If you do prevail, what you will find is a million laws "regulating" when and where (no time and nowhere) which would no doubt lead to a whole other round of lawsuits.

 

Your "case" or point, as I understand it, is that Moore v. Madigan struck down two laws which banned concealed and Open Carry, both loaded and unloaded after which the so called gun-rights groups lobbied to pass a new law banning Open Carry and because the Illinois legislature passed a new Open Carry ban and because the Plaintiffs, who lobbied for the new Open Carry ban did not challenge the Open Carry ban they lobbied for then Concealed carry is the Second Amendment right?

 

If I win my Open Carry lawsuit then any new laws would have to be passed by the state legislature (California has state preemption) and if the new law is in conflict with the 9th Circuit decision in my case then it would be comparatively easy to knock down but my California Open Carry lawsuit is not the topic here. 



#63 tkroenlein

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Posted 25 September 2016 - 09:55 PM

Well, some history is in order then. The law proposed by our "so-called" gun rights groups was a CARRY law, favoring neither concealed or open carry, but allowing for both. Yes, BOTH. But our King worked against what was believed to be a super-majority and the bill failed by only a few votes. Then, the King had his way with writing a law, which a couple of very pro gun legislators salvaged a passable carry law, concealed or mostly concealed (go try that in Texas) and we got that.

Now, the plaintiffs could have went back to the court and said nope that don't get it. But they didn't, so the practical effect is that the right "restored" by the court and the new law is concealed carry.

Sometimes you have to look at what you want through the prism of what you can get. :)




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#64 Charles Nichols

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Posted 25 September 2016 - 10:33 PM

Well, some history is in order then. The law proposed by our "so-called" gun rights groups was a CARRY law, favoring neither concealed or open carry, but allowing for both. Yes, BOTH. But our King worked against what was believed to be a super-majority and the bill failed by only a few votes. Then, the King had his way with writing a law, which a couple of very pro gun legislators salvaged a passable carry law, concealed or mostly concealed (go try that in Texas) and we got that.

Now, the plaintiffs could have went back to the court and said nope that don't get it. But they didn't, so the practical effect is that the right "restored" by the court and the new law is concealed carry.

Sometimes you have to look at what you want through the prism of what you can get. :)




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If the so called gun-rights groups had not lobbied for the new law then it would have been legal to carry a loaded or unloaded firearm, openly or concealed, without a permit virtually everywhere in the state.  And it was legal from midnight of the day Posner's injunction went into effect and the passage of the new law.  

 

Instead you got a highly restrictive concealed carry law and a new ban on Open Carry.

 

What you got was a self-inflicted wound.

 

Another thing I have learned over the years is that there are many, many hollow people out there who absolutely must have a government issued permission slip to fill that void inside of them.  Unsurprisingly, these are the same people who oppose Open Carry. 



#65 RoadyRunner

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Posted 25 September 2016 - 10:54 PM

I am in the 9th Circuit which has already held in an en banc decision that concealed carry is not a Second Amendment right.
Didn't they reason that because there was open carry as an alternative, then concealed was not necessarily protected. When the argument then turned to open also being restricted, the argument got tossed because the case was specifically about concealed in isolation. My take away was that taken separately, neither may be absolutely protected (open has a much stronger case, historically). The right is one or the other must be allowed, and circuits that have concealed (like Illinois / 7th circuit) appear to accept that concealed satisfies the constitutional requirement in the modern time. The case in the 9th had very flawed arguments, IMO. Do remember, I'm not a lawyer! Just an observer....

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#66 tkroenlein

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Posted 25 September 2016 - 11:03 PM

Well, some history is in order then. The law proposed by our "so-called" gun rights groups was a CARRY law, favoring neither concealed or open carry, but allowing for both. Yes, BOTH. But our King worked against what was believed to be a super-majority and the bill failed by only a few votes. Then, the King had his way with writing a law, which a couple of very pro gun legislators salvaged a passable carry law, concealed or mostly concealed (go try that in Texas) and we got that.
Now, the plaintiffs could have went back to the court and said nope that don't get it. But they didn't, so the practical effect is that the right "restored" by the court and the new law is concealed carry.
Sometimes you have to look at what you want through the prism of what you can get. :)
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If the so called gun-rights groups had not lobbied for the new law then it would have been legal to carry a loaded or unloaded firearm, openly or concealed, without a permit virtually everywhere in the state.  And it was legal from midnight of the day Posner's injunction went into effect and the passage of the new law.  
 
Instead you got a highly restrictive concealed carry law and a new ban on Open Carry.
 
What you got was a self-inflicted wound.
 
Another thing I have learned over the years is that there are many, many hollow people out there who absolutely must have a government issued permission slip to fill that void inside of them.  Unsurprisingly, these are the same people who oppose Open Carry. 


Negative. There was only a simple majority needed to pass a very restrictive may issue bill. The votes were there. The speaker threw his down state pro gun dems a bone because he is not the speaker with out them. The reality is, the legislature was never going to let the sun set on the 180 stay without a new uuw law.

#67 Charles Nichols

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Posted 25 September 2016 - 11:23 PM

 

I am in the 9th Circuit which has already held in an en banc decision that concealed carry is not a Second Amendment right.
Didn't they reason that because there was open carry as an alternative, then concealed was not necessarily protected. When the argument then turned to open also being restricted, the argument got tossed because the case was specifically about concealed in isolation. My take away was that taken separately, neither may be absolutely protected (open has a much stronger case, historically). The right is one or the other must be allowed, and circuits that have concealed (like Illinois / 7th circuit) appear to accept that concealed satisfies the constitutional requirement in the modern time. The case in the 9th had very flawed arguments, IMO. Do remember, I'm not a lawyer! Just an observer....

 

No, they did not.  The district courts applied intermediate scrutiny but the en banc court did not apply any level of scrutiny because:

 

"We hold that the Second Amendment does not preserve

or protect a right of a member of the general public to carry
concealed firearms in public." Peruta v. San Diego en banc Slip Opinion at page 11.
 
"and circuits that have concealed (like Illinois / 7th circuit) appear to accept that concealed satisfies the constitutional requirement in the modern time."
 
Which circuits?  The 7th Circuit in Moore v. Madigan held that Illinois can ban concealed carry as per the Heller decision.  The 9th and 10th circuits have unequivocally held that concealed carry is not a Second Amendment right.  Every other circuit which has had a concealed carry case has said that it "assumed without deciding" that restrictions on concealed carry implicate the Second Amendment, and they upheld those restrictions.
 
You need to stop relying on what other people say and read the actual decisions.  As I pointed out in my Original Post there are several, free online legal databases, the easiest to use, which is also the fastest, is Google Scholar.  There is also Google Books which has scanned entire law libraries and placed their books on line, in full if they were printed before 1924.
 
When I studied law in my youth, online legal databases were not available.  I had to travel to the nearest law library and spend an entire afternoon researching the relevant case law by pulling books off the shelves.  Today, that can be done in minutes and much more thoroughly.
 
You don't need to be a lawyer.  You just need to be able to read objectively.
 
I have never read a court decision which I have fully agreed with. That doesn't stop me from recognizing that the court said something I disagreed with and yet, for some unknown reason, people read these cases, like Moore v. Madigan and District of Columbia v. Heller, to say that there is a right to concealed carry. 


#68 Charles Nichols

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Posted 25 September 2016 - 11:29 PM

 

Well, some history is in order then. The law proposed by our "so-called" gun rights groups was a CARRY law, favoring neither concealed or open carry, but allowing for both. Yes, BOTH. But our King worked against what was believed to be a super-majority and the bill failed by only a few votes. Then, the King had his way with writing a law, which a couple of very pro gun legislators salvaged a passable carry law, concealed or mostly concealed (go try that in Texas) and we got that.
Now, the plaintiffs could have went back to the court and said nope that don't get it. But they didn't, so the practical effect is that the right "restored" by the court and the new law is concealed carry.
Sometimes you have to look at what you want through the prism of what you can get. :)
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If the so called gun-rights groups had not lobbied for the new law then it would have been legal to carry a loaded or unloaded firearm, openly or concealed, without a permit virtually everywhere in the state.  And it was legal from midnight of the day Posner's injunction went into effect and the passage of the new law.  
 
Instead you got a highly restrictive concealed carry law and a new ban on Open Carry.
 
What you got was a self-inflicted wound.
 
Another thing I have learned over the years is that there are many, many hollow people out there who absolutely must have a government issued permission slip to fill that void inside of them.  Unsurprisingly, these are the same people who oppose Open Carry. 


Negative. There was only a simple majority needed to pass a very restrictive may issue bill. The votes were there. The speaker threw his down state pro gun dems a bone because he is not the speaker with out them. The reality is, the legislature was never going to let the sun set on the 180 stay without a new uuw law.

 

So, are you claiming this video of the legislative hearing is a hoax?  https://youtu.be/-lldcs9LVH8



#69 lockman

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Posted 26 September 2016 - 06:20 AM

Is anyone here actually anti-concealed carry? It can seem that way when it is only framed as an either or choice. Concealed carry arguments that diminish or disparage open carry to achieve legal victory do not advance second amendment rights, but only act to divide and conquer. Sent from my iPad using Tapatalk

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#70 stm

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Posted 26 September 2016 - 11:08 AM

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.

This is one of the reasons I've chosen not to engage OP in this discussion.

The comments in this thread on CalGuns.net are enlightening:

http://www.calguns.n...d.php?t=1222587

yea everyone makes fun of the redneck till the zombies show up. . .


#71 fenris

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Posted 26 September 2016 - 09:49 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.

 

 

 

 

The lots of personal opinion and attacks seem to be yours. 

 

From Heller when discussing the meaning of the second amendment:

 

"At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “Surely a most familiar meaning is, as the Constitution’s Second Amendment … 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.’ Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization."

 

From Nunn V. State  which is also referenced in Heller -
"A law which merely inhibits the wearing of certain weapons in
a concealed manner is valid. But so far as it cuts off the
exercise of the right of the citizen altogether to bear arms, or,
under the color of prescribing the mode, renders the right itself
useless--it is in conflict with the Constitution, and void."

 

Your dislike of concealed carry is coloring your understanding.  Interpretation is obviously up to the courts but their is some foundation for concealed carry and much more foundation for requiring some means of carry, whether open or concealed.



#72 Charles Nichols

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Posted 27 September 2016 - 02:14 AM

 

 

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.

 

 

 

 

The lots of personal opinion and attacks seem to be yours. 

 

From Heller when discussing the meaning of the second amendment:

 

"At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “Surely a most familiar meaning is, as the Constitution’s Second Amendment … 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.’ Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization."

 

From Nunn V. State  which is also referenced in Heller -
"A law which merely inhibits the wearing of certain weapons in
a concealed manner is valid. But so far as it cuts off the
exercise of the right of the citizen altogether to bear arms, or,
under the color of prescribing the mode, renders the right itself
useless--it is in conflict with the Constitution, and void."

 

Your dislike of concealed carry is coloring your understanding.  Interpretation is obviously up to the courts but their is some foundation for concealed carry and much more foundation for requiring some means of carry, whether open or concealed.

 

Nobody is disputing that a weapon carried concealed is not a manner of bearing arms.  What is baffling is that you cite Nunn v. State for the proposition that concealed carry is a manner of bearing arms which is protected by the Second Amendment.

 

Look, even Alan Gura does not claim that Heller didn't say that concealed carry is not a right.  Gura has made different arguments in different Federal courts of appeal ranging from Heller's approval of prohibitions on concealed carry being meaningless dicta (which didn't work) to "states can choose between concealed and Open Carry, but they can't ban both."

 

That argument didn't work either.

 

By the way, your "case" is supportive of the proposition that concealed carry is not a right.

 

monty-python-limbless-black-knight2.jpg



#73 Charles Nichols

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Posted 27 September 2016 - 02:54 AM

 

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.

This is one of the reasons I've chosen not to engage OP in this discussion.

The comments in this thread on CalGuns.net are enlightening:

http://www.calguns.n...d.php?t=1222587

 

The fifth post at your CalGuns.nuts link is my favorite "I still blame Charles Nichols for the Peruta decision. If he hadn't gone all history major in his brief, I think we'd have shall issue statewide."

 

I wish I could take credit for Peruta's loss but my Amicus brief in Peruta was focused on 9th circuit court of appeals Chief Judge Thomas' dissent in the now vacated (read dead) three judge panel decision in Peruta v. San Diego in which Judge Thomas seemed inclined to conclude that handguns are "dangerous and unusual" weapons which can be banned from being carried in public and that the Statute of Northampton defined the limits of the Second Amendment.

 

You should read my motion to file an Amicus brief and Amicus brief sometime.  Of the 25 or so filed, mine was the only one written by someone who isn't an attorney (me) and mine was the only one who prevailed in his position.  Mine was the only Amicus brief which argued in support of Open Carry and mine was the only Amicus brief which sought to limit the scope of the en banc court's decision to concealed carry.



#74 BobPistol

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Posted 14 April 2017 - 08:18 PM

In 1791, concealed carry was considered cowardly and criminal.  There is absolutely nothing in the historical record which supports the position that the Framers of the Second Amendment, or the people who voted to enact it into law, thought that concealed carry was a right.

 

The first sentence has no citations.   I'd like to see some.   I think what was considered cowardly and criminal is MURDERING someone with a concealed weapon.   That's still the case.   

 

The second one is an argument from silence.   We could also argue that there is nothing in the historical record which supports the position that abortion is a constitutional right but Roe V wade still happened. 


The Second Amendment of the Constitution protects the rest.

#75 Smallbore

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Posted 14 April 2017 - 08:40 PM

There is that totally ignored phrase "shall not be infringed".
I believed the framers felted the citizens​ could figure out the best way to carry.
I've often wondered how did "arms" become "small arms"? The British marched to Concord to confiscate cannons. Some colonist carried their cannon on ships while others used wheels.
Especially for the younger generation everything is a government granted privilege for our own protection.
We no longer have any rights.

#76 Hipshot Percussion

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Posted 14 April 2017 - 09:48 PM

This is kinda' how I see it.   The simplicity of the Second Amendment is in its wording.  There are no extraneous or superfluous words or reasoning.  It is bare bones, austere and elegant in it's simple message. 

 

"A well regulated militia,"  as defined in parlance from 1789, meant a civilian military force, using arms in working order, functioning as expected"being necessary to the security of a free State," States were expected to defend themselves against a tyrannical government militia, "the Right of the people to keep and bear arms shall not be infringed."  To ensure the ability to form the civilian militia, the people's Right to keep and bear arms shall not be infringed upon by the very government they may have to defend against.

 

Nowhere are restrictions placed on size, kind or carry options.

 

Those who suggest the Founders had no idea what kind of weaponry would be available in the future, are quite correct.  And I think due to this inability to see into the future, the Founders did not restrict the arms the People could keep and bear.  They understood that warfare and it's machinations change, morph and advance, and by leaving the Second Amendment without restrictions or confusing or complicated wording, the People would always have access to the arms of the military they may be forced to defend against, allowing the People to fight against the very tyranny the Founding Fathers had just faced... and defeated.

 

JMO


Edited by Hipshot Percussion, 14 April 2017 - 09:51 PM.

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#77 F12Mahon

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Posted 14 April 2017 - 09:59 PM

This is kinda' how I see it.   The simplicity of the Second Amendment is in its wording.  There are no extraneous or superfluous words or reasoning.  It is bare bones, austere and elegant in it's simple message. 

 

"A well regulated militia,"  as defined in parlance from 1789, meant a civilian military force, using arms in working order, functioning as expected"being necessary to the security of a free State," States were expected to defend themselves against a tyrannical government militia, "the Right of the people to keep and bear arms shall not be infringed."  To ensure the ability to form the civilian militia, the people's Right to keep and bear arms shall not be infringed upon by the very government they may have to defend against.

 

Nowhere are restrictions placed on size, kind or carry options.

 

Those who suggest the Founders had no idea what kind of weaponry would be available in the future, are quite correct.  And I think due to this inability to see into the future, the Founders did not restrict the arms the People could keep and bear.  They understood that warfare and it's machinations change, morph and advance, and by leaving the Second Amendment without restrictions or confusing or complicated wording, the People would always have access to the arms of the military they may be forced to defend against, allowing the People to fight against the very tyranny the Founding Fathers had just faced... and defeated.

 

JMO

 

Is "free State" a government entity, or the condition of an individual person; a state of being? Both? Since militia is made up of people and the bill of rights are concerned with the freedom of people,  I am not convinced that the "State" in this instance is referring to a government entity.

 

Eugene



#78 Hipshot Percussion

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Posted 14 April 2017 - 11:43 PM

 

This is kinda' how I see it.   The simplicity of the Second Amendment is in its wording.  There are no extraneous or superfluous words or reasoning.  It is bare bones, austere and elegant in it's simple message. 

 

"A well regulated militia,"  as defined in parlance from 1789, meant a civilian military force, using arms in working order, functioning as expected"being necessary to the security of a free State," States were expected to defend themselves against a tyrannical government militia, "the Right of the people to keep and bear arms shall not be infringed."  To ensure the ability to form the civilian militia, the people's Right to keep and bear arms shall not be infringed upon by the very government they may have to defend against.

 

Nowhere are restrictions placed on size, kind or carry options.

 

Those who suggest the Founders had no idea what kind of weaponry would be available in the future, are quite correct.  And I think due to this inability to see into the future, the Founders did not restrict the arms the People could keep and bear.  They understood that warfare and it's machinations change, morph and advance, and by leaving the Second Amendment without restrictions or confusing or complicated wording, the People would always have access to the arms of the military they may be forced to defend against, allowing the People to fight against the very tyranny the Founding Fathers had just faced... and defeated.

 

JMO

 

Is "free State" a government entity, or the condition of an individual person; a state of being? Both? Since militia is made up of people and the bill of rights are concerned with the freedom of people,  I am not convinced that the "State" in this instance is referring to a government entity.

 

Eugene

 

Interesting, I've never heard that opinion before.  But I will say this - The very simplicity of the Second Amendment would tell me no - it means the State that the civilian militia would serve under.  Any other meaning would've been explained - again - with simple and short wording.


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#79 tkroenlein

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Posted 15 April 2017 - 02:47 AM

Volokh on "free State."

http://volokh.com/po...181941233.shtml.



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Edited by tkroenlein, 15 April 2017 - 02:47 AM.


#80 press1280

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Posted 15 April 2017 - 09:00 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.

 

However, that actually does not make sense. IF Bliss were such a way out, outlandish opinion (which was limited to KY), why would states need to react with the CCW prohibitions? You change the RKBA state analogues because you're afraid that another court will rule in a similar fashion to Bliss!

 

Now, it's true that Bliss is referring to the KY constitution, but how divorced is the KY RKBA analogue from the 2A? Aren't both pointing at the same inherent right? Part of Heller's analysis had to rely on several state analogues written near the time of the founding simply because SCOTUS didn't have a 2A case until nearly a century later. So I can't buy that the state RKBA amendments are simply apples to the Federal 2A oranges.



#81 Smallbore

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Posted 15 April 2017 - 03:07 PM

I am not educated in the law so i can not argue case law.
As a layman I do not understand why one can believe cc is not included on the 2nd Amendment. These discussion general concentrate on firearms but the 2nd does not memtion firearms nor is there a legitmate reasonto imply firearms.
Was having a concealed knife considered evil or carrying a rock in one's pocket. I do not understanding the thinking to word statues making illigal carrying an item with the intent ti do harm. This is silly legalese.
How ones carries anything is not the government's business in a free country. Only when used to violate some else's rights does the government have the responsibility to get involved.
I will now wake up from my dream world.

#82 Gamma

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Posted 15 April 2017 - 05:07 PM

In recent months there have been roundly criticized legal decisions, which say that exercising your 2nd Amend rights requires relinquishing other rights, 4th Amendment rights in those cases.

Concealed carry is no different. No one should have to relinquish their right to privacy in order to exercise their right to carry.

Edited by Gamma, 15 April 2017 - 05:08 PM.

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

#83 mrmagloo

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Posted 17 April 2017 - 08:59 AM

Charles Nichols, on 14 Apr 2017 - 07:25 AM, said:snapback.png

 

Many of you know of my opposition to concealed carry

 

Seeing you chose to skirt my post on the US vs Robinson thread, can you kindly respond here.

---------------------------------------------------------------------------------------------------------------------------

Just caught this little nugget.  I have to admit that I haven't reviewed your website and I'm really not all that tied up about open carry, but I was kind of shocked to see this proclamation this morning.  Seeing IC is all about CC, and of course ALL appropriate gun rights, I'm having a hard time understanding why you cannot reconcile CC for those who prefer it, along with OC for those who prefer that instead?  Or, having the right to do either, or both.

 

I don't want to dredge up the entire element of surprise debate, but I just don't get the open swipe at CC?  So, your theory is, you would gladly throw CC rights under the bus for OC?  What exactly do you mean, for those of us that do are not aware of your apparent "Opposition to Concealed Carry".

 

Please expand on this, as this just isn't sitting well

 

Thank you. 



#84 Xwing

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Posted 17 April 2017 - 09:25 AM

 

Charles Nichols, on 14 Apr 2017 - 07:25 AM, said:snapback.png

 

Many of you know of my opposition to concealed carry

 

Seeing you chose to skirt my post on the US vs Robinson thread, can you kindly respond here.

---------------------------------------------------------------------------------------------------------------------------

Just caught this little nugget.  I have to admit that I haven't reviewed your website and I'm really not all that tied up about open carry, but I was kind of shocked to see this proclamation this morning.  Seeing IC is all about CC, and of course ALL appropriate gun rights, I'm having a hard time understanding why you cannot reconcile CC for those who prefer it, along with OC for those who prefer that instead?  Or, having the right to do either, or both.

 

I don't want to dredge up the entire element of surprise debate, but I just don't get the open swipe at CC?  So, your theory is, you would gladly throw CC rights under the bus for OC?  What exactly do you mean, for those of us that do are not aware of your apparent "Opposition to Concealed Carry".

 

Please expand on this, as this just isn't sitting well

 

Thank you. 

 

 

The OP has stated before that he believes Concealed Carry should be illegal except in limited circumstances.  IMO this goes far beyond the debate of "do you prefer CC or OC" (on which reasonable people can disagree), and more toward "anti-gun" status.  E.g. someone who wants the most common and accepted form of carry to be illegal is probably not truly a supporter of firearm rights...  In fact, it is something a smart anti-gun person would push for (OC at the expense of CC), knowing that if they succeeded, carry would be greatly reduced in reality.  An actual "pro-gun" push would be OC in addition to CC...


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#85 mrmagloo

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Posted 17 April 2017 - 09:51 AM

Hi Xwing, Thanks for your post. I had a few replies in that last locked thread, and to some degree he's danced around a straight answer here too, but I'm really hoping this guy will finally man up.

 

Again, as I mentioned earlier, I had not paid a bunch of attention to him and his efforts towards OC, as clearly my preference is CC, but I would not in a million years, throw any form of carry under the bus in favor of another?  I cannot even fathom the thinking?  I thought he was at least on the same side, but it's becoming increasingly apparent, this is probably an illusion at the best case, and a total traitor at the worse.

 

I don't know, but it would be nice for him to finally come out and say it, be proud, and dispense with all of the fluffery.  I was having a hard time understanding why he's held in such low regard in Pro-2A circles, but it's all starting to make sense.  I don't give a crap about his opinion on legal precedence, or histories, founders intents, honorable carry, etc, and how that may support various types of carry.

 

I just want to know if Mr. Nichols supports our rights to CC or not.  A very simple question.  At that point we can decide of he's indeed friend or foe.

 

Thanks.



#86 lockman

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Posted 17 April 2017 - 11:16 AM

If SCOTUS leaves the mode of carry to the states, and I live in a either/or state, I would throw concealed carry under the bus to ensure open carry is the mode. I would also do everything I can to prevent getting into that situation.


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#87 stm

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Posted 17 April 2017 - 11:54 AM

How many online gun rights forums has Mr. Nichols been banned from? I see he was recently banned from MDShooters.com for the second time, apparently.

yea everyone makes fun of the redneck till the zombies show up. . .


#88 gearsmithy

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Posted 17 April 2017 - 01:01 PM

 

 

Charles Nichols, on 14 Apr 2017 - 07:25 AM, said:snapback.png

 

Many of you know of my opposition to concealed carry

 

Seeing you chose to skirt my post on the US vs Robinson thread, can you kindly respond here.

---------------------------------------------------------------------------------------------------------------------------

Just caught this little nugget.  I have to admit that I haven't reviewed your website and I'm really not all that tied up about open carry, but I was kind of shocked to see this proclamation this morning.  Seeing IC is all about CC, and of course ALL appropriate gun rights, I'm having a hard time understanding why you cannot reconcile CC for those who prefer it, along with OC for those who prefer that instead?  Or, having the right to do either, or both.

 

I don't want to dredge up the entire element of surprise debate, but I just don't get the open swipe at CC?  So, your theory is, you would gladly throw CC rights under the bus for OC?  What exactly do you mean, for those of us that do are not aware of your apparent "Opposition to Concealed Carry".

 

Please expand on this, as this just isn't sitting well

 

Thank you. 

 

 

The OP has stated before that he believes Concealed Carry should be illegal except in limited circumstances.  IMO this goes far beyond the debate of "do you prefer CC or OC" (on which reasonable people can disagree), and more toward "anti-gun" status.  E.g. someone who wants the most common and accepted form of carry to be illegal is probably not truly a supporter of firearm rights...  In fact, it is something a smart anti-gun person would push for (OC at the expense of CC), knowing that if they succeeded, carry would be greatly reduced in reality.  An actual "pro-gun" push would be OC in addition to CC...

 

0ee.jpg



#89 Gamma

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Posted 17 April 2017 - 03:14 PM

I just want to know if Mr. Nichols supports our rights to CC or not.  A very simple question.  At that point we can decide of he's indeed friend or foe.

He already answered that question earlier in this thread, which is that he does not. He supports outlawing CC. His goal in advancing open carry is so that concealed can be outlawed entirely without running afoul of 2A protections.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#90 RoadyRunner

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Posted 17 April 2017 - 04:27 PM

From the perception of an originalist, OC was fine. CC was considered nefariois, and you were assumed to be up to no good. In the modern sense though, I have no intention to ever OC, and only every will CC (while legally allowed). Purely for social acceptance. However, I will also happily support attempts to legalize and socially accept OC. I just won't sacrifice CC in the process.

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