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California Open Carry Lawsuit - Nichols v. Brown

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#31 Charles Nichols

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Posted 18 June 2016 - 11:05 PM

 

I don't want to get into a debate about concealed carry.

Despite your stated intentions, you seem unable to restrain yourself. ;)

 

The laws that Judge Posner struck down in 2012 applied to firearms carried openly and concealed.  


Thank you.

Yes--the Court held that there is a Constitutional right to bear arms outside of the home. IMHO the ruling was agnostic with respect to method. So technically, I guess you could say Posner struck down the ban on open carry, although saying he struck down the ban on public carry would be more accurate.

.

 

When asked a question, and as I am new here and don't know the players, I assumed the question to be sincere.  I give a detailed answer if it is warranted and if I believe that the question was sincerely asked (and I have the time to answer).

 

I don't waste my time with those who say stupid things like they have a right to concealed carry because the Second Amendment doesn't say they can't carry concealed.

 

Six years of responding to moronic "arguments" like that is enough.

 

Saying that Judge Posner struck down the ban on public carry might have been more accurate had he not stated that Illinois can ban concealed carry as per the Heller decision.  The fact that he stayed his decision to give Illinois time to enact a Constitutional law in light of his decision weighs in support of my reading of his decision as well.

 

Judge Posner certainly had no personal problems with concealed carry but the important thing is he recognized that he was bound by the Heller decision.

 

It would be nice if every Federal judge recognized that they too are bound by the Heller decision and acted accordingly.

 

It would also be nice if every judge read Justice Scalia's book on how to read a decision given that it was Justice Scalia who wrote the Heller decision.



#32 borgranta

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Posted 18 June 2016 - 11:34 PM

Concealed carry is not a right since the court have ruled plainly that a right can not be licensed.  Concealed carrying without a license is a crime and right can not be a crime and therefore concealed carry is not a right.  The fact that the courts allow concealed carry licensing systems to operate with no conceivable limits is a tacit admission that concealed carry is not a right but instead is a privilege that each state is empowered to enact according to the will of the people.  A licensing system is designed to allow someone to do something that would otherwise be illegal and no right can be illegal.


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#33 borgranta

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Posted 18 June 2016 - 11:40 PM

This case could potentially cause thee end on all remaining open carry bans in all of the states and possibly DC.  I say possibly for DC because DC or even part of DC might be considered a sensitive location.


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#34 Charles Nichols

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Posted 19 June 2016 - 12:10 AM

Concealed carry is not a right since the court have ruled plainly that a right can not be licensed.  Concealed carrying without a license is a crime and right can not be a crime and therefore concealed carry is not a right.  The fact that the courts allow concealed carry licensing systems to operate with no conceivable limits is a tacit admission that concealed carry is not a right but instead is a privilege that each state is empowered to enact according to the will of the people.  A licensing system is designed to allow someone to do something that would otherwise be illegal and no right can be illegal.

Which reminds me of two really stupid arguments made by what NRA lawyer Chuck Michel (lead lawyer in Peruta v. San Diego) referred to as a "brain trust" in the Peruta and Prieto cases.  SAF lawyer Alan Gura and a family law attorney representing CalGuns.nuts (a senior member of which is the one who sent me the death threat) raised a "prior restraint" attack on the concealed carry law/policy before the court.

 

An example of "Prior Restraint" is when the government requires that you obtain a permit BEFORE you can exercise a fundamental right.  The textbook example is for printing presses.  The Crown required Americans to obtain a permit before they could own or operate a printing press.  The Crown could also prohibit you from printing things which it did not want to be printed, which is also an example of prior restraint.

 

And yet here we had Alan Gura and his co-council arguing that states can require a permit before a person can exercise a fundamental, enumerated individual right.  A permit which the issuing authority was free to revoke anytime it wanted to.

 

And then there was its logical argument which anyone who has ever taken a semester or quarter length course in introductory logic will immediately recognize as a classic fallacy.

 

The lawyers representing the plaintiffs in both cases argued that states can ban Open Carry, which we will refer to as 'p.'  Both cases also argued that states can ban concealed carry, which we will refer to as 'q.'  Both cases argued that in a state where both Open Carry and concealed carry can be banned then the state must issue concealed carry permits (which is all that was challenged in both cases) but let us humor the argument and extend it to Open Carry.

 

The logic put forth by this "brain trust" of lawyers is:

 

not p and not q entails q (or possibly p).

 

Not p and not q entails neither, it does not entail one or the either.  

 

I asked a UCLA law professor why introductory logic isn't a required course at law schools.  He said that students are expected to come in with a basic knowledge other than what is taught in law schools.

 

To which I rhetorically observed that if law students aren't required to understand basic logic as a prerequisite for graduating and the bar exam does not require that prospective lawyers have even a basic understanding of logic to pass the bar exam then we will continue to have lawyers making stupid arguments, as were made in these cases, and we will continue to have judges arrive at illogical conclusions, as the minority did in the Peruta/Richards en banc case.



#35 Charles Nichols

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Posted 19 June 2016 - 12:20 AM

This case could potentially cause thee end on all remaining open carry bans in all of the states and possibly DC.  I say possibly for DC because DC or even part of DC might be considered a sensitive location.

If I am successful then my case could potentially end all of the state wide Open Carry bans as well as local bans like DC.  There are certainly a lot of sensitive places in DC but those sensitive places don't make non-sensitive places sensitive because of their existence.

 

The obstacle to overturning these Open Carry bans if I am successful is that one would need at least one live plaintiff with standing to challenge the ban(s) as well as a competent lawyer to argue the case(s).

 

California enacted its ban on openly carrying loaded firearms in July of 1967.  Here we are nearly 50 years later and guess how many legal challenges have been made challenging the constitutionality of the ban as applied to Open Carry?

 

Only one.  And I am the one who filed the challenge.

 

Judges cannot simply strike down a law on their own.  Someone has to bring a lawsuit before them seeking to strike down the law and that someone must be able to navigate through the minefield, and dodge the hand-grenades thrown at them by the courts which the courts have erected over the years in order to prevent it from having to answer the constitutional question(s) put before them. 

 

Until that happens, if it ever does, the Open Carry bans will remain.



#36 kwc

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Posted 19 June 2016 - 06:41 AM

When asked a question, and as I am new here and don't know the players, I assumed the question to be sincere.  I give a detailed answer if it is warranted and if I believe that the question was sincerely asked (and I have the time to answer).


In case there is any doubt, my question was sincere. Thank you for the detailed response.
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#37 lockman

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Posted 19 June 2016 - 07:30 AM

The narrow scope of cases brought to SCOTUS often make for many illogical claims in the pursuit of victory on their specific facts. This makes the overall progress slow and occasionally retards other germane issues but SCOTUS seems to prefer taking up the narrower, uncluttered topics.

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#38 lockman

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Posted 19 June 2016 - 07:31 AM

Oh, welcome to the forum!

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#39 kwc

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Posted 19 June 2016 - 07:37 AM

Saying that Judge Posner struck down the ban on public carry might have been more accurate had he not stated that Illinois can ban concealed carry as per the Heller decision.


I get stuck on the fact that in the same breath Posner said a state can require open carry, he referenced a Cornell Law Review article ("Hidden or on the Hip: The Right(s) to Carry After Heller"), which purports Heller implies the doctrine of alternative outlets (either open or concealed must be allowed).

Nevertheless, this discussion is all academic if you are, in the end, able to successfully argue in your lawsuit that SCOTUS and CA7 (as precedence) effectively struck down bans on open carry. I wish you the best in your endeavor.

Edited by kwc, 19 June 2016 - 08:38 AM.

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#40 borgranta

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Posted 19 June 2016 - 02:08 PM

Once you can legally openly carry without a license in California it is likely that legislators will be under increased pressure to loosen concealed carry restrictions since they will not constituents to vote against them.
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#41 borgranta

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Posted 19 June 2016 - 02:16 PM

One way a lawyer could argue for concealed carry being a right would be to inject the right to privacy in a case that seeks to expand concealed carry and by stating that concealed carry enables a private person to privately carry their firearm and forcing them to openly carry and advertise to the public violates their right to privacy.
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#42 borgranta

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Posted 19 June 2016 - 02:21 PM

This case could potentially cause thee end on all remaining open carry bans in all of the states and possibly DC.  I say possibly for DC because DC or even part of DC might be considered a sensitive location.

If I am successful then my case could potentially end all of the state wide Open Carry bans as well as local bans like DC.  There are certainly a lot of sensitive places in DC but those sensitive places don't make non-sensitive places sensitive because of their existence.
 
The obstacle to overturning these Open Carry bans if I am successful is that one would need at least one live plaintiff with standing to challenge the ban(s) as well as a competent lawyer to argue the case(s).
 
California enacted its ban on openly carrying loaded firearms in July of 1967.  Here we are nearly 50 years later and guess how many legal challenges have been made challenging the constitutionality of the ban as applied to Open Carry?
 
Only one.  And I am the one who filed the challenge.
 
Judges cannot simply strike down a law on their own.  Someone has to bring a lawsuit before them seeking to strike down the law and that someone must be able to navigate through the minefield, and dodge the hand-grenades thrown at them by the courts which the courts have erected over the years in order to prevent it from having to answer the constitutional question(s) put before them. 
 
Until that happens, if it ever does, the Open Carry bans will remain.
If open carry bans are lifted in the DC the sensitive locations will have to be clearly marked as no carry.
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#43 Charles Nichols

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Posted 19 June 2016 - 06:44 PM

Once you can legally openly carry without a license in California it is likely that legislators will be under increased pressure to loosen concealed carry restrictions since they will not constituents to vote against them.

Not my desired outcome but I was well aware of that as a possible outcome when I considered the ramifications of my lawsuit being successful before I filed my lawsuit.

 

A clarification, one does not require a license to openly carry a firearm anywhere in the state.  It is concealed carry (loaded or unloaded) which requires a license, except for a couple of narrow exceptions which are in turn useless as the California Gun-Free School Act of 1995 requires that handguns be carried unloaded and in a fully enclosed lock container when coming within 1,000 feet of a K-12 public or private school and so even if one were to carry a concealed handgun pursuant to one of the narrow exceptions, he would most likely find himself in violation of the California GFSZ and a conviction for that entails a ten year prohibition on being able to even possess a firearm.

 

In order to appreciate just how ubiquitous school zones are, take a look at this San Francisco school zone map -> http://sf-planning.o...000-feet-school

 

Handguns, antique and modern, fall within the GFSZ prohibition.  The California GFSZ exempts long guns (modern and antique).  The only two laws which are limited exclusively to Open Carry are the two somewhat recent bans on openly carrying modern, unloaded firearms.  As to unloaded handguns

 

California Penal Code section 26350.  (a) (1) A person is guilty of openly carrying an unloaded
handgun when that person carries upon his or her person an exposed
and unloaded handgun outside a vehicle while in or on any of the
following:
   (A) A public place or public street in an incorporated city or
city and county.
   ( :cool: A public street in a prohibited area of an unincorporated area
of a county or city and county.
   © A public place in a prohibited area of a county or city and
county.
   (2) A person is guilty of openly carrying an unloaded handgun when
that person carries an exposed and unloaded handgun inside or on a
vehicle, whether or not on his or her person, while in or on any of
the following:
   (A) A public place or public street in an incorporated city or
city and county.
   ( :cool: A public street in a prohibited area of an unincorporated area
of a county or city and county.
   © A public place in a prohibited area of a county or city and
county.
<snip>
 
As to unloaded long guns, its prohibition is not as wide:
California Penal Code section 26400.  (a) A person is guilty of carrying an unloaded firearm that
is not a handgun in an incorporated city or city and county when that
person carries upon his or her person an unloaded firearm that is
not a handgun outside a vehicle while in the incorporated city or
city and county.
 
And both Unloaded Open Carry bans exempt antique firearms as defined by Federal law.
 
In short (I know, too late) although California law provides for the issuance of licenses to openly carry loaded handguns, one does not need a license to openly carry a loaded firearm where the prohibition on carrying a loaded firearm (openly or concealed) does not apply:
 
As to loaded firearms:
California Penal Code section 25850. (a) A person is guilty of carrying a loaded firearm when the

person carries a loaded firearm on the person or in a vehicle while
in any public place or on any public street in an incorporated city
or in any public place or on any public street in a prohibited area
of unincorporated territory.

 

"Prohibited area" is defined separately in the penal code as an area where the discharge of a firearm is prohibited.

 

*m Smiley's were automatically substituted for some of the subsections.  I won't be fixing them as the California Penal code is available online and for free.



#44 Charles Nichols

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Posted 19 June 2016 - 07:01 PM

 

Saying that Judge Posner struck down the ban on public carry might have been more accurate had he not stated that Illinois can ban concealed carry as per the Heller decision.


I get stuck on the fact that in the same breath Posner said a state can require open carry, he referenced a Cornell Law Review article ("Hidden or on the Hip: The Right(s) to Carry After Heller"), which purports Heller implies the doctrine of alternative outlets (either open or concealed must be allowed).

Nevertheless, this discussion is all academic if you are, in the end, able to successfully argue in your lawsuit that SCOTUS and CA7 (as precedence) effectively struck down bans on open carry. I wish you the best in your endeavor.

 

Judge Poser certainly did cite Bishop's article but one doesn't have to read the two page excerpt from the law review article to conclude that Judge Posner has a fondness for concealed carry, his decision in the case made that pretty clear.  And perhaps he meant to imply that states could choose between the two just to poke Justice Scalia with a stick (there was no love lost between the two of them).  But the article did not state that Open and Concealed carry are equal alternatives.  Bishop posed that as a hypothetical and Judge Poser was quite capable of writing that Illinois may choose between concealed and Open Carry instead of saying that Illinois may require that they be carried openly.

 

The Moore v. Madigan decision is not binding in the 9th Circuit but whomever the judges are who are eventually assigned to my case will be quite aware of the decision as it will feature prominently in my opening brief.



#45 skinnyb82

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Posted 21 June 2016 - 02:20 PM

Errr crap I did quote the wrong post. Sorry. Well, we're all engaged in a guessing game here. Same as the Circuits. "What did (insert Circuit Judge or SCOTUS Justice) mean...." I took Posner's opinion as conveying the government cannot have it both ways. Either open carry or concealed carry. May not ban both. But it's been a while since I've parsed his opinion in Moore. The en banc process DOES terrify me. It's used by activist judges who, when they see a ruling with which they ideologically disagree, they take it upon themselves to convene an en banc court to reverse the panel. It's a process which has been thoroughly abused as of late. The reason why it truly terrifies me is if Hillary is elected, she will stack those Circuits with radical leftist judges and stack SCOTUS to the point where the Rule of Four is....moot. Sent from my VS987 using Tapatalk
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#46 Charles Nichols

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Posted 21 June 2016 - 06:31 PM

Errr crap I did quote the wrong post. Sorry. Well, we're all engaged in a guessing game here. Same as the Circuits. "What did (insert Circuit Judge or SCOTUS Justice) mean...." I took Posner's opinion as conveying the government cannot have it both ways. Either open carry or concealed carry. May not ban both. But it's been a while since I've parsed his opinion in Moore. The en banc process DOES terrify me. It's used by activist judges who, when they see a ruling with which they ideologically disagree, they take it upon themselves to convene an en banc court to reverse the panel. It's a process which has been thoroughly abused as of late. The reason why it truly terrifies me is if Hillary is elected, she will stack those Circuits with radical leftist judges and stack SCOTUS to the point where the Rule of Four is....moot. Sent from my VS987 using Tapatalk

I think I addressed this at Post #44 but it occurs to me that most folks probably aren't aware of the origin or Gura's (SAF lawyer) and the NRA's (who ripped off Gura) argument that states can ban Open Carry in favor of concealed carry.  SCOTUS has held that there isn't a right to a particular medical procedure when obtaining an abortion so long as there is an alternate medical procedure.

 

This "alternative" theory being applicable to the Second Amendment, which was advanced by Gura and the copycat lawsuits, such as Peruta, is obviously one that SCOTUS has rejected but one that Judge Poser might have accepted if, as in Bishops hypothetical, that concealed carry is on a equal footing (constitutionally) with Open Carry.

 

But it wasn't, and isn't, and neither Gura nor the NRA has a SCOTUS Rule 10 split to take to SCOTUS as I really don't see him making the argument that the Peruta decision creates a split with Judge Posner's decision in Moore v. Madigan.



#47 Jeff Johnson

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Posted 22 June 2016 - 07:22 AM

Charles Nichols, Welcome and best of luck to you. Thanks for the challenge and for bringing this information to us.



#48 Gamma

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Posted 22 June 2016 - 02:02 PM

concealed carry is on a equal footing (constitutionally) with Open Carry.

I disagree. I consider open carry only the equivalent of having freedom of religion, but only if you wear a large symbol on your clothing to identify your religion if it's politically disfavored.
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#49 RonOglesby - Now in Texas

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Posted 22 June 2016 - 02:59 PM

Errr crap I did quote the wrong post. Sorry. Well, we're all engaged in a guessing game here. Same as the Circuits. "What did (insert Circuit Judge or SCOTUS Justice) mean...." I took Posner's opinion as conveying the government cannot have it both ways. Either open carry or concealed carry. May not ban both. But it's been a while since I've parsed his opinion in Moore. The en banc process DOES terrify me. It's used by activist judges who, when they see a ruling with which they ideologically disagree, they take it upon themselves to convene an en banc court to reverse the panel. It's a process which has been thoroughly abused as of late. The reason why it truly terrifies me is if Hillary is elected, she will stack those Circuits with radical leftist judges and stack SCOTUS to the point where the Rule of Four is....moot. Sent from my VS987 using Tapatalk

 

Reader Posner's opinion it is pretty clear that is what he said. That if SOME FORM of carry was not allowed then "bear" had no meaning at all. And that while the state could chose open or concealed, and could prescribe time, place, and manner restrictions, they could not ban both. heck, the state even argued (under the former law) that they were only dealing with Time place and manner restrictions when they barred you from carry at all anywhere outside your property. he laughed that off.

 

Posner may have not been "progun" and thought may not have liked the Heller decision. BUT, he actually followed logic and law vs finding some twisted crazy logic to attempt to keep a ban in place. It takes a big person to disagree with a ruling yet follow it.


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#50 Charles Nichols

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Posted 22 June 2016 - 09:16 PM

 

concealed carry is on a equal footing (constitutionally) with Open Carry.

I disagree. I consider open carry only the equivalent of having freedom of religion, but only if you wear a large symbol on your clothing to identify your religion if it's politically disfavored.

 

Lest anyone stumble upon the above snipped section of a position which I do not hold, make no mistake, I do not believe that concealed carry is on an equal footing with Open Carry.  Concealed carry is not a right.  Open Carry is the right guaranteed by the Constitution and that means Open Carry without any permit requirement.


Edited by Charles Nichols, 22 June 2016 - 09:17 PM.


#51 Charles Nichols

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Posted 22 June 2016 - 09:48 PM

 

Errr crap I did quote the wrong post. Sorry. Well, we're all engaged in a guessing game here. Same as the Circuits. "What did (insert Circuit Judge or SCOTUS Justice) mean...." I took Posner's opinion as conveying the government cannot have it both ways. Either open carry or concealed carry. May not ban both. But it's been a while since I've parsed his opinion in Moore. The en banc process DOES terrify me. It's used by activist judges who, when they see a ruling with which they ideologically disagree, they take it upon themselves to convene an en banc court to reverse the panel. It's a process which has been thoroughly abused as of late. The reason why it truly terrifies me is if Hillary is elected, she will stack those Circuits with radical leftist judges and stack SCOTUS to the point where the Rule of Four is....moot. Sent from my VS987 using Tapatalk

 

Reader Posner's opinion it is pretty clear that is what he said. That if SOME FORM of carry was not allowed then "bear" had no meaning at all. And that while the state could chose open or concealed, and could prescribe time, place, and manner restrictions, they could not ban both. heck, the state even argued (under the former law) that they were only dealing with Time place and manner restrictions when they barred you from carry at all anywhere outside your property. he laughed that off.

 

I do not think you are correct in that Posner's opinion in Moore v. Madigan held that Illinois could ban Open Carry in favor of concealed carry.  That Open Carry can be banned in favor of concealed carry is certainly the position of the plaintiffs' lawyers in Peruta v. San Diego and Richards v. Prieto but if they thought that the Moore decision meant what you think it does then why didn't any of the plaintiffs lawyers cite the Moore decision as holding that Open Carry can be banned?  They had plenty of time to do so.  After all, the Moore v. Madigan decision was published way back in 2012.

 

Gura filed cert petitions in Kachalsky out of the 2nd Circuit and in Drake out of the 3rd Circuit after the Moore v. Madigan decision was published.  In neither petition did Gura claim that the Moore decision held that states can ban Open Carry in favor of concealed carry.  That is Gura's personal opinion which he has thus far failed in "achieving."

 

In his cert petition in Drake, Gura tried to downplay his unique reading of Heller saying:

"Because New Jersey’s law

operates without distinction between the concealed
and open carrying of handguns, confusing questions
as to the manner in which Petitioners might exercise
their rights are avoided."
 
The five justices in the majority in Heller wrote that Open Carry is the right and that concealed carry is not a right and can be banned.  The four justices in the minority explicitly cited that section of the majority opinion with approval.
 
"But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons..." Heller dissent at 2851
 
The Heller court was unanimous in that there is no right to concealed carry.  The only one confused is Alan Gura and those who bought his snake-oil.
 
Well, Gura and the NRA lawyers each have their own opportunity to argue in their Richards and Peruta cert petitions that the Moore v. Madigan decision held that states can ban Open Carry in favor of concealed carry.  Because if the Moore decision really said what you think it says then Gura and the NRA lawyers have their SCOTUS Rule 10 split for the very first time.
 
I can pretty much guarantee that neither of their cert petitions will claim that the Moore v. Madigan decision held that states may ban Open Carry in favor of concealed carry because that would make them look dumber than they already are.
 
If that is even possible.


#52 RonOglesby - Now in Texas

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Posted 23 June 2016 - 09:46 AM

 

 

Errr crap I did quote the wrong post. Sorry. Well, we're all engaged in a guessing game here. Same as the Circuits. "What did (insert Circuit Judge or SCOTUS Justice) mean...." I took Posner's opinion as conveying the government cannot have it both ways. Either open carry or concealed carry. May not ban both. But it's been a while since I've parsed his opinion in Moore. The en banc process DOES terrify me. It's used by activist judges who, when they see a ruling with which they ideologically disagree, they take it upon themselves to convene an en banc court to reverse the panel. It's a process which has been thoroughly abused as of late. The reason why it truly terrifies me is if Hillary is elected, she will stack those Circuits with radical leftist judges and stack SCOTUS to the point where the Rule of Four is....moot. Sent from my VS987 using Tapatalk

 

Reader Posner's opinion it is pretty clear that is what he said. That if SOME FORM of carry was not allowed then "bear" had no meaning at all. And that while the state could chose open or concealed, and could prescribe time, place, and manner restrictions, they could not ban both. heck, the state even argued (under the former law) that they were only dealing with Time place and manner restrictions when they barred you from carry at all anywhere outside your property. he laughed that off.

 

I do not think you are correct in that Posner's opinion in Moore v. Madigan held that Illinois could ban Open Carry in favor of concealed carry.  That Open Carry can be banned in favor of concealed carry is certainly the position of the plaintiffs' lawyers in Peruta v. San Diego and Richards v. Prieto but if they thought that the Moore decision meant what you think it does then why didn't any of the plaintiffs lawyers cite the Moore decision as holding that Open Carry can be banned?  They had plenty of time to do so.  After all, the Moore v. Madigan decision was published way back in 2012.

 

<SNIPPED>

 

 

I think we have to disagree then as you ignore some of the plain text in Posner's writings and his questions and comments in the oral arguments. I am no legal scholar, but I tend to disagree with you on some points (though i applaud your efforts as they are efforts to expand gun rights for all).

 

Poser in the ruling said:

 

"The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."

 

No mention of how its to be carried.

 

" And a state may be able to require "open carry"-that is, require persons who carry a gun in public to carry it in plain view rather than concealed."

 

Here he was defeating that argument that LEOs wanted a complete ban so anyone with a gun was a bad guy and concealed guns mean LEOs wouldn't know who had a gun. he goes ahead and states that if the State wishes its agents to say concealed guns are illegal, then they can require open carry.  Note he does not say open carry is the only way, just an option.

 

If you read the entire opinion you can tell he didnt mind May Issue, or "good cause" ideas. He might have thought the 2nd circuit was screwy in some of their logic and historical analysis, but really was saying; you have to allow some type of carry, outside the home, a flat ban is unconstitutional.

 

Time place and manner restrictions are generally constitutional when linked to a substantial (and provable) government interest. But not seeing that he says the state could regulate manner of carry (concealed or open) is simply seeing something that is not there.


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#53 Charles Nichols

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Posted 23 June 2016 - 12:01 PM


 


 

I think we have to disagree then as you ignore some of the plain text in Posner's writings and his questions and comments in the oral arguments. I am no legal scholar, but I tend to disagree with you on some points (though i applaud your efforts as they are efforts to expand gun rights for all).

 

Poser in the ruling said:

 

"The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."

 

No mention of how its to be carried.

 

" And a state may be able to require "open carry"-that is, require persons who carry a gun in public to carry it in plain view rather than concealed."

 

Here he was defeating that argument that LEOs wanted a complete ban so anyone with a gun was a bad guy and concealed guns mean LEOs wouldn't know who had a gun. he goes ahead and states that if the State wishes its agents to say concealed guns are illegal, then they can require open carry.  Note he does not say open carry is the only way, just an option.

 

If you read the entire opinion you can tell he didnt mind May Issue, or "good cause" ideas. He might have thought the 2nd circuit was screwy in some of their logic and historical analysis, but really was saying; you have to allow some type of carry, outside the home, a flat ban is unconstitutional.

 

Time place and manner restrictions are generally constitutional when linked to a substantial (and provable) government interest. But not seeing that he says the state could regulate manner of carry (concealed or open) is simply seeing something that is not there.

 

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

There seems to be a very small page limit which tossed my last post and so here it is again....

 

Well, email Alan Gura, Paul Clement and Chuck Michel and share your interpretation with them as they need all the help they can get and I for one would like SCOTUS to take any carry case even if it just so the justices can say "Enough already!."  If your interpretation is correct then they have a SCOTUS Rule 10 circuit split to take to SCOTUS, but as I said before, if they thought your interpretation was correct then they would have said so in one of their cases since Moore was decided.

 

They haven't.



#54 kwc

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Posted 30 June 2016 - 12:19 PM

Just a couple more thoughts on this (partly expanding on the discussion in the Culp v. Madigan thread):

 

As Heller leads us to believe, there is some historical precedent upholding bans on concealed carry (as long as open carry was allowed as an alternative).   But Heller did not rule specifically on the issue of carrying firearms in public, whether concealed or open.  Most of the rulings it cites were used to point out simply that the right to keep and bear arms has historically not been treated as unlimited.

 

(Surprisingly, Heller did endorse Judge Ginsburg's definition of "bear arms" in the context of the second amendment:  ""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.")

 

Similarly, as stm points out in this post, although Moore cited Heller to convey that a state may require open carry, this wasn't central to that ruling, either.  In the same breath that Posner quotes the majority in Heller ("a state may be able to require 'open carry,'"), he acknowledges that Heller “does not force states to allow the carrying of handguns in a manner that may cause needless public alarm.”  This tells me that Posner believed either one or the other (or both) must be allowed.  The state should have some latitude, but a complete ban on public carry is unconstitutional.

 

On a side note, if Heller is guilty of "upholding" bans on concealed carry, then it is equally guilty of "ruling" that handgun registration, licensing, and conditions and qualifications on the commercial sale of firearms (perhaps magazine capacity bans? AWBs? FOID card? 1 purchase per month?) are constitutional. After all, the majority said: "nothing in our opinion should be taken to cast doubt on longstanding… laws imposing conditions and qualifications on the commercial sale of arms," and "Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." 


Edited by kwc, 30 June 2016 - 12:26 PM.

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#55 kwc

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Posted 30 June 2016 - 12:38 PM

Most of the cases cited in Heller which addressed state bans on concealed carry were decided at the state supreme court level.  Likewise, a challenge on Florida's open carry ban is being heard in the Florida Supreme Court.  Norman v. Florida will be interesting to watch.

 

http://jweb.flcourts..._casenumber=650


Edited by kwc, 30 June 2016 - 12:43 PM.

"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

#56 Charles Nichols

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Posted 30 June 2016 - 01:25 PM

On a side note, if Heller is guilty of "upholding" bans on concealed carry, then it is equally guilty of "ruling" that handgun registration, licensing, and conditions and qualifications on the commercial sale of firearms (perhaps magazine capacity bans? AWBs? FOID card? 1 purchase per month?) are constitutional. After all, the majority said: "nothing in our opinion should be taken to cast doubt on longstanding… laws imposing conditions and qualifications on the commercial sale of arms," and "Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." 

If you go back and listen to the oral arguments in Heller, or just read the transcripts, you'll find that Alan Gura was urged to challenge the registration requirement but he refused.  Just because Gura refused to put registration on the table it does not mean that any registration requirement is constitutional.

 

As for all of the "presumptive lawful" regulations that Heller referred to you have to take the Heller decision to mean what it said, those things simply were not at issue and nothing in the Heller decision should be read to cast doubt on them.

 

The Heller decision did not purport to be an exhaustive examination of the Second Amendment right it only claimed to be the first in-depth examination of the right and if there is anything the Heller decision tells us about the Second Amendment is that Open Carry perfectly captures the meaning of the individual Second Amendment right and, in the same breath, it tells us that concealed carry is not a right and can therefore be banned.



#57 kwc

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Posted 30 June 2016 - 01:48 PM

(1) The Heller decision did not purport to be an exhaustive examination of the Second Amendment right it only claimed to be the first in-depth examination of the right...

 

(2) ...{Heller} tells us that concealed carry is not a right and can therefore be banned.

 

 

I'll agree with (1) but am still not convinced on (2).  We'll agree to disagree.  :flowers:


"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

#58 Charles Nichols

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Posted 30 June 2016 - 02:50 PM

 

(1) The Heller decision did not purport to be an exhaustive examination of the Second Amendment right it only claimed to be the first in-depth examination of the right...

 

(2) ...{Heller} tells us that concealed carry is not a right and can therefore be banned.

 

 

I'll agree with (1) but am still not convinced on (2).  We'll agree to disagree.  :flowers:

 

Justice Scalia was the poster boy for plain English and Originalism.  If he said something in a decision, he meant what he said and not the opposite.  You could read his books, such as "Reading Law: The Interpretation of Legal Texts" or you could read the dissents in the Heller decision.  All four justices in the dissent read Scalia's majority decision to say that concealed carry is not a right and can therefore be banned.  Given that all nine justices on the Heller court agreed that there is no right to concealed carry, or at a minimum read the majority decision to say that concealed carry is not a right then you really need to ask yourself where in the Heller decision does it say that Open Carry can be banned in favor of concealed carry?

 

In the 475 years of laws and cases cited in the 59 page en banc Peruta decision, or in any of the dissents, what case was cited for the proposition that states can ban Open Carry in favor of concealed carry?  It certainly wasn't the 1840 Reid case.  The Reid Court considered the hypothetical case where Open Carry was banned in favor of concealed carry and held that would be unconstitutional as would any ban on Open Carry.

 

"But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons..." Heller dissent at 2851

 

"I am similarly puzzled by the majority's list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) "prohibitions on carrying concealed weapons"..." Heller dissent at 2869



#59 borgranta

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Posted 30 June 2016 - 03:42 PM

(1) The Heller decision did not purport to be an exhaustive examination of the Second Amendment right it only claimed to be the first in-depth examination of the right...
 
(2) ...{Heller} tells us that concealed carry is not a right and can therefore be banned.

 
I'll agree with (1) but am still not convinced on (2).  We'll agree to disagree.  :flowers:
Justice Scalia was the poster boy for plain English and Originalism.  If he said something in a decision, he meant what he said and not the opposite.  You could read his books, such as "Reading Law: The Interpretation of Legal Texts" or you could read the dissents in the Heller decision.  All four justices in the dissent read Scalia's majority decision to say that concealed carry is not a right and can therefore be banned.  Given that all nine justices on the Heller court agreed that there is no right to concealed carry, or at a minimum read the majority decision to say that concealed carry is not a right then you really need to ask yourself where in the Heller decision does it say that Open Carry can be banned in favor of concealed carry?
 
In the 475 years of laws and cases cited in the 59 page en banc Peruta decision, or in any of the dissents, what case was cited for the proposition that states can ban Open Carry in favor of concealed carry?  It certainly wasn't the 1840 Reid case.  The Reid Court considered the hypothetical case where Open Carry was banned in favor of concealed carry and held that would be unconstitutional as would any ban on Open Carry.
 
"But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons..." Heller dissent at 2851
 
"I am similarly puzzled by the majority's list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) "prohibitions on carrying concealed weapons"..." Heller dissent at 2869
Heller referenced a court case that ruled that open carry was the protected unequivocally that open carry was the protected right.
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#60 vezpa

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Posted 01 July 2016 - 10:30 PM

We don't have a outright ban on open carry here in Illinois.  We can open carry while fishing, and hunting now too I believe.  :pinch:

 

.


Edited by vezpa, 01 July 2016 - 10:30 PM.

Laws that forbid the carrying of arms disarm only those

who are neither inclined nor determined to commit crimes.

                                                    

                                                                                                                                                     

                                                                    - Thomas Jefferson






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