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US v. Adams (8th Cir, Jan 29, 2019) - No right to concealed carry.


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#1 Charles Nichols

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Posted 23 February 2019 - 08:10 PM

"The history of prohibitions on concealed carry extends to the carrying of concealed weapons during travel. Even before cars and trucks, the Tennessee Supreme Court held that carrying a “navy six [pistol] in a scabbard hung to the horn of [a defendant’s] saddle” was grounds to convict the defendant for unlawfully carrying a pistol “that can be carried lawfully only openly in the hands.” Barton v. State, 66 Tenn. 105, 105-06 (Tenn. 1874). Similarly, the Alabama Supreme Court affirmed the conviction of a defendant who concealed a pistol in a handbasket that the defendant carried with him on a train car. Diffey v. State, 5 So. 576, 576 (Ala. 1889). After the advent of automobiles, the Court of Appeals for the District of Columbia upheld a conviction for carrying a concealed weapon under a vehicle seat. The court approved a jury instruction that said the governing statute applied if the defendant “had a pistol concealed in the automobile, though not on his person, but within his reach.” Brown v. United States, 30 F.2d 474, 475 (D.C. Cir. 1929)."  US v. Adams No.: 16-2529 (8th Cir, Jan 29, 2019) Slip Op. at 5.

 

This may come as a shock to some of you here but I disagree with the holding of the court. The two relevant points in time are 1791 and 1868 when considering Second Amendment questions.  Prohibitions enacted during the Reconstruction Era in states under Northern occupation have no bearing on what the Framers of the Second and Fourteenth Amendments understood the right to mean.  20th-century cases, other than SCOTUS decisions, are even further removed.

 

That said, as a matter of law there is no Second Amendment right to concealed carry in the 8th circuit, not even for travelers. 

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#2 Hipshot Percussion

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Posted 23 February 2019 - 08:51 PM

IANAL - This sounds like a very narrow ruling that applied only to whether or not the concealed carry part applies to a felon who has been denied the Right to carry a pistol.... No?  It would seem, with the concurring opinions dissent that concealed carry as a Right "would not be relevant to Adams’s conviction because § 922(g)(1) applies regardless of the manner in which the firearm is possessed. It likewise should have no bearing on his ability to argue that his conviction under that section is unconstitutional."

 

It seems as though the Court agrees with the outcome, but how they came to that outcome is in dispute and does nothing more than muddy the waters and gives SCOTUS another reason to declare and clarify the Second Amendment and our Rights.


Edited by Hipshot Percussion, 23 February 2019 - 08:53 PM.

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#3 chislinger

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Posted 24 February 2019 - 12:04 AM

I don't see how any state case is even relevant prior to the 2nd Amendment incorporation in the 2010 McDonald case.
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#4 kevinmcc

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Posted 24 February 2019 - 03:48 PM

"can be carried lawfully only openly in the hands"

So that is how they want carry?

 

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#5 Charles Nichols

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Posted 24 February 2019 - 05:17 PM

IANAL - This sounds like a very narrow ruling that applied only to whether or not the concealed carry part applies to a felon who has been denied the Right to carry a pistol.... No?  It would seem, with the concurring opinions dissent that concealed carry as a Right "would not be relevant to Adams’s conviction because § 922(g)(1) applies regardless of the manner in which the firearm is possessed. It likewise should have no bearing on his ability to argue that his conviction under that section is unconstitutional."

 

Whatever is said in a concurrence is not binding especially if the concurrence reads like a dissent. Which is why Justice Alito's 10-page concurrence in Caetano had no effect beyond the very narrow, 5-paragraph per curiam.  Likewise with Justice Thomas' concurrences in McDonald v. City of Chicago and Timbs v. Indiana.  Justice Thomas' concurrences said that he would have incorporated via the privileges or immunities clause of the 14th Amendment instead of the due process clause.  By his concurring in the judgment, the due process clause prevailed.  A concurrence gives a vote and that is all, no matter how much one prefers the concurrence over the majority decision.

 

The rare exception is when there is a decision like Binderup v. Attorney General U.S. in which there were so many "concurring in part," "dissenting in part," and "concurring in the judgment," that district court judges have struggled to apply the 3rd circuit decision to other cases.  I ran across one court which tried to cobble together a decision and another court which simply said that the narrowest part of the decision applies.



#6 Charles Nichols

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Posted 24 February 2019 - 05:22 PM

I don't see how any state case is even relevant prior to the 2nd Amendment incorporation in the 2010 McDonald case.

Because the McDonald decision relied on cases prior to its decision to come to its conclusion that the Second Amendment is a fundamental right and incorporated via the due process clause of the 14th Amendment to the states.  An "originalist" judge looks at the right as it was understood in 1868 because the 1868 understanding of the right is what was incorporated against the states via the 14th Amendment.  



#7 chislinger

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Posted 25 February 2019 - 07:58 PM

I don't see how any state case is even relevant prior to the 2nd Amendment incorporation in the 2010 McDonald case.

Because the McDonald decision relied on cases prior to its decision to come to its conclusion that the Second Amendment is a fundamental right and incorporated via the due process clause of the 14th Amendment to the states.  An "originalist" judge looks at the right as it was understood in 1868 because the 1868 understanding of the right is what was incorporated against the states via the 14th Amendment.

The cases cited pertained to state law not the 2A.
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#8 Gamma

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Posted 26 February 2019 - 01:18 AM

"can be carried lawfully only openly in the hands"

So that is how they want carry?

 

giphy.gif

That was on the books in some places in TN as a relic from the 19th century, the only way to legally open carry was to carry the pistol gripped in the hand. One of the open carry activists walked through one of those towns open carrying an AK pistol in the legally required fashion with predictable results.


Edited by Gamma, 26 February 2019 - 01:18 AM.

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

#9 Charles Nichols

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Posted 26 February 2019 - 01:28 AM

 

The cases cited pertained to state law not the 2A.

 

It is appropriate to look to state laws and state constitutions and state court decisions from the relevant time frames, 1791 and 1868.  It is also appropriate to look as far back as the Magna Carta (1215) as SCOTUS just did in Timbs v. Indiana which incorporated the excessive fines clause against the states.  I suggest you read the Timbs v. Indiana decision and then go back and read the Heller and McDonald decisions.  If you read them, and understand them, then you won't throw out unqualified remarks such as "The cases cited pertained to state law not the 2A."

 

It is appropriate to look at state laws and state constitutions and state court decisions from the relevant time frames, 1791 and 1868, in order to understand the meaning of the 2A.

 

That is what the court did in Heller and McDonald and that is why all nine justices in Heller and McDonald concluded that the 19th-century prohibitions on concealed carry are permissible regulations of the Second Amendment.  

 

The 19th-century prohibitions on concealed carry prior to 1868 exempted travelers while on a journey, that was cited in the Heller decision as well.  The error made by the 8th circuit was to look at the wrong time frames.

 

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#10 Charles Nichols

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Posted 26 February 2019 - 01:44 AM

 

"can be carried lawfully only openly in the hands"

So that is how they want carry?

 

giphy.gif

That was on the books in some places in TN as a relic from the 19th century, the only way to legally open carry was to carry the pistol gripped in the hand. One of the open carry activists walked through one of those towns open carrying an AK pistol in the legally required fashion with predictable results.

 

It was a state park, not a town, and he was stopped because "The barrel was a half-inch shy of the legal limit, and, when coupled with the thirty-round ammunition clip, it reasonably could look more like a rifle than a handgun."  Embody v. Ward at 580.  The "predictable" result was that the Second Amendment Foundation and its attorney Alan Gura filed an Amicus brief against Open Carry and against the 4th Amendment.

 

I returned the favor by filing an Amicus brief against concealed carry in the Peruta en banc appeal which was combined with the SAF/CalGuns.nuts lawsuit Richards v. Prieto.  Embody lost because of police "qualified immunity."  SAF and Alan Gura lost because they didn't have the Constitution on their side which seven of the eleven judges on the en banc panel recognized.  Hopefully, due in no small part to my Amicus brief.



#11 kevinmcc

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Posted 09 March 2019 - 07:13 PM

"can be carried lawfully only openly in the hands"

So that is how they want carry?

That was on the books in some places in TN as a relic from the 19th century, the only way to legally open carry was to carry the pistol gripped in the hand. One of the open carry activists walked through one of those towns open carrying an AK pistol in the legally required fashion with predictable results.


I get where it came from, just pointing out the leftist court was using that as acceptable way to open carry and concluding concealed carry is not.
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#12 press1280

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Posted 10 March 2019 - 06:44 AM

I'm not sure why the court even went into whether the pistol was concealed or not. The Federal crime he's convicted of isn't dependent on that.



#13 Charles Nichols

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Posted 24 March 2019 - 09:45 PM

I'm not sure why the court even went into whether the pistol was concealed or not. The Federal crime he's convicted of isn't dependent on that.

For the same reason that my California Open Carry lawsuit challenges California Penal Code section 25850 "on its face and as applied to firearms openly carried in non-sensitive public places."  PC25850 does not differentiate between open and concealed carry, the "crime" is carrying a loaded firearm.  One doesn't typically have standing to challenge the constitutionality of a law when the law is constitutional "as-applied" to the person making the constitutional challenge.






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