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Powell v. Tompkins - pending with SCOTUS re: licensing and carrying


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#1 MrTriple

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Posted 18 November 2015 - 02:31 PM

I didn't see a thread for this, so I'm gonna open this to document any changes. This is a case that's pending cert with SCOTUS that concerns carrying of arms in public and, to a lesser extent, licensing of gun ownership. Per the link from the California Right to Carry blog:

Importantly, it clearly identifies the existing circuit splits on whether or not the Second Amendment extends beyond the home. As you may recall, the dissent in Jackson v. San Francisco by Justice Thomas (Justice Scalia concurring) chided the court in that case for not granting that cert petition for lack of a circuit split. Another nice thing about the cert petition in this case is the outcome does not turn on whether or not there is a right to carry a handgun concealed in public. The question is whether or not there is a right to carry in public pursuant to the Second Amendment (the 1st Circuit Court of Appeals and the Massachusetts high court said there is not). On November 5, 2015 SCOTUS requested a response. This moves the cert petition from DOA to a better than average chance that the cert petition will be granted. There are two types of cases which are normally placed on the dead list and denied outright. IFP cases (those filed by persons who are so poor they cannot afford to pay the filing fee) and cases where a waiver of response is filed and SCOTUS does not request a response. This is an IFP case and a waiver of response had been filed. Now that SCOTUS has requested a response this case is off the dead list.


Below is a link to a PDF of the request for cert:

http://blog.californ...tion-9-9-15.pdf

Having a carry case get accepted by the court would be huge, but if they also rule on the constitutionality of licensing gun ownership, we might finally witness the end of the FOID program. It would also be a nice win for gun owners suffering under New York City's restrictive licensing laws.

Edited by MrTriple, 18 November 2015 - 02:33 PM.

"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#2 RoadyRunner

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Posted 18 November 2015 - 09:08 PM

I believe I may have mentioned this case in another thread (http://illinoiscarry...uit#entry952039), but do agree that it deserves its own thread... :) Sent from my Nexus 9 using Tapatalk

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#3 BradS

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Posted 18 November 2015 - 09:50 PM

Interesting...
my target stands classified thread:

http://illinoiscarry...topic=40920&hl=

#4 chislinger

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Posted 19 November 2015 - 07:51 AM

Interesting case and a promising development!

Edited by chislinger, 19 November 2015 - 07:51 AM.

"I'm not worried about following the U.S. Constitution." - Washington County, Alabama Judge Nick Williams

#5 wishbone

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Posted 19 November 2015 - 09:31 AM

Or we could lose. That would mean Illinois' ccw law would go down the toilet.

#6 chislinger

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Posted 19 November 2015 - 11:30 AM

Or we could lose. That would mean Illinois' ccw law would go down the toilet.

The law is immune from any court decision. The only way it goes "down the toilet" is if the legislature repeals it, and there are nowhere near the number of votes to do that. It was within a few votes of passing with a veto-proof majority even before the court ruling that mandated it.
"I'm not worried about following the U.S. Constitution." - Washington County, Alabama Judge Nick Williams

#7 Tango7

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Posted 19 November 2015 - 03:13 PM

Or we could lose. That would mean Illinois' ccw law would go down the toilet.

The law is immune from any court decision. The only way it goes "down the toilet" is if the legislature repeals it, and there are nowhere near the number of votes to do that.


I don't know about that. If SCOTUS were to declare that requiring a license to possess (keep) or carry (bear) arms truly violated the 2A then the FOIDA and FCCA law would both be unconstitutional prima facie.

While {D}a powers that be might force the issue until a lawsuit (or another appeal to SCOTUS to incorporate the decision) challenged it, eventually both would be thrown out.

Edited by Tango7, 19 November 2015 - 03:13 PM.

You will not 'rise to the occasion', you will default to your level of training - plan accordingly.

Despite their rallying around us at election time, honoring only 8 hours of Illinois' 40+ hour law enforcement class towards a 16 hour requirement shows the contempt that our elected officials hold us in.

#8 chislinger

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Posted 19 November 2015 - 03:32 PM

I don't know about that. If SCOTUS were to declare that requiring a license to possess (keep) or carry (bear) arms truly violated the 2A then the FOIDA and FCCA law would both be unconstitutional prima facie.

While {D}a powers that be might force the issue until a lawsuit (or another appeal to SCOTUS to incorporate the decision) challenged it, eventually both would be thrown out.

He said if we LOSE, not if we win.
"I'm not worried about following the U.S. Constitution." - Washington County, Alabama Judge Nick Williams

#9 RoadyRunner

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Posted 19 November 2015 - 05:29 PM

What's interesting about the case is the respondent waived their right to respond. That normally kills a case. However, SCOTUS have demanded a response from the respondent - which ultimately means its getting serious consideration IMO. Sent from my Nexus 9 using Tapatalk

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#10 Gamma

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Posted 19 November 2015 - 05:45 PM

They've upheld licensing for First Amendment activities, I don't think licensing per se for the Second is out based on their current precedents.

 

However, how the licensing is implemented cannot impose an unreasonable burden. IMO, most licensing schemes are an unreasonable burden on the person wishing to exercise their rights.


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

#11 MrTriple

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Posted 20 November 2015 - 11:31 AM

They've upheld licensing for First Amendment activities, I don't think licensing per se for the Second is out based on their current precedents.
 
However, how the licensing is implemented cannot impose an unreasonable burden. IMO, most licensing schemes are an unreasonable burden on the person wishing to exercise their rights.


To your first point, the brief makes a good case that laws requiring possession of a license to own a firearm (with criminal penalties for failing to obtain one) are a violation of your fifth and fourteenth amendment rights. The reasoning is that if you're caught with a gun but no license, the only way to defend yourself is either to make an affirmative defense (and thereby incriminate yourself), or to exercise your fifth amendment right to remain silent (thereby not answering the charges, but also not defending yourself against those charges, which are very easily provable in court). In other words, these licensing schemes are based on a philosophy of "guilty until proven innocent", since gun ownership is automatically considered a criminal act unless you possess a special license.

As to your second point, this is where it could get interesting. To merely own a gun in NYC you need a license, and it's difficult and expensive to get from what I understand. I'd hope they'd shoot down a law like that, since we know that the antis view such laws as desirable and a worthy political goal. Eliminate those laws, and you'd solve a lot of problems.

Edited by MrTriple, 20 November 2015 - 11:34 AM.

"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#12 borgranta

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Posted 28 November 2015 - 10:12 PM

I didn't see a thread for this, so I'm gonna open this to document any changes. This is a case that's pending cert with SCOTUS that concerns carrying of arms in public and, to a lesser extent, licensing of gun ownership. Per the link from the California Right to Carry blog:



Importantly, it clearly identifies the existing circuit splits on whether or not the Second Amendment extends beyond the home. As you may recall, the dissent in Jackson v. San Francisco by Justice Thomas (Justice Scalia concurring) chided the court in that case for not granting that cert petition for lack of a circuit split. Another nice thing about the cert petition in this case is the outcome does not turn on whether or not there is a right to carry a handgun concealed in public. The question is whether or not there is a right to carry in public pursuant to the Second Amendment (the 1st Circuit Court of Appeals and the Massachusetts high court said there is not). On November 5, 2015 SCOTUS requested a response. This moves the cert petition from DOA to a better than average chance that the cert petition will be granted. There are two types of cases which are normally placed on the dead list and denied outright. IFP cases (those filed by persons who are so poor they cannot afford to pay the filing fee) and cases where a waiver of response is filed and SCOTUS does not request a response. This is an IFP case and a waiver of response had been filed. Now that SCOTUS has requested a response this case is off the dead list.


Below is a link to a PDF of the request for cert:

http://blog.californ...tion-9-9-15.pdf

Having a carry case get accepted by the court would be huge, but if they also rule on the constitutionality of licensing gun ownership, we might finally witness the end of the FOID program. It would also be a nice win for gun owners suffering under New York City's restrictive licensing laws.

 

What happens if they rule that unlicensed open carry is a right.   


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#13 borgranta

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Posted 28 November 2015 - 10:27 PM

They've upheld licensing for First Amendment activities, I don't think licensing per se for the Second is out based on their current precedents.

 

However, how the licensing is implemented cannot impose an unreasonable burden. IMO, most licensing schemes are an unreasonable burden on the person wishing to exercise their rights.

Failing to get a license for first amendment activities does not make you a felon like failing to get a gun permit or license does.  Usually the first amendment activities that require a permit are for group of multiple people rather than an individual.  If an individual was passing out books he or she would not need to have a permit to do so.  If a group of 100 people decide to protest actions of a business they would probably need a permit.  The cost of the gun licenses is not the only issue the fact that states that issue the licenses have been known to violate the statutorily required maximum time to issue the cards and in the case of New Jersey they require a fingerprint just to apply for their firearms ID card (FID) which is another barrier.


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#14 borgranta

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Posted 28 November 2015 - 10:30 PM

Since a right can not be a crime and licenses make a crime legal they can not require a license to own or to open carry but they can to concealed carry.


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#15 MrTriple

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Posted 07 January 2016 - 01:17 PM

Has anyone seen any updates on this case? I looked online and found nothing.
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#16 defaultdotxbe

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Posted 07 January 2016 - 02:27 PM

Since a right can not be a crime and licenses make a crime legal they can not require a license to own or to open carry but they can to concealed carry.

How do you figure that? The 2A just says "keep and bear arms" it doesn't say anything about open vs concealed. It's left to the person exercising the right to choose the manner of bearing

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Edited by defaultdotxbe, 07 January 2016 - 02:28 PM.

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#17 bmyers

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Posted 07 January 2016 - 02:42 PM

Has anyone seen any updates on this case? I looked online and found nothing.

 

 
~~~Date~~~  ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Sep 9 2015 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed.(Response due October 15, 2015)
Oct 5 2015 Waiver of right of respondent Steven Tompkins, Sheriff, Suffolk County, Massachusetts to respond filed.
Oct 29 2015 DISTRIBUTED for Conference of November 13, 2015.
Nov 5 2015 Response Requested . (Due December 7, 2015)
Nov 23 2015 Order extending time to file response to petition to and including February 8, 2016.

Edited by bmyers, 07 January 2016 - 02:43 PM.


#18 BradS

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Posted 07 January 2016 - 09:12 PM

Got a link for that?

Google confirmed my suspicions that "in forma pauperis" meant in the way of a pauper, a request to waive normal court costs.

So are they waiting on a response from the sheriff?
my target stands classified thread:

http://illinoiscarry...topic=40920&hl=

#19 MrTriple

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Posted 08 January 2016 - 12:56 AM

Got a link for that?
Google confirmed my suspicions that "in forma pauperis" meant in the way of a pauper, a request to waive normal court costs.
So are they waiting on a response from the sheriff?


Yeah, I'm surprised that Scotusblog has nothing on the case. They're usually pretty good with keeping us updated.
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#20 AlphaKoncepts aka CGS

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Posted 08 January 2016 - 09:51 AM

Since a right can not be a crime and licenses make a crime legal they can not require a license to own or to open carry but they can to concealed carry.

How do you figure that? The 2A just says "keep and bear arms" it doesn't say anything about open vs concealed. It's left to the person exercising the right to choose the manner of bearing

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#21 RoadyRunner

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Posted 08 January 2016 - 05:54 PM

Yeah, I'm surprised that Scotusblog has nothing on the case. They're usually pretty good with keeping us updated.
They'll probably pick it up when the filings are complete, if they feel there is a reasonable chance of a grant coming.

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#22 skinnyb82

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Posted 13 January 2016 - 11:38 AM

The petition was filed IFP? Ahhh, IFP petitions don't get much attention in comparison to those where counsel of record is a big shot, experienced appellate attorney. Sent from my SM-G900V using Tapatalk
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#23 Gamma

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Posted 13 January 2016 - 04:58 PM

It's left to the person exercising the right to choose the manner of bearing

"Time Place and Manner regulation" of civil rights as we hear over and over, have been allowed as a function of the States by the courts.

 

It doesn't mean I like it, just taking a realistic view. Courts are not likely to intervene in concealed carry, if unregulated open carry is available.


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

#24 defaultdotxbe

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Posted 13 January 2016 - 05:31 PM

It's left to the person exercising the right to choose the manner of bearing"Time Place and Manner regulation" of civil rights as we hear over and over, have been allowed as a function of the States by the courts. It doesn't mean I like it, just taking a realistic view. Courts are not likely to intervene in concealed carry, if unregulated open carry is available.

Regarding bogranta's comment then, the opposite is also true: government can regulate or ban open carry if concealed is available

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Edited by defaultdotxbe, 13 January 2016 - 05:31 PM.

"The cheek of every American must tingle with shame as he reads the silly,
flat, and dishwatery utterances of the man who has to be pointed out to
intelligent foreigners as the President of the United States."
-Chicago Times review of Lincoln's Gettysburg Address.


#25 ckm

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Posted 29 March 2016 - 06:38 PM

As of March 21, 2016, the Supreme Court has denied the petition for this case. The California Right To Carry site has a good summary page of the progress, for the curious.