Merged 9th Circuit Strikes Down "May Issue" Concealed carry In California

[newyorkguy]

I think the evidence points to this wide difference of opinion only existing within a very short time, relative to the age of our country...

First of all, thank you for at least conceding that this has been a hotly contested issue, not something I dreamed up. Second, what evidence are you referring to? Third, what do you mean by a relatively short period of time?

Speaking from personal experience, and being someone who has always followed current events, my recollection is, the modern gun control movement began with the spate of political assassinations in the 1960s. That's when it became an issue of wide debate. Then the spike in street crime in the 1970s -- and efforts to remove "Saturday Night Specials" from circulation -- made the issue even more contentious. My recollection is, the idea that the Second Amendment conferred an individual right to carry a handgun was not established in law at that time. That was what all the shouting was about. Nobody could come up with the citation that definitively proved it either way. I have seen it stated on legal blogs that going back to the 1800s "hundreds of court decisions" supported the idea that the right was collective not individual.

I don't know what those hundreds of rulings said or who issued them. The sites don't list them, they just refer to them. I do know that New York City enacted a prohibition on carrying a gun without a city-issued permit in 1911. I don't understand why, if the right to carry had already been established, this law has never been successfully challenged. I'd be very interested if you or one of the gun rights advocates could explain that to me.

 

[marplots]

This IMHO illustrates that you do not care about original intent, you just care about your team winning, and would prefer the path of least resistance, ie not a constitutional amendment, but to interpret away the intentions of the founding fathers.

This wasn't addressed to me, but why would it be other than "your team winning?" After all, aren't we on the team which promotes the ideal we ascribe to?

If interpreting the Constitution differently leads to the outcome I desire, that's a legitimate move. It's very similar to how bible thumpers hold a position and interpret their holy book to match. If the Constitution is to be our holy book, we are bound to make it match what we think is the correct course of action.

Reinterpretation instead of alteration by amendment is a way of honoring the document, instead of advocating a change because it's wrong.

 

[Giz]

I do know that New York City enacted a prohibition on carrying a gun without a city-issued permit in 1911. I don't understand why, if the right to carry had already been established, this law has never been successfully challenged. I'd be very interested if you or one of the gun rights advocates could explain that to me.

Because the law says that there has to be a way to carry. that can be open or concealed, it can be via permit (as long as not unduly restrictive) or permit-less. It's just a matter of "can you, albeit by maybe jumping through some hoops, bear arms?".

So the matter of there being a permit system in place doesn't necessarily make it unconstitutional.

 

[newyorkguy]

Because the law says that there has to be a way to carry...it can be via permit (as long as not unduly restrictive)...

What law are you referring to?

 

[The Norseman]

Open carry because you have no other reasonable choice is one thing. Open carry because you think that you will make all the soccer moms come round to the idea that seeing guns in public is normal is (metaphorically) shooting themselves in the foot. It's far more likely to backfire and make those who were previously apathetic start to campaign for more restrictions (e.g. anyone who took their AR into Starbucks - way to go guys).

I've heard that open carry as a form of activism will result in a backlash but I have yet to see it happen. Do you have any evidence that this is the case? It's an honest question.

 

[The Norseman]

First of all, thank you for at least conceding that this has been a hotly contested issue, not something I dreamed up. Second, what evidence are you referring to? Third, what do you mean by a relatively short period of time?

You're welcome and to elaborate a bit, it'd be foolish (IMHO) to not see that it has been hotly contested within the past decade or so.

I'm referring to any evidence that the founders did not see the 2nd amendment as a personal right.

By 'a relatively short period of time' is somewhere in the thirty to forty year range. So sometime in the past thirty years has the issue of the militia clause ever become a sticking point. I'm asking if you have anything which reasonably shows that the militia clause was a problem before then.

Speaking from personal experience, and being someone who has always followed current events, my recollection is, the modern gun control movement began with the spate of political assassinations in the 1960s. That's when it became an issue of wide debate. Then the spike in street crime in the 1970s -- and efforts to remove "Saturday Night Specials" from circulation -- made the issue even more contentious. My recollection is, the idea that the Second Amendment conferred an individual right to carry a handgun was not established in law at that time. That was what all the shouting was about. Nobody could come up with the citation that definitively proved it either way. I have seen it stated on legal blogs that going back to the 1800s "hundreds of court decisions" supported the idea that the right was collective not individual.

I will agree that your recollection matches my own (through study because I'm only 42) except that during the time since the government was first founded and the constitution written, it was never really in doubt that the 2nd conferred a personal right -- as all the amendments are.

I don't know what those hundreds of rulings said or who issued them. The sites don't list them, they just refer to them. I do know that New York City enacted a prohibition on carrying a gun without a city-issued permit in 1911. I don't understand why, if the right to carry had already been established, this law has never been successfully challenged. I'd be very interested if you or one of the gun rights advocates could explain that to me.

I'm not sure. My guess would be that the US supreme court never decided the issue was contentious enough to rule one way or the other.

 

[The Norseman]

This wasn't addressed to me, but why would it be other than "your team winning?" After all, aren't we on the team which promotes the ideal we ascribe to?

If interpreting the Constitution differently leads to the outcome I desire, that's a legitimate move. It's very similar to how bible thumpers hold a position and interpret their holy book to match. If the Constitution is to be our holy book, we are bound to make it match what we think is the correct course of action.

Reinterpretation instead of alteration by amendment is a way of honoring the document, instead of advocating a change because it's wrong.

I strongly disagree that reinterpretation is anything like honoring the constitution when the method of changing it (the amendment process) was a pillar which supported the whole document.

Deciding 'up is down' does nothing but reduce faith (for the lack of a better term) in the whole process in the first place. When, as a society, we change our collective minds, we use the amendment process to conform the constitution to our new sensibilities.

 

[WildCat]

This offensive statement displays your ignorance that in some jurisdictions, open carry is either the only lawful carry or the only lawful carry with no permit.

I understand that, but open carry advocates want to open carry even when concealed carry is available, because they want everyone to see them and their guns because it's an ego trip for them.

It's one thing to do it during a gun rights demonstration, quite another when you're going to the grocery store and filming every bit of it to upload to youtube.

But I guess there's end zone dancers and those who act like they've been there before.

 

[Giz]

I've heard that open carry as a form of activism will result in a backlash but I have yet to see it happen. Do you have any evidence that this is the case? It's an honest question.

No evidence (other than Starbucks getting fed up after all the open carriers pushed them into the center of the culture wars). It's just my reading of human nature - fears can be lessened by controlled exposure to the items in a safe setting... but seeing people parading around with AR's is more likely to make people think "let's ban this" than calmly reflect "hmmm, the sky hasn't fallen, so maybe this is OK".

 

[Xulld]

This wasn't addressed to me, but why would it be other than "your team winning?" After all, aren't we on the team which promotes the ideal we ascribe to?

If interpreting the Constitution differently leads to the outcome I desire, that's a legitimate move. It's very similar to how bible thumpers hold a position and interpret their holy book to match. If the Constitution is to be our holy book, we are bound to make it match what we think is the correct course of action.

Reinterpretation instead of alteration by amendment is a way of honoring the document, instead of advocating a change because it's wrong.

You sir have defeated yourself.

 

[The Norseman]

I understand that, but open carry advocates want to open carry even when concealed carry is available, because they want everyone to see them and their guns because it's an ego trip for them.

It's one thing to do it during a gun rights demonstration, quite another when you're going to the grocery store and filming every bit of it to upload to youtube.

But I guess there's end zone dancers and those who act like they've been there before.

I see what you're saying and I agree to a point. I liken it to calling all of the Occupy Wall Street protesters as dirty, lazy hippies who want free handouts. There will always be a visible minority that is easy to mock and denigrate; it's the broad brush I'm taking issue with.

But, as I've said, I fully support the personal right for people to carry their firearms however they wish as long as it's not breaking any laws (such as brandishing). Mere carrying of a pistol in a holster, concealed or open, does not rise to the level of any crime and should never be thought of as such. I'm not saying you are in this category; I'm using this as a jumping-off point.

 

[The Norseman]

No evidence (other than Starbucks getting fed up after all the open carriers pushed them into the center of the culture wars). It's just my reading of human nature - fears can be lessened by controlled exposure to the items in a safe setting... but seeing people parading around with AR's is more likely to make people think "let's ban this" than calmly reflect "hmmm, the sky hasn't fallen, so maybe this is OK".

It's almost a catch-22 though isn't it? A single person who open carries might very well get a "man with a gun" call, while a small group going about their business might not trigger (no pun intended) such a call.

I myself have been a part of open carry activism, though no rifles were ever involved; there were either no comments at all or some polite inquiries. No police were ever called. Everyone in that group was very polite and happy to talk about open carry and firearm carry in general. I concede that other groups can be quite a bit less polite or more in your face about open carry.

 

[WildCat]

Then the spike in street crime in the 1970s -- and efforts to remove "Saturday Night Specials" from circulation -- made the issue even more contentious.

Right, that's the "we have to disarm those negroes" attitude that really kicked off the modern assault on the civil rights of gun owners.

 

[Xulld]

I would love for someone to prove out the harm to society that is prevented by prohibiting open carry? Stats?

Naw, did not think so.

We can argue tactics all night and not engage in the need for prohibition at all.

 

[tyr_13]

You continue to ignore it's not "my idea." You (and others) continue to try to personalize this question. The fact is, four of the Supreme Court jurists dissented in both Heller and McDonald. So it's not "my idea."

You also ignore -- or don't know -- that many (yes, not all), political pundits and Supreme Court watchers believe that if Scalia or Kennedy retired and Obama appointed a new judge that might affect the outcome of the appeal of the Ninth Circuit ruling in Peruta. So that's not my idea either.

Personalizing it makes it easier to knock down, I get that. You don't have to recognize there is a wide difference of opinion on what the Second Amendment does or does not convey. You can ignore that a former Supreme Court chief justice once called the "individual right" theory "a fraud."

So go ahead and ignore all that and make it out that it's just me and a couple of other posters that think this while everybody else in the whole world agrees with you. Whatever floats your boat.

I said 'your ideas' because they are the ideas you have on the law and are advocating from. That others share this doesn't make it any less your idea. My goal was to be descriptive and precise not to personalize it. It's not to make it easier to knock down. It is however to get you to support your position.

I did the furthest thing from ignoring the dissent, I commented on it. I never hinted that it was just a few people holding this position, I said that it's not well supported by argument and evidence.

Please stop with the straw men. I understand it can get frustrating and confusing when you're forced to try to defend your position to many posters at once, but try reading what I'm actually saying. Also, remember that feeling next time you decide to join in when a poster is getting piled on.

 

[marplots]

You sir have defeated yourself.

No one else was up to the task.

 

[marplots]

I strongly disagree that reinterpretation is anything like honoring the constitution when the method of changing it (the amendment process) was a pillar which supported the whole document.

Deciding 'up is down' does nothing but reduce faith (for the lack of a better term) in the whole process in the first place. When, as a society, we change our collective minds, we use the amendment process to conform the constitution to our new sensibilities.

Well, the problem stems from my use of "reinterpreting." To those who read the second amendment as other than a personal guarantee to wield firearms, it's not so much "reinterpretation" as a correct (or corrected) reading. I don't think it really engages the disquietude of cognitive dissonance we might expect.

Again, I'd draw a strong parallel with differences in reading holy writ, something we can see in play for any protestant sect worth its denominational affiliation.

Personally, I'd prefer an amendment as a clarifying mechanism and a way to make a serious statement, setting this (or the next) generation apart from previous, less enlightened citizens.

 

[W.D.Clinger]

This case is expected to be appealed all the way to the U.S. Supreme Court.

"All the way to the U.S. Supreme Court" is not a very long way.

First, however, we have to wait and see whether the Ninth Circuit grants the petition for rehearing en banc. If they do, that's another roll of the dice, and the court's decision could end up very different from what we have now.

And if it is, as of right now, a lot of pundits expect the ruling would be upheld by the same 5-4 vote that produced Heller and McDonald.

Why do those pundits assume the Supreme Court would even bother to hear the case? SCOTUS usually denies certiorari, and has already done so in several of the cases cited by both the majority and dissenting opinions.

Both Antonin Scalia and Anthony Kennedy are in their late 70s. Scalia turned 78 today. Kennedy will turn 78 in July. Both will be 80 before President Obama's term is up. What if one -- dare we imagine both! -- were to leave the court before November 2016? What if Barack Obama got to appoint a Supreme Court jurist or two? Then the chances of the Ninth Circuit being upheld might not be so good.

Another factor though, would be if the Republicans can regain a majority in the Senate. If they do then they might be able to dictate who Obama could pick.

Yes, elections have consequences. Elections were part of the web of causality that led to the Heller and McDonald decisions.

No matter how the composition of the SCOTUS may change, the justices will be constrained by Stare decisis et non quieta movere: let sleeping dogs lie, and always pretend to respect the legal precedents handed down to you. They could say Heller and McDonald pertain only to keeping and bearing arms within one's home. They could say any kind of permit process that approves no more than 3% of applications within the first trimester is constitutional.

I'm fairly cynical about the Supreme Court of the United States, but I'm also fairly confident that, no matter who appoints them, future justices of the Supreme Court will be more reasonable than the most extreme partisans of this JREF subforum.

 

[The Norseman]

Well, the problem stems from my use of "reinterpreting." To those who read the second amendment as other than a personal guarantee to wield firearms, it's not so much "reinterpretation" as a correct (or corrected) reading. I don't think it really engages the disquietude of cognitive dissonance we might expect.

Again, I'd draw a strong parallel with differences in reading holy writ, something we can see in play for any protestant sect worth its denominational affiliation.

Personally, I'd prefer an amendment as a clarifying mechanism and a way to make a serious statement, setting this (or the next) generation apart from previous, less enlightened citizens.

Okay, now I understand what you are saying and I appreciate the clarification. I also agree.

 

[newyorkguy]

This is from a Supreme Court case in 1972, Adams v. Williams, 407 U.S. 143 (1972).

From the dissenting view of Justice William Douglas:

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted...There is no reason why all pistols should not be barred to everyone except the police....The leading case is United States v. Miller... The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia"...Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.... Link

I present this merely to illustrate that the contemporary view as to the meaning of the Second Amendment was once quite diffedrent. Rather than paste a "wall of text" I have quoted what I think are the most relevant parts. I'm providing a link for people to read a fuller (though condensed) version of Douglas' dissent. The case was not about the Second Amendment, it was about whether a police pat-down of a suspect was legal or not.

As I understand it -- and I may be wrong -- the contention was, so long as the state (in this instance Connecticut) issued carry permits a police officer observing someone carrying a handgun did not automatically have the right to frisk that person. Douglas argued, that if Connecticut wanted to, they could stop issuing carry permits for handguns. Then anyone seen with a handgun would be known to be in violation of the law and police could frisk them. But so long as they did issue carry permits for handguns, police could not summarily frisk anyone solely on the grounds they were observed carrying a handgun.