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

[The Norseman]

Nevermind. Misread.

 

[WildCat]

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:



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.

The issue in that case was whether or not a Terry stop could be conducted based on a tip from an informant. It had nothing to do with gun laws.

 

[newyorkguy]

There are very few gun cases that went before the Supreme Court. This case (Adams v. Williams) was about Terry stops but the Second Amendment played a minor role. Justice Douglas wrote:

"There is no reason why all pistols should not be barred to everyone except the police...The Second Amendment..."must be interpreted and applied" with the view of maintaining a "militia"..."

The Chief Justice at the time, Warren Burger, later called the theory of 'individual rights' a fraud. I think his comment and that of Douglas illustrates that "all law abiding citizens have the right under the Second Amendment to carry a gun for lawful self-defense" had not yet been established.

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.

New York City's so-called Sullivan Law (link) also prohibited possession of a gun without a city-issued permit. Possession without a permit was a misdemeanor, carrying without a permit was a felony. The one gun rights advocate who answered my earlier question, how has it stood for one hundred years, said that the law could stand if it was "not unduly restrictive." Yet Sullivan is very restrictive and under the recent Yolo County ruling Sullivan would clearly be unConstitutional.

The Sullivan Law, on the books as section 400.00 of the New York Penal Law, became a model for gun-control legislation enacted throughout the country.

The point I'm making is, this law stood for one hundred years but in light of recent court decisions, it is probably now unConstitutional. The scope of the Second Amendment has obviously been expanded.

 

[The Norseman]

There are very few gun cases that went before the Supreme Court. This case (Adams v. Williams) was about Terry stops but the Second Amendment played a minor role. Justice Douglas wrote:


The Chief Justice at the time, Warren Burger, later called the theory of 'individual rights' a fraud. I think his comment and that of Douglas illustrates that "all law abiding citizens have the right under the Second Amendment to carry a gun for lawful self-defense" had not yet been established.

It really wasn't ever in doubt until fairly recently, as I've already stated. The USSC finally had a case worthy of directly ruling on what the 2nd amendment really means through the Heller decision.

New York City's so-called Sullivan Law (link) also prohibited possession of a gun without a city-issued permit. Possession without a permit was a misdemeanor, carrying without a permit was a felony. The one gun rights advocate who answered my earlier question, how has it stood for one hundred years, said that the law could stand if it was "not unduly restrictive." Yet Sullivan is very restrictive and under the recent Yolo County ruling Sullivan would clearly be unConstitutional.

One other important detail people are forgetting in this discussion is that nearly all of the states have a 2nd amendment analog. It's very noticeable that the states that do not have this also have many more onerous and strict gun laws in place.

The interplay between the federal 2nd amendment and the state analogs is interesting at the least.

The point I'm making is, this law stood for one hundred years but in light of recent court decisions, it is probably now unConstitutional. The scope of the Second Amendment has obviously been expanded.

It took so long because there first has to be an injured party and go through all of the appeals processes and finally present it to the USSC which can only hear a handful of cases.

The scope has not been expanded as I've said -- it's been clarified.

 

[WildCat]

The Chief Justice at the time, Warren Burger, later called the theory of 'individual rights' a fraud. I think his comment and that of Douglas illustrates that "all law abiding citizens have the right under the Second Amendment to carry a gun for lawful self-defense" had not yet been established.

Do you have any evidence at all that Burger ever researched the topic? Heard arguments? Or was he just regurgitating something somebody told him?

 

[The Norseman]

The Chief Justice at the time, Warren Burger, later called the theory of 'individual rights' a fraud.

Going back to this statement, I find it very odd indeed that every single amendment is a personal right EXCEPT one and that happens to be one which many despise.

Can anyone explain how the founders just happened to write an amendment that is a collective right that's sandwiched between all the rest of the individual rights? One would think they were clever enough to perhaps set aside a collective right in a different sub-category separate from the individual rights.

 

[WildCat]

Going back to this statement, I find it very odd indeed that every single amendment is a personal right EXCEPT one and that happens to be one which many despise.

Can anyone explain how the founders just happened to write an amendment that is a collective right that's sandwiched between all the rest of the individual rights? One would think they were clever enough to perhaps set aside a collective right in a different sub-category separate from the individual rights.

And then accidentally wrote "the people" instead of "the militia" or "the states".

They were just sloppy I guess.

 

[The Norseman]

And then accidentally wrote "the people" instead of "the militia" or "the states".

They were just sloppy I guess.

Yeah.

I do acknowledge that there was argument then regarding the phrasing and meaning of the amendments though I find that after all these years, it might very well have been better had they left them out entirely as many wished.