Another Second Amendment win in California

[WildCat]

Really not a fan of "concealed carry." Don't get me wrong, I have no problem with people carrying firearms on their person, I just think they should carry them in exposed and obvious hip or shoulder holsters.

3 problems with that.

1. Police would be flooded with "man with a gun" calls by people who get the vapors at the mere sight of a gun, indeed we have people here in Illinois getting the vapors just from looking at a drawing of a gun on the "no guns allowed" signs mandated by the concealed carry law for establishments that want to prohibit firearms.

2. It greatly reduces the tactical advantage of being armed if the bad guy can tell right away who is armed and who isn't. The guy openly armed just becomes the first target, concealed adds a whole lot of uncertainty to the equation.

3. And, of course, if one is up to no good and intends to commit a crime they won't bother obeying the open carry law either. So requiring open carry doesn't make anyone any safer from crime.

 

[Trakar]

3 problems with that.

1. Police would be flooded with "man with a gun" calls by people who get the vapors at the mere sight of a gun, indeed we have people here in Illinois getting the vapors just from looking at a drawing of a gun on the "no guns allowed" signs mandated by the concealed carry law for establishments that want to prohibit firearms.

2. It greatly reduces the tactical advantage of being armed if the bad guy can tell right away who is armed and who isn't. The guy openly armed just becomes the first target, concealed adds a whole lot of uncertainty to the equation.

3. And, of course, if one is up to no good and intends to commit a crime they won't bother obeying the open carry law either. So requiring open carry doesn't make anyone any safer from crime.

All of this seems to assume that open-carry would be a rare and unusual occurrence. A criminal who walks into a convenience store with ten obviously armed customers walking through the aisles is bound to have questions enter his mind.
"Tactical advantages" are for military maneuvers and police detectives not citizens who feel safer carrying a firearm.
Police lines are almost always clogged with people reporting non-crimes, I don't see open-carry laws impacting that much either way.

 

[newyorkguy]

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.​

That's a pretty slender hook to hang the assertion on that, natural law grants people the right to carry a gun. And I'm sorry but my takeaway is that the decision does say that the Second Amendment does not grant people the right to bear arms.

We've been discussing this for literally years, for page-after-page, and this is the first time I'm seeing, if I can sum up:

The Second Amendment does not grant people the right to bear arms. Natural law does and it supersedes human law.
​

I admit, to me this claim is a bit startling. One problem is the pro-gun advocates -- with the possible exception of B. Strong -- aren't very forthcoming. If this position means anything it should've been stated a long time ago. But I find the gun advocates don't do that. Instead they sit back and snipe. It's mostly reaction not response.

But who decides what natural law is? Is it codified anywhere? Is it subject to statutory interpretation? I'm really finding this amazing. To me this sounds like right-wing fantasy.

 

[BStrong]

The problem I have with this is -- besides the fact this is all being stated not cited -- if you take this to it's natural conclusion (the Bill of Rights recognizes the existing rights that every individual has) than everyone everywhere has the right to...carry a gun.

Only I know that's not the way it works.



That's quite a statement. Again, show me a citation.

NYG, I don't believe you'll find any comment from me in any gun control thread on JREF asserting that "everyone, everywhere has the right to carry."

I'm entirely satisfied that in order to carry, an individual should be required as a prerequisite to have gone through both a classroom module of instruction with written test , a basic range training module, and have to pass a live fire range test including strong/weak hand shooting, reloads etc. and should also need to requalify on a regular basis - every six months would be ideal, but as a practical matter once a year would be the standard. Most jurisdictions have some version of this requirement, some states do not, but were I put in charge of such a program I'd look for 32 hours in the classroom and 16 hours on the range and the qualification course of fire. This isn't much different than California's 832 PC POST requirement for LEO training and qualification.

As far as the principal of armed self defense being a right, I have no citation. As I posted, the right existed and was understood by all parties.

I don't know of any citation establishing that armed self-defense (or any other type) was a criminal act if committed by a free man either, slaves or convicts being a separate issue, but I'm curious as to how anyone could come to the conclusion that armed or other self defense is not a natural right?

 

[BStrong]

All of this seems to assume that open-carry would be a rare and unusual occurrence. A criminal who walks into a convenience store with ten obviously armed customers walking through the aisles is bound to have questions enter his mind.
"Tactical advantages" are for military maneuvers and police detectives not citizens who feel safer carrying a firearm.
Police lines are almost always clogged with people reporting non-crimes, I don't see open-carry laws impacting that much either way.

One would think so, but:

http://www.gunsandammo.com/2012/09/21/read-react-armed-robber-shot-dead-by-indy-gun-store-clerk/

This wasn't the story I was looking for when I googled it - I was looking for the story of an attempted armed robbery of an FFL that I know. These things happen often enough that it's a Darwin Award circumstance all its own.

 

[WildCat]

All of this seems to assume that open-carry would be a rare and unusual occurrence. A criminal who walks into a convenience store with ten obviously armed customers walking through the aisles is bound to have questions enter his mind.
"Tactical advantages" are for military maneuvers and police detectives not citizens who feel safer carrying a firearm.

Why would having a tactical advantage not be useful to a civilian facing a mugger? He thinks I'm pulling out my wallet but I'm really pulling my gun, for example. Plus he never knows if the guy he has his back to in the convenience store is armed. It's no less of a tactical advantage for a civilian. Plus it reduces the chances of someone grabbing a gun out of its holster. There are retention holsters but these can actually be quite dangerous if you're not intimately familiar with them, the finger motion to release the firearm is close to the trigger and more than a few police officers have shot themselves in the foot when drawing because of this.

Police lines are almost always clogged with people reporting non-crimes, I don't see open-carry laws impacting that much either way.

MWAG calls get an energetic police response, and it's not something people in places like Chicago, Los Angeles, and other large cities are used to seeing.

 

[newyorkguy]

...self defense was generally understood to be a natural right...and that arms were the tools best used to accomplish the job at hand.

NYG, I don't believe you'll find any comment from me in any gun control thread on JREF asserting that "everyone, everywhere has the right to carry."

If it's a "natural right" than it would apply to everyone everywhere I would think.

As far as the principal of armed self defense being a right, I have no citation. As I posted, the right existed and was understood by all parties.

The right to armed self-defense was understood by all parties? Meaning whom? How can you know it's true if you don't have a citation?

I think we're mixing two things together. Self-defense and carrying a gun.

People have the right to defend themselves from hostile aggression. Since a gun is the best 'tool' it follows that people have a right to carry a gun? I don't agree with that. More to the point, I'm not seeing that. Recall the American police officer who went to Canada armed? He had to surrender his weapon to enter Canada. What happened to his natural right to have the best tool available to facilitate his natural right to defend himself?

 

[WildCat]

NYG, I don't believe you'll find any comment from me in any gun control thread on JREF asserting that "everyone, everywhere has the right to carry."

I'm entirely satisfied that in order to carry, an individual should be required as a prerequisite to have gone through both a classroom module of instruction with written test , a basic range training module, and have to pass a live fire range test including strong/weak hand shooting, reloads etc. and should also need to requalify on a regular basis - every six months would be ideal, but as a practical matter once a year would be the standard. Most jurisdictions have some version of this requirement, some states do not, but were I put in charge of such a program I'd look for 32 hours in the classroom and 16 hours on the range and the qualification course of fire. This isn't much different than California's 832 PC POST requirement for LEO training and qualification.

That's a ridiculous amount of training for self defense purposes, do you have any examples ever of bad outcomes because the concealed carry licensee wasn't able to shoot with his weak hand or failed to reload in time? Hell I doubt more than a small minority of licensees even carry more ammunition than is in the gun either in extra magazines or loose.

Those are combat skills, not self defense skills.

 

[WildCat]

If it's a "natural right" than it would apply to everyone everywhere I would think.

Yes, it does. Just like every other civil right until and unless you forfeit them through criminal activity.

The right to armed self-defense was understood by all parties? Meaning whom? How can you know it's true if you don't have a citation?

I think we're mixing two things together. Self-defense and carrying a gun.

People have the right to defend themselves from hostile aggression. Since a gun is the best 'tool' it follows that people have a right to carry a gun? I don't agree with that. More to the point, I'm not seeing that. Recall the American police officer who went to Canada armed? He had to surrender his weapon to enter Canada. What happened to his natural right to have the best tool available to facilitate his natural right to defend himself?

That's what makes the USA exceptional, the belief that rights do not come from the government but that you are born with them. The Constitution does not grant rights, it protects them.

 

[newyorkguy]

That's what makes the USA exceptional, the belief that rights do not come from the government but that you are born with them. The Constitution does not grant rights, it protects them.

Okay so we're whittling this down. These natural laws only apply to American citizens. These natural laws don't apply in places like Canada and Germany.

Yes, it does [apply to every American]. Just like every other civil right until and unless you forfeit them through criminal activity.

Okay so every American has the right to...carry a gun? So why have so many municipalities and states placed restrictions on this right for so many years? Even in Florida you need a permit to carry a concealed gun. If it's a right guaranteed under the Constitution how can a state restrict it? How can it be like all other rights? Do you need a permit to exercise freedom of speech in Florida? Do you forfeit your right to free speech if you're a convicted felon?

Does natural law only protect open carry, not concealed carry? Why is that?

 

[WildCat]

Okay so we're whittling this down. These natural laws only apply to American citizens. These natural laws don't apply in places like Canada and Germany.

Not at all what I said. Canadians and Germans are also born with natural rights, which their governments strip away. That's the American POV. Canadians and Germans would argue that people are born without rights and only have rights the government grants them.

Okay so every American has the right to...carry a gun?

They have the right to self defense, and that right includes using firerarms for that purpose and is recognized (not granted) by the Constitution. Note the Bill of Rights prohibits Congress (the government) from restricting rights, it doesn't grant anything.

So why have so many municipalities and states placed restrictions on this right for so many years? Even in Florida you need a permit to carry a concealed gun. If it's a right guaranteed under the Constitution how can a state restrict it? How can it be like all other rights? Do you need a permit to exercise freedom of speech in Florida?

You do need a permit for certain kinds of speech, for example a large gathering in a public place. And it's a point of ongoing litigation as to whether or not the government can levy fees to exercise the right to bear arms.

Do you forfeit your right to free speech if you're a convicted felon?

Yep, see the many restrictions on prisoners.

Does natural law only protect open carry, not concealed carry? Why is that?

It protects the right to bear arms in some form. You can ban open carry, or concealed carry, but not both. Thomas' dissent in Peruta was disingenuous in that he didn't argue that there was not a right to bear arms, only that concealed carry was not the guaranteed method. Since the open carry ban wasn't specifically before the court he thought it improper that the other justices considered the ban on open carry in their decision. The majority decided it was proper to consider the ban on open carry, since with open carry banned and concealed carry de facto banned in San Diego county the right to bear arms was infringed.

 

[Bardy]

I'm entirely satisfied that in order to carry, an individual should be required as a prerequisite to have gone through both a classroom module of instruction with written test , a basic range training module, and have to pass a live fire range test including strong/weak hand shooting, reloads etc. and should also need to requalify on a regular basis - every six months would be ideal, but as a practical matter once a year would be the standard. Most jurisdictions have some version of this requirement, some states do not, but were I put in charge of such a program I'd look for 32 hours in the classroom and 16 hours on the range and the qualification course of fire. This isn't much different than California's 832 PC POST requirement for LEO training and qualification.

And it would also price many poorer people out of being able to carry when they tend to live in the areas where they would need it most. The problem with such stringent requirements is that it restricts the right of self defense based on economic status.

I don't want people wandering the streets who don't know how to use the guns they are carrying, but neither do I want to disarm the poor.

 

[newyorkguy]

[Americans] have the right to self defense, and that right includes using firerarms for that purpose and is recognized (not granted) by the Constitution.

The question was do Americans have a right to carry guns for self-defense? I agree people have a right to defend themselves. I don't see how that necessarily automatically extends to carrying a gun.

I asked do Americans need a permit to exercise their right to free speech?

You do need a permit for certain kinds of speech, for example a large gathering in a public place.

I think you're confusing freedom of speech with the right to assemble. But as you note there are restrictions placed on other Constitutionally protected rights. In the case of assembly it's often for reasons of public safety. Wouldn't it follow that government also has the right to put restrictions on gun possession for the same reason? Public safety?

You said persons can forfeit their gun rights through criminal activity. I asked if Americans also forfeit the right to free speech through criminal activity.

Yep, see the many restrictions on prisoners.

I didn't mean while the person was incarcerated. I meant after they were released.

 

[tyr_13]

You said persons can forfeit their gun rights through criminal activity. I asked if Americans also forfeit the right to free speech through criminal activity

Yes they can. See Kevin Trudeau.

 

[newyorkguy]

...I asked if Americans also forfeit the right to free speech through criminal activity.

Yes they can. See Kevin Trudeau.

Who is Kevin Trudeau? How did he lose his right to free speech through criminal activity?

 

[tyr_13]

Who is Kevin Trudeau? How did he lose his right to free speech through criminal activity?

Kevin Trudeau.

I'm sure you'll want to characterize the restrictions on him as not infringing on his freedom of speech, and no his freedom of speech hasn't been completely removed. To be fair the restrictions on him are for commercial speech mostly, which can be regulated already.

People lose all sorts of rights when convicted of a crime. People in jail are the obvious example, but people on probation can also have all sorts of restrictions on all sorts of rights.

Freedom of speech is one that is very difficult to take away and we have a VERY high standard for when it's valid to infringe on it. Some of the other rights are the same, or have an even greater standard for when it's valid to infringe on them. Some less so. Freedom of association gets restricted fairly easily. Freedom of the press less so. Freedom of religion never is stripped from felons.

The line of reasoning that you're using is simply false. Just because felons can be stripped of some rights doesn't make those rights not rights. No right is absolute and no one (here) is arguing that the right to bear arms should be absolute.

 

[W.D.Clinger]

It looks to me as though newyorkguy doesn't realize the quotation whose credibility he questions was written in 1875 by the US Supreme Court.

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.​

That's a pretty slender hook to hang the assertion on that, natural law grants people the right to carry a gun. And I'm sorry but my takeaway is that the decision does say that the Second Amendment does not grant people the right to bear arms.

You may be right in some sense, but not in a legal sense. Cylinder was quoting the SCOTUS decision in US v Cruikshank. In the United States, decisions rendered by the Supreme Court are as authoritative as it gets.

We've been discussing this for literally years, for page-after-page, and this is the first time I'm seeing, if I can sum up:

The Second Amendment does not grant people the right to bear arms. Natural law does and it supersedes human law.
​

I admit, to me this claim is a bit startling.

Some of the Supreme Court's decisions have been a bit startling, yes, but expressing incredulity about those decisions is not much of an argument, especially when you're the one who cited that decision in the first place. (You took one sentence of that decision out of context. I'll grant that you did so honestly, and did not know what the next few sentences said.)

But who decides what natural law is? Is it codified anywhere? Is it subject to statutory interpretation? I'm really finding this amazing. To me this sounds like right-wing fantasy.

The Supreme Court decides. In this case, the court's decision is codified within US v Cruikshank.

I am not a lawyer. I'll let the lawyers answer your question about statutory interpretation.

No matter how amazing you find the court's decision, United States v. Cruikshank is not a right-wing fantasy.

The right to armed self-defense was understood by all parties? Meaning whom? How can you know it's true if you don't have a citation?

The citation has been given several times. You cited that decision yourself, although you apparently did not know what it says.

ETA: In case I wasn't clear, my own opinion is that United States v Cruikshank was indeed an amazing decision, and not one in which the US should take pride. I should also state that I actually agree with newyorkguy when he says the decision does not mean the Second Amendment grants the right to bear arms; I disagree with newyorkguy because the decision does say the right to bear arms "shall not be infringed by Congress"—leaving open the possibility of infringement by states and local jurisdictions, but that possibility has been circumscribed by more recent decisions.

 

[WildCat]

I should also state that I actually agree with newyorkguy when he says the decision does not mean the Second Amendment grants the right to bear arms;

No one here is claiming the 2nd Amendment grants the right to keep and bear arms any more then the 1st Amendment grants the right to free speech, assembly, and religion. Rather it recognizes those rights already exist, and cannot be infringed by Congress.

That is the plain meaning of the way the BoR is written, it's a restriction on the powers of Congress it does not grant rights to the people.

 

[tyr_13]

Before this derails into the 'do natural rights exist' debate, it's a moot point. The thinking of the time and what the Bill of Rights is based on assumes natural rights. Even if natural rights don't exist and are only gained through force, agreement or government, the documents behave as if they do exist. Therefore it behaves as if it grants them if they don't exist.

Not that the debate about the validity of the idea of natural rights isn't an interesting one, but not only does it not change the Bill of Rights but there is another thread on it already.

 

[BStrong]

That's a ridiculous amount of training for self defense purposes, do you have any examples ever of bad outcomes because the concealed carry licensee wasn't able to shoot with his weak hand or failed to reload in time? Hell I doubt more than a small minority of licensees even carry more ammunition than is in the gun either in extra magazines or loose.

Those are combat skills, not self defense skills.

The current live fire testing requirements for license issuance in the county where I was involved with the training and re-quals is exactly that, strong, weak, draw, reloads. I'd prefer a longer classroom phase.

As to what a use of force incident might develop into, it would be nice if everything was predestined by average engagement distances and rounds fired, but life doesn't work in that fashion.

I'm not aware of any civilian use-of-force encounters on the street that developed into flat out Hollywood movie shootouts, but I know of two home invasions that did, with fatalities (in one incident, unfortunately the homeowner was one of them) and a friend of mine that was an FFL dealer lived through an armed robbery attempt at his shop that went through 9 rounds of 00 buck and had to transition to his carry pistol to finish the job. That was the story I was looking for a link to when I posted above about criminals avoiding armed victims.

Bardy - cost per class in my county with the rules similar to what I proposed with only 1 class room session is under $100.00. There's no need to turn the process into a profit center, and quite frankly I'd be concerned as well about the cost of training and qualification being used to keep lower income individuals out of the process (in our county, there's also a requirement that the applicant obtain and maintain a 1 million dollar liability policy as well, which absolutely has the effect of limiting the applicants to homeowners or high income individuals that can afford the premiums.)

NYG - the fact that Canada doesn't allow US citizens to bring in and carry firearms, even when licensed to do so, is a function of national borders but you might have well as cited California as we have no reciprocity w/ any other state on licensed carry, including LEO's - unless an out-of-state officer is on official business in Ca., he or she better not be found to be CCW, especially in LA or SF, because both jurisdictions like nothing more than making examples out of otherwise law abiding folks.

As far as carrying a firearm for self defense as a right, Moore v. Madigan, 7th Circuit:

http://law.justia.com/cases/federal/appellate-courts/ca7/12-1269/12-1269-2012-12-11.html

Here's an examination of key points by Eugene Volokh, UCLA law professor

http://www.volokh.com/2012/12/11/moore-v-madigan-key-points/

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress


In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. . . . Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government “would have to make a stronger showing” than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved “a class of persons who present a higher than average risk of misusing a gun.”