Federal Judge Bars Enforcement Of Restrictive D.C. Concealed Carry Law
A Second Amendment victory in the District of Columbia,
A Federal District Court Judge in Washington, D.C. has issued a preliminary injunction preventing enforcement of the District’s law regulating who would be entitled to a license to carry a concealed weapon:
Ten months after striking down the District’s long-standing ban on carrying firearms in public as unconstitutional, a federal judge Monday ordered the city to halt enforcing a key provision of the new gun-permitting system itadapted in response.
As passed by the D.C. Council, the District’s new carry legislation remains among the strictest in the nation, requiring applicants to state good reason to carry a weapon in order to obtain a permit from police, matching laws in Maryland, New Jersey and New York.
However, in a 23-page opinion, U.S. District Judge Frederick J. Scullin Jr. ruled that condition — known as the “good reason/proper reason” requirement — still “impinges on Plaintiffs’ Second Amendment right to bear arms,” because it fails to target dangerous people or specifically how or where individuals carry weapons.
“The issue here is not whether the . . . requirement is a reasonable or wise policy choice. Rather, the issue is whether this requirement, no matter how well intended, violates the Second Amendment,” Scullin wrote.
The ruling, issued late in the day, runs counter to some federal appellate rulings and guts a law drafted by D.C. Council Chairman Phil Mendelson (D) with mayoral and police officials that allows city residents who own properly registered handguns, as well as nonresidents with a state carry license, to apply for a permit to bear a concealed weapon in the District.
Under a provision the city now cannot enforce, the law, passed in September, gave police discretion to grant licenses to applicants who showed “good reason to fear injury to his or her person or property” or “any other proper reason for carrying a pistol,” such as employment transporting cash or other valuables.
Applicants still must pass background checks and training requirements, with Police Chief Cathy L. Lanier issuing final licensing decisions.
Firearms also still cannot be carried in the District in schools, hospitals, government buildings, public transportation vehicles, establishments that serve alcohol, stadiums or arenas, or within 1,000 feet of a dignitary under police protection.
(…)
Scullin’s ruling runs counter to decisions by federal judges upholding similar “may-issue” discretionary laws in Maryland and New Jersey, including the U.S. Court of Appeals for the 4th Circuit. The U.S. Court of Appeals for the 9th Circuit in March set aside a three-judge panel’s ruling relied upon by Scullin, and the full court will rehear arguments next month.
In his opinion, Scullin said the city failed to show that people with “good reason” to carry a firearm are any less likely to misuse it or pose a criminal or other threat than other people.
“Is the Court to conclude that people who do not have a heightened need for self-protection are more likely to commit violent crimes?” he asked.
In addition to the rulings noted above, there have also been rulings at the Federal level that have struck down laws restricting gun owner’s ability to carry a concealed weapon. The most notable of those decisions came from the Seventh Circuit Court of Appeals, which struck down Illinois’s restrictive concealed carry law. Rather than appealing that ruling, the state revised their laws in a manner that at least tried to comply with the Court’s holding in the case. So far, that new law has not been challenged, so it’s unclear whether it would pass Constitutional muster or not, but the result has been that it is now far easier for Illinois residents to carry weapons in public legally. In addition to the 7th Circuit case, the 9th Circuit ruled in February 2014 that California’s concealed carry permit system was too restrictive and that the requirement to show “good cause” before being issued a concealed carry permit violated the rights protected by the Second Amendment. That case is, as noted above, currently pending an en banc hearing before the full 9th Circuit.
In addition to these other rulings, there have also been a handful of other cases that have made their way through the Federal Court system. As of now, however, the Supreme Court has not accepted any of these cases for review. Indeed, the Court has not ruled on a truly significant Second Amendment case since McDonald v. Chicago, which held that the Second Amendment, and the Court’s holding in District of Columbia v. Heller, applied to the states. Since then, we have seen a number of lawsuits at the state and local level challenging concealed carry laws and other restrictions, and the rulings from the Federal Courts have been all over the place. Given the fact that Second Amendment jurisprudence was essentially non-existent prior to the Heller case, this isn’t entirely surprising. As I noted one of the first times I wrote about the Heller case seven years ago, the most likely outcome of the case would be that it would set off years of lower court litigation as Courts try to determine how to apply the rules the Supreme Court set to other issues arising under the Second Amendment. Until the Justices speak for themselves, that’s exactly what we’re going to see.
As a general rule, though, it seems fairly clear to me that at least part of the right protected by the Second Amendment includes the right to carry that weapon in public. The question becomes what conditions, if any, states and localities can impose on that right. On some level, I would argue that the answer to that question may depend on the kind of jurisdiction in question and that the rules should arguably be different for a rural or suburban area than they are for an urban area. In either case, though, laws such as the one at issue in the District that but an overly large amount of discretion in the hands of local authorities by requiring citizens to meet some amorphous and undefined standard such as “good cause,” especially when there is no objective definition of what constitutes “good cause” in the law itself and no way to determine if an officials decision is based in anything other than individual opinion. This is the basic distinction between concealed carry laws where the laws says that the state “may” issue a permit, and those that say that the state “shall” issue the permit. Under the first type of law, it seems obvious that local and state officials are granted far more discretion than the Second Amendment allows.
This doesn’t mean, of course, that states and localities aren’t allowed to set any standards at all for concealed carry permits. Regulations that bar people with criminal records or a history or mental health problems would likely be considered acceptable. Reasonable requirements that permit holders demonstrate a knowledge of basic gun safety would also probably pass muster, What seems unacceptable, though, are laws that allow government officials to use the permit process so much discretion that they can effectively bar anyone from getting a permit. That’s the kind of law that the District of Columbia had, and that’s why they lost in Court.
Here’s the opinion:
This is important because armed gangs, like the Bandidos or the Cossacks from Texas, may want to visit DC.
OT rant…
Interesting that day after day we saw pieces on Ferguson and Baltimore…but white gangs killing 9 other white people, injuring 18, and now threatening the lives of all law enforcement officials just doesn’t have the same appeal, I suppose.
The rumor reported in Illinois was that its Attorney General was persuaded not to challenge the Seventh Circuit ruling that struck down the concealed carry law for fear that the SCOTUS would accept an appeal and create bad precedent for gun regulations. Curiously Illinois went the “shall issue” route; I suspect because leadership decided the “may issue” laws would be invalidated.
Ever since Heller, there really is no point for gun permit or usage laws. It really doesn’t matter whether there is a public safety issue. However, I think laws concerning the manufacturing and safety standards for guns themselves can be made since the Constitution applies to right to bear arms, not the right to unsafe arms.
So Judge Scullin says any law regulating possession of firearms must “target dangerous people or specifically how or where people carry weapons?”
Where did he pull that nonsense out of? Certainly not out of Heller, which mentions no such restrictions on a state’s right to regulate arms. Oh well, we’ll see if SCOTUS backs him up on this. Nothing surprises me with the Roberts Court.
I’m so glad that people who can’t even shoot straight will now get to carry concealed weapons in public without anyone knowing about it. What about my right not to be around armed idiots?
@stonetools:
Isn’t that what “Common sense gun laws” are supposed to do? Hasn’t Moms Demand Action and Everytown lectured us on the need to keep firearms out of the hands of felons, domestic abusers, and the mentally ill? Well, if a law doesn’t do that, then what is the point of the law? Laws regulating rights are supposed to be of the “least restrictive means reasonably available” nature.
Unless of course you believe, that the laws should be written to prevent everyone from accessing and carrying a weapon for self defense–like DC does–which is why this law was struck down/barred from implementation.
@Rick DeMent:
I don’t see that in my copy of the Constitution.
@Jack:
Fairly certain if you took the average Founding Father and dropped them in the middle of a sad-ass gun fair they would be advocating that the secret police of the United States hunt down every firearm user.
Are you calling the cops a gang now? Because the latest news claimed that a good chunk of the dead were fatalities of the cops responding to “being targeted” (very ineffectively of course as no cop was actually hit).
@Jack:
That also applies to almost all of the people who have personal copies of the Constitution.
Shouldn’t conservatives be crying about judicial activism here?
@Modulo Myself:
You mean these guys?
“No free man shall ever be debarred the use of arms.”
– Thomas Jefferson, Virginia Constitution, Draft 1, 1776
“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
– Thomas Jefferson, letter to James Madison, December 20, 1787
“The thoughtful reader may wonder, why wasn’t Jefferson’s proposal of ‘No freeman shall ever be debarred the use of arms’ adopted by the Virginia legislature? They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin, “Pennsylvania Assembly: Reply to the Governor”, November 11, 1755
“I ask who are the militia? They consist now of the whole people, except a few public officers.”
– George Mason, Address to the Virginia Ratifying Convention, June 4, 1788
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
– James Madison, Federalist No. 46, January 29, 1788
“A militia when properly formed are in fact the people themselves…and include, according to the past and general usuage of the states, all men capable of bearing arms… “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
– Richard Henry Lee, Federal Farmer No. 18, January 25, 1788
“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”
– Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
– Samuel Adams, Massachusetts Ratifying Convention, 1788
It’s long past time we had a constitutional amendment address the Second, as well as the myriad of case law that’s grown around it. The citizen’s unfettered right to bear arms has translated in modern times to the police’s right to shoot at people without guns in fear that they might have guns. (The people shot just, to borrow from George Carlin, happen to be black most of the time.) The normal shibboleth that guns are the public’s method of preventing government tyranny has been horrifically inverted, making the public less safe against the assumptions of law enforcement.
Ideally, the new amendment would still let you buy a firearm, but with a provision that the rights of gun ownership be left to individual states. A national laissez faire attitude to guns has kept states from having their own laws (unnecessary encroachment of the federal goverment), constricting the democratic experiment and the passage of time from determining the soundest gun policies. This is certainly by design, since the NRA actively lobbies against research into the public health impact of widespread gun ownership.
If you’re a responsible gun owner, I’m not after you. First, I’m a pacifist, I’m gonna pay (through taxes) someone else to do that, and they’ll have, err, ways. 😀 Second (and seriously), I’m not afraid of you and your graven burden of life-ending metal and plastic. I’m afraid of idiots with the light burden, full of entitlement to their rights. Unfettered gun ownership lets any idiot have a gun, and idiots have proven they won’t smarten up. Because God refuses to invent a better idiot until we smarten up, we might as well try our hand in fiftyish different ways and see where the most idiots pop up. As it stands now, there’s really no diversity in our idiots and that’s bad for the population as a whole.
@Franklin:
It’s judicial activism to find a right where one is actually spelled out?
@Tillman:
@Jack: Yeah, after my few decades of living, I’ve found Benjamin Franklin to be full of shit on that liberty and security bit. It’s a funny little quip, but it doesn’t reflect anything close to reality as we live it two hundred years later. If Franklin knew portable weapons of our age could fire nine hundred rounds a minute (and that’s just a machine gun from World War II built by Nazis), he’d probably reconsider his thoughts on liberty.
Franklin never really had a great opinion about average people, but he was okay with them having muskets that had a 1-in-300 chance of hitting what they were aimed at. I would be too, if that’s all we had.
@Jack: Ooh, good one. Next you’ll tell me gun deaths and abortions are equivalent losses of life.
Oh, or better, you’ll say a woman’s right to choose what happens to her body is the same as another’s right to hold an object capable of shooting bullets. Please argue this one, I’ve never heard it before. 🙂
@Jack:
Thomas Jefferson would probably order the illegal detention of every gun fetishist who enjoys quoting him. It has nothing to do with guns and everything to do with the somewhat-hilarious atrocities that American gun nuts have become. There are people in cages who live freer lives than the prepper with a weapons cache in a bunker or the weakling who has to arm himself for a ride to the supermarket. Despite your fondest hopes, the Founding Fathers were not idiots.
@Rick DeMent: That’s not a right it’s a privelege. Ergo, the government can remove it at any time–or NRA meeting, as the case may be.
@Tillman: The right to bear arms is a guarded conservative position and the right to get an abortion is a guarded liberal position. Liberals would never want their position on abortions applied to guns and conservatives would never want their position on guns applied to abortions.
There is a middle ground that can be found…somewhere.
@C. Clavin: This is important because armed gangs, like the Bandidos or the Cossacks from Texas, may want to visit DC.
If you have evidence that the guns the bikers had were legally obtained and registered, feel free to cite it. Otherwise, you’re making a wonderful argument about the futility of gun control laws.
@Modulo Myself: You keep qualifying you statements about the founding fathers. Why? Because you don’t know! Yet, I have provided what I do know directly from their writings. So, yeah. Your position is weak.
@Jenos Idanian #13: Oh, snap!
@Jenos Idanian #13: Or an argument about how watered-down and inconsequential current laws are, especially in Texas.
@Jack: …I already offered a middle ground, set inside a framework of public safety. (Note in my post I write you’d always have the right to buy the gun.) If we really wanted to address abortion in that same framework as part of a compromise, we’d end up debating mandated abortions for poor mothers to keep their kids from having the sort of background that statistically leads most often to lives of violent crime.
I imagine that wasn’t what you were going for. What’s the framework for the abortion compromise?
@Tillman: Or an argument about how watered-down and inconsequential current laws are, especially in Texas.
I’m going to engage in a bit of stereotyping here, but I’d strongly suspect that the majority of those involved in the Waco shootout had criminal records and were legally banned from possessing guns.
Personally, I’m going on the theory that a significant influence on this was the recently-completed “Sons Of Anarchy” TV series.
@Jack:
Well by that logic (and lack thereof) we should just do away with all laws. I mean, people still speed, they still rob banks, they still pillage and plunder.
@Jack:
Yes, you’ve beaten me. I don’t know what would really happen if Thomas Jefferson was resurrected. Clearly, it’s quite possible he would start carrying a handgun in public so he could shoot a drone that is about to fire a missile at him outside a Starbucks. Or perhaps a weapons-porn pseudo-assault rifle, just so he can defend his home against the SEALs on his front lawn. The sky is the limit with our militias!
@Jenos Idanian #13:
Actually it points out the ridiculousness – the utter foolishness – of you gun fetishists arguing that if everyone was armed no one would get shot.
Troll on…
@Tillman: It’s long past time we had a constitutional amendment address the Second, as well as the myriad of case law that’s grown around it.
I did something I almost never do, and gave you a thumbs-up for that comment. I staunchly disagree with you, and would totally oppose such a move, but I respect that you’re using the proper methods and means to achieve your ends, and appreciate that.
@Tillman:
I don’t know what the compromise would be. I believe gun owners have compromised enough already.
My point was that liberals would never want the same standards applied to abortion as they want applied to guns. Either it’s a right or it isn’t. From the other side, conservatives would never want the same standards they want for gun rights applied to abortion. Again, either it’s a right or it’s not.
@C. Clavin: Actually it points out the ridiculousness – the utter foolishness – of you gun fetishists arguing that if everyone was armed no one would get shot.
So, you’re going from a totally flawed argument that actually contradicts your case, to a completely made-up straw man argument? I can’t even decide if that’s an improvement, or if you’re once again doubling down on stupid.
@C. Clavin:
Actually, it points out the ridiculousness – the utter foolishness – of gun controllers arguing that “common sense gun laws” will get/keep guns out of the hands of those not allowed to possess them.
@Jenos Idanian #13:
Well, it’s never going to happen. The gun companies need people to buy arsenals, and tons of ammo. They can’t have gun-owners just owning two or three rifles, two handguns, and a shotgun, can they? To me, that’s like all you need. Hunting, home defense, target shooting. There are no other practical functions for weapons in our country. You are better off not being armed in public, just as you are better off intuiting that guns can be a bad idea overall.
None of this is hard.
@Jack:
How does it do that? Texas has the most watered down gun control laws in the nation.
@C. Clavin:
Considering you have taken my words completely out of the context which they were written…no, I am not saying get rid of all laws. Most laws are written to have something to charge someone with after they have broken the law. Like felon in possession of a weapon laws.
But no additional laws will keep determined felons from getting a gun, just like no law will keep a determined bank robber from robbing a bank.
What you are suggesting, however, is that we make new laws akin to everyone entering a bank must be frisked to ensure they have no weapons and questioned on their intent for visiting the bank–before they have had the opportunity to ever commit a legal banking transaction much less an illegal one.
I’m perfectly happy with knowledgeable people having guns. If you’re going to think that that means you can shoot at anything in the woods that moves no matter what it is or how close to a human habitation you are, I’d like to keep a gun out of your hands. Having my estate being able to sue you for homicide doesn’t really help me when you’ve just put a bullet into my brain.
(People used to be much better at handling firearms. What happened?)
@Jack:
That’s pretty simple minded.
Is your world really that black and white?
For instance – there are plenty of limits on free-speech.
Heller establishes acceptable limits on the Second.
@C. Clavin: You don’t know much about gun laws, do you? For the longest time Texas didn’t even allow open carry. Arizona is where you want to be for the “free for all” gun rules.
@C. Clavin: Um, no. Texas laws for purchase and possession of a gun are the same laws as most everywhere else. ATF mandates minimums for the purchase and possession of guns, not the states.
Texas is less lenient on the open carry of guns than about 36 other states. Open Carry of pistols is prohibited in Texas–with or without a license.
@Jack: Well, don’t we do something like that before we allow people to get on airplanes? Or similar screening before going into federal courtrooms?
If we had more bank robberies via guns, banks WOULD be putting up screening stuff.
@Jack:
It wasn’t out of context.
It’s exactly the point you made.
If you have changed your mind – just say so.
@grumpy realist:
They used to teach firearm handling and use in schools. Liberals happened.
@C. Clavin:
There are zero “limits” on free speech that qualify as “Prior limits”. Meaning my speech is not effectively limited, I can–and often do, say what I want, it’s just that afterwards, there may be some negative results.
@Jack:
Perhaps, but that’s why I brought up frameworks. You wouldn’t want the same standards applied to doctors as to hair stylists either, would you? The two are different classes of problem. I understand abortion rights and gun rights as two different classes of problem. Sure, they both involve the individual’s liberty, but the extent to which that liberty is infringed (not being able to possess an object as opposed to being forced to incubate a life against your will) seems different to me.
It’s not worth discussing the issues as only the contrasts between liberals and conservatives since that kind of destroys the vast diversity of opinion, and that’s bad for the population.
@Jenos Idanian #13: If I ever have the government come after you, you can be sure I will file the proper paperwork. 🙂 I’m too honest for my own good, it’d be so much easier to invent something to nab you on…
@Jenos Idanian #13:
Interview in Slate.com today with “Charles Falco, a former drug dealer turned undercover DEA agent who joined three separate motorcycle gangs between 2003 and 2010 and wrote a book about the experience called ‘Vagos, Mongols, and Outlaws: My Infiltration of America’s Deadliest Biker Gangs.'”
Falco: So what happens is, in the states where they allow concealed weapons permits, all the big biker gangs have ordered all their members who aren’t felons to get concealed weapons permits.
Falco: I was 2003 to 2006 with the Vagos, and then 2008 to 2010 with the Mongols and Outlaws. Not much has changed. The only thing that’s changed is more states are allowing concealed weapons permits, so you have more of these guys who are armed to the teeth.
http://www.slate.com/blogs/the_slatest/2015/05/18/biker_gang_battles_former_informant_charles_falco_on_territorial_disputes.html
@grumpy realist:
Yes. Are you suggesting we impose those limits the moment someone steps out of their front door?
@C. Clavin: It was completely out of context and obviously you failed to read my entire post.
@Tillman: Again. I consider a right to be a right, and therefore government should adhere to the least restrictive means reasonably available is when regulating those rights.
@Rafer Janders:
Did you notice the part I bolded above?
So, laws that restrict felons from possessing weapons are already on the books.
@Tillman: Sorry if that came off as threatening, Jenos, didn’t even notice till it was too late to edit.
@Rafer Janders: That’s a very interesting quote, and it reinforces my point — the gangs had to actively seek out members who could legally obtain guns, because a bunch of their members couldn’t.
And if those “clean” members were supplying guns to other members, those would be “straw” purchases that are already illegal.
@Jack:
How is that out of context???
You are saying if a law doesn’t do what it is intended to do what is the point? Well no law does what it is intended to do perfectly so what is the point? If you realize it’s dumb…admit it and move on.
But you make the same dumb argument every single time it comes to guns. And it’s illogical.
@Rick DeMent:
Gun enthusiasts are fond of saying, “An armed society is a polite society.” Well, I guess Somalia, Yemen, Iraq, and Syria are the safest and most polite societies in the world.
@Tillman: Sorry if that came off as threatening, Jenos, didn’t even notice till it was too late to edit.
No worries, I took it in the spirit it was intended.
And so did my attorney.
And so did my very good friend, Guido “Knuckles” Scabone. Guido wants to know what size cement loafers you wear.
@Mu:
You are right…my bad.
@Jack:
So, is this where ‘well-regulated’ comes into play?
Or is that ‘well-regulated’ just a simple misunderstanding that the founders forgot to delete from the Second Amendment before it went to the presses?
@al-Ameda: So, is that where ‘well-regulated’ comes into play?
It helps if you understand what the phrase meant at the time the Constitution was written.
@Jack: “My point was that liberals would never want the same standards applied to abortion as they want applied to guns.”
I also don’t want the same standards applied to cupcakes as I want applied to guns. Or air travel. Or labrador retrievers. Or jodhpurs.
You see, these things are all different from guns, with different purposes and different impacts.
The fact that you can type two words together in a sentence does not mean there’s any correlation between them.
@al-Ameda: Here’s some more analysis you definitely won’t like.
@Tillman:
If the fetus were expelled at Mach 2.5, like a bullet, and could be aimed, gun nuts would be entirely pro-choice.
@Gustopher: If only gun rights were to be found in the penumbras of an implied right, and not spelled out explicitly in the First Amendment. Then we’d have no arguments whatsoever.
@Jenos Idanian #13:
Right.
From that link….
So a well-regulated militia is a militia in proper working order, functioning as expected.
I suggest you read “Bunker Hill: A City, a Siege, a Revolution” by Nathaniel Philbrick in order to try and understand the concept and importance of a properly functioning militia in it’s context…shortly before the Constitution was written.
@C. Clavin:
Could you please provide a reference that shows that all of the individuals killed or injuried in the gang fight in Waco were non-hispanic whites to back up your claim that everyone was white.
Somewho I doubt that Jesus Delgado Rodriguez counts as white as far as the goernment is concerned.
http://www.nbcnews.com/news/us-news/who-shot-whom-investigators-seek-answers-waco-biker-deaths-n361361
@Jenos Idanian #13:
Yes, it (the passage in your link) states that weapons possessed should be in working order. It does not say that guns should not be regulated.
@C. Clavin:
I’m specifically responding to the post about what the judge said, relating directly to firearms and firearms only.
@Jenos Idanian #13: Can you please explain to me the definition of the following two usages of the world “regulate” in Article1, Section 8?
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
and
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Seems like the same definition we use for “regulate” today
@al-Ameda:
See Heller v DC.
I’ll wait.
@wr:
None of those are rights.
Nice straw man.
To me all these gun debates are pretty pointless – just like the abortion debates. We’re in no position to change anything, the rules are written by the courts. Mostly based on interpreting a two hundred year old text using obscure grammar and punctuation. There’s no way for the foreseeable future that enough people can make up their mind to find a way to amend the constitution to get out from under the courts’ interpretation. And even if we amend we’d probably still be back to the courts in 10 min flat.
Yes, it would be nice if we could make passing an IQ test a mandatory requirement for buying guns, to go with an anger management evaluation. But we can’t even revoke the voting rights of rioters and NASCAR fans based on IQ, so we’re stuck with what we got.
@Jack:
You mean the part where Scalia did not say that all regulation of guns is unconstitutional?
That part of Heller?
@Crocker:
To ensure the value remains functioning as expected
To make sure commerce was in good working order among the states
None of those words mean to write a bunch of laws or rules prescribed by authority because inanimate objects make people scared.
@Jack: You mentioned regulations on carrying guns into a bank. Don’t exaggerate.
@Jack: Um, how do they “ensure value remains functional” and “make sure commerce is working order” without passing laws.
and I agree with you the two instances I sighted were not about inanimate objects, but the second amendment is. Clearly the word regulate as used in the constitution allows the gubmint to make rules about whatever its given power to regulate.
@al-Ameda:
No…this.
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.
What you are talking about is this:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
Nowhere does it say that states can completely ban the carrying of firearms…as did DC.
@grumpy realist:
And yet, I’ve had a number of bank tellers and managers try to tell me it’s illegal to carry in their banks because of FDIC. Imagine their surprise to learn they are not a federal facility and it is perfectly legal to carry in their bank.
@Crocker:
And yet, in the two instances you gave, they were specific tasks to the gubmint, meanwhile the only thing the 2nd amendment tells the gubmint is that it shall not infringe.
The Bill of Rights is specifically a restriction on government action. And while that meaning has become convoluted over the years, much to my dismay, the rights therein must still be regulated…to use your term, at the least restrictive means reasonably available. Completely banning something is not the least restrictive. Requiring a just cause is not the least restrictive either.
it is perfectly legal to carry in their bank
Yes, and no. There are no federal rules against carrying in a bank, but local rules might differ, plus many banks post “no guns”.
@Mu:
Wrong. There are zero federal laws concerning firearms in banks. Of course, if a bank posts then you can be trespassed for breaking a rule…not a law.
Please show me any federal law regarding firearms in a bank. Like I said, I carry in banks often, always legally.
Montana is the only state that has a specific law at the nexus of concealed weapons and banks. The state prohibits any person, regardless of whether he or she has a permit, to carry a concealed weapon into a bank, credit union, savings and loan institution or similar business. An exception permits a concealed-carry weapon at an ATM, bank drive-up window or unstaffed night depository. A bank branch in a mall, grocery store or other public place is also concealed-carry territory unless the gun carrier is within the bank’s enclosure or using its services.
@Jack:
No. Laws which limit 2nd Amendment rights are reviewed under intermediate scrutiny. The standard for that level of review is that a statute must further an important government interest via means which are substantially related to that interest.
You have that confused with strict scrutiny, which is not applicable to the 2nd Amendment.
The closest any court has come to applying that standard was the 6th Circuit, in Tyler v. Hillsdale County Sheriff’s Department. That ruling was petitioned for en banc review, which was granted / is currently pending and which vacated the earlier order.
Jack, your post restates exactly what I posted, but nevertheless I’m wrong? Reading comprehension 101 recommended.
@Jack:
Please stop copying and pasting without attribution. It’s rude.
@HarvardLaw92:
This is the standard this judge is using.
@Mu: I said you were wrong about laws. I don’t disagree that a bank can have a policy.
@Jack:
He is doing so in error. The DC Circuit has been more than clear that the applicable standard of review in the district is intermediate scrutiny. A district court judge doesn’t have the power to change that.
You can almost certainly expect the district to appeal to the DC Circuit, and you can almost certainly expect them to have problems with this ruling.
@Mu: You’ll never amend the Constitution in such a way as to keep courts from interpreting it.* You can, however, change the scale and terms of the debate. It’s one thing to debate concealed-carry as a concept that should be allowed; it’s another to contemplate it in your neighborhood. You know, like windmills but without the hassle of months of construction.
* Unless you amend the Constitution to remove judicial review. Maybe have Congress set up a different Superior Court. It’d be kind of like that time there were multiple popes excommunicating each other.
@HarvardLaw92:
“Courts are using standards from First Amendment law and applying them in Second Amendment cases.
The 5th U.S. Circuit Court of Appeals just did this in its Oct. 25 [2012] decision in National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms, and Explosives.”
“The Supreme Court referred to First Amendment cases repeatedly in making its Second Amendment decision in Heller.
Lower courts hearing Second Amendment cases now must determine which standard of review to apply to various laws restricting the sale, possession or use of firearms. The 5th Circuit determined there was “longstanding, historical tradition” of limiting who possessed firearms and found the federal laws did not violate the Second Amendment.”
http://www.firstamendmentcenter.org/turning-to-the-first-to-understand-the-second
@Jack:
Nothing brings armchair lawyers out of their Barcaloungers faster than a discussion of the 2nd Amendment. I admit to occasionally perusing the gun nut forums just to see how nutso they can get in that regard. It’s pretty amusing.
The 5th Circuit applied intermediate scrutiny in that case, and SCOTUS denied certiorari. The applicable standard of review with regard to statutes that limit the 2nd Amendment in the 5th Circuit is intermediate scrutiny.
This is the danger inherent in you cutting and pasting concepts that you clearly have only, at best, a rudimentary understanding of. You end up 1) making yourself look stupid and 2) citing things that rebut your own arguments.
Don’t give up your day job …
@HarvardLaw92: More and more courts are using the 1st amendment as a guide to 2nd amendment law. The judge in this case is as well. I guess we will have to wait for awn appeal to find out which of us is right. But for now, DC just got their ass handed to them on a platter.
@Jack:
I’ll wager that you have absolutely no idea what that statement actually entails. If you did, you’d be venturing off into the difference between content-based and content-neutral limitations on speech, and the different levels of scrutiny (strict vs intermediate) which are applicable, and why.
Gun nuts always take any ruling, however obscure, poorly reasoned or contra to precedent, as being their terrae promissionis.
Do yourself a favor and stop trying to play a lawyer on TV.
@Jack: “Imagine their surprise to learn they are not a federal facility and it is perfectly legal to carry in their bank.”
Yes, and then imagine the look on their face when some good guy with a gun puts a bullet in them! Oh, the hilarity.
@Jack: “Like I said, I carry in banks often, always legally.”
Well, thank God for that. It’s wonderful to know that you’re safe from all those evildoers you’re prepared to take down. I’m just impressed that such a manly man can keep from taking out a couple of bad guys just to keep everyone secure.
You tell them, Mr Big Man with a gun.
On a related note, is there anywhere you’re not scared to go without a deadly weapon?
@wr:
One thing I have noticed with these guys is that they apparently assume that everyone else is supposed to somehow discern that they are “good guys” and therefore do not pose a threat. Maybe they have some sort of “Good Guy” patch that they sew onto their clothing. Who knows?
It’s, of course, a ludicrous proposition that even they themselves won’t accept (to wit, the nut down in Georgia who apparently took it upon himself to draw his firearm and demand that another armed shopper produce his identification & permits).
The bottom line for me is: unless you are in uniform and wearing a badge (and not even then in all cases), or I know you well enough to know your mental history, you get no such presumption and you constitute a threat. I’ll be the one complaining to the management and calling the police, until such time that you wisely decide that carrying your penis extension around isn’t worth the never-ending hassle and you wisely leave it at home.
So Jenos – you’ve recovered from your humiliation on the Hilary Clinton thread?
@C. Clavin: these “white” gangs aren’t all that “white” (cossacks aside- white power gang there) bandido’s are pretty dark these days- do the math. and by the way the police chief was deflecting blame- he knows his boys killed at least a few of the bikers. suffice to say, no crazy white folk are running around burning/looting/demanding justice…
and no cops were injured in the melee, good for them.
side note- every biker there was arrested and are being held with a $1 million dollar bond, did that happen in furgeson/baltimore? bear in mind there’s a lot of people with 0.0 to do with any of this being held for an insane amount of bail…….and i believe they’re all “white”. where’s the aclu when you need them?
@Modulo Myself:
I see you have already met Jack…
@bill:
Just shooting up a restaurant full of shoppers in a busy mall.
Boyish high spirits. Nothing like those horrible, awful Negros…
@Crocker: As noted, in those cases it is explicitly clear who is doing the regulating — they are explicitly powers of Congress. In the case of the First Amendment, though, no body is given the authority to “regulate” the militia.
But yeah, this is a typically pointless argument, as already noted.
@anjin-san: Been busy; haven’t checked the Hillary thread. But you make it sound like it could be entertaining…
@anjin-san: Didn’t see any “humiliation” there, just people desperately trying to change the subject.
@Jenos Idanian #13:
The part where you got busted for lying about what George Stephanopoulos said was pretty entertaining. Of course you turned tail and vanished at that point.
@anjin-san: I quoted his exact words, and linked to the video. So it looks like I “got busted” by… myself.
If I was busted at all, and I don’t think I was. Then again, I’m working in excess of 60 hours a week (counting my physical rehab), and I don’t keep that close a watch on the older threads.
I suppose I could play it safe and follow your example of just engaging in personal attacks and militantly avoiding saying anything of substance about the topic at hand, but I just don’t have the complete lack of character and integrity to pull that one off. Besides, you’re the pro, and I’d be a pale imitation.
@Jenos Idanian #13:
Yea, you’ve really been on a kick about what a stand up guy you are. You spend a lot of time talking about it. I know everyone is really impressed.
@Jenos Idanian #13:
You really need to drop that “personal attacks” canard. It’s well beyond dead (and hypocritical) at this point.
@Jenos Idanian #13:
Umm. No. You claimed he said:
What he actually said was:
PJ explained this in some detail. Perhaps it is just too complicated for you.
I occasionally produce corporate events with well known professional athletes. And if I do an event with a guy who’s in the hall of fame, sure, I hope it might lead to something else. Maybe he will hire me to redo his web presence. Usually it’s lunch, a photo, and a few autographed balls. I sure as hell don’t call them six months down the road asking for a favor. Because I’ve already got what I paid for. Here’s a hint – people who get paid gobs of money for doing events are more interested in what you can do for them than what they can do for you.
I get the sense that everything you know about the world of celebrities and the rich an famous you learned from watching the Kardashians on TV.
@anjin-san: Yea, you’ve really been on a kick about what a stand up guy you are. You spend a lot of time talking about it.‘
Having more integrity than you is like being smarter than wr or taller than Verne Troyer — it’s an incredibly low standard.
And what’s your source for the Stephy quotes? Looks like you cut and pasted from my own comments, and my summary of what he said is perfectly accurate.
Finally, your accusation that I’ve EVER watched anything involving the Kardashians is nothing short of libelous, and I demand an apology.
@HarvardLaw92: You really need to drop that “personal attacks” canard. It’s well beyond dead (and hypocritical) at this point.
You need to actually pay attention. That is annie-s sole purpose of existence. I’ve lost count of how many times annie gets into an argument, then gloats when the other party makes the assumption that just because annie disagrees with them, that he actually disagrees, Which leaves the only possible conclusion: he’s not disagreeing with the issue, just looking to attack the other party. In this case, he didn’t like my “attacking” Stephy. When I said he was defending Stephy, he roundly and smugly denied any such intent.
@Tillman:
You know, like windmills but without the hassle of months of construction.
I’m so going to steal that phrase.
@anjin-san: it’s not in a mall, it’s a separate building in front of a shopping center. when the dust settles i think it will be 3-4 dead that were shot by the cops. you seem upset that the “white folk” aren’t burning & looting or something?
plus, no bystanders were hurt during the melee- nor are there any “peace” marches planned through the area…..to diffuse all the pent up anger, blah blah blah……..
but back to the topic- most people who can pass the criteria for carrying a weapon are not the ones who kill others……getting guns out of criminals hands is tough.
@HarvardLaw92:
I expect when the DC Circuit overrules Scullins in six months, Doug will churn out a patented “Defeat for the Second Amendment” article and Jack will pen some choleric comments about liberal activists on the court not understanding the Second Amendment.I still see no language in Heller prohibiting the DC regulation. Supreme Court will
eventually decide this, though.
@Jenos Idanian #13:
Ah, so you simply did not understand what he said. Thanks for clearing that up. Because this is the conclusion you drew:
As another commenter explained – hoping for something and having a reasonable expectation for it are not the same thing. People can hope that they have bought the Clintons by hiring them to do a speech all they want. That simply makes them fools. You know – your people.
@stonetools:
And yet, even in CA they disagree with you. See Peruta v. San Diego.
If you do not allow people to open carry without a license, then you cannot make a license so hard to get that you effectively ban carry. A full ban on carry is no different than the full ban on ownership that was struck down in Heller.
You don’t have to like it, but you will have to live with shall issue in every state…eventually.
@Jenos Idanian #13:
Please show where I “defended” Stephanopoulos. Be specific.
@bill: Shorter Bill: “White people good. Dark people bad.”
@wr: Shorter wr: I’m a douchenozzel and like to stoke the fire without adding anything to the discussion.
@Jack:
According to the opening paragraph, such provisions exist in other jurisdictions.The MD and NY proper cause provisions were upheld. I think DC’s chances on appeal are good. We’ll see
@stonetools: You may be right. But, the evidence has shown that shall issue states have been dropping like dominos since 1986.
http://www.gun-nuttery.com/rtc.php
Now the push has become unrestricted carry. DC simply needs to catch up with the times.
The problem with “may issue” laws is the lack of clear criteria for approval or denial. This opens a big avenue for discrimination based on personal opinion or flat-out corruption. Denied because he’s black, lives in the wrong part of town, has a good attorney that keeps getting him off, doesn’t donate to my campaign, registered for the wrong party etc. “Shall issue unless” typically lists a number of objective reasons that allow denial.
@Mu:
Agreed. The standard is objective rather than subjective. Most “May Issue” states require a proof of handgun competency (i.e. hunter safety certificate), and must undergo a background check. In VA:
Persons Not Qualified to Obtain a Permit – Section 18.2-308.09
1.An individual who is ineligible to possess a firearm pursuant to Section 18.2-308.1:1, 18.2-308.1:2 or Section 18.2-308.1:3 or the substantially similar law of any other state or of the United States.
2.An individual who was ineligible to possess a firearm pursuant to Section 18.2-308.1:1 and who was discharged from the custody of the Commissioner pursuant to Section 19.2-182.7 less than five years before the date of his application for a concealed handgun permit.
3.An individual who was ineligible to possess a firearm pursuant to Section 18.2-308.1:2 and whose competency or capacity was restored pursuant to former Section 37.1-134.1 or Section 37.2-1012 less than five years before the date of his application for a concealed handgun permit.
4.An individual who was ineligible to possess a firearm under Section 18.2-308.1:3 and who was released from commitment less than five years before the date of this application for a concealed handgun permit.
5.An individual who is subject to a restraining order, or to a protective order and prohibited by Section 18.2-308.1:4 from purchasing or transporting a firearm.
6.An individual who is prohibited by Section 18.2-308.2 from possessing or transporting a firearm, except that a permit may be obtained in accordance with subsection C of that section.
7.An individual who has been convicted of two or more misdemeanors within the five-year period immediately preceding the application, if one of the misdemeanors was a Class 1 misdemeanor, but the judge shall have the discretion to deny a permit for two or more misdemeanors that are not Class 1. Traffic infractions or reckless driving shall not be considered for purposes of this disqualification.
8.An individual who is addicted to, or is an unlawful user or distributor of, marijuana or any controlled substance.
9.An individual who has been convicted of a violation of Section 18.2-266 or a substantially similar local ordinance, or of public drunkenness, or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories within the three-year period immediately preceding the application, or who is a habitual drunkard as determined pursuant to Section 4.1-33.
10.An alien other than an alien lawfully admitted for permanent residence in the United States.
11.An individual who has been discharged from the Armed Forces of the United States under dishonorable conditions.
12.An individual who is a fugitive from justice.
13.An individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others. The sheriff, chief of police, or attorney for the Commonwealth may submit to the court a sworn written statement indicating that, in the opinion of such sheriff, chief of police, or attorney for the Commonwealth, based upon a disqualifying conviction or upon the specific acts set forth in the statement, the applicant is likely to use a weapon unlawfully or negligently to endanger others. The statement of the sheriff, chief of police, or the attorney for the Commonwealth shall be based upon personal knowledge of such individual or of a deputy sheriff, police officer, or assistant attorney for the Commonwealth of the specific acts, or upon a written statement made under oath before a notary public of a competent person having personal knowledge of the specific acts.
14.An individual who has been convicted of any assault, assault and battery, sexual battery, discharging of a firearm in violation of Section 18.2-280 or Section 18.2-286.1 or brandishing of a firearm in violation of Section 18.2-282 within the three-year period immediately preceding the application.
15.An individual who has been convicted of stalking.
16.An individual whose previous convictions or adjudications of delinquency were based on an offense which would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, the United States or its territories. For purposes of this disqualifier, only convictions occurring within sixteen years following the later of the date of (i) the conviction or adjudication or (ii) release from any incarceration imposed upon such conviction or adjudication shall be deemed to be “previous convictions.”
17.An individual who has a felony charge pending or a charge pending for an offense listed in 14 or 15.
18.An individual who has received mental health treatment or substance abuse treatment in a residential setting within five years prior to the date of his application for a concealed handgun permit.
19.An individual not otherwise ineligible pursuant to this section, who, within the three-year period immediately preceding the application for the permit, was found guilty of any criminal offense set forth in Article 1 (Section 18.2-247 et seq.) of Chapter 7 of this title or of a criminal offense of illegal possession or distribution of marijuana or any controlled substance, under the laws of any state, the District of Columbia, or the United States or its territories.
20.An individual, not otherwise ineligible pursuant to this section, with respect to whom, within the three-year period immediately preceding the application, upon a charge of any criminal offense set forth in Article 1 (Section 18.2-247 et seq.) of Chapter 7 of this title or upon a charge of illegal possession or distribution of marijuana or any controlled substance under the laws of any state, the District of Columbia, or the United States or its territories, the trial court found that the facts of the case were sufficient for a finding of guilt and disposed of the case pursuant to Section 18.2-251 or the substantially similar law of any other state, the District of Columbia, or the United States or its territories.
As long as the applicant passes all the above, they must be issued a permit.
@Jack:
@Jack:
See, this is why I suggested that you stop commenting about things (like the law) which you clearly do not understand.
You neglect to mention (probably because nobody on your gun nut forums wants to talk about it or you just don’t have any idea how civil process functions) that both Peruta v. San Diego County and Richards v. Prieto have been vacated pending en banc review of both cases by the 9th Circuit.
Any guesses as to how that one is likely to turn out? Enthrall me with your legal acumen.
@stonetools:
Nor do I, and Heller II makes the DC Circuit’s position on the issue evidently clear. That said, you’re trying to discuss the issue with someone for whom it is not a rational thing. These people (and you really should delve into their forums sometime – it’s highly illuminating …) fervently believe that they are on track to achieve “I can carry what I want, when I want, where I want, and you can’t stop me”. They actually believe that they are entitled to it and that it will happen. It doesn’t take much analysis to see that they’re irrational.
Possibly, although they have gone out of their way to deny cert on anything and everything that touches on the 2A since McDonald v. Chicago. They clearly want nothing to do with it. Gura is an ideologue, but he at least seems intelligent enough (so far anyway) to know when to fold.
Jack’s nightmare should be this issue eventually coming before the court after Clinton packs it with left leaning justices.
@HarvardLaw92: I see a full panel finding in favor of Peralta. Even the judge in the DC case blocked the current standard because the plaintiff was likely to win the appeal. Otherwise he would have stayed his decision until the appeal was heard.
@HarvardLaw92:
Except the little 2nd amendment case of Henderson v US decided way back when? Oh, yeah. Monday! You really are a douchenozzel.
@HarvardLaw92:
You seem to think that a decision by a court or new law that will effectively turn law abiding citizens into criminals will matter. Yeah, how did that work out in NY, CO, MA, CT?
I only look forward to you being the person that goes door to door to collect people’s legally owned firearms.
@Jack:
Really, where do you see this full court finding in favor of Peralta? You do understand what en banc review means, correct?
I give you:
The order directing parties to respond to a sua sponte call from a judge on the 9th Circuit for en banc review.
The order granting en banc review and vacating the original panel rulings
You’ll have to check PACER (assuming you even have access to it) regarding this one, but the court has scheduled en banc oral argument for both cases at 3:30pm on June 16, 2015 – i.e. a month from now – in the future 😀
Maybe you can find a lawyer on one of your forums who’s willing to explain to you what that means.
@HarvardLaw92:
I see, as in I predict. Did they not teach reading comprehension at Haaavad?
@Jack:
Henderson dealt solely with 18 U.S.C. § 922(g). It doesn’t implicate the 2A. You really need to go to law school if you intend to continue this IASOAL thing you have going on.
@Jack:
I see, and you are basing this prediction on what exactly – your years of education concerning the law and experience dealing with it? Is someone on your gun nut forum trying to help you with the difficult bits?
Helpful hint – if they agreed with the original rulings, they would simply have denied en banc review and let them stand.
@HarvardLaw92: The entire case was about firearms. If firearms were not involved, then it wouldn’t have been a case.
Henderson ultimately pleaded guilty, and, as a felon, was prohibited under 18 U. S. C. §922(g) from possessing his (or any other) firearms.
The government argued that the ability to control an item is a part of possessing it, and the law forbids a felon to possess a firearm. The Court didn’t buy that, as in 9-0 didn’t buy that.
@Jack:
What you keep in your own home is not my concern, but I see no reason to allow you to wander around in public armed and presenting a threat to others. Your paranoia doesn’t concern me, but you proposing to bring a loaded weapon anywhere near my family does.
Trust me – you don’t want the logical outcome of that scenario if you screw up and harm / kill one of them. Suffice to say you’ll be eating SPAM out of a can for the rest of your life
@HarvardLaw92:
Oh really. Is that why the Supreme Court takes all these cases? Because they agree with the law as is or because the law isn’t settled?
@HarvardLaw92:
Project much? Why don’t you simply come out and admit that you are not man enough to handle a firearm. They scare you and make you wet your panties.
Yeah, because you get to make that decision for me.
Remind me, when were you elected King?
@Jack:
The entire case was about the ability of the government under 922(g) to force surrender of firearms owned by a felon, as opposed to transferring them to a third party. It has nothing to do with the 2A.
Henderson proposed to transfer them to his wife, which was obviously a ludicrous sham transfer on face. The outcome of this ruling is that convicted felons can transfer their firearms to third parties ON THE AGREEMENT OF A COURT. In other words, the government still has the power to dictate how the firearms will be removed from the custody of the felon. He just has a few more options than he did previously.
The concept that he, as a felon, has no 2A right to possess firearms remains intact. Do try to keep up.
@Jack:
No, the courts do, which is why you should be deathly afraid of Clinton being elected president. You won’t like the outcome.
@HarvardLaw92: Like I said, you seem to think that a decision by a court or new law that will effectively turn law abiding citizens into criminals will matter. Yeah, how did that work out in NY, CO, MA, CT, …WA, OR?
@Jack:
Specious analogy. A ruling from a three judge panel of the 9th Circuit has effect throughout the 9th Circuit unless overturned by the court en banc. The court sitting en banc has no split issue to resolve, and if their goal was to impose the rulings over the entire circuit, well, that would already be the case if they simply denied review. They not only granted review, they took the additional step of vacating the rulings pending their en banc review.
Any guess as to why they might do that?
En banc hearings are relatively rare, all things considered, and they typically result in a reversal of the underlying panel rulings which are under review. You need to understand that – this scenario indicates that there were a sufficient number of judges on the circuit who had a problem with the rulings in Peruta and Prieto to re-hear them de novo.
@HarvardLaw92:
Exactly.
The government was trying to argue that he maintained possession of the firearms because he controlled who he was selling them to.
The government argued that the ability to control an item is a part of possessing it, and the law forbids a felon to possess a firearm. The Court didn’t buy that, as in 9-0 didn’t buy that.
Most gun control statutes regulate “possession”, i.e. 2nd amendment. Under the government’s position, any time a gun owner entered, say, DC or New York, he became guilty of an offense even if all his firearms were left back home. He still controlled them, could call back home and ask his family members to move them around or to sell them, and therefore “possessed” unregistered firearms in DC or New York. Ownership and possession may be related, but they are still distinct.
@Jack:
Could you clarify what exactly you are implying re: it won’t matter? Are you asserting that you’ll just violate the law if you disagree with it?
Be my guest. It’ll be a justification for convicting you and disarming you 😀
@HarvardLaw92: There is a reason that the police in NY didn’t want to release SAFE Act numbers under a FOIA…because they know the law did nothing to force people to declare their weapons and/or magazines.
BTW, you cannot convict me of a law to which I am not a subject, douchenozzel.
@Jack:
This is like trying to explain particle physics to a three year old …
Henderson will be forced as a result of this ruling to dispossess himself of his firearms. The government retains the power to force him to do so, and gains the authority to exert approval over how he proposes to do so. Nothing with regard to 2A precedent changed here.
@Jack:
LOL, I see. You are one of THOSE people …
We’re done here …
@Jack: “More and more courts are using the 1st amendment as a guide to 2nd amendment law.”
(shakes head, slowly.)
Jack…oh what’s the use. you wouldn’t understand it, anyway.
@HarvardLaw92: BTW, which circuit is the most overturned by the Supreme Court?
9th.
@HarvardLaw92:
I don’t live in NY, CO, MA, CT, …WA, OR. I am literally, not subject to their laws.
@HarvardLaw92: Let me guess, next you’re going to agree with Marilyn Mosby that the knife Gray was carrying has nothing to do with his arrest.
I agree, you are probably a lawyer. It’s debatable that you are a good lawyer…because you cannot connect dots.
@HarvardLaw92: P.S. Did you get a chance to read the En Banc decision for CLS Bank? (It was over in the patent area, so may not have attracted your attention.) 10 judges, 5 decisions. There’s a reason why the Patent Office threw up its hands and said “we’re not doing to implement anything in the way of prosecution policy until we get a SCOTUS decision on this.)
(SCOTUS basically extended the reasoning of Prometheus to all patent applications and made it really, really difficult to get a software patent. Plus threw a few more daggers into business method patents just for the hell of it. Never stated “you can’t get X” but just hiked the levels up to the point where 99% of standard applications in those fields are going to get thrown out.)
@Jack:
Stay tuned for federal preemption of state gun control laws 😀
(That’s the one that keeps the NRA up at night, sweating).
@Jack:
I’ve been hearing about these emotionally driven “dots” from folks like you ever since Heller came down, and yet you still don’t really have what you’re after.
Truthfully, I think you’re useful in a way – the more that open carry nuts insist on walking around armed and holding their little rallies, the more that they engender anxiety and distrust among the rest of us who generally prefer not to have armed people carrying guns around us. I suspect that you guys will prove to be your own worst enemies. Couple that with the increasing rate of shoot-em-ups that are occurring, and you have a recipe for eventual backlash.
You should certainly expect that guys like me are going to use it against you.
@grumpy realist:
I haven’t read it yet. I just downloaded the opinion, and will give it a read. On first glance, I’m not bothered by the concept that an abstract idea isn’t or shouldn’t be patentable, but I’ll delve into it more closely later today.
@HarvardLaw92:
And yet, none of those shoot’em ups are occurring amongst the people “walking around armed and holding their little rallies”.
In case you didn’t realize it, the 2nd has nothing to do with willy nilly shooting people.
So yeah. Go ahead and do your darndest while soaking your panties. The fact that you claim to love your family but take no measures to protect them while you are out and about says more about you than it does me.
Sorry. if this has been covered above, but I thought the point of having regulations or laws regarding concealed carry was specific to the act of CONCEALMENT rather than the right to “bear” arms.
It occurs to me that concealing a firearm is not a right .
@Bob @ Youngstown:
I agree it’s a privilege, and that premise is well borne out throughout our history. Rather than reinvent the wheel, read Peterson v. Martinez (10th Circuit). The judges in that case did an exceptional job of digging through precedent to build a strong case against the concept that concealed carry is a right.
@Jack:
Truthfully, it says that you’re probably a paranoid gun nut, but people have a right to be crazy I suppose.
@HarvardLaw92:
Considering the sheriff issues my concealed carry permit, it won’t matter as sheriffs currently enjoy relative freedom from extensive federal input and oversight.
Nationwide recognition by states of other states’ concealed carry permit 😀
(That’s the one that keeps the liberals up at night, sweating).
http://abcnews.go.com/blogs/politics/2011/11/houses-passes-bill-making-concealed-carry-permits-valid-across-state-lines/
@Bob @ Youngstown:
I agree…as long as there is some other form of carry available. In this case, DC, does not allow any unpermitted carry. Thus, “it completely bars the right from being exercised, at all times and places and in any manner, without exception” and that the requirement “impinges on Plaintiff’s Second Amendment right to bear arms.”
Unless, of course, you happen to be one of the few people that donate to the DC Police chief Cathy Lanier’s coffers.
@Jack:
Whew … They operate under state laws, which are preempted by federal laws. In the event of a conflict between the two, a sheriff is bound to obey the higher authority – i.e. the federal law. Don’t tell me you’re one of those Tenther people too …
Considering it died 4 years ago in the Senate, nah, I sleep just fine. The dynamics and the optics work in my long term favor, not yours, for one simple reason – you guys can’t control your crazies, and they make for excellent TV.
@HarvardLaw92:
Yeah, how’d that work out for NY, CO, MA, CT, …WA, OR….we can do this all day.
Yes, but it will come up again and again. Meaning it’s much more likely than your scenario which will only get a lot of people dead.
@Jack:
So, to clarify, you think that, despite having upheld permits as being constitutional twice now, the DC Circuit is going to change it’s mind on the concept?
Another legal term you’ll want to get your friends to explain to you – horizontal stare decisis.
@HarvardLaw92:
Fact: federal agencies do not have state powers. Due to the Constitution’s structure of dual sovereignty, the feds have no authority to enforce state laws. Furthermore, states cannot be compelled to enforce federal laws.
The ultimate legal authorities in the land are the county sheriffs. This was established from the time of the Founding Fathers and upheld by the US Supreme Court in the 1997 case of Printz v. United States.
http://godfatherpolitics.com/8806/county-sheriffs-can-block-federal-gun-control/
@HarvardLaw92:
I know what stare decisis means, which is exactly why, even if Hillary packs the court, Heller and McDonald will remain. 😀
@Jack:
The underlying problem is that there are simply too many guns. Your argument depends on that for validity, and it is self-fulfilling.
“We need more guns because they have more guns, but when we get more guns, they’ll get more guns too, so we’ll need even more guns.”
Truthfully, the argument from your side has nothing to do with public safety and it certainly has nothing to do with personal freedom. It’s simply that some people like guns.
I don’t consider that a sufficient reason for them to bring one around me.
@HarvardLaw92:
Other than they have a right enshrined in the constitution and don’t need your permission.
That’s the thing about rights, I don’t need to have a reason.
@Jack:
Horizontal stare decisis, friend. US District courts are bound by appellate panel decisions (vertical) but subsequent appellate panels are ALSO bound by previous panel decisions (horizontal). That’s what you aren’t getting. Only an en banc hearing can overturn a panel ruling, and the precedent in this circuit goes against you.
When this gets appealed to the DC Circuit, and it pretty much certainly will, whichever panel they draw will be bound by the circuit’s previous rulings. Your district court judge violated precedent, and the panel reviewing his opinion will be forced to overturn it based on existing precedent in the DC Circuit.
@Jack:
I hope that you will all excuse me for injecting my thoughts amidst the really engagement of you two lawyer folks….
So you believe concealment of a firearm is a right ….. because of some other condition?
Silly me, I thought you constitutional folks thought that a right is a right……not “well sometimes it’s a right”
@HarvardLaw92:
That may be, but you make it sound like it then goes away. This isn’t Alan Gottlieb’s (The guy who got their NO CARRY rules overturned) first rodeo and he chose this case for a reason.
One of two things will happen if your scenario plays out.
1) Congress acts and slaps down DC. No judicial review. Period. This is DC CA, and NY’s best scenario
2) Supreme Court says, “Hey, there is this “bear” term in the 2nd amendment and you must allow them to bear them. Effectively saying that Heller applies outside the home as well. A decision that would overturn laws in NY, DC, CA, MA, MD, etc.
@Bob @ Youngstown: So you believe concealment of a firearm is a right ….. because of some other condition?
@Jack:
Yea, about that right? It’s not unequivocal, as no right is. It can be regulated and it can be limited. It becomes about where the lines get drawn with regard to permissible infringement.
In that regard, you should be terrified of Clinton getting elected and the court that will produce.
@Jack:
I think you meant to say “I hope”.
In reality, neither will happen, and I suspect that somewhere in there behind the crazy you know that already.
@HarvardLaw92:
Again, stare decisis is exactly why, even if Hillary packs the court, Heller and McDonald will remain.
An individual right to keep and bear arms unconnected with military service for the purposes of self defense will never be overturned in my lifetime. I have no worries.
@HarvardLaw92:
I don’t see that scenario playing out. SCOTUS must eventually address the “bear” part of the 2nd amendment.
@Jack: @Jack:
So what you really want to “push” is unrestricted open carry. Let’s see how that works out when open carry is permitted on the White House lawn or in the well of the Houses of Congress.
@Jack:
Is he actually this ignorant?
SCOTUS is not bound by its own precedent, genius. They can overturn their prior rulings whenever they feel it to be warranted.
Or, put in terms that you can understand, a court packed by Clinton could overturn both Heller and McDonald if and at any time that it chose to do so.
@HarvardLaw92:
The U.S. Supreme Court rarely overturns one of its precedents, but when it does, the ruling usually signifies a new way of looking at an important legal issue. For example, in the landmark case brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court repudiated the separate-but-equal doctrine it endorsed in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court ignored stare decisis, renouncing a legal precedent that had legitimated racial Segregation for almost sixty years.
http://legal-dictionary.thefreedictionary.com/stare+decisis
Douchenozzel.
@Jack:
They don’t really have to do anything, and they have been pretty clearly content to leave the matter to the circuits to resolve. This latest en banc in the 9th Circuit, which is IMO about 99% likely to overturn both Peruta and Prieto, will actually almost eradicate any circuit split on the matter, so it’s likely that, given their past reticence, they’ll keep denying cert.
Now, a court filled with Clinton nominees? Oh yea, they’d jump on it at light speed, but I don’t think you’ll like the outcome …
@Jack:
So, yet again, you cut and paste something validating the concept of “HL was right and I was wrong”.
Thanks
Scalia essentially excised half of the 2nd Amendment. He pretended that it doesn’t exist in order to rationalize his preferred outcome.
If you don’t think THAT issue is ripe for confrontation among his more liberal peers, you’re dreaming.
@Bob @ Youngstown:
Open Carry or Concealed carry, either one will mean armed people in DC.
The Judge in this case did not overturn the limitations on the places people could carry that this law outlined. Those still stand.
The court has “thwarted the District’s blatantly obvious effort to discourage the exercise of Second Amendment rights by forcing permit applicants to jump through a series of hoops and then frustrate them by requiring an arbitrary ‘good reason’ for the exercise of a constitutionally-protected civil right.”
I’m guessing from your name that you are from Ohio. Open Carry is legal there and there have been zero problems as a result.
@HarvardLaw92: I didn’t say they never overturn their own precedent. Show me where I said that. No. I said that stare decisis will keep them from overturning Heller and McDonald.
@HarvardLaw92:
Scalia did no such thing. All 9 members concurred with the opinion that the 2nd protects an individual right to bear arms. Go back and check the record.
Hack.
@Jack:
Just like it prevented them from overturning Bowers v. Hardwick?
Heller and McDonald are both 5-4 rulings. Two of the justices in the majority in both rulings are about to hit 80 years old. I’m not sure you grasp just how at risk both of them are likely to be going forward.
@HarvardLaw92: yawn
@Jack:
I did. Stevens’ dissent directly challenges the presumption that the right conveyed in the 2A is an individual one. It was joined by all three of his dissenting peers. Beyond that, Scalia’s opinion was not in concurrence among all 9 justices on any point. It was joined by 5, not 9.
Do you want to keep playing this game, armchair? 😀
@Jack:
I agree. You have gotten boring. We’ll leave it at that.
@HarvardLaw92: In Stevens’ opinion, the amendment protects the individual right to bear arms only for certain military purposes and does not limit the authority of legislatures to regulate private, civilian use of firearms (Id., at 2822). This opinion was joined by Souter, Ginsburg, and Bryer.
My statement: All 9 members concurred with the opinion that the 2nd protects an individual right to bear arms.
So, all 9 judges agree, there is an individual right to bear arms.
@HarvardLaw92: Those of us in the patent area have been holding our heads looking at the ding-dong back-and-forth we’ve been seeing between the lower and upper levels on patent law. Patent law seems to go in these waves–SCOTUS loosens up, then many years down the road they get uneasy and tighten up the interpretations again.
We’re going to be scratching our heads over “abstraction” for a few more years. It’s nice to see that SCOTUS basically has been spooked by the whole patent troll antics over software patents, has taken a look at biotech, and said “naah, that’s a bridge too far.” So now they’ve come back and blown a few large holes below the water on the ship labelled “software patents” via the whole abstraction argument and put a really, really good armament in the hands of anyone who gets hassled by a patent troll and wants to try invalidating the patent.
(Most software engineers I know thought software patents were a really, really bad idea in the first place, mainly because there was so much that should have been thrown out as already known by a POSITA.. The USPTO granted a hell of a lot of software patents that should have been thrown out on the first round.)
@Jack: You’re trying to claim that the Second Amendment doesn’t fall under Federal law?
I give up.
@grumpy realist:
No, I’m trying to say that sheriffs do not fall under federal law. There are already sheriffs in CO, WA, OR, NY, CT, and MA that have said they will not enforce recently passed state laws. Sheriffs in MO, KS, SD, UT and others have said they will not enforce a federal law banning guns and ammo.
Additionally, people seem to think that if it wasn’t for the 2nd amendment, we wouldn’t have guns or that we could take them away from the populace. I don’t need the 2nd amendment to exercise self defense. A gun is simply an extension of that self defense. An amendment overturning the 2nd….which will never happen…does not mean I lose my guns. A federal law trying to overturn the 2nd…does not mean I lose my guns. A SCOTUS decision completely wiping away the 2nd from the history books…does not mean I lose my guns. The 2nd prohibits what the government can do, not what I can do.
@grumpy realist:
I came to the same conclusion. 200 comments from now, we’ll be exactly where we are now. It’s more or less pointless to try to discuss an area of expertise with someone who doesn’t share that expertise, especially when Google has erroneously convinced him/her that they do. You have to educate armchairs in order to enable them to understand why they’re wrong, and I just don’t have the time or the required level of interest to do that.
Face it Jack – Hillary IS going to take your guns. And she will do it as easily as a grown up takes a rattle from a misbehaving child…
@HarvardLaw92:
Kids, don’t smoke crack and post on OTB.
@anjin-san:
Don’t hold your breath. The president is powerless to take my guns.
@Jack: Once you’re in one of those tunnels under the former WalMarts, dude, it’s all over for ya.
@JohnMcC: I am surmising that you were making some sort of pathetic attempt to argue. Perhaps I have been to generous?
@Jack: Treating your comments with all the seriousness you deserve. That usage of the word calls for the spelling ‘too’.
You know Jack, I’m a gun owner. Been shooting for nearly half a century. That being said, I can’t even comprehend the level of pathetic that goes into a grown man arming himself every time he goes out in public.
@Jack:
Open carry of a weapon is one thing, and I’d would not disagree that Ohio has experienced no problems. Concealed carry is something else.
One of the problems that I have with unregulated concealed carry is that it destroys MY right to choose the environment that I place myself in.
I choose not to go to stores or dining establishments that appear to be hangouts for drunks, druggies, ‘Sons of Anarchy’ types. I consider that to be “staying out of an environment of trouble”.
I also consider people who are so paranoid, or who want to be their own vigilante or avenger, that they insist that they carry their weapon to church or to the ball game. These people scare me, and so I will choose to stay out of their way.
Now these same people desire to CONCEAL their paranoia.
Open carry, personally I’ve no objection.
Concealed carry without a good reason, I consider that an attack on my liberty.