By Charles Nichols, President of California Right To Carry:
Last Monday morning, the US Supreme Court published a unanimous decision reversing a judgment of the Massachusetts Supreme Court for conflicting with District of Columbia v. Heller (2008). The Massachusetts high court had given three reasons for upholding the conviction of a homeless women for possessing a stun-gun, which is illegal in that state. Each of these three reasons directly conflicted with the Heller decision. TheMassachusetts high court’s decision was reversed and remanded back to the state for a “do-over.” The Heller decision held that . . .
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.””
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
Any decision by a state or Federal court which holds that there is a general right to carry a weapon concealed in public will conflict with the Heller decision and likewise be reversed by the US Supreme Court.
This is why not a single one of the concealed carry lawsuits pending in the 9th Circuit has filed with the presiding court a notice of the Caetano decision. For years their argument has been that when the US Supreme Court said in the Heller decision that Open Carry perfectly captures the meaning of the Second Amendment right to keep and bear arms and that “prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues” what the US Supreme Court actually meant was the opposite. That states can ban Open Carry in favor of concealed carry.
Concealed carry in public has never been recognized as a right in the state of California. Not before the Heller decision and not after.
While the carrying of a concealed weapon in public has always been considered an evil act, the California courts have not construed the carrying of a concealed weapon in a vehicle to be a crime of moral turpitude.
A crime of moral turpitude is one in which the commission of the crime reveals the offender to be dishonest and showing that the offender has a willingness to do evil or a moral laxity of some kind.
This is an important distinction. A moral man can inadvertently commit an evil act or commit an evil act without intending to do evil. As of Tuesday, the day after the Caetano decision was published, if one is convicted of carrying a concealed weapon in a vehicle then that person has committed a crime of moral turpitude and all that entails.
Although other crimes involving firearms have been held to involve moral turpitude, this is the first time that the California Court of Appeals has held that a violation of California Penal Code section 25400(a)(1) is a crime of moral turpitude. The relevant part of section 25400(a)(1) reads:
(a) A person is guilty of carrying a concealed firearm when
the person does any of the following: Carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
Those of you familiar with my opposition to concealed carry might conclude that I agree with this decision. You would be wrong.
Had the decision involved a conviction for violating California Penal Code section 25400(a)(2) (concealed carry outside of a vehicle) and section (a)(2) provided exceptions to the prohibition on concealed carry which existed in the 19th Century, such as an exception for travelers while actually on a journey and firearms carried in one’s baggage and/or at night and by persons carrying large sums of money then I could be persuaded that a carrying a concealed weapon under certain circumstances involves moral turpitude.
But that isn’t the law we have in California today. Those 19th Century exceptions to the prohibition on concealed carry, which extended into the early 20th Century in California, are gone.
A few years back the California Court of Appeals gave a very concise, easy to understand reason for prohibitions on concealed carry:
“The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant’s innocent intent does not make a concealed weapon any more visible.”
Walking down the street, or about town, the prohibition on concealed carry is not only reasonable, it is Constitutional under both the California and Federal Constitutions.
But if one is in a vehicle then it is highly unlikely that others approaching would be able to notice that one is openly carrying a handgun in a belt holster. Under California law (PC 25400(b)) “A firearm carried openly in a belt holster is not concealed within the meaning of this section.”
Moreover, our vehicles should be treated as an extension of our home. We do not have the right to force our way into each other’s vehicles any more than we have a right to force our way into each other’s homes and a prohibition on concealed carry in one’s vehicle is just as irrational as a prohibition on concealed carry in one’s home. Your home is not a “public place” where strangers are free to come and go, neither is your vehicle.
The central component of the Second Amendment right is self-defense. The Framers of the Second Amendment understood that if one carried a concealed weapon and used it in a surprise attack (what today’s proponents of concealed carry call a “tactical/secret advantage”) then that person was guilty of murder, which was not pardonable. However, those who entered into mutual combat openly bearing arms and death resulted, the offense was that of manslaughter, which was pardonable, assuming that one could find a jury to convict in the first place.
While traveling on horseback down a country road, George Washington was once confronted by a man on foot who told Washington that if he tried to pass then he would shoot him. George Washington retrieved his pistol from his saddle bags and handed it to his traveling companion with instructions to shoot the man if he shot him. George Washington went on his way, the man did not shoot him.
George Washington exemplified the morality of the men who wrote the Second Amendment. Had Washington simply drawn his pistol from his saddlebag and shot the man where he stood then he would have committed murder. By displaying his pistol and giving the man fair notice that he was armed, Washington (or in this case his traveling companion) could justifiably shoot and kill the would be assailant had he tried to make good on his threat.
George Washington was an exemplar of morality. The same thing could be said of most of the Founding Fathers. But within a generation, the number of immoral people who carried weapons concealed “for secret advantage and unmanly assassination” increased in far greater numbers than did moral men.
States began to enact laws prohibiting the mere carrying of weapons concealed and even concealable firearms regardless of whether or not they were carried concealed. By the decade preceding the start of the Civil War, most states had enacted laws prohibiting the mere carrying of weapons concealed while providing for certain exceptions to the prohibition on concealed carry, such as for travelers while actually on a journey.
Today, there are more immoral men in this nation than has ever exited before who brag about their desire to skulk around town carrying a concealed weapon in the hope that an opportunity will present itself, no matter how contrived, for them to use their concealed weapon in a sneak attack.
You don’t have to take my word for it, simply copy and paste “concealed carry” AND “tactical advantage” into Google Search and Google will provide you with links to thousands of websites and videos.
It is naïve to think that the California legislature is going to suddenly repeal its prohibitions on concealed carry or that the California or Federal courts are going to discover a concealed carry right under the Second Amendment which has never existed.
For that matter, the California Supreme Court, in a post Heller decision, has already held that there is no right under the Second Amendment to carry a loaded handgun concealed in public. Eventually, the 9th Circuit Court of Appeals will decide as well. The 9th Circuit however is taking its own sweet time to make its decision, the oldest pending concealed carry appeal was filed on August 24, 2009.
A lot of people out there say that the Second Amendment is their license to carry a concealed weapon in public. If you are one of them then it would behoove you to move to a state where concealed carry is legal and a license is not required.
Carrying a loaded handgun concealed in a vehicle in California is potentially a felony. A felony conviction which results in the lifetime loss of your Second Amendment right.Now doing so is a crime of moral turpitude as well.
Charles,
When are you going to challenge a restriction on open carry?
I don’t disagree with your theory, but you have been talking about this for a few years now…
He has, and an appeal of the trial court’s denial of his motion for a preliminary injunction against the law banning open carry (which technically applies only in unincorporated areas and of course government building, etc)has been pending and is trailing Peruta v. Gore, the case challenging California’s “may issue” concealed carry law. But don’t pay a lot of attention to Charles’ rants: there is not one word in Heller of McDonald saying that open carry is the right and concealed carry is the privilege. You must understand that Charles is not an attorney, and he often reads much more into things than the court actually said, or that can be reasonably inferred. What he points to in Heller is the majority’s discussion of concealed carry laws, and the multiple state supreme court decisions upholding those bans. But the issue was not presented to the Heller court; it said nothing about carry anywhere or at any time; rather, the court drew from those decisions that some restrictions on the right to keep and carry arms may be lawful. The state cases can best be cited for the proposition that concealed carry can be banned as long as open carry is allowed (the flip side of which is that if open carry is banned, concealed carry must be permitted).
In the current anti-gun environment in urban areas, it would be more proper to say that open carry is a threat to the public (or that at least the public is afraid), and that therefore concealed carry must be allowed. Peruta presents the question in the context of a California county that is essentially “no-issue”, resulting in a virtual ban on the carrying of arms in public for residents of those counties. (Although issued on a county by county basis, the licenses are valid state-wide.) The original Peruta opinion held that the State had the election to allow one or the other, and that its ban on open carry meant that it had chosen concealed carry as the preferred method of carry. Given the right under the Second, the Court held that the desire to carry a firearm was “good cause” under the elements of California’s “may issue” statute. That decision was superseded by a grant of en banc review, which is still pending. Given that the 11 judge panel was a majority Democrat panel, hopes for “shall issue” carry in California are not high, despite the concession of the State of California at oral argument hat there is a right to carry in public. The most likely result is a reversal of the three-judge panel and an affirmance of the status quo. It’s for the children. (And which will in turn result in an affirmance of the denial of preliminary injunction in Nichols’ case.) There has been some idication that a decision may issue within the next thirty days.
Caetano is irrelevant to the carry question. Caetano was not a carry case; rather it involved a state ban on the possession of tasers, a law upheld by the Mass Supreme Court for the reason that tasers did not exist in 1787 and that it was a “dangerous and unusual” weapon ” subject to ban. The USSCt said no on all counts. The case is therefore unhelpful to the issues in the pending California cases.
Mark N., once again bloviates about that which he knows nothing about. I have 300 years of binding court decisions from the United States since before they were states and were colonies under English common law which held that there is no right to carry weapons concealed.
Not only does Mark N., not have a single legal precedent in support of his imagined concealed carry right, he cannot cite any historical authority in support of concealed carry. He has been invited to provide the legal citations and other historical authorities in support of concealed carry, instead he throws around his feces.
Thank you for the awesome and informative post – I learned more from you than from the article.
Thank you Mark for summarizing.
Charles, I am sure that if Clements, Michel, or Gura thought a 28j was useful it would have been filed by now.
IAB2 – the reason why the NRA/CRPA/SAF/CalGuns.nuts lawyers haven’t filed a 28(j) letter regarding Caetano is because the Caetano decision is fatal to their position that states can ban Open Carry. Their argument is that states can ban Open Carry in favor of concealed carry. Their argument directly conflicts with the Heller decision.
Sheriff Gore wants nothing more to do with the appeal and so I contacted one of Sheriff Preito’s lawyers who saw no need to file a 28(j) because it doesn’t help to point out the obvious.
That assumes, of course, that the en banc panel is even aware of the Caetano decision let alone have read it in the context of the Peruta/Richards cases.
Sometimes it is necessary to point out the obvious.
Jared, I filed a Federal lawsuit in November of 2011 challenging California’s 1967 ban on Loaded Open Carry. I subsequently amended my lawsuit to challenge California’s two Unloaded Open Carry Bans as well. The appeal of the final judgment of my district court challenge, which was filed on May 27, 2014 is currently stayed pending a decision from the Peruta v. San Diego/Richards v. Prieto en banc panel.
You can track the status of my case at my website -> http://blog.californiarighttocarry.org/?page_id=739
And the importance of the Supreme Court nomination grows…
Wow. Quite a trailer. Now I can’t wait to see the rest of the movie. Yeah, gimme that tub of popcorn with extra salt and butter.
Judge : why did did you shoot that man who was trying to shoot you? Was it self defense or turpitude?
Defendant: It was turpitude all the way your honor. I was so pissed off when he pulled that gun I didn’t care if I lived or died as long as I killed that sumbitch.
His legal argument is relatively sound, but I’m wondering what concealed carrier stole this guy’s last girlfriend. That is not a normal amount of hatred for a subject like this.
It’s the reverse of the usual anti-OC hatred that shows up here.
Hey, at least he didn’t mention carrying his purse this time…so, progress.
JR_in_NC – Just for you:
Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
http://CaliforniaRightToCarry.org
Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned and should be because of all the morons in this world who read the following to mean that Open Carry can be banned instead of concealed carry. Illiterate morons should not be allowed to even possess a firearm.
http://CaliforniaRightToCarry.org
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
“The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant’s innocent intent does not make a concealed weapon any more visible.” People v. Mitchell, 209 Cal. App. 4th 1364 – Cal: Court of Appeal, 4th Appellate Dist., 1st Div. (2012) at 1371.
“But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.
Notice that Open Carry is the “Second Amendment right recognized in Heller which applies to all states and local governments. Heller made it perfectly clear that concealed carry is not a right. Anyone who reads Heller or McDonald as recognizing a right to carry concealed weapons in public should not be allowed anywhere near a weapon of any kind.
So much for progress, then…eh, Charles?
I didn’t read any “hate” in his posting. Some stern words, but nothing more. The underlying issue Nichols has is that his efforts in court to win open carry cases is frustrated by the numerous concealed carry cases clogging up the court docket.
Additionally, he seems convinced that concealed carry cases will all fail because of 2A history. The result of losing all the concealed carry cases is money wasted that could be used to fight for open carry in places where it is not legal. His basic theme is that concealed carry was prohibited in 1789, and some years beyond (2A is only about long guns and ability to wage war against a tyrannical government). Open carry, however is the rock of the second amendment. Nichols appears convinced that all the losses of concealed carry cases will result in no carry at all because his constitutional open carry cases are dying from lack of funds.
Heller and McDonald seem to indicate guns for home defense are permitted, but the cases do not specifically declare constitutional the carry of whatever weapon, wherever, however. The very simplistic thought that 2A is absolute has no basis in the times contemporary with the ratification of the constitution. Or federal court cases and state laws (the constitution originally constrained only the federal government) existing after the constitution was adopted.
“Today, there are more immoral men in this nation than has ever exited before who brag about their desire to skulk around town carrying a concealed weapon in the hope that an opportunity will present itself, no matter how contrived, for them to use their concealed weapon in a sneak attack.
You don’t have to take my word for it, simply copy and paste “concealed carry” AND “tactical advantage” into Google Search and Google will provide you with links to thousands of websites and videos.”
When you refer to concealed carriers as immoral men who skulk around town hoping to use their concealed weapon in a sneak attack, you have gone way past stern and are firmly into the realm of hatred.
I spent too much time in debate club. I followed his use of history to illuminate the contemporary. Reasoning from the law and societal norms of 1789, Nichols is saying that if those standards were applied today, THEN, concealed carriers would fit the description off immoral people.To me it was like reading the TIME headline after big O was elected: “We’re all Socialists Now”. Hyperbolic comparisons. Going through the Nichols page again, I can understand where one would read that Nichols is shaming concealed carriers using yellow dog journalism. Don’t let his machinations distract you from the centrality of his argument. If he is right, he is right, and that has interesting implications. If he is wrong, that has interesting complications.
Sam I Am – Other than your first sentence, you got everything wrong. Perhaps in the future, instead of telling other people what you think I am saying about what my Open Carry lawsuit is about, or how I feel about other things (which you have no way of knowing), you leave these things to me?
http://CaliforniaRightToCarry.org
I admire your talent for rewarding people who are supportive of your efforts. You allow no opinion but your own, you permit no interpretation of your position but your own, you have no colleague but yourself, you have pro-gun supporters wishing you ill, you have no audience for what might be perfectly sound arguments for open carry and against concealed carry. Congratulations ! You win yourself.
Damn, what charm school did you drop out of, Chuck? You might have more luck gathering allies in your quest if you didn’t jump their shit when they’re trying to support you.
“instead of telling other people…you leave these things to me?”
Wow, spoken like a true Californian, or a closet Bloomberg supporter. Dunno which. Further, your position of “I have no use for concealed carry, therefore it is bad”, sounds suspiciously like the Fudd crowd that would sell everyone that doesn’t carry a vintage hunting rifle down the river to keep their own guns. Finally, you manage to make some pretty broad generalizations about the character of concealed carriers while getting your panties bunched when your own character is questioned (“or how I feel about other things (which you have no way of knowing”)). Pretty noble of you to lump law-abiding citizens, LEO, veterans, the pope, and possibly the 12 Disciples in the same moral category as cracked out thugs on Wilshire simply because they choose to carry concealed. I never realized I was just a closet bushwacker waiting to snap. Thank you so much I will seek counseling immediately.
If legal precedent and the Constitution were all it took to ensure 2A rights, then we wouldn’t be where we are today. Good luck to you in your legal goals, but if you think public opinion, political ass covering, herd mentality and a whole lot of money will have no bearing on the outcome, then you are in for a bitter time. I’m still trying to figure out how an obviously intelligent guy thinks that California is going to say OK to open carry given the epic levels of anti-gun propaganda there.
Its probably just a reaction to the usual smugness of the CC ninjas with their little .380s and ‘element of surprise’ (how, I ask you, do you use that in a self defense situation?)
“…CC ninjas with their little .380s …”
If you are carrying anything less than .454Casull, you are whizing in the wind, and don’t have any chance of defending yourself. (.500 is THE only serious self-defense round).
Naw, I just think little guns are hard to shoot effectively. Carry a .22 if you want but just make sure its something with a decent sight radius and capacity.
A projectile half an inch in diameter is rather puny, compared to most of what was used in the War for Independence.
Yeah, a .70 rifle round will get your attention.
A 545 grain round lead ball .72 to .75 inches in diameter at a velocity of around 900 to 1000 feet per second would completely ruin a bad guy’s day. The real problem is that follow up shots are just a bit slower than your average 9mm, that and it is pretty hard to hide one of those under a jacket.
Yeah, but with .72 – .75, if you hit someone anywhere, it will blow off multiple body parts, leading immediately to the complete draining of all blood, stopping the threat. A bad guy missing body parts and having no blood will not be able to respond in a manner requiring a second shot. And OC is just fine,
As I understand it from postings elsewhere, he was once upon a time a private detective who was denied a CCW, but advertised that he was able (for a large fee) to help others obtain their own CCWs. Who knows. But this would be consistent with his insistence that there is an absolute right to open carry (which to be fair was the law in California up until 1968, when loaded open carry was banned, 2013 when unloaded open carry of handguns was banned (because of “feels” of course), followed a year later by a ban on open unloaded carry of long guns in incorporated cities and towns (with a long list of generally irrelevant exceptions).
Mark N., seems to be confusing me with a Los Angeles attorney, Jon Birdt. Birdt has several failed concealed carry cases pending on appeal not to mention a few in district court which are pending including a case in which Mr. Birdt was denied a concealed carry permit for lacking good moral character.
I am an engineer. My last job was developing super-computers. I suspect the only job Mark N., has ever held is smoking dope in his parent’s basement.
Charles you are a bitter, nasty man. At this point I couldn’t care less what happens to your case or yourself, please just go away.
Vhyrus – You seem to have mistaken me for the three judges who held that concealed carry in a vehicle is a crime of moral turpitude. If you have a problem with their decision then write the scumbag a cheque. Maybe he’ll give it to his defense counsel to appeal the decision.
Open carry is not legal in California. Jerry Brown signed the restriction a couple of years back.
Without legal open carry, the moral argument against concealed carry is meaningless.
Interesting. Nichols’ argument is without open carry, any attempt to get concealed carry approved is pointless. Both of you agree on open carry, which is Nichols’ quest. He just wants CC backers to stop spending money on a losing cause (no constitutional foundation), and back his fight for open carry, which has a lengthy support in the constitution and follow-on law.
Sam I Am – Quite the contrary. I want the concealed carry proponents to sell off everything they own and to incur lifetime debts, they will never be able to pay off, in support of concealed carry.
As to my California Open Carry lawsuit, Every Second Amendment claim I have made in my lawsuit can have a line and arrow drawn directly from my court filings to binding SCOTUS decisions, most notably the Heller and McDonald decisions.
It is the so called gun-rights groups behind the concealed carry lawsuits who have asked the various Federal Courts of Appeal to issue a decision which directly conflicts with the Heller and McDonald decisions.
My lawsuit, on the other hand, asks that the court read the Heller and McDonald decisions to mean exactly what they say, no more and no less.
Fortunately, I now have the Solicitor General for the State of California asking the Peruta/Richards en banc court to read the Heller decision the same way as I have been arguing in my California Open Carry lawsuit -> https://youtu.be/Zzmt_TCBXUM
Much talk..” And George Washington retrieved his pistols from his saddle bags,” kinda like retrieving your pistol from the glove box.
How likely then is it that California will permit open carry?
It is not a matter of “how likely”, it is a matter of which proposition (CC or OC) has constitutional foundation. Nichols reported in other writings he expects to lose in California, but he needs that to get his case moved along to the SC. Nichols’s position is CC has no constitutional foundation, and will lose at every turn, wasting time and money, delaying his date before the SC.
Interestingly, Nichols’ case is one that declares 2A is not absolute (CC is not permitted based on social and legal history).
Meanwhile, everyone else is saying that there is a right to carry, period, but that the states can decide the method of carry. Back in the 1800s, open carry was common, and only a man bent on evil would conceal his weapons (See discussion in Heller). Today, open carry scares the soccer moms, resulting in a waste of public resources–and the possibility of deadly encounters–when those moms dial 911 in panic. To put it bluntly, concealed carry is more socially acceptable now than open carry in may urban areas, particularly those with a large Democratic Party majority and anti-gun animus.
Does “social acceptability” have anything to do with constitutional rights? It may be good that concealed carry is increasing (we think; we can count permits, but who actually carries?), but “social acceptability” just may have zero impact of state and federal court decisions. If Nichols wins, and he is right about only open carry being constitutionally protected, then we may see much greater attacks on concealed carry.
BTW, if “socially acceptable” is a valid benchmark to decide a case in favor of gun owners, isn’t “socially unacceptable” a similar valid benchmark to remove gun rights?
Mark N., – Everyone else is not saying there is a right to concealed carry. The people who count (US Supreme Court and Federal Appellate Courts) have held that there is no fundamental right to carry a concealed handgun. In one respect these Federal Appellate courts have been generous in assuming, for the sake of argument, that there is a concealed carry right despite the clear holding of several US Supreme Court decisions that there is no concealed carry right.
And still you lost. 😀
Sam I Am – I did not say that I expect to lose in California. I said that I expect to lose in District Court given the two judges assigned to my case. I said that for me to lose on appeal before the 9th Circuit that the 9th Circuit would have to overturn many of its own precedents as well as disregard the binding decisions of the US Supreme Court.
I have said that if I do lose on appeal that my loss would be the only Second Amendment carry case which presents a clear US Supreme Court Rule 10 circuit split, unlike every other concealed carry loss. Without a Rule 10 circuit split, SCOTUS very rarely grants a cert petition.
Before or after the dead rise up and walk?
The fact that some people use concealment as an unmanly advantage does not trump other people’s right to turn the tables on criminals attempting to ambush them employing deadly weapons.
Open or concealed, the honest citizen is responsible for the lawful use of his/her weapons, even fists.
How do you turn the tables? Criminals attack by ambush, so you can only know they are criminals once the ambush has happened. What is the advantage in the surprise counter attack for a individual?
Sure from a military point of view there can be an advantage to counter ambush, luring concealed attackers out into the open where you can then take them by surprise and destroy them, but thats not how a moral CCers should operate.
You are missing the point. Under Nichols’ reading of the second amendment, the history of the times, and Blackstone law compendium, anyone using a concealed weapon, for whatever reason was de facto a criminal. As noted, the “innocent” intention (self-defense) of the person with a concealed weapon mattered not. According to the Blackstone entries Nichols cited, the idea that a person has a right to conceal a weapon (of any sort) for self-defense has no support in established case law and federal court decisions. Nichols does not argue that a person has no right to self-defense, he argues that according to the history of the second amendment, and law existing in 1789, a person has no right to a concealed weapon for self defense. And all of that is to convince people that money spent on concealed carry cases that are guaranteed to be losers is wasted, and would be better spent supporting his federal cases to recover the right of open carry across the US and territories. Nichols argues that only the right of open carry of weapons is covered by the constitution (based on what is noted above), and that right is being unconstitutionally denied.
If you want a history lesson, go read Heller and don’t depend on Charles’ (mis)interpretations of that decision. The first concealed carry law was not passed until the late 1820’s (as I recall), and most of them around or after the Civil War. and many had decidedly racist origins.
Totally ignoring the Heller reference, looking only at the references to historical case law Nichols cited. In addition, my understand of the numerous readings of Heller, the SC did not clearly state just what was legal outside the home. Home defense with a firearm seems to be the only bold print element of the decision. Support for that understanding is McDonald had to be decided in order to clear-up some of Heller, but even that resulted in no unequivocal statement that: 2A provides for possession of a firearm anywhere and everywhere, or definitive regarding open or concealed carry. Further, seeing the lack of specificity, lower federal courts are pretty much ignoring Heller and McDonald. The Illinois case where the federal judge said guns can be restricted in any manner that makes the public feel safe is a reasonable infringement still stands, and the SC is refusing cases requiring them to be completely definitive about 2A rights.
In alameda county CA I can not carry concealed or open. Where does that leave me?
A potential immigrant worker to Utah?
Move to Idaho.
Come to Arizona. Housing is cheap, jobs are available, and you can carry any weapon any way you want almost anywhere.
This is proof that Californians live in a bubble, regardless of their political views. I have to wonder if Mr. Nichols has ever worn a jacket.
Here in the temperate rest of the world, where some people wear suits on a regular basis, neither concealed carry nor open carry are practical as compulsory modes of tooling up.
I would be happy to carry openly if the law allowed. But as soon as I put on a suit coat (to look professional) or a jacket (to deal with the Northern Illinois winter), I am now carrying concealed. I have to believe that even during our founders’ era, honorable men carried pistols under their coats. They did not conceal for secrecy, they concealed because it was practical. Perhaps someone more familiar with 18th century fashion can enlighten us.
In any event, all this twisted logic to argue that the 2A only means one or the other is just that. It will produce nothing but twisted laws. True liberty will exist only when honorable men can decide for themselves how to honorably protect themselves.
I OC in a shoulder holster over my coat in MT.
But you do have a point, its sometimes easier to CC for fashion reasons.
Nichols is pointing out that 2A does not confer “true liberty”. 2A, under Nichols’ reading of the relevant history of the law, does not allow an individual to choose OC or CC. Nichols’ stance is 2A only addresses open carry of a firearm. Nichols is bogged down in court fighting for OC in California (and the rest of the US). One of his perceived impediments is the number of concealed carry cases clogging the court docket; cases that cannot stand under the constitution. Thus, not only is his case moving too slowly, money is being wasted on CC suits. Money that could be directed toward his fight for OC. Even if he had unlimited funds, his case would remain frustrated while the CC losers are being delayed, and lost.
“Nichols is pointing out that 2A does not confer “true liberty”.”
In fairness, I think he’s trying to argue that the current SCOTUS interpretation of the 2A does not confer true liberty.
… Which may be true. But a court victory that would secure only the lawful ability to carry openly would be rather limited in its usefulness for those of us who don’t live amongst palm trees.
A reader equated the legal ability to OC or CC as the only condition representing “freedom”. Nichols is very specific that CC is no protected under the constitution. He has no doubt about that. He is not relying on recent SCOTUS decisions for his proposition. He relies on societal and legal history of 2A since the founding. His statements are quite clear that CC is not protected, and that attempts to get precedent and prior SC rulings overturned is only interfering with getting OC recovered for every state/individual. Nichols would not be found anywhere advocating CC.
I’ve come to believe that you can neatly divide humanity into two groups:
1. Those who focus on regulating their own behavior
2. Those who focus on regulating the behavior of their neighbors
If you’re a #2, your opinions are remarkably predictable:
“These are the books I think _you_ shouldn’t read.”
“This is what I think _you_ should be able to do with your body.”
“I approve of _you_ defending yourself this way only.”
“These are the beliefs _you_ may express.”
“Today, there are more immoral men in this nation than has ever exited before who brag about their desire to skulk around town carrying a concealed weapon in the hope that an opportunity will present itself, no matter how contrived, for them to use their concealed weapon in a sneak attack.
You don’t have to take my word for it, simply copy and paste “concealed carry” AND “tactical advantage” into Google Search and Google will provide you with links to thousands of websites and videos.”
Weak argument is weak. Srsly. A google search is hardly a valid attribution, and if it could actually be true that there are more immoral men in this nation, it’s only because there are many more people altogether. Morality is subjectively judged with the context of society (the Aztec’s human sacrifices weren’t “immoral” to the Aztecs), and the number of per-capita outliers doesn’t change much from one culture to the next without massive influx of another culture.
And I disagree to some extent that the “central component of the 2nd amendment is self-defense” – it’s easily just as much about collective self-defense.
And regarding CC vs. OC: I’m fine with OC as long as it’s socially acceptable enough to do so without causing myself a lot of problems. Otherwise, I’m CCing – one thing I share with the bad guys is neither one of us gives a shit.
“one thing I share with the bad guys is neither one of us gives a shit.”
Thanks for the honest confirmation of the authors opinion on CC.
You’re most welcome.
To be clear, since there are (and always will be) those who do not care what the law says when preparing to attack and take advantage of others, I don’t care what anyone’s opinion of concealed carry is. You can spout terms like “unmanly advantage” all day long, it bothers me not at all, because, like I said, I don’t give a shit. I’d rather be able to defend myself against muggers than morons.
I practice I have run into 1000% more morons than I have muggers.
Seems to me the Judges, Politicians, and well over half the voters of California are guilty of moral turpitude.
And they do it without guns !
If you are not a prohibited person and you are carrying a concealed firearm registered to you, the penalty is a misdemeanor. There is no 10 year/lifetime ban, but you’ll have to temporary transfer your firearms while on probation. See 25400 (c) 7. 25400 (c)6 indicates if you are not carrying a gun registered to you- your friends or one you purchased “illegally’ without passing a background check, the penalty is a “wobbler”. Meaning it can be charged as a felony or misdemeanor. If you are found guilty of this on a felony basis, you can petition to have the crime reduced to a misdemeanor after sometime. Once this is granted your 2nd amendment right is restored, but you’ll have to petition the DOJ and do a livescan because their computers do not update this change. 25400 (c)1-5 indicates when it is a “straight felony” to carrying a concealed weapons without a license- being part of a gang, currently a felon, mentally adjudicated, etc. If you were to fall into 1-5 you would be prohibited from owning a firearm under federal and state law in the first place.
I personally have considered carrying without a permit and risk violating 25400 (c)7 (misdemeanor, not a wobbler or “straight felony”). It’s a tough decision because I value my life just as much as my freedom and convictions. I have made my decision. I am not suggesting violating the law, but there does come a time where unconstitutional laws have gone too far. It’s up to the individual to decide if they are going to exercise their God given right to self defense, or follow the law because the chances of ever needing a firearm are pretty low. Both sides are equally valid and as gun owners we should respect people’s decision no matter what side of they have chosen.
-resident of Los Angeles, CA
anon24 – A conviction for violating California Penal Code 626.9 which generally prohibits possession of a handgun within 1,000 feet of a K-12 public or private school results in a ten year ban on one’s right to even possess a firearm. See PC 29805.
Perhaps in the future you will remain silent and risk being thought a fool rather than speaking and leaving no doubt.
PENAL CODE – PEN
PART 6. CONTROL OF DEADLY WEAPONS [16000 – 34370] ( Part 6 added by Stats. 2010, Ch. 711, Sec. 6. )
TITLE 4. FIREARMS [23500 – 34370] ( Title 4 added by Stats. 2010, Ch. 711, Sec. 6. )
DIVISION 9. SPECIAL FIREARM RULES RELATING TO PARTICULAR PERSONS [29610 – 30165] ( Division 9 added by Stats. 2010, Ch. 711, Sec. 6. )
CHAPTER 2. Person Convicted of Specified Offense, Addicted to Narcotic, or Subject to Court Order [29800 – 29875] ( Chapter 2 added by Stats. 2010, Ch. 711, Sec. 6. )
ARTICLE 1. Prohibitions on Firearm Access [29800 – 29830] ( Article 1 added by Stats. 2010, Ch. 711, Sec. 6. )
29805.
Except as provided in Section 29855 or subdivision (a) of Section 29800, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, paragraph (1) of subdivision (a) of Section 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, or 830.95, subdivision (a) of former Section 12100, as that section read at any time from when it was enacted by Section 3 of Chapter 1386 of the Statutes of 1988 to when it was repealed by Section 18 of Chapter 23 of the Statutes of 1994, Section 17500, 17510, 25300, 25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, or Section 27510, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in subdivision (c) of Section 27590, and who, within 10 years of the conviction, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.
(Added by Stats. 2010, Ch. 711, Sec. 6.76. Effective January 1, 2011. Operative January 1, 2012, by Sec. 10 of Ch. 711.)
Not particularly interested in most Californian’s ideas on “moral turpitude”. Both Open & Concealed Carry should be legal. I prefer to conceal for a number of reasons (social & tactical) but think Open Carry should be legal and is sometimes appropriate. This article is idiotic.
I like your screen name, and know what it means. Would you really want someone to take you up on it?
Open or concealed how you carry really should not be anyone’s concern but their own. What is a concern to everyone is what the person in possession of that guns plans to do with it. I personally choose to conceal because I don’t care to make weapon the focal point of of my presence. I don’t have some dream of one day drawing from behind cover, my concealed weapon and holding off a gang of would be attackers while young nubile women cower behind me. That is not even close to why I carry. I choose to carry a gun for two reasons. One of the reasons is to defend my life and personal property. The other reason is to defend anyone who is with me. Open or concealed should not matter to anyone. Because the only time my weapon becomes part of the sittuation is if someone has forced me to make a critical decision to stop a threat within the bounds of what is legally and morally acceptable. I liken a personal defense handgun to a fire extinguisher or a pocket knife. Sure the fire extinguisher may save your life but it is not putting out a raging inferno. Sure a pocket knife can skin a deer or cut some rope, but it is not a meat clever or machete. I don’t think anyone cares how I transport my knife, so I don’t see the big deal with my concealed handgun.
1) The California Court of Appeals published a decision which held that concealed carry in a vehicle is a crime of moral turpitude.
2) I publish this article which disagreed with the court’s decision.
3) I am attacked by the proponents of concealed carry (who almost invariably oppose Open Carry).
This folks is yet more proof as to why concealed carry should be illegal.
http://CaliforniaRightToCarry.org
Charles I personally am not attacking you, nor do I infer that others are- they are simply disagreeing with some of your reasoning. I have read your posts in other forums, and the general impression I get is that you are taking criticisim too personally. Just my $0.02 and YMMV.
You do a lot of good on your blog keeping everyone up to date. If you tone down your rhetoric replying to critics, you will go a long way to overcoming people’s concern about practicing law as a lay person.
IAB2 – You can tell more about a person from whom his enemies are than you can tell by whom his friends are.
My enemies are all wankers, and I revel in their animosity. I have no desire to placate them.
Hightower v. City of Boston, 693 F. 3d 61 – Court of Appeals, 1st Circuit (2012)
“Under current Supreme Court precedent, Hightower cannot make out her Second Amendment claim as to the concealed weapon aspect of her revoked license, as she must for her as-applied challenge to succeed. Under our analysis of Heller, as follows, the government may regulate the carrying of concealed weapons outside of the home.
In Heller, the Court explained that “the right secured by the Second Amendment is not unlimited” and noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues.” 128 S.Ct. at 2816. We have interpreted this portion of Heller as stating that “laws prohibiting the carrying of concealed weapons” are an “example[] of `longstanding’ restrictions that [are] `presumptively lawful’ under the Second Amendment.” United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009) (quoting Heller, 128 S.Ct. at 2816-17 & n. 26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (observing that “the first 10 amendments to the [C]onstitution” protect rights that are “subject to certain well-recognized exceptions” and stating, in dicta, that the Second Amendment right “is not infringed by laws prohibiting the carrying of concealed weapons”).[9] Licensing of the carrying of concealed weapons is presumptively lawful, and Hightower makes no serious argument to the contrary.” Id at 73-74.
Kachalsky v. County of Westchester, 701 F. 3d 81 – Court of Appeals, 2nd Circuit (2012)
“Notably, Chandler and Reid conflict with Plaintiffs’ position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained:
Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1.” Id at [fn 13]
Drake v. Filko, 724 F. 3d 426 – Court of Appeals, 3rd Circuit (2013)
“New Jersey’s longstanding handgun permitting schema is not an anomaly. Many recent judicial opinions have discussed historical laws regulating or prohibiting the carrying of weapons in public. See, e.g., Peterson v. Martinez, 707 F.3d 433*433 1197, 1201 (10th Cir.2013) (“extending” the recognized Heller exceptions to cover regulations on the carrying of concealed firearms, stating that “[i]n light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections”).” Id at 433
Woollard v. Gallagher, 712 F. 3d 865 – Court of Appeals, 4th Circuit (2013)
“The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having “good and substantial reason” to do so. Necessary to the entry of the court’s injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland’s good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F.Supp.2d 462 (D.Md.2012). Because we disagree with the court’s conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment.” Id at 868
National Rifle Ass’n v. Bureau of Alcohol, Tobacco, 700 F. 3d 185 – Court of Appeals, 5th Circuit (2012)
“From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues …. [N]othing in our opinion should 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.” Id at 193
National Rifle Ass’n of America, Inc. v. McCraw, 719 F. 3d 338 – Court of Appeals, 5th Circuit (2013)
“For example, the Court said, “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”” Id at 346
Moore v. Madigan, 702 F. 3d 933 – Court of Appeals, 7th Circuit (2012)
“And a state may be able to require “open carry” — that is, require persons who carry a gun in public to carry it in plain view rather than concealed. See District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783…” Id at 938
US v. Fincher, 538 F. 3d 868 – Court of Appeals, 8th Circuit (2008)
“[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Id at 873
Peterson v. Martinez, 707 F. 3d 1197 – Court of Appeals, 10th Circuit (2013)
“With respect to Peterson’s claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause.” Id at 1201
Heller v. District of Columbia (Heller II), 670 F. 3d 1244 – Court of Appeals, Dist. of Columbia Circuit (2011)
“The Court identified other historical limitations upon the scope of the right protected by the Second Amendment. For example, it noted “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”” Id at 1252
Peruta v. County of San Diego, 742 F. 3d 1144 – Court of Appeals, 9th Circuit (2014) (vacated)
“To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry.” Id at 1172.
“The majority’s first — and crucial — mistake is to misidentify the “conduct at issue.” Chester, 628 F.3d at 680. The majority frames the question as “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.” This is certainly an important issue, but it is not the question we are called upon to answer. The Plaintiffs are not seeking a general license to carry firearms in public for self-defense — they are seeking a license to carry concealed firearms in public.” Peruta dissent at 1181.
“Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase’s Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry.” Peruta dissent at 1195
Note that it is “the Second Amendment right recognized in Heller” which is binding on all states and local governments via the McDonald decision. Not the imagined right to carry concealed which the Supreme Court in Heller clearly states is not a right under the Second Amendment.
http://CaliforniaRightToCarry.org
Holy fkn sht, you all, type alot of stuff. Not just Charles, but all yah alls.
The author seems to be correct, as far as the legal stuff goes. However, he seems to imply that he agrees with courts and theories that say concealed carry in public is unethical per se. Obviously, concealed carry in public is adiaphorous per se. He’s as anti gun as the anti OCers. As if it matters how people peaceably carry a weapon. Luckily, 9 states now have dispensed with the mythology, with Idaho as the latest. 41 more to go!
stateisevil – I have a Federal lawsuit seeking to overturn California’s Open Carry bans. Thirty or thirty-five years ago I had a law professor who told me that the only thing better than having 100 years of legal precedents on your side is to have a recent appellate decision upholding those 100 years of legal precedents.
He also said that the law means what judges say it means.
With Heller, McDonald and now Caetano decisions (not to mention the various post-Heller Second Amendment decisions on concealed carry), I now have three SCOTUS decisions upholding 300 years of legal precedents.
As a matter of law and fact, it is the so called gun-rights groups fighting for concealed carry who oppose the Second Amendment.
http://CaliforniaRightToCarry.org
After reading all this I understand why nothing can get passed in congress. We all wanna eat but were going to argue peas or carrots until we starve.
Wow…And I thought the GOP was floundering…I guess we don’t even need the Gun Control/Anti -2nd amendment crew to damage, or “reason away” our civil rights, and liberties. We have arm chair lawyers doing it…Are we all going to unify one day, and take back liberty before all is lost…? To “Creeping Incrementalism. “
Well, Id like to debate with you on that, but I kaint use big wurds or spel good nuff to
So im a bit confused it would seem. Heller, an opinion written by a textualist, seems to have found some portion of the text in the Second Amendment which provides for the infringement of concealed carry?
Perhaps someone could point to the relevant portions of the text which indicate which methods of carry are the ones that are not to be infringed.
Or perhaps, case law, in this instance, like in virtually all case law, represents an attempt by statists to increase their power by subverting the rather plain meaning of the text.
I wonder which one it is? So confusing…
Jason – Carriage is a binary thing. Either your firearm is visible from a person approaching you or it isn’t.
The Heller decision said that Nunn v. State, 1 Ga. 243, 251 (1846) and State v. Chandler, 5 La. Ann. 489, 490 (1850) perfectly captured the meaning of the right of the individual to keep and bear arms. Even Alan Gura doesn’t claim that the Heller decision says that Open Carry can be banned in favor of concealed carry. Gura’s claim is that Nunn, Chandler and the other cases cited by Heller in support of Open Carry being the right are meaningless dicta, that states can choose concealed carry over Open Carry if they want to. What Gura and the other lawyers for the proponents of concealed carry failed to provide were any legal citations or historical authorities supporting their Orwellian reading of the Heller decision.
You won’t find salvation for concealed carry in Heller, McDonald, Robertson or any Federal or State decision published before Heller and McDonald. Not in the United States and not in English common law leading up to 1791 when the Second Amendment was enacted.
Justice Scalia said that the Second Amendment meant what the voters in 1791 and 1868 said it meant when the Second Amendment and Fourteenth Amendments were enacted.
There are no court decisions which held that concealed carry couldn’t be banned without violating the Second Amendment and every court, state and Federal, held that concealed carry could be banned without violating the Second Amendment.
You are mistaken in saying that the framers of the Second and Fourteenth Amendments were statists. Just as you are mistaken in saying that there is a general right to carry concealed weapons in public.
Given that you are dismissive of case law, feel free to provide citations to any historical authorities from 1700 onward which supports your claim that the Second Amendment guarantees a right to generally carry weapons concealed in public.
http://CaliforniaRightToCarry.org
Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
http://CaliforniaRightToCarry.org
Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned and should be because of all the morons in this world who read the following to mean that Open Carry can be banned instead of concealed carry. Illiterate morons should not be allowed to even possess a firearm.
http://CaliforniaRightToCarry.org
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
“The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant’s innocent intent does not make a concealed weapon any more visible.” People v. Mitchell, 209 Cal. App. 4th 1364 – Cal: Court of Appeal, 4th Appellate Dist., 1st Div. (2012) at 1371.
“But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851
“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) at 3050.
Notice that Open Carry is the “Second Amendment right recognized in Heller which applies to all states and local governments. Heller made it perfectly clear that concealed carry is not a right. Anyone who reads Heller or McDonald as recognizing a right to carry concealed weapons in public should not be allowed anywhere near a weapon of any kind.
Your funny, and have somehow entirely missed the point.
All of your above cited case law and opinion based on the understanding at the time, ignores the simple text of the 2nd and simply indicates that you are more than willing to play ball on a statist court. If you play ball on their court with their rules and submit to the judgements of their officials, then you will lose every time. That is in fact the very underpinning of statism: they make the rules.
Your acceptance of the very idea that your ability to defend your life from violent attack should be subject to the political whims of the imperial 9, or 8 at the moment, means you have indeed been drinking too much of the cool aid.
Perhaps these will help:
http://www.amazon.com/gp/aw/d/B001P30BQE/ref=mp_s_a_1_1?qid=1459288046&sr=8-1&pi=SX200_QL40&keywords=knee+pads&dpPl=1&dpID=41wKT0s20iL&ref=plSrch
Jason, very courageous. Relying on the 2d amendment as being absolute on its face is an outstanding position to take. Time to put all these internet commandos, lefties and statists in their place. Thinking that implementing your philosophy would be like a military campaign, here’s a recommendation for tactics (strategy is to successfully ignore court rulings). First, write letters to the chief law enforcement officer in every jurisdiction, from lowest all the way to US Attorney General (please provide copies of proof of receipt). Then, in a place where it is illegal to possess a concealed weapon (gun), approach the first LEO you can find and state that you are carrying a concealed weapon/gun and challenge the LEO to enforce existing law prohibiting concealed carry (please provide a copy of your arrest record, along with a copy of the court docket scheduling your trial). Next, endure the trial for violating existing law (please provide transcript). And from there, notify this blog of each step of the appeal, up to SC (please provide official record of verdict at each court level). Last, provide a copy of your intake process at whichever facility the relevant department of corrections puts you in.
Defiance of(and punishment for) unjust and unconstitutional laws is the hallmark of the true individualist.
And upload the videos of your confrontation and arrest with the police to YouTube.
I don’t break the laws, nor do I encourage others too. Your attempt to stereotype is a bit of a fail. I’m simply saying, and I’ll attempt to use language even more simple than that of the 2nd, so that everyone can understand it:
Your right to keep and bear arms is protected by the plain text of the Bill of Rights. If you want a restricted 2nd then change the text of the amendment to include the restrictions that you feel are needed.
Anything else is elitist statist gamesmanship. To deny this is to fail to understand the basic concept that words have meaning. The rational that only open carry is protected is walking down the anti-gun road along with Bloomberg, simply at a different pace and for a lesser distance. In other words: Your preferred flavor of tyranny.
Not at all. You need a more realistic understanding of living in a society, bound by agreed upon laws. There are no, as in zero, absolute laws under the constitution (leaving room here for religious and other moral precepts for which their may be absolutes). The constitution was never established as, nor can anyone proficient in the English language imagine it so, as absolute ruling of the nation. If such had been contemplated (nothing in the documents surrounding the founding have been found to say so) the founders were quite competent and capable of phrasing the document as to require an automatic death sentence for anyone who deigned to change one jot or tittle; the founders did not. Indeed, they established a court system to settle disputes, knowing there was no mandate within the constitution that was absolute or inviolate regardless of realities of living amongst other humans. One only need look at the amendment process to see that the founders knew absoluteness was not possible, and not even an honorable goal. Like the second amendment, none of the provisions of the constitution are safe from legislative modification (as you suggest). But one interesting extension of your unilateral decision to act as if any part of the constitution is absolute, under your theory of anarchy even, and especially, incarcerated prisoners (in whatever level of crime) must be allowed to possess deadly weapons for self-defense. If that not be so, then one must find legal grounds, under the absolute 2d amendment for carving out this one exception. The result of the carve-out is plain admission that 2A is absolute only when you find personal profit for it to be so, and circumstantially not absolute when it suits your purposes. You see, “the people” nominated in the constitution includes all breathing human residents of the nation. Therefore, criminals (in jail or not) are part of (we the people).
“Absolute” cannot be conditioned upon anything,
Nice try Sam I Am –
However no amount of wiggling or squirming will justify the mockery that the courts have made of the English language.
Your example with respect to prisons representing a “carve out” is invalid for several reasons. First, the plain text does not allow for it. Every living being should have certain rights including the convicted and not just because various documents say so.
Prisons are nothing more than a twisted tool for enforcing a “Christian” morality upon those who behave poorly, a failed tool at that. The penitentiary, with its root having the same meaning as repentance, was supposed to reform criminals. Interestingly, this “extra-scriptural” remedy is no where to be found in the Bible. The ancient Jews had no prisons. Those who did wrong had to make amends. For example a thief had to return what was stolen plus a penalty. As for incorrigible recidivist, they dealt with them by taking them to the public square and introducing them to a pile of rocks. Once Christianity had taken hold, the tool of preference was that of excommunication. In either case, those professing to adhere to Jewish law or Christian law followed the text of the law. Stuffing someone into a hole for years and years would never have been sanctioned as it is “cruel and unusual.”
We on the other hand have made an unworkable irreconcilable mess of nearly everything, especially our criminal justice system, by pretending that the words used in our laws don’t mean what they say and need to be interpreted by the wealthy and powerful and various special interests. Your post above simply indicates that the statist already have you thinking on their terms. That’s more than half the battle.
What I said was, either the second amendment is absolute, or it is not. In order to be absolute, there can be no conditional element. If it is absolute, and the wording has no exception-based language, then it is absolute, all the time, everywhere in the country. If one is allowed a carve-out exception, then all are allowed to have a carve-out of their liking. Based on the common agreement among people to develop societies, and those societies to develop governing institutions, whatever attenuations to the laws of society the society provides are legitimate for that society. In our society, courts are the agreed institution to determine if and how a law applies. Otherwise, chaos and anarchy (which is the prevailing condition when individuals determine they alone are the final arbiter).
So back to the original proposition, 2A is absolutely absolute, or it is not. Any allowed exception, no matter how little, no matter why, renders “absolute” moot. Then it is a matter of opinion, either of the majority of voters (in the US), acts of the legislature (again a majority opinion), or court decisions (again a majority).
FWIW, I think words mean what they mean, as written. 2A is absolute, no exceptions of any kind at to what, when, where. The law, however, is subject to our courts because we as a society agree to allow the courts to be the final authority. If we, as a society, via majority vote, want to change any law so that the courts and legislature can never alter them, we, the voters can force such change. Until then, we have what we have,
Then we mostly agree, except the part where we as a society somehow “agreed” to allow the courts to redefine the meaning of words. I would submit that this process has never been acceptable but has simply evolved incrementally over time. Courts should never be allowed to force an outcome upon a law whose text does not support it. Laws, amendments, and the like, that are deemed to be inadequate for one reason or the other should be sent back to the legislature for revision. There is a lawful process that quite clearly spells out the means by which this can take place. This is the only was to maintain the appropriate separation of powers indicated in the constitution. Failure to abide by this fundamental principle is precisely the reason why we find ourselves in a land of nearly innumerable infringements, and not only of the 2nd.
We as a society “agreed” to let courts be the final authority because “we” did nothing to end the practice. Unlike that taught in school, “we” is not “the people”. “We” is the majority of voters (not eligible voters). Congress is delegated in the constitution to determine how many federal courts exist (but only one Supreme Court). Congress also has the power to restrict the jurisdiction of whichever courts they create (Congress can declare some issues not reviewable by courts (including the Supreme Court). When Congress allowed Marbury v. Madison to stand (SC’s first assertion that it was the final arbiter of law), “we” the voters at that time, and since did not force our representatives to act by restricting the SC (where the final “say” would have ended-up is a marvel to contemplate). Coming forward from M v. M, “we'” the voters have not required Congress to change the game, either. Thus, “the society” (as represented by the majority of the voters) agreed that the courts were the determiners of law. We agreed through acquiescence (as we continue to do today). Being a law-respecting society, we are now bound by our own inaction to follow the laws as they stand. Our choices now are two: elect representatives who will put and end to “acquiescence” by changing the way the game is played; armed rebellion and installation of a government responsive to the will of the new national majority.
So, we disagree about whether or not courts can “rule” (current law permits that). When we agree about the plainly absolute wording of 2A, we agree that any breathing human in the jurisdiction of the US may possess any weapon wanted by that human, regardless of whether a convicted felon, currently incarcerated, or suffers any other condition. The weapons shall not to be restricted in manner or cost. There can be no exceptions for any reason imaginable by humans, or even weapons that come to exist that are currently not imaginable by humans. Now…..how do we get us there?
To “agree” is an affirmative action, therefore you cannot agree by virtue of inaction, especially so in the case of inaction enforced at the point of a gun, which as a side point is what all state authority boils down to. Apart from that semantic difference, your final question stands valid. Sadly, I fear we are well beyond the event horizon. I guess we’ll know more in November.
To agree by taking no action, is an action to discard objection (which is captured by the word “acquisce”). Refusing to stop someone from taking an action, is also an action. An action of the will not to resist (failure to resist a known overreach is never accidental”). There is no way to avoid our responsibility for allowing a condition do exist by simply not making a decision (“no decision” is a decision to not take an action). As a society (represented by a majority of the voters), we took the action to decide to willfully do nothing.
Not seeing any historical example of a nation pulling itself from the brink of decline, unless by revolution (and most are unsuccessful).
Jason – It’s “you’re” not “your.”
I now understand your confusion with the Second Amendment. Words have meaning and you have trouble with words.
I can’t help you with that.
Wow! You got me, or that is to say you got iPhone autocorrect. Scoot over so I can get on my knees as well.
What perhaps most strikes me about this posting is the utter lack of consistent rational thought. The fact remains that law abiding people whether they be armed or disarmed, whether any such armament be concealed or openly displayed, constitute no threat to other law abiding people. Criminals, on the other hand, will break any such laws prohibiting the “criminal” use of weapons. Since, both groups are self-selecting, the entire debate is rather stupid, and laws that attempt to address “criminal possession” accomplish here, as elsewhere, absolutely nothing, and yet some of you still support such laws.
Between the “Demo-Progressive-Liberals” and the “Republican-Fascist” there is little wonder that our civil liberties have been eroded to the extant that they have. I find it truly fascinating that for my entire lifetime and in fact many decades in advance of that there has not been a single SCOTUS justice that actually supported all of the constitution as it is written. There has always been one or the other of the amendments that needed to be interpreted as meaning something other than what they actually said.
And lastly, Moral Turpitude, really? Morality is the direct descendant of religion, something that I was rather of the opinion our government was not supposed to be making judgements about. What happened to the pursuit of life, liberty, and property?
Jason – Your (notice the correct usage of the word “your”) posting does exhibit the utter lack of consistent rational thought you attributed to it.
It isn’t surprising that you are dismissive of morality, such is the nature of concealed carry proponents. But, if your (notice the correct usage of “your” again) implication is that an atheist cannot be moral, I suggest that you read the works of Ayn Rand.
Seriously, can you read? Your comprehension is exactly what I expect from a student of our state sponsored indoctrination facilities more commonly referred to as public schools. I said nothing about atheists. I said nothing about the religious. I simply stated the obvious, that our government has no business making moral judgements since our highest laws clearly forbid the adoption of any particular religions “morality”, which you might notice varies greatly from religion to religion. The idea that a “concealed weapon” is by its very nature somehow immoral is patently absurd on its face. Should we ban all pocket knives as well? What about pens and pencils, very pointy, clearly dangerous items.
Your latching onto a “typo” in an attempt to somehow validate your argument is truly juvenile. I assure you it adds nothing of substance, but rather betrays the lack of a meaningfully coherent thought process.
That fact of the matter is that your comments betray what is apparently an insatiable desire to control the actions of others. Therefore, you sir are a “statist” at heart. You do not believe in Liberty for All. You believe in the control and subjugation of others and the imposition of your brand of “morality”.
You and those like you are the reason that the USA will never be the “Land of the Free”, because the truth is you just can’t bear to let others live their lives as they see fit. You need to “save them from themselves” because you know best. I can think of no better way to describe those who truly hate Liberty.
Fortunately, for the time being, most of the nation disagrees with you and permits concealed carry either with or without a license, not that I imagine that fact will have the least impact on your brand of morality.
Jason – I understand you just fine. Tell the class which is more effective at keeping the voices out of your head, tinfoil or aluminium foil?
https://upload.wikimedia.org/wikipedia/en/f/f3/Tin_foil_hat_2.jpg
https://fishofgold.files.wordpress.com/2014/06/1396489816894.jpg
As with your other article/comments, I disagree with the premise regardless of how well supported it is or isn’t by case/common law, that concealing a weapon with no ill intent or employing a concealed weapon in your defense is somehow immoral, “unmanly”, criminal, evil, etc. There is no effective difference between being attacked by someone with an openly carried weapon or concealed weapon and there is no effective difference between defending yourself with an openly carried or concealed weapon. I can’t believe I’m saying this, but the premise of this argument is like the ultimate form of victim blaming; it is practically saying “he is at fault for the attack and criminally and morally culpable because he defended himself from attack with a concealed weapon.” It defies all logic.
Mudshark’s comment from above bears repeating as well.
“Much talk..” And George Washington retrieved his pistols from his saddle bags,” kinda like retrieving your pistol from the glove box.”
Perhaps you missed the part where I pointed out that George Washington did not simply pull his pistol out of his saddle bag and shoot the guy? Washington’s would be assailant was given fair notice of the consequences of his threatened act by Washington.
It has become clear that most people, even those raised on the Internet, haven’t a clue as to how to find out what history was really like from contemporaneous books as opposed to their unsubstantiated beliefs.
To that end I have started a page at my website with links to historical legal books. I suggest that you start with A Treatise of the Pleas of the Crown from 1716 and work your way forward.
http://blog.californiarighttocarry.org/?page_id=4204
I did not miss that part and I fail to see the difference. The weapon was concealed until produced with the intent to use it. It doesn’t matter if he vocalized his intent to use it or have it used by someone else, it was still concealed up until the point it was produced with violence in mind, which is the no bueno part according to the argument you have thus far advanced.
I make no claims as to what history was like or the authenticity of your sources, I merely argue that the premise of this whole line of argument you present is poor regardless of how well supported your argument may be historically or legally.
I think you make an interesting argument. I simply have problems with it such as described above and the wisdom of a strategy that would unnecessarily paint us into a corner.
Matt – In 1791, when the Second Amendment was adopted, if one were to walk up to another person while openly carrying a sword and then suddenly draw the sword and kill that person without first giving him a chance to defend himself then one was guilty of murder.
Today’s proponents of concealed carry say that one of the reasons that they prefer concealed carry is because of the “tactical advantage” of surprise.
In 1791 and the other crucial year in American history when the 14th Amendment was adopted, 1868, surprise attacks were immoral and criminal.
Surprise attacks will always be immoral regardless of how many states legalize concealed carry.
The reason why you cannot see the difference is no doubt due to a lack of morality on your part as well as cowardice.
Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.
“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809
“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.
http://CaliforniaRightToCarry.org
“Matt – In 1791, when the Second Amendment was adopted, if one were to walk up to another person while openly carrying a sword and then suddenly draw the sword and kill that person without first giving him a chance to defend himself then one was guilty of murder.”
I don’t see how you wouldn’t be guilty of murder even giving someone a chance to defend them self in that scenario. At face value you described unprovoked and unjustified violence. Reading into your comment more, the way you approach this is like it is from some idealized and nostalgic idea of all men being upstanding and honorable. Where these sorts matters that were questions of honor and integrity were settled as gentlemen with a duel. Yea it happened like that sometimes but you ignore the rest of reality, the part the contains the murders, robbers, rapists, arsonists, marauders etc.
But it must be my lack of morality and utter cowardice that makes me not see things your way. Maybe it’s because I lost my testicles somewhere next to the gun in my purse.
You aren’t winning any allies by alienating those trying to have a genial discussion with you.
@Matt…
I am responding to you because I don’t want Charles to read and respond.
My understanding of the basic theory of the suit being restricted only to open carry is that, regardless of the society contemporary to 1791, the case law from then to now calls out only open carry of a weapon to be protected under the second amendment. The cited decisions are based on the society extant circa 1791, and however we like that, or don’t, if the courts continue to rule based on the norms of 1791, reinforced by multiple court rulings since, then a win for open carry will open a Pandora’s box of problems for concealed carry. Maybe not all at once, but an SC ruling that only long guns are covered by 2A will be too attractive for states and municipalities to leave current concealed carry laws in place. Indeed, many more businesses may begin to post No Guns in their stores, and if only open carry is legal, then gun carriers will be easily identifiable as trespassers. While I support any SC decision that smacks the federal government in the face, a win for Charles will introduce an even more entertaining venue of political farce.
Jeez what a blowhard. Stop being such an ass.
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