The California Rifle & Pistol Association writes [via ammoland.com]:
On Thursday, January 12, NRA and CRPA attorneys submitted a petition to the United States Supreme Court to review the NRA and CRPA supported case of Peruta v. San Diego.
The case made history in 2014 when a 3-judge panel of the Ninth Circuit held that the San Diego County Sheriff’s restrictive “good cause” policy for the issuance of a concealed carry license violates the Second Amendment.
But shortly after that decision, the Ninth Circuit took the rare step of deciding to rehear the case by an 11-judge “en banc” panel who overturned the 3-judge panel opinion last June. The Petition explains it all. Give it a read!
But now the tides have changed. As a result of the NRA’s efforts in the November election, there has never been a greater opportunity to protect the right to keep and bear arms in California and throughout the United States.
And with President-elect Donald Trump set to nominate at least one if not several pro-gun judges to the Supreme Court, NRA and CRPA are working hard to make “shall-issue” a reality in California. In addition, several new NRA/CRPA lawsuits will soon be launched against Proposition 63 and the seven new “Gunmageddon” anti-gun bills signed into law this past year.
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About CRPA
The California Rifle & Pistol Association (CRPA), founded in 1875, is a nonprofit 501 (c)(4) membership and donor supported organization. CRPA employs staff in Fullerton and Sacramento, works with hundreds of volunteers across the state, and is controlled by an independent Board of Directors. Some of CRPA’s non-profit efforts are funded through CRPA’s sister organization, the CRPA Foundation (CRPAF). CRPAF is a 501(c)(3) organization, so contributions to the CRPAF are tax deductible.
We have 114 vacant federal bench seats.
One SCOTUS, two 2nd Circuit, two 3rd Circuit, three 5th Circuit, one 6th Circuit, two 7th circuit, two 8th circuit, FOUR 9th Circuit, and one 11th Circuit Court of Appeals seat. And six on the Court of Federal Claims, which is where you have to go to sue the feral government.
If Trump chooses wisely, 24 judicial appointments can go a long way towards restoring the Constitution. Four judges can practically turn around the 9th Circus, and maybe it will no longer be the most overturned circuit court in the country after a few years.
http://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies
4 would help in the 9th circuit but there are 27 or so judges on that circuit and there are a TON of clinton nominees there. Obama has quite a few too but we need those clinton ones to retire.
45, there are 45 judges on the 9th circuit.
45? So four open seats is just normal attrition?
Those are just the current vacancies. If Trump gets two terms, he will have the opportunity to appoint about 400 Federal judges.
If we’re lucky, some of them may actually follow the law. The rest will be little tin gods and goddesses legislating from the bench.
Congress should pass an act to allow at least 10 more SCOTUS justices to be appointed. 9 people (or 5, really) have way too much power.
Oh, wow, that would be a dirty trick worthy of the Democrats! Change SCOTUS from 9 to 19, then let Trump nominate 10 additional judges, besides the one he is already nominating, a clear majority all nominated by the same prez. The Dem party would be decimated by heart failure, after being universally deafened by prolonged exposure to screeching.
The timing of this does not look great. A new justice needs to get nominated, confirmed, appointed, and up to speed before this goes to conference. I think that timing will be very tight. A lot depends on how long it takes to confirm a new Justice.
Keep in mind, your average cert petition has about 70/10000 odds of being granted.
The petition does have a fairly good chance to be granted as it points out the complete mess of the decisions in the various circuits, including two that refuse to recognize a second amendment right “to bear” outside the home at all, and one, the Ninth, which implies (but does not expressly hold) that the only right is for open carry outside the home. The actual holding was that there is no right to concealed carry, and leaving to another day the question as to whether there is a right to open carry (which is essentially illegal in San Diego County and all cities and towns in California). It will be “interesting” to see how the Ninth wiggles out of declaring a constitutional right to open carry of loaded firearms (or re-imposition of California’s prior open unloaded law), as there is a case pending now in which that issue is directly raised.
The issue of the vacancy in the Supreme Court bench is not a strong factor in the timing: cases which are granted cert take many months to brief when all of the amici on both sides of the question weigh in. And it is likely that a new justice will be seated prior to oral argument, which s the only important thing.
FedUp, I’m sure it was a typo, but I love the “sue the feral government”.
Somehow it seems a more fitting moniker.
No typo, I’ve been routinely spelling Federal with five letters for several years now as an open admission that a creature once under man’s control has gone feral and turned against us.
To RF, et.al:
Lets try a new habit I’ve adopted for myself. We all agree that our rights under the Second Amendment are an extension of our natural, fundamental, and civil right of self-defense.
The oldest civil rights organization in the United States is the National Rifle Association.
We refer to ourselves regularly as “pro-gun” and our adversaries as “anti-gun”, but would it not behoove us to refer to both at every opportunity as “pro-civil rights” and “anti-civil rights” respectively?
We’ll never win over any of the bigots (and what better adjective for them?) to our side, but constantly reminding the fence-sitters on the issue of where we’re coming from on this matter can only help further our cause by framing our opponents arguments for what they actually are: bigotry.
I think you are on to something here. By constantly illuminating the issue of gun rights as in fact a civil rights issue in which permission from the govt need never be mandatory, and comparing how ludicrous that proposition sounds in the context of all our civil rights, could start to melt some of the stone hearts that occupy the middle ground on this issue.
I support it, and that’s how I will address this in future.
We are “pro-civil rights” people whereas they are “anti-civil rights” bunch — yes, sir, you have hit the nail on the head.
bLoving- “The oldest civil rights organization in the United States is the National Rifle Association.”
That is not a an accurate statement. I don’t know how what the oldest civil rights org in the U.S. is, but NRA is in no way a civil rights organization. At this point NRA is not for practical purposes run by the elected board, it is run by unelected staff who make the day to day decisions as to which legal cases to support or fail to support.
NRA has been described as “a fund-raising organization that is concerned with gun rights.”
The most important 2nd Amendment case in seventy years is possibly McDonald v. Chicago. McDonald was initially funded and advanced by Alan Gottlieb & SAF, not NRA. After attorney Alan Gura got to the Supreme Court in 2010, NRA interfered with Gura’s case by hiring insider former Solicitor General Paul Clement to barge into the McDonald case months before the hearing. Clement stole ten minutes of Gura’s thirty minute oral argument time in front of SCOTUS.
Illinois was the last state in the union to adopt some form of citizen carry after a FIFTY YEAR prohibition. When the 7th Circuit U.S. Federal Appeals Court in Chicago totally overturned Illinois’ UUW concealed weapons law in 2012, it was NRA contract lobbyist for Illinois Todd Vandermyde who placed Duty to Inform w/ criminal penalties in state Rep. Brandon Phelps “NRA backed” concealed carry bill, NOT Chicago Mayor Rahm Emanuel.
NRA, Inc. is the org that used and betrayed Otis McDonald. Chris Cox & Chuck Cunningham at NRA/ILA pay Vandermyde by 1099, and they let him backstab Otis and twelve million people in Illinois. NRA is a corrupt and degraded front filled with rats that collude with police unions to promote the legal infrastructure for a criminal police state where armed citizens can be executed at will.
NRA is in no way a civil rights organization.
The en banc decision in Peruta was an abomination. SCOTUS should reverse, but that’s not enough. No human right will ever be safe until the 9th and the rest of the far left Federal judicial system is completely reorganized and the snakes are driven out forever.
Doesn’t Congress have authority to impeach federal judges? It would seem that judges who routinely ignore the Constitution should be ripe for impeachment.
Legislators are not heavenly saints. They see violations of the constitution as completely situational, and through the lens of what action will get them re-elected. Since “rights” are rather subjective (depending on who writes the law and who interprets the law), and elections are the key to the river of money, the hope that someone will just do right because it is right is futile. Politicians are lawyers first, swindlers second.
At this point in time, I don’t see this as something we want to do until we can be reasonably certain of the political reliability of Scalia’s replacement…
Given the primacy of the gun rights debate in the election cycle, and the support of Trump by the NRA, we can be reasonably assured that any candidate will have been vetted by the NRA for his 2A credentials.
We still have to be concerned with Kennedy’s wishy-washy-ness on the 2A.
It’s risky. Consider this: Suppose SCOTUS rules there is an individual right, but not for anyone deemed potentially violent.
Get into a shouting match at work with a co-worker, you are deemed potentially violent.
Imagine the kind of laws the Left will gleefully craft to deem someone ‘potentially violent’…
That won’t really happen here, where the issue is, “is there a right for law-abiding individuals to carry a firearm in some fashion for self-defense outside the home.”
Isn’t the question actually whether a person has a right to carry a gun outside the home, in any manner the person chooses (open or concealed carry)?
We will continue to stand up for the 2nd amen. It ill not be fast nor will it be easy, but we are on our way.
I think the SCOTUS schedule of hearings has been set for the remainder of the current session. Time is available to get a nominee approved. However, it will take at least a new, full session to determine if Scalia is reincarnated (might have a vague idea of how the new justice will lean.
The next session of the SC will begin in Oct of 2017. Which may or may not allow Peruta to be on the docket. Even if….what is new about Peruta that was not decided by Heller and McDonald? States and divisions are allowed to install “reasonable restrictions” on firearms outside the home.
Regardless of the fate of Peruta, the SC will never declare the second amendment (or any other) to be completely and totally “absolute”. There will always be “acceptable” restraints on the rights of the people.
Contrary to popular, and perhaps his own, opinion, Scalia was not a god, nor was he infallible.
“…what is new about Peruta that was not decided by Heller and McDonald? States and divisions are allowed to install “reasonable restrictions” on firearms outside the home.”
What is new is that there mat be an opportunity for SCOTUS to finally rule that “reasonable restrictions” and “infringed” are in fact synonyms.
Scalia was a close as you can ever expect to rule in strict accordance with the wording. Finding a new Scalia, and persuading four other squishes to take a stand is prospecting for fool’s gold.
Heller and McDonald both involved possession of a working firearm in the home, and although there was much discussion as to whether the core right extended outside the home, the issue was neither presented nor decided by the Supreme Court. As a result, the various circuits are all over the map as to the right to “bear,” arms, Massachusetts going so far as to declare that Heller was limited to “in the home,” that there was no right to bear arms outside the home, and if Heller had intended to say so, it had to say so more clearly. By contrast, the Seventh Circuit most pointedly held that there was a right to bear, meaning outside the home, and that Illinois had to provide some method for allowing citizens to bear arms, leading to Illinois’ shall issue system enacted by the Legislature to avoid a de facto “constitutional carry” right being implemented by the elimination of the carry ban. California merely held that there was no right to concealed carry, specifically and pointedly ignoring California’s open carry ban, stating that it would leave that issue to another day. Of significance, the State of California conceded at oral argument that there is a right to bear outside the home, which the Ninth also ignored. The Petition points out that if the 2A is indeed a right, and a right that must be treated equally with the other rights (as stated in Heller), then it has painted itself into a corner by making it so that the only right–which it must enforce–is a right to open loaded carry in the State of California–a ruling that would be equally applicable to all of the other “may issue” states.
The reason there is nothing really new is because the SC declared the right to be individual, in the home, and outside as constrained by “reasonable restrictions”. That clearly means you have a right to a limited array of weapons for self-defense inside and outside the home, constrained by “reasonable restrictions” on that right. What then is “new” in Peruta?
Do you imagine that the court will find Peruta ripe to declare what “reasonable” means? Peruta is claiming that “may issue” violates 2A. “Shall issue” falls under “reasonable restriction”. The court will find that the local authorities are the best judge of “reasonable” within their jurisdiction. Under “reasonable restrictions” based on local situations, the fact that lower courts found differently about “reasonable restrictions” in the separate states is not a difficulty.
Given “self-defense in the home”, and “reasonable restrictions”, Peruta will likely be seen as covering the same ground as Heller/McDonald. That would be a perfect justification for refusing to review. Under “reasonable restrictions” based on local situations, the fact that lower courts found differently about “reasonable restrictions” in the separate states is not a difficulty; it is the personification of Heller/McDonald.
Take another look at the McDonald decision. The dissent lashed out at the majority for not limiting its decision to the home and the laws struck down in McDonald extended beyond the home.
The question before the Court in McDonald was much broader than the limited in home questions before the court in Heller.
In addition to the McDonald court holding that the Second Amendment is fully incorporated against the states, it held that the Second Amendment right defined in Heller is fully incorporated against the states as well.
The opponents of Open Carry argue that the Open Carry right defined in Heller is meaningless dicta. I disagree of course but there is no way of getting around the fact that the “dicta” in Heller became the explicit holding of the court in McDonald.
Which is what I argued in the district court and again argued in the opening brief of my appeal -> http://blog.californiarighttocarry.org/?page_id=739
And yes, it was nice of the state of California to concede that the Second Amendment Open Carry right extends beyond the curtilage of one’s home during the en banc Peruta oral arguments.
Mark- “…the Seventh Circuit most pointedly held that there was a right to bear, meaning outside the home, and that Illinois had to provide some method for allowing citizens to bear arms, leading to Illinois’ shall issue system enacted by the Legislature to avoid a de facto “constitutional carry” right being implemented by the elimination of the carry ban.”
We could have had open carry with an FOID in Illinois if NRA state lobbyist Todd Vandermyde did not cut deals with the anti-gun police unions. But then NRA, Inc. would go out of business, and lobbyists like Vandermyde would not have permanent job security to “fix” the shit bills they put up in the first place.
NRA does not want to win, that’s why Chris Cox & Chuck Cunningham still pay money to traitors like Vandermyde instead of flushing him down the toilet with his former boss William Dugan where he belongs.
Illinois does not have a “shall-issue” licensing system, it has the unelected Star Chamber Concealed Carry Licensing Review Board. Any cop from any jurisdiction where you ever lived can object to your application and accuse you anonymously. You don’t get to see the smears or face your accuser, then you get to hire a lawyer on your own dime to fight the objection in “administrative review.” The legal “standard” is “preponderance of the evidence” the same as red light camera tickets. Thanks Todd!
Right now there are thousands of people waiting over a year for their carry licenses, with no help from NRA. Vandermyde is trying to legalize suppressors, he’s too busy to do anything about the CCLRB. Or maybe NRA Inc., and the police unions are on the same side, and everything is just the way they want it. At least the lawyers are busy.
If NRA, Inc. comes anywhere near this case, watch out. Alan Gura toiled in obscurity with 2nd Amendment law for years, but when he took Otis McDonald to the Supreme Court, NRA hired former Solicitor General Paul Clement to barge into the McDonald v. Chicago case and steal ten minutes from Gura’s thirty minute oral argument time in front of SCOTUS.
NRA didn’t spend a dime to promote concealed carry in Illinois for forty years, but after grassroots gun rights groups did the heavy lifting and recruited Otis, they had no problem shoving Gura out of the way once they figured out that the black son of a sharecropper going to the Big Court could help boost membership.
NRA state affiliate ISRA and their chief Freemason in charge Richard Pearson didn’t lift a finger to promote concealed carry in Illinois for the first one hundred years they were in existence, but now Pearson thinks concealed carry was his idea all along. Pearson has been heard to tell his members, “there is no Duty to Inform” in Illinois shit concealed carry bill, because it’s “only if the officer asks.” He really is that dense, and his members buy it.
Losers, clowns, and asswipes who sell out and set up their own membership to be killed by police criminals. You really cannot make this stuff up.
Sorry, the NRA is all over this one, has been from the very start. Local counsel is a well-known 2A and gun rights activist Chuck Michel, and co-counsel is Paul Clemens.
The NRA hasn’t done jack for Constitutional carry here in TN when the convention was coming to Nashville they pushed the “guns in parks” bill. When Constitutional carry comes to committee all you hear is crickets. The NRA are nothing but a bunch of opportunists.
Tony- after initially opposing the McDonald v. Chicago lawsuit and failing to support attorney Alan Gura and SAF, NRA later butted into the McDonald case just months before Gura’s oral arguments in front of SCOTUS in 2010. Later NRA lawyers collected $1.3 MILLION in legal fees from the city of Chicago for their “work” in the McDonald case.
Judging by what NRA state lobbyist for Illinois Todd Vandermyde did placing Duty to Inform w/ criminal penalties in the “NRA backed” concealed carry bill in 2013, the Borg Cube at NRA HQ has now morphed and learned that using black plaintiffs like Otis McDonald as can be profitable.
After using blacks like Otis McDonald as face men for their lawsuits, they later flush them down the toilet in their bills to be set up and killed by police criminals.
NRA is a corrupt racist front stuffed with traitors and rats that colludes with police unions to backstab their own membership. Passing a good, simple, carry bill would put them out of “business.”
Peruta needs to stop pushing this issue before he makes other states as restrictive as California.
SCOTUS will NEVER rule for a right to carry because it opens up challenges to popular already settle case law such as restraining orders, background checks, ammo licenses, etc. SCOTUS will only accept this case to confirm that there is no right to conceal carry – which would open Constitutional Carry states to challenges.
STOP BEFORE YOU COST PEOPLE MORE FREEDOMS, PERUTA!
Agree. A cute two-step, trying to snake a path through the field, is avoiding the issue that is really at stake, the issue that would settle everything for the foreseeable future: is 2A absolute, or not? If so, all those restrictions, everywhere fall. If not, then the SC sets forth which restrictions are valid (oh wait, SC already did). Peruta will likely be declined.
Peruta will only be picked up if SCOTUS wants to rule in support of the en banc 9th Circuit ruling. Why push for something that will result in further restrictions if it oscar picked up?
A simple declination to review the case would “support” the 9th, at no reputational risk to any of the justices.
But what about us in California? If Peruta succeeds, we won’t be denied our civil rights as we have been for decades.
In the nearly seven years since the NRA took over this case it has argued that states can, should and must ban Open Carry in favor of concealed carry permits. By the way, the NRA also argued in support of California’s Gun-Free School Zone Act of 1995 which extends 1,000 feet from every K-12 public and private school in the state. Get caught with a handgun in a California GFSZ that isn’t unloaded and in a fully enclosed, locked case and you lose your right to possess any firearm for 10 years.
SCOTUS is limited to the case before it and the decision of the en banc 9th circuit court does not conflict with the Supreme Court and it does not conflict with any Federal circuit court or state court of last resort.
There is no reason for SCOTUS to grant the cert petition.
The Heller decision said that Open Carry is noble. The NRA says that Open Carry is perverse. Worse, the NRA cert petition claims that the Heller decision said that Open Carry can be banned in favor of concealed carry. Worst of all, nearly every line in the cert petition is a lie.
The cert petition will be denied the first time it is heard in conference. It won’t even get a relist unless the conference occurs around the time the new Justice is confirmed and it is relisted out of a courtesy.
NRA Tells Supreme Court Open Carry is Perverse -> http://newsblaze.com/business/legal/nra-tells-supreme-court-open-carry-is-perverse_72955/
NRA will never advance open carry, they would go out of business. The continued existence of NRA, Inc., and their ability to pay the electric bill at HQ depends on cattle cars full of brain-dead baby boomers stuck in the 1960’s who are stupid enough to believe that bloated orgs like NRA are concerned with anything other than their own continued existence. Winning is not in the NRA vocabulary.
Take a look at what happened in Illinois. After FIFTY YEARS of no citizen carry, NRA state lobbyist Todd Vandermyde loaded up Brandon Phelps “NRA backed” carry bill with everything the police unions wanted:
privacy waiver, criminal penalties of SIX MONTHS or ONE YEAR for hundreds of gun-free zones, no public transpo. carry (that only affects blacks like Otis McDonald, not good old boys) an unelected Star Chamber Concealed Carry Licensing Review Board consisting of a retired federal judge, two feds, a few lawyers and a shrink, and Vandermyde’s crowning achievement, Duty to Inform, so any cop can execute armed citizens at will like Philando Castile in Minnesota.
The fact that Chris Cox & Chuck Cunningham pay money to a traitor like Vandermyde tells you that NRA, Inc. is a corrupt false front loaded with traitors and rats. They sold out Otis McDonald and they will backstab every member they have until they run out of rubes for the carny show. Everything they touch turns to shit.
Some people will refuse to believe it even after watching the hearings because they are morons:
https://www.youtube.com/watch?v=-lldcs9LVH8
https://www.youtube.com/watch?v=ofXeZDWGicU
https://www.youtube.com/watch?v=BaBBexN2V3Q
https://www.youtube.com/watch?v=Y0oKSp9kcyU
https://www.youtube.com/watch?v=EzTrIiLW2yQ
https://www.youtube.com/watch?v=5nrmtYcw07I
Charles- referring to the rubes from all-white small towns south of Joliet that compose the Todd Vandermyde cheering squad in Illinois as morons would be a compliment. They still can’t figure out that Todd Vandermyde and state Rep. Brandon Phelps are their worst enemies.
Prior to his employment as a contract lobbyist for NRA, Vandermyde was a lobbyist for William Dugan at the Intl. Union of Operating Engineers local 150 in Countryside, Illinois. Dugan was the longtime president of the 150 road builders and heavy equipment union, and Vandermyde reported directly to him.
Reportedly Vandermyde started out as a bulldozer operator, and muscled his way into position as a mouthpiece, similar to Jimmy Hoffa.
Dugan was convicted by Chicago U.S. Attorney Patrick Fitzgerald in 2010. In 2011, Vandermyde no longer shows in IL Secretary of State “lobbyist activities” records as a lobbyist for the 150 union, only NRA. Chris Cox & Chuck Cunningham at NRA/ILA pay a lobbyist whose former employer was taken down by the FBI & U.S. Attorney.
Anyone who wishes to research Vandermyde’s criminal records should use his real full name, Donald Todd Vandermyde.
I just sent an email to the NRA asking them that if the information given at http://newsblaze.com/business/legal/nra-tells-supreme-court-open-carry-is-perverse_72955/ is true, to change their brief NOW.
Everyone else, please do so, whether you’re a member or not.
Also, write letters to the editor to one of the NRA magazines.
There is a link to the cert petition in my article:
“You can read the NRA’s cert petition at my website. It is over 300 pages long and so you will likely need to download it before attempting to read it. Portable devices don’t seem to have the capacity to allow one to view pdf files of this size online.”
The link didn’t copy and paste here and so here it is -> http://blog.californiarighttocarry.org/wp-content/uploads/2016/06/Peruta-v.-San-Diego-Cert-Petition-1.pdf
Wow now Fresno has something to be proud of, besides Derek Carr
Here are four concealed carry civil cases in which cert was denied. Am I missing any?
http://www.scotusblog.com/case-files/cases/kachalsky-v-cacace/
http://www.scotusblog.com/case-files/cases/drake-v-jerejian/
http://www.scotusblog.com/case-files/cases/woollard-v-gallagher-2/
http://www.scotusblog.com/case-files/cases/national-rifle-association-of-america-v-mccraw/
You are quite informed on Peruta. You you see anything in Peruta, if given the most generous of thought would catch the interest of the SC today? Or after Trump gets “a true originalist” on the court?
Peruta is the worst of all the cert petitions filed. Where the SAF was dismissive of the Heller decision which said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right as meaningless dicta, the NRA has taken the Orwellian approach by claiming that the Heller decision said that Open Carry can be banned.
Trump cannot nominate a true originalist because no originalist judge would hold that concealed carry is a right under the Second Amendment.
The only way I see cert being granted in this case is if Wrenn and/or Grace win in D.C. That would create a circuit split. There is also the possibility that the Florida State Supreme Court would affirm the Norman v. State decision on Second Amendment grounds. That would also create a circuit split.
But as these other cases are better vehicles for review by SCOTUS, should a split occur because of them Peruta is likely to be denied cert in favor of one of the other cases, Norman v. State being the most likely.
My understanding was that Heller did settle the RTKBA “carry” question (just reading the words), as it also settled that state and local jurisdictions are free to establish “reasonable restrictions”, and that the right to bear arms of any and all types, anywhere, anytime was not guaranteed by the second amendment. Peruta seems to hard on the rocks with any “may issue” question. What seems to be underneath all this is nipping away at the SC, rather than finding a case where the petitioner seeks a favorable decision that the second amendment is absolute, requires “the people” possession of weapons sufficient to keep the government in check. And that “shall not be infringed” is not negotiable, or restrictable in under any conditions. The argument being that if the government to be held in check by a citizen militia is permitted to determine how, where, and with which tools such restraint is to be applied, then second amendment is hollow.
Seems to me, Heller decided the “absolute” issue already by allowing “infringement”. Which, under a simple reading of the decision, should mean that the government, indeed, has the right to apply whatever restrictions to the second amendment it chooses, under the “reasonable restriction” principle. Does not Heller even moot “open carry”? It seems a “reasonable restriction”.
Sam I Am – A ban on Open Carry might seem like a reasonable restriction to you but the Heller decision said that Open Carry perfectly captures the meaning of the right to keep and bear arms.
Given that the Heller decision also said that concealed carry is not a right, a prohibition on concealed carry does not, and cannot, infringe on the Second Amendment right.
I agree with you. Just musing over possible outcomes. If a jurisdiction can establish and enforce “reasonable restrictions”, cannot those restrictions be extended to open carry? Such as, not loaded, encased in a locked container (like a soft bag), carried only from sunup to sundown, any number of reasonable restrictions designed to ensure public safety (even if it is only the “feeling” of safety)? None of those items would prevent bearing arms. They could be justified that the carrying of weapons when not the activated militia can be controlled for the public good. And we shall never see a ruling that the public can possess any weapon of war equal to that of the constabulary, or military. Thus, the second amendment remains neutered.
Sam I Am – You are conflating the Militia right with the individual right. The Heller decision discusses at length the Militia and the individual right, the latter right being unconnected with any service in the Militia. The Congress (and the states) can place any manner of restrictions on the militia which it cannot place on the individual Second Amendment right.
The Heller decision did not define what constitutes a “dangerous and unusual” weapon. Machine-guns, according to Heller, might or might not fall into that category. Justice Scalia said in a Fox News interview that the types of arms, such as a shoulder fired missile (which is bearable arm), which are protected by the Second Amendment was to be decided by future courts.
It bears noting that the 19th century court decisions which Heller relied upon did not limit “arms” to bearable arms in the sense that bearable arms were arms that an individual could pick up. Bearable arms included cannons.
Nonetheless, I have been critical of those civil machine-gun lawsuits brought in the 3rd and 5th circuits (by the same two lawyers) as being premature (and poorly argued). It makes little sense to challenge the machine-gun ban(s) when the inferior Federal courts are in rebellion against the right to carry even a loaded flintlock rifle outside the door of one’s home.
I do understand your analysis, but I also am skeptical of courts (especially now that politics is so rampant among jurists). The idea of a bottoms-up approach makes good sense in one instance, but “going nuclear” (sue for “absolute”), blows everything below out of the water; moots any other attempt by states and courts to wiggle around until there is no effective “right” in existence.
Which is why I argued the whole spectrum in my opening brief: 1) The California Open Carry bans are unconstitutional under the Heller, McDonald and Caetano decisions which applied a one-step historical analysis (which the Peruta en banc decision applied as well), 2) That they are unconstitutional under the two-step inquiry adopted by the 9th circuit court of appeals in Chovan, 3) That they are unconstitutional under any level of judicial review (including rational basis) and, 4) Procedurally, the state loses because it failed to provide any justification for enacting the bans which was fatal to Illinois and Chicago in Moore and Ezell I and Ezell II.
For me to lose the court of appeals will have to conclude that the Second Amendment does not exist beyond the doors to my home which would create multiple SCOTUS Rule 10 splits. To survive my rational basis challenge the court would have to conclude that: 1) That racial animus is rational (I forfeited my race based claim under strict scrutiny), 2) That the California legislature did not react arbitrarily or irrationally in enacting the 1967 Loaded Open Carry ban, and 3) That the reason for enacting the Loaded Open Carry ban (The Black Panthers) still exists.
For the Unloaded Open Carry bans to survive the rational basis test the court would have to conclude that the legislative finding passes the rational basis test in that Open Carry creates a public danger, not because the people who openly carry unloaded firearms present a danger to the public but because the police might overreact and shoot people who are openly carrying unloaded firearms or shoot the people nearby to those openly carrying loaded firearms. Which is something the Fourth Amendment already prohibits the police from doing.
There is much more. You can read my opening brief here -> http://blog.californiarighttocarry.org/wp-content/uploads/2013/02/14-55873-Opening-Brief-and-Addendum-PACER.1-111.pdf and the other filings in my case here -> http://blog.californiarighttocarry.org/?page_id=739
I have visited your website; most informative.
You must gather that I have little faith in courts (but it is what we have). They are peopled by animated humans, with political ideologies, and an unquenchable desire to conform society to those ideologies. I also note the number of “conservative” SC justices who have leaned way left in order to seem reasonable, and not ideologues. I fear that when your case is reviewed for cert, the SC will find that the threat of unjustified shootings by police do, indeed put the general public at more than acceptable risk, that “reasonable restrictions” for the public safety are permissible. What could be more important to public safety than preventing unnecessary collateral damage in a mistaken gun fight with someone openly carrying a firearm? Notwithstanding laws prohibiting police from overreacting, the justices know it happens, and if there is no perceived threat (openly displayed firearm) that one source of overreaction is eliminated. Also, it seems too inviting to declare that unless activated as official militia, RTKBA indeed is restricted to homestead and environs. Regardless of the scrutiny level (I never forget that among all the constitutional safeguards and amendments, the second receives a lower standard of review than all the others; precisely what the founders would have found preposterous. Regardless, the courts will, as they did in Brown v. Board, find that the country “needs” the benefit of closure that assures the public that guns may be controlled for the public good. In fact, I find it unreassuring that a new personality on the court will want to take a hard stance on such an emotionally charged dispute as gun rights. That doesn’t mean I hope you wouldn’t prevail in the extreme, but that there is no trend in that direction.
SCOTUS won’t do as you suggest because it would conflict with decades of its own jurisprudence and case law. The simpler option for SCOTUS would be to decide to overturn Heller.
Which is a possibility but far less a possibility if Trump’s nominee turns out to be a defender of the Second Amendment and even less of a possibility if Trump likewise fills a vacancy created by the departure of anyone other than Thomas or Alito.
Overturning Heller. Now that is exactly what I think the court would do, rather than venture any further into this quagmire. Overturn Heller, and let the lower courts and states manage the issue. There is nothing sacrosanct about court “splits”. Indeed, I would argue that SCOTUS has no further interest in 2A disputed because the Heller decision is ignored by lower courts, without consequence. What effect would further rulings have on lower courts determined to go their own way? Indeed, rather than clarify the matter, Heller created even more confusion and conflict. Given the solution was no solution, and that the state of affairs in the lower courts will not be improved with yet another decision, overturn Heller and acknowledge the status quo antebellum.
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