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Thread: NYS requirement for "cause" to qualify for CCW survives 2A challenge

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    Campaign Veteran skidmark's Avatar
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    NYS requirement for "cause" to qualify for CCW survives 2A challenge

    http://tinyurl.com/cqwqnw6 - the ruling

    http://tinyurl.com/cbpqrxo - an explanation

    Nov 27 (Reuters) - The state of New York can continue to require residents who want to carry a concealed handgun in public to obtain a special license, a federal appeals court ruled on Tuesday.
    The 2nd U.S. Circuit Court of Appeals in New York rejected a challenge brought by several Westchester residents and the Second Amendment Foundation against the state's handgun licensing scheme.
    Like numerous other states, New York imposes restrictions on individuals who wish to carry concealed firearms in public.
    Under New York law, people can apply to carry a handgun outside the home for the limited purposes of hunting or target practice. But those who want to carry concealed handguns in public without any restrictions must convince state licensing officers they have a special need for self-protection greater than others in the general community.
    This is not going to be helpful to the Wollard case from Maryland currently pending before the 4th Circuit or for any other attempts to overturn, as opposed to legislate away, may-issue.

    And how does this apply to OC, you ask? There is no possession or carry without a license, and there is no license except for CC. OC is against the law.

    So while you may "keep" a handgun (with permission) you can only "bear" it for severely limited purposes unles you have proved an overwhelming need.

    DC v Heller established that there is a right to have a handgun in the home for self defense purposes, and Chicago et al v MacDonald established that the right applies to the states as well as the federal government. Now we need to get that handgun out of the house under the same premise.

    stay safe.
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    Win, lose, or draw ... this will be going to SCOTUS which will likely pick it up ... I don't think anyone on this forum agrees with the commie judges in the 2nd.

    Why don't people just plead that the 2nd amendment is to protect us from our own government & we need to carry to effect that.

    All these criminals, hunting, etc. arguments just move the focus away from what the 2nd is there for.
    Last edited by davidmcbeth; 11-28-2012 at 11:39 AM.

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    Regular Member DocWalker's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    Why don't people just plead that the 2nd amendment is to protect us from our own government & we need to carry to effect that.
    Because it is the goverment that dosn't want us to have guns so they can RULE over us instead of working for us. They are trying to do this by saying we can't take care of ourselves and that the goverment knows best.

    Check out NY Americans are not smart enough to eat and drink for themselves so the goverment will has stepped in to control them. Try and by a fountain drink larger than 16oz and you will see.

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    These judges need to go...

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    Since I have been adding places not to visit on my List of Places Not to Visit, I need to move NY state farther up the list. maybe I'll just reprioritize my list, it seems to need it.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member Anubis's Avatar
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    The court's ruling is not surprising; seems like all lower courts are at odds with Heller and McDonald. Apparently SCOTUS is currently the only court in the nation that understands 2A, as least for now.
    Last edited by Anubis; 11-28-2012 at 12:49 PM.

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    I forgot to add: EVERYONE has a valid/compelling reason for being granted a permit -- to protect his/her LIFE! If the applicant is ALIVE, that alone is reason enough, period.

    No need to be a doctor carrying drugs, a businessman carrying cash or jewelry, a celebrity, politician, police chief, or anything else. Rich or poor, a somebody or nobody, everyone has a LIFE -- that reason should trump all the others presently required in sorry "may-issue" states. If one's LIFE is not a valid/compelling reason for carrying, then I don't know what is.

    Just common sense, which as we all know, just isn't common anymore...even in judges.
    Last edited by cloudcroft; 11-28-2012 at 01:39 PM.

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    Quote Originally Posted by DocWalker View Post
    Because it is the goverment that dosn't want us to have guns so they can RULE over us instead of working for us. .
    I agree but when people in these cases start going off on tangents about needing to bear a gun for crime prevention it dilutes the focus and meaning of the 2nd amendment being there to protect us from the gov't.

    The British had no problems enforcing their laws in the 1700's. And crime was not rampant ... so the 2nd isn't there for crime control.

    And that is exactly why you can be issued a permit in NY -- to prevent normal crimes upon yourself; but the 2nd amendment has little to do with crime control so how is crime control relevant? Its just a free bonus.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Anubis View Post
    The court's ruling is not surprising; seems like all lower courts are at odds with Heller and McDonald. Apparently SCOTUS is currently the only court in the nation that understands 2A, as least for now.
    As much as I am not pleased with this ruling, I think it is important to remind folks that Heller only said that absolute bans on firearms, and especially handguns, in the home, violates the Second Amendment right to keep and bear arms.

    Based on "standard" legal reasoning, as well as the standard set down in Heller, these long-standing laws will continue to receive deference until such time as someone brings the right complaint. My thinking is that it will likely take someone who had applied for permission, was denied, and as a proximate if not direct result was seriously injured, and then reapplied and was again denied.

    That, or enough pounding on the table to get SCOTUS to realize that the existence of a law that is never applied, or applied only in rare and specious cases (HI and MD CCW permits, for example), are in fact effectively bans that are just as egregious outside the home as they decided bans were inside the home.

    All this other circular reasoning will get us nowhere and in the process saddles us with more case law that needs to be overcome.

    stay safe.
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    Quote Originally Posted by skidmark View Post
    As much as I am not pleased with this ruling, I think it is important to remind folks that Heller only said that absolute bans on firearms, and especially handguns, in the home, violates the Second Amendment right to keep and bear arms.

    Based on "standard" legal reasoning, as well as the standard set down in Heller, these long-standing laws will continue to receive deference until such time as someone brings the right complaint. My thinking is that it will likely take someone who had applied for permission, was denied, and as a proximate if not direct result was seriously injured, and then reapplied and was again denied.

    That, or enough pounding on the table to get SCOTUS to realize that the existence of a law that is never applied, or applied only in rare and specious cases (HI and MD CCW permits, for example), are in fact effectively bans that are just as egregious outside the home as they decided bans were inside the home.

    All this other circular reasoning will get us nowhere and in the process saddles us with more case law that needs to be overcome.

    stay safe.
    No where in the 2nd amendment did it mention HOMES...but it does mention MILITIA , which would meet outside of homes.

    Figure that...

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    No where in the 2nd amendment did it mention HOMES...but it does mention MILITIA , which would meet outside of homes.

    Figure that...
    Oh, sweet baby Zenu on a pogo stick, here we go again!

    After winning the battle to establish that the Second Amendment does NOT apply to the militia, you come along and resurect that argument. Was it really your intention to suggest that only the militia could carry outside the home, even though the militia was never considered to be used to provide individual protection against assault or robbery? Are you now suggesting that if we cannot carry our own weapon(s) that, instead of lugging a policeman on our backs, we now have to pull a wagon-load of militia behind us?

    Thanks to the lack of any indication that your comment was in jest, or the result of either a psychotic break or the unwilling manipulation of your mind by voodoo or space aliens, anybody who reads it will consider that you really meant it. And then the rest of us will have to go and explain to them, all over again, that the Second Amendment is not about the militia and why it could not be about the militia even though the militia is mentioned.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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    Quote Originally Posted by Anubis View Post
    Apparently SCOTUS is currently the only court in the nation that understands 2A, as least for now.
    If they understood it, they would have struck down ALL gun control laws.

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    Quote Originally Posted by rpyne View Post
    If they understood it, they would have struck down ALL gun control laws.
    I wish! But that's not how SCOTUS works. The decision is limited to the minimum required by the question before the court; they don't like to rule on a large body of law in one fell swoop. Here's my take on the last 2 major decisions (agree, disagree, that's fine with me).

    In Heller, the basic question was "Does 2A mean Heller can keep a loaded pistol in his home?" The answer was "yes". Not "yes, only in the home". Not "yes, everywhere". Of course the antis quickly claimed that the opinion limits 2A to the home.

    In McDonald, the question was "Is 2A's right to keep and bear arms an individual right?" The answer was "yes". Not "yes, only on your own property". Not "yes, everywhere".

    We need a case where the question is "Does 2A's 'shall not be infringed' mean that a citizen qualified to own a firearm can bear firearms in public?"
    Last edited by Anubis; 11-29-2012 at 01:23 PM.

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    Shouldn't living in NYS be CAUSE enough to quality? lol
    Kentucky Open Carry Group
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    We all speak of liberty and freedom like we are the only ones that know the truth and the right path. But if we expect everyone to accept and follow our path and to accept our truth and want to force it upon them then that is no longer liberty or freedom. It is slavery. I believe in liberty for all. Regardless of their political views, religion, race, sex, etc.

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    Quote Originally Posted by KYKevin View Post
    Shouldn't living in NYS be CAUSE enough to quality? lol
    It could be argued that living in NY could be a disqualifer due to mental illness ;-)

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    Quote Originally Posted by skidmark View Post
    Oh, sweet baby Zenu on a pogo stick, here we go again!

    After winning the battle to establish that the Second Amendment does NOT apply to the militia, you come along and resurect that argument. Was it really your intention to suggest that only the militia could carry outside the home, even though the militia was never considered to be used to provide individual protection against assault or robbery? Are you now suggesting that if we cannot carry our own weapon(s) that, instead of lugging a policeman on our backs, we now have to pull a wagon-load of militia behind us?

    Thanks to the lack of any indication that your comment was in jest, or the result of either a psychotic break or the unwilling manipulation of your mind by voodoo or space aliens, anybody who reads it will consider that you really meant it. And then the rest of us will have to go and explain to them, all over again, that the Second Amendment is not about the militia and why it could not be about the militia even though the militia is mentioned.

    stay safe.
    Well, the word is in there and you wish to erase it out...well...

    The 2nd amendment gives us the individual right to keep and bear arms. It also gives us the right to form militias. They are separate rights. As an individual has a right to practice, so does a militia. And that would require a right to carry outside the gun owner's home and the right to transport the firearms in pursuit of being part of a militia.

    Militia training is different than an individual's training.

    Hope this clears up my opinion further...my opinion does not dilute an individual's rights at all.

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    @ the debate over self-defense vs militia:

    For any who haven't been exposed to it, self-defense is the foundation of the militia argument.

    To argue militia-only is to say that individuals too worthless to be allowed to protect themselves suddenly become worth defending when considered collectively. Rubbish. Absurd.

    To argue self-defense-only is to say that valuable individuals suddenly become worthless when considered collectively.

    Self-defense is inextricably tied to militia.

    Rather than get wrapped up in debate, just heave in a sentence or two about self-defense and militia being inextricably linked.
    Last edited by Citizen; 11-29-2012 at 04:57 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member Anubis's Avatar
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    Quote Originally Posted by Citizen View Post
    @ the debate over self-defense vs militia...
    The McDonald decision ended the debate. In explaining the decision, the court stated that the "militia" clause was prefatory only, giving an example of the use of the 2A individual right, not limiting the right to militia service.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    ....

    The 2nd amendment gives us the individual right to keep and bear arms. It also gives us the right to form militias. They are separate rights. As an individual has a right to practice, so does a militia. And that would require a right to carry outside the gun owner's home and the right to transport the firearms in pursuit of being part of a militia.

    Militia training is different than an individual's training.

    Hope this clears up my opinion further...my opinion does not dilute an individual's rights at all.
    Because I am denser than unobtanium, please show me where in the Second Amendment it

    - gives any right (Need a chain-yanking smiley)
    - protects a right to form a militia
    - protects a militia's right to practice

    Opinions are nice, but sometimes in order for others to accept them as valid or grounded they need to be backed up with, at least, a showing that you are not the only one holding that opinion. Since I am not expecting case law citations, I will gladly settle for any generally-accepted opinions that support yours -- even those generally acepted by the lunatic fringe.

    stay safe.
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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Citizen View Post
    ....
    Self-defense is inextricably tied to militia.

    ....
    Maybe it's being pedantic, but I don't think it is -

    Isn't the militia inextricably linked to self defense, as opposed to the order you have put it?

    The individual has a natural right to self defense. Individuals may extend that by banding together for mutual defense by forming a militia. Always though that was the progession of the argument.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Quote Originally Posted by skidmark View Post
    Because I am denser than unobtanium, please show me where in the Second Amendment it

    - gives any right (Need a chain-yanking smiley)
    - protects a right to form a militia
    - protects a militia's right to practice

    Opinions are nice, but sometimes in order for others to accept them as valid or grounded they need to be backed up with, at least, a showing that you are not the only one holding that opinion. Since I am not expecting case law citations, I will gladly settle for any generally-accepted opinions that support yours -- even those generally acepted by the lunatic fringe.

    stay safe.


    2nd Amendment:

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. (from memory)



    No right to a militia? You cannot see it? Its the FIRST phrase in the 2nd amendment ... No one ever said we have no right to form a militia...its the liberals who took this to mean it meant the national guard (they are the loons)

    right to practice? See the gun range case in chicago (http://www.saf.org/) is a good source for information.

    What, you saying that militias can be formed but they have no right to practice? That runs afoul of the chicago case too..its a baby step away, yes?

    And I agree..the 2nd amendment does not GIVE a right .. it just states that the gov't cannot abridge these natural rights .. see 9th amendment (and opinions regarding the 2nd touch on this issue--see Heller, McDonald, Miller cases) as well that I think also cements in our gun rights in respect to our right to defend ourselves..

    Hardly opinion ... I state facts, not opinions. Its OK ... you have been brain washed ... not your fault

  22. #22
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    2nd Amendment:

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. (from memory)



    No right to a militia? You cannot see it? Its the FIRST phrase in the 2nd amendment ... No one ever said we have no right to form a militia...its the liberals who took this to mean it meant the national guard (they are the loons)

    right to practice? See the gun range case in chicago (http://www.saf.org/) is a good source for information.

    What, you saying that militias can be formed but they have no right to practice? That runs afoul of the chicago case too..its a baby step away, yes?

    And I agree..the 2nd amendment does not GIVE a right .. it just states that the gov't cannot abridge these natural rights .. see 9th amendment (and opinions regarding the 2nd touch on this issue--see Heller, McDonald, Miller cases) as well that I think also cements in our gun rights in respect to our right to defend ourselves..

    Hardly opinion ... I state facts, not opinions. Its OK ... you have been brain washed ... not your fault
    I am just not inclined to teach grammar over the internet. It was not that much fun when I made high school freshmen learn it (often for the first time); I cannot see any amusement in doing it now. That a word is in a sentence does not mean it is the subject of the sentence. You might find http://legalblogwatch.typepad.com/le...rians-par.html and http://illinois.edu/blog/view/25/3721?count=1 and http://boards.straightdope.com/sdmb/...d.php?t=606383 and http://www.gunchat.com/45n-90w-parsi...-what-it-says/ to be of interest, along with anything else that comes up in a net search of "parsing the Second Amendment". But then, as they challenge you assertions, you might not enjoy what they say.


    I applaud your ability to derive "the right to practice" from the gun range case, which is merely a zoning matter. However, it would have been more appropriate to provide direct citations to the case, rather than sending us all on a chase through the SAF site to find anything actually bearing on the matter. You know, sort of like: http://saf.org/viewpr-new.asp?id=337 - announcing the lawsuit

    http://ia600507.us.archive.org/1/ite...75.docket.html - case filing documents

    http://saf.org/legal.action/chicago2...lldecision.pdf - the court ruling

    Took me possibly 45 seconds to do that, once I had tracked the thing down - which took appreciably longer.

    It is not nice (as well as a violation of the forum rules: (16) NO FALSE ATTRIBUTIONS: Editing quoted posts by another member to make it appear as if they said something other than what they intended will NOT be tolerated!) to accuse me of saying that which I did not say. I never touched on any "right" (or otherwise) regarding the militia and its practicing - which, by the way, is more properly referred to as "drilling".

    And as for your assertion that the Chicago gun range case has anything to do with a right of the militia to practice, I refer you to ILL. REV. STAT. ch. 1805, para. 94-95. Go look it up and then tell me how a Chicago (or even Chicago-based) militia would practice.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Quote Originally Posted by skidmark View Post
    Maybe it's being pedantic, but I don't think it is -

    Isn't the militia inextricably linked to self defense, as opposed to the order you have put it?

    The individual has a natural right to self defense. Individuals may extend that by banding together for mutual defense by forming a militia. Always though that was the progession of the argument.

    stay safe.
    What? Did you lose track of the first sentence by the time you read the fourth?
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  24. #24
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Citizen View Post
    What? Did you lose track of the first sentence by the time you read the fourth?
    No. Just wnt to see things kept in their proper order. I'd be OCD if it weren't fot the driving need to keep things straight, and you know it.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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  25. #25
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    The federal government has drawn a distinction between the "organized militia" and the "unorganized militia".
    10 USC 311 - Militia: composition and classes
    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313* of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
    I would assume (yes, I know) that (2) above, would be the "citizen militia" (for lack of a better term). Which brings us to Merriam-Webster.com for the generally accepted (in the USA):
    Definition of MILITIA
    1a: a part of the organized armed forces of a country liable to call only in emergency
    b : a body of citizens organized for military service
    2: the whole body of able-bodied male citizens declared by law as being subject to call to military service
    Then we have the asterisk (*) which refers us to:
    32 USC 313 - Appointments and enlistments: age limitations
    (a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.
    If I'm not mistaken, (1a) above would constitute what is known as the National Guard and "Ready Reserve", and (1b) would be any body of citizens brought together as a group with the intent of actually performing military service (in uniform and under command).

    Then (a)(2) combined with M-W's definition 2:, and 32 USC 313 would encompass all males 17-45 (17-64 for prior military) being subject to call (not necessarily "called", but simply falling within the scope of the age requirements) would be considered "militia" under those guidelines. No organization required, no uniforms, no command structure (until needed). Kind of a "militia-at-large". Does that make sense to anybody but me? Pax...
    Last edited by Gil223; 11-30-2012 at 08:18 PM.
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