Norman v. State link to oral arguments here.

notalawyer said:

Yep.
§ 14 415.11. Permit to carry concealed handgun; scope of permit.

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quote:
since you left part of the statute's verbiage out...

14-415.11 (c)(8) On any private premises where notice that carrying a concealed handgun is prohibited by the posting of a conspicuous notice or statement by the person in legal possession or control of the premises. unquote.

1. please define conspicuous notice
2. please define ramifications

ipse

solus said:

quote:
since you left part of the statute's verbiage out...

14-415.11 (c)(8) On any private premises where notice that carrying a concealed handgun is prohibited by the posting of a conspicuous notice or statement by the person in legal possession or control of the premises. unquote.

1. please define conspicuous notice
2. please define ramifications

ipse

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2. please define ramifications

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Well...let's see:

14-269(a1)

It shall be unlawful for any person willfully and intentionally to carry concealed about his person any pistol or gun except in the following circumstances:
(1) The person is on the person's own premises.
(2) The deadly weapon is a handgun, the person has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24, and [when] the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14-415.11(c).

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14-415.11(c)

Except as provided in G.S. 14-415.27, a permit does not authorize a person to carry a concealed handgun in any of the following:
. . .
(8) On any private premises where notice that carrying a concealed handgun is prohibited by the posting of a conspicuous notice or statement by the person in legal possession or control of the premises.

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So if you willingly and knowingly carry on private property in violation of a conspicuous notice to the contrary you are guilty of a Misdemeanor Class 1 per 14-415.21 (a1): "A person who has been issued a valid permit who is found to be carrying a concealed handgun in violation of subdivision (c)(8) or subsection (c2) of G.S. 14-415.11 shall be guilty of a Class 1 Misdemeanor."

1. please define conspicuous notice

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That is a matter of fact that will be decided by the trier of fact (the jury) at your trial.

is this a california thread now? let's move this 49ers business elsewhere.

hammer6 said:

is this a california thread now? let's move this 49ers business elsewhere.

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is this a california thread now?

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No North Carolina, please keep up. :lol:

Sometimes it takes an out-of-stater to explain the law to those in other states, such as NC and TX. Seems that some of those folks do not know their own laws. :uhoh:

notalawyer said:

No North Carolina, please keep up. :lol:

Sometimes it takes an out-of-stater to explain the law to those in other states, such as NC and TX. Seems that some of those folks do not know their own laws. :uhoh:

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only saving grace...a Floridan diverted it to california...

oh that out of your system now?

ipse

hammer6 said:

is this a california thread now?

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Nope. It's Norman v State. But the thread was started by a Californian who has filed a suit challenging California's ban on open carry so there are parallels. Another California case (Peruta) was brought up in the third post because there are questions about how the "bear" part of the Second Amendment is viewed by the courts. If Peruta (a concealed carry case) is upheld it will comport with the 4th DCA ruling and split with the 10th Circuit ruling in Peterson v Martinez (a Colorado case where concealed carry was not ruled a constitutional right since Colorado has open carry). These things are all tied in together since the State of Florida has already conceded the Second Amendment is a fundamental right. See the implications?

If Norman or Nichols v. Brown loses then we have a SCOTUS Rule 10 split

district9 said:

Nope. It's Norman v State. But the thread was started by a Californian who has filed a suit challenging California's ban on open carry so there are parallels. Another California case (Peruta) was brought up in the third post because there are questions about how the "bear" part of the Second Amendment is viewed by the courts. If Peruta (a concealed carry case) is upheld it will comport with the 4th DCA ruling and split with the 10th Circuit ruling in Peterson v Martinez (a Colorado case where concealed carry was not ruled a constitutional right since Colorado has open carry). These things are all tied in together since the State of Florida has already conceded the Second Amendment is a fundamental right. See the implications?

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The 10th Circuit decision in Peterson v. Martinez did not base its decision on Colorado being an Open Carry state. The 10th Circuit explicitly held "[T]hat the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause." Id at 1201.

If either the divided three judge panel decision in Peruta/Richards is upheld or the Florida Supreme Court upholds Florida's Open Carry bans then the most relevant SCOTUS Rule 10 splits are with the California Supreme Court in People v. Dykes Id at 778 and Moore v. Madigan at 938 which cited District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783 approval of prohibitions on concealed carry despite Judge Posner's unmistakable preference for concealed carry. For that matter, the only court which has upheld an Open Carry ban which can still be cited is the appellate court in the Norman case. The divided three judge panel decisions in Peruta v. San Diego/Richards v. Prieto were vacated.

I'm pretty sure that the en banc Peruta court has read the dissent to the denial of cert in Jackson v. San Francisco. The en banc panel knows that if Peruta/Richards lose then SCOTUS will not grant their cert petitions but if they win then there is a SCOTUS Rule 10 grounds for granting cert (which doesn't mean that SCOTUS will grant cert).

I have a table of 9th Circuit Court of Appeals Second Amendment decisions (published and unpublished) at my website. You can find these decisions at Google Scholar. For Peruta/Richards to prevail they will need six circuit judges on the en banc panel to rule in their favor. I don't count six votes on the en banc panel which will rule in their favor but at this point I will take any decision which creates a Second Amendment split.

And if the Peruta/Richards three judge panel decisions are upheld then we have multiple splits which is grounds for my appeal to be initially heard before a different en banc panel of eleven judges randomly selected from the 29 active circuit judges with the same ramifications should I lose as to SCOTUS granting cert.

California Right To Carry said:

The 10th Circuit decision in Peterson v. Martinez did not base its decision on Colorado being an Open Carry state. The 10th Circuit explicitly held "[T]hat the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause." Id at 1201.

If either the divided three judge panel decision in Peruta/Richards is upheld or the Florida Supreme Court upholds Florida's Open Carry bans then the most relevant SCOTUS Rule 10 splits are with the California Supreme Court in People v. Dykes Id at 778 and Moore v. Madigan at 938 which cited District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783 approval of prohibitions on concealed carry despite Judge Posner's unmistakable preference for concealed carry. For that matter, the only court which has upheld an Open Carry ban which can still be cited is the appellate court in the Norman case. The divided three judge panel decisions in Peruta v. San Diego/Richards v. Prieto were vacated.

I'm pretty sure that the en banc Peruta court has read the dissent to the denial of cert in Jackson v. San Francisco. The en banc panel knows that if Peruta/Richards lose then SCOTUS will not grant their cert petitions but if they win then there is a SCOTUS Rule 10 grounds for granting cert (which doesn't mean that SCOTUS will grant cert).

I have a table of 9th Circuit Court of Appeals Second Amendment decisions (published and unpublished) at my website. You can find these decisions at Google Scholar. For Peruta/Richards to prevail they will need six circuit judges on the en banc panel to rule in their favor. I don't count six votes on the en banc panel which will rule in their favor but at this point I will take any decision which creates a Second Amendment split.

And if the Peruta/Richards three judge panel decisions are upheld then we have multiple splits which is grounds for my appeal to be initially heard before a different en banc panel of eleven judges randomly selected from the 29 active circuit judges with the same ramifications should I lose as to SCOTUS granting cert.

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wait, what?

Well, the Fl OC ban will be upheld without question. There is a 5-10% chance SB 300/HB 163 will become law this coming session this winter, it would be signed (governor said he would sign it) in March. Fl will then be a licensed open carry state. If that happens maybe the kourt would say the ban was unconstitutional for permit holders? I don't know how that would affect things.

I just can't imagine under any circumstance SCOTUS ruling that OC bans are unconstitutional again. If they did, I'm pretty sure most jurisdictions would put so many other barriers to actually doing it that there would still be a functional ban. NYC allowing unlicensed open carry? Sure, as long as it's a derringer and you tape it to your head. Fuhgedaboutit.

77zach said:

...I just can't imagine under any circumstance SCOTUS ruling that OC bans are unconstitutional again. ...

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When did the SCOTUS rules that OC bans were unconstitutional the first time?? :uhoh:

BB62 said:

When did the SCOTUS rules that OC bans were unconstitutional the first time?? :uhoh:

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They favorably cited state supreme courts that said open carry was the right to bear arms. Nunn vs state and a couple others. But no, they never had the question before them.

Sent from my SM-G900V using Tapatalk

77zach said:

Well, the Fl OC ban will be upheld without question. There is a 5-10% chance SB 300/HB 163 will become law this coming session this winter, it would be signed (governor said he would sign it) in March. Fl will then be a licensed open carry state. If that happens maybe the kourt would say the ban was unconstitutional for permit holders? I don't know how that would affect things.

I just can't imagine under any circumstance SCOTUS ruling that OC bans are unconstitutional again. If they did, I'm pretty sure most jurisdictions would put so many other barriers to actually doing it that there would still be a functional ban. NYC allowing unlicensed open carry? Sure, as long as it's a derringer and you tape it to your head. Fuhgedaboutit.

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New York state does not generally prohibit the Open Carry of modern, loaded long guns. As you may recall, the SAF did not challenge the New York ban on openly carrying modern, loaded handguns. The SAF sought permits to carry concealed handguns in the Kachalsky case and failed.

What is certain is that the current court will not be granting cert in a Second Amendment case unless there is a SCOTUS Rule 10 split and even then there is no guarantee.

77zach said:

They favorably cited state supreme courts that said open carry was the right to bear arms. Nunn vs state and a couple others. But no, they never had the question before them.

Sent from my SM-G900V using Tapatalk

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The Heller court did not but the question before the McDonald court was:

"Whether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment's Privileges or Immunities or Due
Process Clauses. "

The explicit holding of the court in McDonald was in the affirmative. The McDonald court did not leave us hanging as to what that Second Amendment right was. It held:

"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. What was "dicta" in Heller became the central holding in McDonald.

Even the now vacated, divided three judge panel in Peruta v. San Diego said:

"To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry." Peruta v. County of San Diego, 742 F. 3d 1144 - Court of Appeals, 9th Circuit (2014) at 1172. (vacated)

Whatever one might argue the Second Amendment meant in 1791 is not relevant when the law being challenged is a state law. As Scalia has pointed out before, the relevant date for evaluating state laws is when the 14th Amendment was adopted and it is what the voters who enacted the Fourteenth Amendment thought the meaning of the Second Amendment was which is relevant. Heller said that concealed carry is not a right, McDonald explicitly applied the Second Amendment as well as the Second Amendment right defined in Heller to the states and incorporation jurisprudence sucked in prior decisions like Robertson v. Baldwin. See Peterson v. Martinez.

California Right To Carry said:

The 10th Circuit decision in Peterson v. Martinez did not base its decision on Colorado being an Open Carry state. The 10th Circuit explicitly held "[T]hat the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause." Id at 1201.

If either the divided three judge panel decision in Peruta/Richards is upheld or the Florida Supreme Court upholds Florida's Open Carry bans then the most relevant SCOTUS Rule 10 splits are with the California Supreme Court in People v. Dykes Id at 778 and Moore v. Madigan at 938 which cited District of Columbia v. Heller, supra, 554 U.S. at 626, 128 S.Ct. 2783 approval of prohibitions on concealed carry despite Judge Posner's unmistakable preference for concealed carry. For that matter, the only court which has upheld an Open Carry ban which can still be cited is the appellate court in the Norman case. The divided three judge panel decisions in Peruta v. San Diego/Richards v. Prieto were vacated.

I'm pretty sure that the en banc Peruta court has read the dissent to the denial of cert in Jackson v. San Francisco. The en banc panel knows that if Peruta/Richards lose then SCOTUS will not grant their cert petitions but if they win then there is a SCOTUS Rule 10 grounds for granting cert (which doesn't mean that SCOTUS will grant cert).

I have a table of 9th Circuit Court of Appeals Second Amendment decisions (published and unpublished) at my website. You can find these decisions at Google Scholar. For Peruta/Richards to prevail they will need six circuit judges on the en banc panel to rule in their favor. I don't count six votes on the en banc panel which will rule in their favor but at this point I will take any decision which creates a Second Amendment split.

And if the Peruta/Richards three judge panel decisions are upheld then we have multiple splits which is grounds for my appeal to be initially heard before a different en banc panel of eleven judges randomly selected from the 29 active circuit judges with the same ramifications should I lose as to SCOTUS granting cert.

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Thanks - appreciate the clarification. I wonder how the 10th Circuit Court would have ruled had OC not been legal in Colorado since that's the scenario in California for Peruta.

district9 said:

Thanks - appreciate the clarification. I wonder how the 10th Circuit Court would have ruled had OC not been legal in Colorado since that's the scenario in California for Peruta.

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The 10th Circuit Court of Appeals would have ruled the same way. Concealed carry falls outside of the scope of the Second Amendment. Banning Open Carry does not create a right to carry concealed under the Second Amendment any more than banning Open Carry creates a right to possess heroin under the Second Amendment. There is California case law which would have supported a challenge to California's prohibition on concealed carry under Article I, Section 1 of the California Constitution but the Peruta and Richards plaintiffs did not raise that challenge. Instead they argued that Open Carry can be banned under the Second Amendment and having been banned, the state must issue concealed carry permits.

Incredibly, their arguments were even more flawed. They claimed that there is no right to carry openly or concealed. In short, no right to Open Carry plus no right to carry concealed equals a right to carry concealed is their logic!

in short:
No right to Open Carry (1st premise)
No right to concealed carry (2nd premise)
Entails that there is a right to concealed carry which contradicts their 2nd premise.

Our legal system would not be as screwed up as it is if judges and lawyers were required to be competent in basic logic.

BB62 said:

When did the SCOTUS rules that OC bans were unconstitutional the first time?? :uhoh:

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This happened when the McDonald decision applied the Second Amendment in its entirety to all states and local governments and the Open Carry "dicta" in Heller became the central holding of the McDonald decision. I dispute that the Open Carry right defined in Heller is dicta as the Heller majority conducted an in-depth examination of the Second Amendment right which was necessary to decide the Second Amendment question in Heller.

"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.

Open Carry was also the implicit holding in the SCOTUS cases of Robertson v. Baldwin and the Heller decision.

"This statement is dictum, but considered Supreme Court dictum is special. "We do not treat considered dicta from the Supreme Court lightly. Rather, we accord it appropriate deference." United States v. Montero-Camargo, 208 F.3d 1122, 1132 n. 17 (9th Cir.2000); see also Fields, 699 F.3d at 522 (treating Dorsey's "carefully considered" dictum as "authoritative")." US v. Augustine, 712 F. 3d 1290 - Court of Appeals, 9th Circuit (2013) at 1295.

"The foregoing passage is plainly obiter dicta. See Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir.1995) ("Dicta are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand." (quotation omitted)). Nevertheless, we have observed that "we are bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements." United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007) (quotation omitted)." Peterson v. Martinez, 707 F. 3d 1197 - Court of Appeals, 10th Circuit (2013) at 1210 commenting on the SCOTUS Robertson v. Baldwin decision.

California Right To Carry said:

The Heller court did not but the question before the McDonald court was:

"Whether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment's Privileges or Immunities or Due
Process Clauses. "

The explicit holding of the court in McDonald was in the affirmative. The McDonald court did not leave us hanging as to what that Second Amendment right was. It held:

"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. What was "dicta" in Heller became the central holding in McDonald.

Even the now vacated, divided three judge panel in Peruta v. San Diego said:

"To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry." Peruta v. County of San Diego, 742 F. 3d 1144 - Court of Appeals, 9th Circuit (2014) at 1172. (vacated)

Whatever one might argue the Second Amendment meant in 1791 is not relevant when the law being challenged is a state law. As Scalia has pointed out before, the relevant date for evaluating state laws is when the 14th Amendment was adopted and it is what the voters who enacted the Fourteenth Amendment thought the meaning of the Second Amendment was which is relevant. Heller said that concealed carry is not a right, McDonald explicitly applied the Second Amendment as well as the Second Amendment right defined in Heller to the states and incorporation jurisprudence sucked in prior decisions like Robertson v. Baldwin. See Peterson v. Martinez.

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so you're saying that SCOTUS has already made the decision for the florida supreme court?

hammer6 said:

so you're saying that SCOTUS has already made the decision for the florida supreme court?

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No, the Florida Supreme Court will make a decision and if that decision is on the Second Amendment then SCOTUS will have the final say. If the Florida Supreme Court says that Florida's Open Carry ban is unconstitutional under the Florida Constitution then the FSC is not required to make a decision regarding the Second Amendment and probably won't. The case will end there because the FSC has the final say on what it's state constitution says. If the FSC says that Florida's Open Carry ban is unconstitutional under the Second Amendment then it is up to the state of Florida to file a cert petition. Given that such a ruling would not create a SCOTUS Rule 10 split, SCOTUS is likely to deny the cert petition. If the FSC says that the Open Carry ban is constitutional under the Second Amendment then Norman will have a SCOTUS Rule 10 split to argue in his cert petition as to why his petition should be granted.

If SCOTUS denies Norman's cert petition then that would be a very bad sign for any Second Amendment case being granted cert (unless Congress changes the law and requires SCOTUS to hear 2A challenges). From a legal standpoint a denial of cert does not create a precedent, it is not legal authority in any case but the inferior courts can read tea leaves just like the rest of us.

This website is an excellent resource -> http://www.scotusblog.com/

The problem with Heller is OC was not argued, or relief sought for OC. It is plain to see that if it had been odds are high we would have nationwide open carry. The other problem is that pro gun orgs do not want nationwide OC. We will never see it depending on them.

An OC win would be also a CC win, because the elite are so afraid of seeing the surfs with guns, they will make CC easier. To protect both us that can OC should OC every time we are in public.

WalkingWolf said:

The problem with Heller is OC was not argued, or relief sought for OC. It is plain to see that if it had been odds are high we would have nationwide open carry. The other problem is that pro gun orgs do not want nationwide OC. We will never see it depending on them.

An OC win would be also a CC win, because the elite are so afraid of seeing the surfs with guns, they will make CC easier. To protect both us that can OC should OC every time we are in public.

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absolutely correct...the profit center revenue is to large.

ipse