9th rules concealed carry is not a 2nd amenment right - broad application

press1280 · Jun 20, 2016

California Right To Carry said:
The district court judge assigned to my case pulled that urban/rural thing as an excuse to deny my preliminary injunction, but first he had to conclude that there is no Second Amendment right even one inch outside of the doors to the home. I also pointed out that the bans aren't based on rural/urban and gave a couple of examples. The California bans are based on population but if the court wanted to draw an inference beyond the plain text of the statutes then they are based on race.

Regardless, none of the possibilities you give would avoid a SCOTUS Rule 10 split should the 9th Circuit decide that there is no Second Amendment right either in public or in the curtilage of one's home. If I write an Opening Brief which doesn't allow the court to avoid the Second Amendment question then it must answer the Second Amendment question.

My initial and amended complaints all give valid reasons for the district court judge to strike down the Open Carry bans independent of the Second Amendment and, at the time, I would have been satisfied if the bans had been struck down for any reason.

But here we are in 2016 looking at possibly three more years of litigation.

On appeal, I am forfeiting every claim I made in the district court which would allow the court of appeals to decide my case in my favor independently of the Second Amendment.

And if I fail on appeal and SCOTUS denies my cert petition then those many valid claims can be raised by anyone but me in a separate lawsuit because district court opinions are binding only on the parties to the case.

How do you get a split when the court rules: We "assume" a 2A open carry right outside the home, we relegate it to intermediate scrutiny and the state has an interest in preventing gun violence and allows you to protect yourself in areas where there is little police presence, OC scares people, yada, yada?

solus · Jun 20, 2016

utbagpiper said:
Exactly.

snipp...

I readily concede there are a lot of court cases in this nation denying any right to carry concealed. I can also look back and find no shortage of cases about blacks not being citizens and not having any rights of citizens.

Charles

mate, not sure why you are surprised since persons of colour did not have any rights extended to them to equal those rights afforded to white male citizens of this country until 1868 + when the 14th amendment was finally passed.

ipse

utbagpiper · Jun 20, 2016

California Right To Carry said:
"But the court say that it is a matter which will not admit of legislative regulation, and in order to test the correctness of its opinion, supposes one Legislature to prohibit the bearing arms secretly, and a subsequent Legislature to enact a law against bearing them openly; and then asks the question, whether the first, or last enactment would be unconstitutional. 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." Id at 619.

Emphatic assertion demonstrably proven false by tens of thousands to 2+ million defensive gun uses in this nation each year, the bulk of which involve firearms that are carried discretely. Of course, some here might also disagree with the portion of the opinion claiming the constitution authorized the bearing of arms for self-defense in addition to defense of the State.

In the first case, the constitution does not "authorize" private citizens to bear arms. Rather, it protects from government infringement the pre-existing natural/God-given right to bear arms. I believe the purpose of that natural right is three fold: To protect my own life and limb as well as that of my loved ones against common criminal violence; To protect my community/State/nation/state against foreign invasion and domestic insurrection; To protect all of my other rights against the tyranny of my own government run amok.

Obviously, the most common use and that which justifies the daily carrying of arms is self-defense against common criminals. Defense against foreign invasion, domestic insurrection, and government tyranny could just as well be accomplished by periodic training with the arms and then fetching the arms only when such a rare occurrence took place.

California Right To Carry said:
"The question recurs, does the act, "To suppress the evil practice of carrying weapons secretly," trench upon the constitutional rights of the citizen? We think not." Id at 616 (emphasis and italics added).

Again, emphatic assertion by the court. What, objectively, makes the carrying of weapons (secretly or otherwise) "evil"? Some 13 million persons in this nation now hold permits authorizing them to carry firearms "secretly". The residents of Vermont have always retained their right to do so. In the last few years, the residents of 9 other States have eliminated most laws requiring a permit in order to legally carry discretely.

There is nothing objectively "evil" about carrying a firearm. Carrying beneath a coat to protect the firearm from weather, or beneath a suit coat as a matter of fashion, or in a pocket as a matter of convenience and comfort do not objectively change that.

Courts may pronounce differently. Their rulings carry force of law. We obey laws as we work to change them or get them over-ruled.

But we should not buy into the bad "logic" employed by courts who are using their authority to infringe our rights.

California Right To Carry said:
As the majority in the Peruta en banc decision correctly concluded. If a right is banned, the remedy isn't to challenge a ban on something which is not a right.

The homosexual community has demonstrated amazing success by not trying to eat the whole elephant at one time. The Baker case was dismissed for lack of any federal question. Lawrence asked nothing regarding marriage, but only to eliminate criminal penalties for adults engaging in mutually consensual homosexual sexual acts. A short 38 years after the Baker precedence, Windsor did not attempt to force States to grant marriage benefits to homosexual unions, but only challenged the federal DOMA as an over-step of States' rights to define marriage as two persons of the same sex if they so chose and for couples receiving State recognition of their same-sex union as a marriage to also enjoy federal recognition of that marriage. Notably, Windsor would seem to be contrary to what the homosexual community wanted. But it was a step forward even if also a bit sideways. Finally, the Kitchen decision rules that States don't get to define marriage because the federal constitution demands equal treatment.

Demonstrably, small steps can result in large gains.

Alternatively, it is clear that when the courts get an agenda into their heads, precedence (whether 38 year old Baker, or 3 year old Windsor) will be ignored or twisted as needed.

Charles

utbagpiper · Jun 20, 2016

gutshot said:
Concealed carry was not an issue in Ky. at the time. It was rarely engaged in, except by criminals

Can you provide any citations that concealed carry was rare except among criminals. It seems to me that cane swords, cane guns, and the ornate, disguised guns from the era would have been favored by the upper crust of society.

gutshot said:
Bliss caused not a ripple in the newspapers of the time. The decision in Bliss was not news, because everybody had always assumed what Bliss said.

So if everyone assumed that concealed carry was protected when the original Kentucky State Constitution was adopted 1792, why do we think that any other assumption or intention was present at the federal level when the 2nd amendment was adopted in 1791 using very similar language?

gutshot said:
Concealed carry became an issue when one state senator stabbed and killed another senator on the floor of the state senate using a "sword-cane". This was an outrage, to attack a person with a weapon that he didn't have any warning was present, and the citizens of Ky. demanded that concealed weapons be outlawed. Since nobody CC'ed, there was no opposition. Nobody gave a damn about Bliss.

So because of the crimes of one person, everyone lost a right they had always assumed they had? The more things change....

But notably, a constitutional amendment specifically giving the State authority to ban concealed carry was required in order for the government to outlaw CC. Yet some here claim that the 2nd amendment can fail to protect CC even though nowhere is the federal government delegated power to ban CC. As for nobody objecting, I have to wonder about who was buying and carrying all those "AOWs". There are multiple explanations available for why there may have been no opposition to banning CC. I've yet to see any actual evidence that CC was not common.

Charles

hammer6 · Jun 20, 2016

California Right To Carry said:
As the majority in the Peruta en banc decision correctly concluded. If a right is banned, the remedy isn't to challenge a ban on something which is not a right.

correct.

utbagpiper · Jun 20, 2016

gutshot said:
The US Supreme Court is the arbiter of the US Constitution, even if we disagree with the decision. What "is", is what they say it "is".

In current practice, this is true. And with the possible exception of McBeth, I don't think anyone here is arguing that we should violate laws. Once the laws have been upheld by the SCOTUS, our judicial avenue is closed and we are left with purely political recourse.

But the point is, we always have political recourse.

Until 2013, there was no "right" to have a same-sex union recognized as a marriage nationwide. There was SCOTUS, lower court, and State court precedence to that point. There were massive political losses against any such notion as the majority of States passed statutory and/or constitutional provisions defining marriage as one man and one woman.

But one was hard pressed to hear any voices within the homosexual community arguing that they shouldn't have a right to marriage, or that past precedence were the end-all, be-all of the argument.

Here we sit with some precedence solidly on our side, many of the precedence that claim discrete carry is not a right are based on a rational that has been overturned by Heller (namely that RKBA is only a "collective right" to be in a militia) or based on thinly veiled--or even overt--racist desires to disarm blacks and other untrusted groups, and with massive political wins on our side over the last 20 or 30 years.

Why would we concede that the RKBA is limited to OC only, except perhaps in formal court filings if such a limitation is calculated to provide better chances of winning than if CC is also included?

Yes! We obey the law. We also work to have bad laws repealed or overturned. Laws that impose prior restraint on discrete carry are an infringement of our RKBA. In the language of the original Kentucky State Constitution, such laws call into question our right to bear arms.

I've yet to read a single anti-CC ruling that employed any compelling logic or any evidence of original intent to separate discrete carrying from the visible possession of weapons. All I've seen are emphatic assertions or reliance on precedence that relied on emphatic assertion. This latest ruling from the 9th goes so far as to rely on 14th century total bans on being armed in public issued by a near absolute monarch as evidence of what the 2nd amendment does or doesn't permit. Imagine applying such a "precedence" (so-called) to marriage laws, freedom of religion, freedom of the press, or the right to remain silent. Yet some will claim that 50+ pages of such anti-RKBA tripe is actually compelling to them? Such can only be explained by a severe case of preconceived hostility to discrete carry and confirmation bias.

Charles

hammer6 · Jun 21, 2016

utbagpiper said:
So if everyone assumed that concealed carry was protected when the original Kentucky State Constitution was adopted 1792, why do we think that any other assumption or intention was present at the federal level when the 2nd amendment was adopted in 1791 using very similar language?

Charles

so after reading this thread for a while, i'm inclined now to move off the fence, and onto the side of Charles...i've spent some time researching based on what is quoted from Charles above, and here's what i've found:

in sum....
by 1804, the union states had abolished slavery. not necessarily instant, as there were waiting periods so to speak.

the following states (and territories at the time of the civil war) made no mention of regulating concealed carry in their original constitution, and nothing has been added to it since:

indiana 1816 (union)
kansas 1859 (union)
maine 1819 (union)
Massachusetts 1780 (union)
michigan 1835 (union)
ohio 1802 (union)
oregon 1857 (union)
pennsylvania 1776 (union)
rhode island 1842 (union)
south carolina 1868 (confederate)
south dakota 1889 (union territory)
vermont 1776 (union)
virginia 1791 (union)
washington 1889 (union territory)
wyoming 1889 (union territory)
alabama 1819 (confederate)

the following states (and territories at the time of the civil war) made explicit mention in their first constitution of the ability to regulate how arms are borne, and it remains today:

colorado 1876
idaho 1889
montana 1889
new mexico 1912
oklahoma 1907
utah 1896

of note is Alabama... the alabama supreme court in State vs. Reid in 1840 (State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840)) upheld a law prohibiting concealed carry. their reasoning was based on how the right was written in the constitution...basically, the "only" way arms can efficiently used for defense is if they are carried openly. so the word they used to come up with this ruling was "defense", and it had nothing to do with interpreting "bear". his lawyer argued that since the state constitution listed no restriction on the exercise of the right, as it was written in "general terms". the lawyer even used Bliss as an argument. then the court went on to say how "evil" concealed weapons are, and they used laws and history from across the pond to make their point. so basically, because they thought the "best way" to use arms for defense was to carry them openly, they affirmed the judgment.

here is a list of state constitutions that started out recognizing a "general" right to keep and bear arms. but then something apparently went wrong! it seems as though something went down in the history books all around the same period of time which caused all the following states to up and change their constitution concerning keeping and bearing arms....

georgia 1846: Nunn v State: "The right of the whole people, young and old, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained, the rearing up and qualifying a well-regulated militia, so vitally necessary to a free state."
georgia 1865: "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."
georgia 1877(present): "The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne."

florida 1838: "That the free white men of this State shall have a right to keep and to bear arms for their common defense."
florida 1885: "The right of the people to bear arms in defence of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne."
florida 1968(present): "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law."

kentucky 1792: "That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned."
kentucky 1850: "That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms."
kentucky 1891(present): "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons."

louisiana 1845: title 3, article 60 "The free white men of the State shall be armed and disciplined for its defense; but those who belong to religious societies whoso tenets forbid them to carry arms shall not be compelled so to do, but shall pay an equivalent for personal services."
louisiana 1879: "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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed."
louisiana 1974(present): "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. "

mississippi 1817: "Every citizen has a right to bear arms, in defence of himself and the State."
mississippi 1868: "All persons shall have a right to keep and bear arms for their defence."
mississippi 1890(present): "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons."

missouri 1820: "That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned."
missouri 1875: "That the right of no citizen to keep and bear arms in defense of his home, person and property, or in aid of the civil power, when thereto legally summoned, shall be called into question; but nothing herein contained is intended to justify the practice of wearing concealed weapons."
missouri 1945(present): "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons."

north carolina 1776: "That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."
north carolina 1875: "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; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power. Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice."
north carolina 1971(present): "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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice."

tennessee 1796: "That the freemen of this State have a right to keep and to bear arms for their common defense."
tennessee 1834: "That the free white men of this State have a right to keep and to bear arms for their common defense."
tennessee 1870(present): "That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

texas 1836: "Every citizen shall have the right to bear arms in defence of himself and the republic. The military shall at all times and in all cases be subordinate to the civil power."
texas 1845: "Every citizen shall have the right to keep and bear arms in lawful defence of himself or the State."
texas 1868: "Every person shall have the right to keep and bear arms in the lawful defence of himself or the State, under such regulations as the legislature may prescribe."
texas 1876(present): "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

so did you see it? they all made changes to their constitutions concerning bearing arms around the same time. these changes took "general" terms and made them specific to the regulation of concealed carry.

so it's obvious the threat of an uprising from black people drove fear into the minds of the people of these states...and here's some data to back up that claim:

the following are the % of blacks in these particular states leading up to the change in their constitutions:

kentucky:
16% in 1790
19% in 1810
24% in 1830
25% in 1840
22% in 1850
20% in 1860

mississippi:
44% in 1820
52% in 1840
55% in 1860
54% in 1870 freed blacks
58% in 1880 freed blacks
58% in 1890 freed blacks

missouri:
15% in 1820
15% in 1840
10% in 1860
7% in 1870 freed blacks
7% in 1880 freed blacks
6% in 1890 freed blacks

north carolina:
26% in 1790
30% in 1810
33% in 1830
33% in 1850
33% in 1860
37% in 1870 freed blacks

tennessee:
14% in 1796
19% in 1820
22% in 1840
24% in 1850
25% in 1860
26% in 1870 freed blacks

texas:
27% in 1850
30% in 1860
31% in 1870 freed blacks
25% in 1880 freed blacks

florida:
47% in 1840
45% in 1850
44% in 1860
49% in 1870 freed blacks
47% in 1880 freed blacks
44% in 1900 freed blacks

georgia:
36% in 1790
42% in 1810
42% in 1830
42% in 1850
46% in 1870 freed blacks
47% in 1880 freed blacks

louisiana:
45% in 1820
49% in 1850
47% in 1860
52% in 1880 freed blacks

but here's something i don't understand...
as alabama % grew higher, they didn't change their constitution. why? well, because State vs Reid did that for them in 1840.

alabama:
33% in 1820
43% in 1840
45% in 1860
47% in 1870 freed blacks

a few other things to note:

georgia in 1865 was nearly identical to the 2nd amendment (only difference was commas)
georgia in 1868 was nearly identical to the 2nd amendment (only difference was commas AND the word "state" now said "people")
if the terms of the 1868 version didn't imply that "bear" applied to concealed or open, then why did they need to insert: "but the general assembly shall have power to prescribe by law the manner in which arms may be borne." ?

hawaii is written nearly identical to the 2nd amendment (only difference is commas)

Louisiana 1879 is nearly identical to the 2nd amendment (only difference is commas and they used "abridged" instead of "infringed")
if the terms of the 1879 version didn't apply that bear is concealed or open, then why did they need to insert: "This shall not prevent the passage of laws to punish those who carry weapons concealed." ?

north carolina in 1868 was nearly identical to the 2nd amendment (only difference was commas and a clause about free standing armies during peace time)
if the terms of the 1868 version didn't apply to open or concealed carry, then why in 1875 did they feel the need to add: "Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice."

south carolina 1895's first sentence is nearly identical to the 2nd amendment (only difference is commas)

and then there's virginia...written in 1776 but modified in 1791 to include "therefore, the right of the people to keep and bear arms shall not be infringed"
in full it reads: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

i hope this helps...

oh - and just my 2 cents...but maybe the Bliss court ruled like it did because of the word that was used in the original constitution: "questioned"

edit
also of note are some early court cases from georgia and louisiana. but i did not talk about them.

http://www2.law.ucla.edu/volokh/beararms/statecon.htm

Grapeshot · Jun 21, 2016

^ ^ ^ Great research and consolidation ^ ^ ^

solus · Jun 21, 2016

hammer, regarding your statement by 1804, the union states had abolished slavery. not necessarily instant, as there were waiting periods so to speak.

is the date a typo ? Because according to wiki...https://en.wikipedia.org/wiki/Slave_and_free_states#/media/File:US_SlaveFree1821.gif

Illinois 1818 and Indiana 1816

hammer, if you will check your dates you will find state's constitutional activity begins right after 1868, the date of ratification of the 14th, which in part provided to colours: quote ...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. unquote

quote: For many years, the Supreme Court ruled that the Amendment did not extend the Bill of Rights to the states. Not only did the 14th amendment fail to extend the Bill of Rights to the states; it also failed to protect the rights of black citizens. unquote https://www.ourdocuments.gov/doc.php?flash=true&doc=43

this amendment coupled with the 15th is why you will notice the constitution changes after 1868 ratification of the 14th where every state in the country was fighting tooth and nail to not implement, blacks were not afforded unencumbered voting until the mid sixties.

your use of the term Union that you liberally used in your post; was the term in use in 1804 and was meant to mean a free state in that era?

you will find, from the time of our settling, free men could carry their weapons any darn way they wanted and were not hung up on the wording of the 2nd amendment to guide their actions or activities.

i am sorry you have not realized the changes in state constitutions wasn't to stop the new freemen from uprising but rather to keep that group's rights curtailed.

ipse

hammer6 · Jun 21, 2016

solus said:
hammer, regarding your statement by 1804, the union states had abolished slavery. not necessarily instant, as there were waiting periods so to speak.

is the date a typo ? Because according to wiki...https://en.wikipedia.org/wiki/Slave_and_free_states#/media/File:US_SlaveFree1821.gif

Illinois 1818 and Indiana 1816

No typo...I specifically said that it was not instant.... " By 1804, all Northern states had voted to abolish the institution of slavery within their borders. In most of these states, however, abolition was not immediate. Instead, gradual emancipation laws set deadlines by which all slaves would be freed, releasing individuals as they reached a certain age or the end of a certain work period. This situation left some African Americans lingering in bonded servitude." (http://www.pbs.org/wnet/slavery/experience/freedom/history.html)

solus said:
hammer, if you will check your dates you will find state's constitutional activity begins right after 1868, the date of ratification of the 14th, which in part provided to colours: quote ...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. unquote

quote: For many years, the Supreme Court ruled that the Amendment did not extend the Bill of Rights to the states. Not only did the 14th amendment fail to extend the Bill of Rights to the states; it also failed to protect the rights of black citizens. unquote https://www.ourdocuments.gov/doc.php?flash=true&doc=43

this amendment coupled with the 15th is why you will notice the constitution changes after 1868 ratification of the 14th where every state in the country was fighting tooth and nail to not implement, blacks were not afforded unencumbered voting until the mid sixties.

Wrong. With the looming amendments in the wake of the civil war, states were preparing to deal with the "freed" slaves the best way they knew how. Since we are talking about "bearing" arms, I did not research what other constitutional changes they made. But after researching, it's clear to see that the changes in the constitutions were in response to current events as a way to restrict access to newly freed blacks the right to carry concealed weapons.

Also of note- Louisiana, which was pretty much half black, didn't have a constitutional provision for individual carry of arms. The 1845 clause dealt with free white men bearing arms only for defense of the state. It wasn't until 1879 they put an individual right to carry in their constitution. Louisiana became a state in 1812. That's a long time. Also, if you click the link I provided in my post, you'll see that I didn't show every single constitutional change, just the relevant ones.

Note-
Mississippi went from "every Citizen" in 1817, to "all persons" in 1868, back to "every citizen" in 1890.

Florida went from "free white men" in 1838 to "people" in 1885. Florida became a state in 1845.

Georgia didn't have a constitutional provision, but relied on Nunn v State in 1846, which used the 2nd amendment as their guide. In 1865 they added the provision for "people", not restriction a certain method of carry, but then in 1877 they added the provision.

North Carolina went almost 100 years with the understanding that CC or OC was protected.

Tennessee went from "freemen" in 1796, to "free white men" in 1834, to "citizens" in 1870.

Texas was "citizen" in 1836 as a republic and in 1845 as a state, but then in 1868, they changed it to "person", and added the CC regulation.

There's more but I think you get my point.

solus said:
your use of the term Union that you liberally used in your post; was the term in use in 1804 and was meant to mean a free state in that era?

Nah- it was only meant to show allegiance at the time of the civil war. Union being north, confederate being south.

solus said:
you will find, from the time of our settling, free men could carry their weapons any darn way they wanted and were not hung up on the wording of the 2nd amendment to guide their actions or activities.

I know. That was the point of my dissertation above lol.

solus said:
i am sorry you have not realized the changes in state constitutions wasn't to stop the new freemen from uprising but rather to keep that group's rights curtailed.

ipse

That was a sarcastic comment by me. Sorry, I must not have used the correct hyperlinks or whatever they're called. Of course they weren't scared of an uprising. Or were they? As you can see in my listing of the % of black people to white people, most states that changed their constitution featured populations of close to half black. So in all honesty, fear could have been a driving issue.

The only state with the high % of blacks that has not changed its constitution is Alabama, which as I stated before, they didn't need to because their state constitution did that for them.

I think that's all. This is my fist time using tapatalk so don't hate.

Sent from my iPhone using Tapatalk

utbagpiper · Jun 21, 2016

hammer6 said:
so after reading this thread for a while, ...

Very nice summary and some great, solid research.

Thank you, hammer6.

I think it is evident, as Clayton Cramer asserts in his 1993 essay, "The Racist Roots of Gun Control", that anti-CC laws were aimed mostly at keeping blacks (slaves, freemen, freed slaves post 13th) and other untrusted minorities (Irish, Catholics, the poor) disarmed.

A man openly carrying arms might he harassed into disarming. The presence of his arms might provide some justification for the harassment. At the very least, in an OC-only situation, a man not visibly armed might be fairly safely assumed to be unarmed and easy pickin's.

But when men can legally carry discretely the calculus changes a bit.

I note that Bliss was charged with carrying a concealed weapon in the form of a cane sword. Well, who carried canes? Might we assume Mr. Bliss was a man of some wealth and/or prominence? The case went in his favor. The crime that sparked demand for change also involved a sword cane. And who was carrying it? A State legislator.

Notice what the weapon is in most of the cases that ruled against concealed carry. Bowie knives. Small pistols. These are the concealed weapons of the poor, working man.

Cramer points out that while the exact group being targeted has changed over time from freed slaves to others, the basic socioeconomic discrimination remains the central theme of anti-RKBA legislation.

The rich hire armed guards. The moderately well-to-do run businesses and qualify for permits even in some of the discriminatory States. It is the poor, racial minority, or other unpopular groups that really bear the brunt of anti-RKBA laws because they are excluded--one way or another--from the exceptions like permits. Even in some "shall issue" States, the time and cost of mandatory training along with the cost of the permit itself may effectively prevent many lower income individuals from obtaining permits.

I got active in the RKBA effort shortly after Utah moved from discriminatory to shall-issue permits in 1995. Whereas I don't recall seeing a media report about carry permits prior to this time, suddenly, all kinds of institutions--media, churches, government agencies, individual police officers--were expressing deep concern about where people were allowed to carry firearms. Bear in mind that when we changed our permit process, NOTHING changed about where guns could be legally carried. All that changed was who was likely to be able to legally carry a gun. Now, it was wrong to hear anyone overtly admitting to being worried about "those kind of people" being allowed to carry. There was an LTE or two that were honest in that regard. Most expressions of concern attempted to couch the issue as where rather than who. But since the where hadn't changed, it was clear to me then that the real concern was the who. Previously, most permits in Utah were held by well-to-do white businessmen or the politically well connected. With the change to non-discriminatory, working class and even poor folks could get a permit. Racial minorities were on equal footing with white men. And that made certain folks very nervous. Fortunately, we withstood legislative attacks long enough that facts became available to make clear there was no reason to start adding to off-limits locations.

If you want to do some additional research, go looking at the differences in off-limit locations between States that started as discriminatory and then moved to shall issue, compared to States that didn't have permits and adopted shall issue as their first permits. My cursory look a few years ago persuaded me that States that started as shall issue tended to have more locations off limits. My theory is that when permits are limited to the upper crust, nobody worries about making locations off limits. It is possible to move from discriminatory to shall issue without changing where guns are permitted. But when starting with shall issue, there are lots of concerns about the wrong kind of people carrying guns into areas that make us nervous. "The wrong kind" is usually left unstated. But it is obvious that rich, white businessmen who are well connected politically do not get concerned about each other carrying discrete guns while having a drink with dinner or watching a ball game or attending a school event with the kids. But they do get rather nervous about other kinds of people being allowed to carry guns into those locations.

Charles

utbagpiper · Jun 21, 2016

hammer6 said:
utah 1896

I am pleased to announce that Utah has, I believe, strengthened our State Constitutional RKBA provision since the original was adopted in 1896.

Our original State Constitution RKBA provision read:

The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.

This provision currently reads:

The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.

So RKBA is now explicitly recognized as an individual right in Utah.

Furthermore, the individual right is to "keep and bear arms" while the legislature is permitted only to the define the "lawful use of arms."

Knowing that in constitutional law, every word matters and every different word is intended to have a different meaning, I hope that one day our courts and legislature will recognize that the individual right to keep and bear arms may not be infringed and that the legislative power to define the lawful use of arms does not extend to regulating how guns are carried. Defining the lawful use of arms, in my mind, is limited to such things as regulating under what conditions deadly force may be used or threatened.

Charles

randian · Jun 21, 2016

utbagpiper said:
I
Furthermore, the individual right is to "keep and bear arms" while the legislature is permitted only to the define the "lawful use of arms."

An individual right to do whatever is not forbidden is no right at all. Should the legislature define "lawful use of arms" to exclude carrying them outside the home, or if they define using certain kinds of arms as being unlawful, you'll be standing with both legs chopped off.

utbagpiper · Jun 21, 2016

randian said:
An individual right to do whatever is not forbidden is no right at all. Should the legislature define "lawful use of arms" to exclude carrying them outside the home, or if they define using certain kinds of arms as being unlawful, you'll be standing with both legs chopped off.

That is certainly how some would like to interpret and apply the language. And there is real risk that if a case goes to court prematurely, or with the wrong defendant, the court would rule exactly that way.

But under standard rules for constitutional (and even statutory) construction, the law isn't poetry. Every word matters and different words are assumed to have different meanings, especially when used near each other. So while the legislature can define the lawful use of arms, it may not infringe on the right to keep and bear arms.

Three different words used in the same sentence of law, must be applied to have three different meanings. And so a proper ruling would not allow the legislature to use its power to regulate the "use" of arms to infringe the individual right to "keep and bear" arms.

Of course, we don't intend to leave our RKBA fate in the hands of 3 black-robed lawyers if we can help it. We will be running a permit-free carry bill this next legislative session.

Our State constitutional language is not as strong as I'd like. It is stronger than it used to be. Additional improvements will be in order eventually.

Charles

hammer6 · Jun 21, 2016

utbagpiper said:
Very nice summary and some great, solid research.

Thank you, hammer6.

I think it is evident, as Clayton Cramer asserts in his 1993 essay, "The Racist Roots of Gun Control", that anti-CC laws were aimed mostly at keeping blacks (slaves, freemen, freed slaves post 13th) and other untrusted minorities (Irish, Catholics, the poor) disarmed.

A man openly carrying arms might he harassed into disarming. The presence of his arms might provide some justification for the harassment. At the very least, in an OC-only situation, a man not visibly armed might be fairly safely assumed to be unarmed and easy pickin's.

But when men can legally carry discretely the calculus changes a bit.

I note that Bliss was charged with carrying a concealed weapon in the form of a cane sword. Well, who carried canes? Might we assume Mr. Bliss was a man of some wealth and/or prominence? The case went in his favor. The crime that sparked demand for change also involved a sword cane. And who was carrying it? A State legislator.

Notice what the weapon is in most of the cases that ruled against concealed carry. Bowie knives. Small pistols. These are the concealed weapons of the poor, working man.

Cramer points out that while the exact group being targeted has changed over time from freed slaves to others, the basic socioeconomic discrimination remains the central theme of anti-RKBA legislation.

The rich hire armed guards. The moderately well-to-do run businesses and qualify for permits even in some of the discriminatory States. It is the poor, racial minority, or other unpopular groups that really bear the brunt of anti-RKBA laws because they are excluded--one way or another--from the exceptions like permits. Even in some "shall issue" States, the time and cost of mandatory training along with the cost of the permit itself may effectively prevent many lower income individuals from obtaining permits.

I got active in the RKBA effort shortly after Utah moved from discriminatory to shall-issue permits in 1995. Whereas I don't recall seeing a media report about carry permits prior to this time, suddenly, all kinds of institutions--media, churches, government agencies, individual police officers--were expressing deep concern about where people were allowed to carry firearms. Bear in mind that when we changed our permit process, NOTHING changed about where guns could be legally carried. All that changed was who was likely to be able to legally carry a gun. Now, it was wrong to hear anyone overtly admitting to being worried about "those kind of people" being allowed to carry. There was an LTE or two that were honest in that regard. Most expressions of concern attempted to couch the issue as where rather than who. But since the where hadn't changed, it was clear to me then that the real concern was the who. Previously, most permits in Utah were held by well-to-do white businessmen or the politically well connected. With the change to non-discriminatory, working class and even poor folks could get a permit. Racial minorities were on equal footing with white men. And that made certain folks very nervous. Fortunately, we withstood legislative attacks long enough that facts became available to make clear there was no reason to start adding to off-limits locations.

If you want to do some additional research, go looking at the differences in off-limit locations between States that started as discriminatory and then moved to shall issue, compared to States that didn't have permits and adopted shall issue as their first permits. My cursory look a few years ago persuaded me that States that started as shall issue tended to have more locations off limits. My theory is that when permits are limited to the upper crust, nobody worries about making locations off limits. It is possible to move from discriminatory to shall issue without changing where guns are permitted. But when starting with shall issue, there are lots of concerns about the wrong kind of people carrying guns into areas that make us nervous. "The wrong kind" is usually left unstated. But it is obvious that rich, white businessmen who are well connected politically do not get concerned about each other carrying discrete guns while having a drink with dinner or watching a ball game or attending a school event with the kids. But they do get rather nervous about other kinds of people being allowed to carry guns into those locations.

Charles

thanks.

you're exactly right.

and i'll note - i can not find it right now, it's slipped my mind....but in doing all that research, i did come across a discussion or a court opinion about not being able to regulate where arms were borne, but that the method of concealed carry could be regulated.

California Right To Carry · Jun 25, 2016

More Good News! Plaintiffs have to pay costs and attorney fees!

When I first read the en banc decision, there was something I noticed that was attached to the bottom of the Peruta v. San Diego / Richards v. Prieto en banc decision which is significant but was overshadowed by the decision and that was the Defendants are entitled to costs and attorney fees.

Normally, in Civil Rights cases, a plaintiff who loses does not have to pay the costs and attorney fees incurred by the defendants because that would have a chilling effect on those who seek to vindicate their rights.
An exception to this general rule is when the lawsuit is frivolous.

And so not only did the en banc court hold that there is no right to carry a weapon concealed in public, the court determined that the plaintiffs claim that states can ban ‪Open Carry‬ in favor of concealed carry is a frivolous claim.

This may or may not explain why the plaintiffs threw a temper tantrum in their petitions for rehearing before the full court.

But it does amuse me no end. :lol:

Here are a couple of celebratory songs.

[video]https://youtu.be/2oKR9MYYdBM[/video]

[video]https://youtu.be/fxdiraVxwkI[/video]

California Right To Carry · Jun 26, 2016

Please provide the citations...

press1280 said:
The history of the state analogues suggests their understanding was for both OC and CC, otherwise these analogues wouldn't later include the phrases about banning/regulating concealed carry.

"Analogues" is plural. There was only one case in history which said that concealed carry is constitutional (under its state constitution) and there is absolutely no way for anyone competent in English to read that decision to say that Open Carry can be banned in favor of concealed carry.

"The Supreme Court stated in Heller that “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.” 554 U.S.
at 626 (emphasis added). The Court substantially understated
the matter. As just noted, with the exception of Bliss, those
pre-Civil War state courts that considered the question all
upheld prohibitions against concealed weapons. Four of the
six courts upholding prohibitions specifically discussed, and
disagreed with, Bliss. See Reid, 1 Ala. at 617–20; Aymette,
21 Tenn. at 160–61; Buzzard, 4 Ark. at 25–26; Nunn, 1 Ga. at
247–48. Moreover, the two-to-one Bliss decision did not last.
Bliss was decided in 1822; a state constitutional amendment
was adopted in 1849 to overturn Bliss; the legislature then
passed a statute in 1854 outlawing concealed weapons.
The Supreme Court wrote in McDonald that a “clear
majority of the States in 1868 . . . recognized the right to keep
and bear arms as being among the foundational rights
necessary to our system of Government.” 561 U.S. at 777
(emphasis added). Based in substantial part on its
understanding of the “clear majority” of states, the Court held
that the adopters of the Fourteenth Amendment intended to
incorporate the right to bear arms preserved by the Second
Amendment. As just seen, an overwhelming majority of the
states to address the question — indeed, after 1849, all of the
states to do so — understood the right to bear arms, under
both the Second Amendment and their state constitutions, as
not including a right to carry concealed weapons in public." Peruta Slip Op at 38-39

The last sentence is particularly telling as it relates to my case because every case cited in the Heller decision and in the en banc Peruta decision which held that there is an individual right to bear arms, also held that the right is to Open Carry.

Which is why Governor Brown and Attorney General Harris did not raise as a defense that my claim conflicted with Robertson/Heller/McDonald but instead argued that the Second Amendment right to openly carry firearms, which the Heller court said perfectly captured the meaning of the individual right to keep and bear arms does not apply to the states until the US Supreme Court takes a case which challenges a ban on the Open Carry of firearms and invalidates that ban.

Notwithstanding the fact that the 1967 Loaded Open Carry ban extends to those parts of my home which the California courts have deemed "public places." Whatever one might say about the scope of the Second Amendment applicability outside of one's home, it is impossible to read the Heller or McDonald decision to say that the Second Amendment does not apply to one's home.

For me to lose, the court of appeals will have to hold that the Second Amendment does not apply to any part of one's home the state deems to be a public place and, of course, the court will have to hold that the Second Amendment right does not extend to any place outside of the home.

This is gonna be a lot of fun.

davidmcbeth · Jun 26, 2016

Never seen an open carry holster for a Derringer .. LOL

since9 · Jun 26, 2016

California Right To Carry said:
There was only one case in history...

While reading through the forum this evening, I took some notes.

First, I observed from my own readings of our Founders' many documents, that they had every intention for our Second Amendment to apply at all levels throughout these United States, and for it to be absolute, without any exception of any kind, hence their use of the term "shall not be infringed." It was abundantly clear to them, and I know they're rolling in their graves at how incredibly and sickly twisted the "laws" surrounding it have become.

Second, I saw references to standing Federal and Supreme court decisions that:
- open carry cannot be criminalized
- concealed carry cannot be criminalized
- the right to keep and bear arms applies in the home
- the right to keep and bear arms applies outside the home
- the right to keep and bear arms, regardless of mode of carry, applies to the states
- the right to keep and bear arms, regardless of mode of carry, applies to federal enclaves

Taken together, these decisions add up to one things: "the right of the people to keep and bear arms shall now be infringed," and by that, I mean commensurate with our Founding Fathers' original intent as stated under "First..." above.

Naturally, this begs the question: Given the fact that our Founding Fathers made the issue so incredibly simple and clear, why do We the People allow elected legislators, along with both elected and appointed judges, to convolute the holy crud out of the issue?

For that matter, why are we taking 2,000 words to state what our Founding Fathers so elegantly and eloquently stated in just fourteen words: "the right of the people to keep and bear arms shall not be infringed."

I submit to you that the more complicated either we, or we allow them to make the issue, then the easier we make it for the enemy to pull the rug out from under our feet.

We always need better traction, people. The best way to accomplish that is to keep things simple. Our Founding Fathers did when they wrote our Constitution. We need to follow their example while supporting and defending our Constitution.

It really is just that simple.

California Right To Carry · Jun 26, 2016

since9 said:
since9 said:

Second, I saw references to standing Federal and Supreme court decisions that:

Click to expand...

since9 said:

- open carry cannot be criminalized

Click to expand...

Open Carry has always been the right.

since9 said:

- concealed carry cannot be criminalized

Click to expand...

Bliss v. Commonwealth is the only case which held that concealed carry (of a sword in a cane) cannot be criminalized under its state constitution which was then in effect. It made no claim that the Kentucky Constitutional provision was analogous to the Second Amendment but even if it had, SCOTUS has decided that concealed carry is not a right.

since9 said:

- the right to keep and bear arms applies in the home

Click to expand...

Ironically, there is one 19th century case in which a mill operator (or owner, I don't recall) was convicted of concealed carry inside of the mill where he lived and slept.

since9 said:

- the right to keep and bear arms applies outside the home

Click to expand...

So far, there has been only one Federal appellate court which held that the Second Amendment applies outside of the home (Moore v. Madigan). All of the other cases were either purely concealed carry cases or cases where the plaintiffs argued for concealed carry in states where the permit made no distinction between concealed and Open Carry of handguns. The Fourth Circuit ducked the question entirely, the others assumed (without deciding) that concealed carry has some application outside of the home. Both the 7th Circuit (Moore v. Madigan) and the 9th Circuit in the en banc Peruta decision have held that concealed carry can be banned.

since9 said:

- the right to keep and bear arms, regardless of mode of carry, applies to the states

Click to expand...

Via the 14th Amendment which in turns limits the Second Amendment to what it was understood to mean by the Framers of the 14th Amendment and by those who voted to enact it into law. And so even if one could make an argument that there is a right to concealed carry in 1791, that argument fails when state laws are at issue. That's just the way our legal system works.

since9 said:

- the right to keep and bear arms, regardless of mode of carry, applies to federal enclaves

Click to expand...

Robertson v. Baldwin and District of Columbia v. Heller said that concealed carry is not a right. This prohibition applies to Federal enclaves as well.

since9 said:

Taken together, these decisions add up to one things: "the right of the people to keep and bear arms shall now be infringed," and by that, I mean commensurate with our Founding Fathers' original intent as stated under "First..." above.

Click to expand...

If there were a case to be made that the Founding Fathers believed in a right to concealed carry, that case has never been made in any of the concealed carry cases filed by the so called gun-rights groups.

since9 said:

Naturally, this begs the question: Given the fact that our Founding Fathers made the issue so incredibly simple and clear, why do We the People allow elected legislators, along with both elected and appointed judges, to convolute the holy crud out of the issue?

Click to expand...

Because The People today are mostly morons. They elect the politicians and, in some places, judges and in other places, the politicians elected by morons appoint the judges.

since9 said:

:uhoh:For that matter, why are we taking 2,000 words to state what our Founding Fathers so elegantly and eloquently stated in just fourteen words: "the right of the people to keep and bear arms shall not be infringed."

Click to expand...

See my previous answer.

9th rules concealed carry is not a 2nd amenment right - broad application

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