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Thread: 2A Individual Right Upheld...What about Denver OC?

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    In searching through the opinions I found 5 citations to a court upholding open-carry by Scalia and even 1 from Breyer's dissent. I think this case could have an effect on Denver's OC ban because of those citations and Scalia's exhastive review of what "bear arms" means. However, I haven't read the opinion from start to finish and I'm not a lawyer. What do you guys think?

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    Regular Member Anubis's Avatar
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    The wording in the majority opinion found that the second amendment guarantees "the individual the right to possess and carry weapons in case of confrontation" on page 22.

    I see this as abasis for a future challenge to the Denver OC prohibition. If someone does not have a CWP,he should still be able to bear arms for self defense and the only legal way would then be OC.

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    One small score for citizens of D.C. - one GIANT "bulls-eye" for the open carry movement . Justice Scalia's majority opinion is precedent setting !

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    Its great news indeed. Its to bad it has takin over 200 years for this to happen.

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    Regular Member Gunslinger's Avatar
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    The decision left open the question of states/cities regulation of firearms, and probably rightly so. It guarantees the right to keep and bear, and all 9 Justices affirmed it was an individual not collective right. (Page1 Stevens; page 3 Breyer dissents.) That issue is now closed, as well. No gun laws of the Feds were touched, as they were not an issue in the instant case. Neither were any state/local laws touched except to say prohibition of the right to keep and bear for normally accepted weapons that citizens would own is unconstitutional. And the right to own handguns for defense of person and property is guaranteed by the 2nd A. Chicago and other places that prohibit ownership of handguns will fall. Other registration/restrictions--not involving prohibition, are open to further litigation. A major victory, but not time to let up on our efforts. And yes, I read all 167 pages.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Regular Member Anubis's Avatar
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    Gunslinger wrote:
    And yes, I read all 167 pages.
    On my first read, I passed out on page 23. I vow to read it all, however.

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    In reading the opinion further, I have come to think that this case will not directly impact any state gun laws or prohibitions. A strict reading of the US Constitution and the Bill of Rights makes it clear, at least to me, that the first 10 amendments were prohibitions on the Federal Government alone, and not against the states. The US Supreme Court has never incorporated 2A against the states as it has the 1st, 3rd, 4th, 5th and parts of the 6th and 7th. But, Scalia was brilliant in his opinion because he defined the rights protected by 2A as natural rights, existing prior to the amendment and merely recognized and protected by it. If the foundation of other state constitutions is based upon the US Constitution and Natural Law, good arguments can be made against certain infringements.

    Notwithstanding what happens at the federal level, many state constitutions have a Bill of Rights with a right to keep and bear arms. Colorado obviously does (Section 13) and it is not subject to police power. Illinois does (Section 22) but it is subject to police power. California does not have a constitutional provision protecting RKBA at all, so without Federal guideance S.F's ban will be harder to crack.

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    Anubis wrote:
    <snip>

    I see this as abasis for a future challenge to the Denver OC prohibition. If someone does not have a CWP,he should still be able to bear arms for self defense and the only legal way would then be OC.
    Since CWP licenses cost something, the right cannot be contingent upon the possession of one. An indigent individual with no capability of paying for a permit does not lose the right because of his financial situation.

    Consider the "right to assemble". You can assemble with your friends at a park and have a picnic without getting a permit or paying a fee. But if you want to parade down Main St, you need to get and pay for a permit.

    To that end, since requiring a fee to assert a right is clearly unconstitutional (exceptions like needing a permit for a parade, permit for concealed carry, license to establish a church, etc), OC is the only way some may assert their right to "bear arms".

    Begs further thought and discussion.........

    Tim

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    Regular Member Gunslinger's Avatar
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    centsi wrote:
    In reading the opinion further, I have come to think that this case will not directly impact any state gun laws or prohibitions. A strict reading of the US Constitution and the Bill of Rights makes it clear, at least to me, that the first 10 amendments were prohibitions on the Federal Government alone, and not against the states. The US Supreme Court has never incorporated 2A against the states as it has the 1st, 3rd, 4th, 5th and parts of the 6th and 7th. But, Scalia was brilliant in his opinion because he defined the rights protected by 2A as natural rights, existing prior to the amendment and merely recognized and protected by it. If the foundation of other state constitutions is based upon the US Constitution and Natural Law, good arguments can be made against certain infringements.

    Notwithstanding what happens at the federal level, many state constitutions have a Bill of Rights with a right to keep and bear arms. Colorado obviously does (Section 13) and it is not subject to police power. Illinois does (Section 22) but it is subject to police power. California does not have a constitutional provision protecting RKBA at all, so without Federal guideance S.F's ban will be harder to crack.
    It will only impact state/local laws that deny the right to keep and bear altogether, like Chicago, Morton Grove, etc. Those laws are unconstitutional on their face. Regulations, registration, etc, etc won't be affected unless they discriminate unfairly in who gets an FID, for example, in IL or MA. Carry laws, OC or CC, will probably not be touched and remain within the purview of the states.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    I have to disagree that carry prohibitions will not be affected. Justice Scalia wrote that the amendment protects the right to own a firearm for lawful purposes, such as defense in the home. If self defense is a fundamental right, what justification can there be for limiting it to the home? I see carry laws being brought before the bench in the near future.

    As for incorporation, the whole thing is ludicrous. Do we protect children from some bullies and let other beat them up with impunity? The bill of rights was intended to safeguard the rights of the polity. It was not intended simply to restrict one segment of the government. The doctrine of partial incorporation is as absurd as the collective right stance taken by the anti-gunners.

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    Strict Constructionist wrote:
    I have to disagree that carry prohibitions will not be affected. Justice Scalia wrote that the amendment protects the right to own a firearm for lawful purposes, such as defense in the home. If self defense is a fundamental right, what justification can there be for limiting it to the home? I see carry laws being brought before the bench in the near future.

    As for incorporation, the whole thing is ludicrous. Do we protect children from some bullies and let other beat them up with impunity? The bill of rights was intended to safeguard the rights of the polity. It was not intended simply to restrict one segment of the government. The doctrine of partial incorporation is as absurd as the collective right stance taken by the anti-gunners.
    The problem with the ruling is that Scalia also said he believed that the 2A did not prevent the regulation of who or where one can possess a firearm, merely the right to own and possess as a whole. This, unfortunately, leaves the door open for regulation.

    I would like to point out one thing that most seem to forget about the purpose of the 2A in the eyes of our founders. The 2A was intended to maintain an armed populous in order to prevent a government from taking over, even if that government was our own. In other words, the ability of the people to maintain control of their government by force if necessary. This was why the founders worked so hard to limit the authority of the government in the beginning, so much so that there was not enough control for the federal government to even function. This is why the original governing rules for our nation (the Articles of Confederation) had to be rewritten (in the form of our current Constitution) to allow the government enoughcontrol to actually function. While few would expect us to ever need to take up arms in revolution again, it is the reason for the 2A to begin with and a cornerstone to our country's heritage.

    Doc

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    My sense of the majority opinionwritten by Scalia is that the "home" is extended out into the "biosphere" of one'snormal course of affairs.. to enable a person to defend themselvesin the event of a"confrontation"(presumption being- not of their own initiation). Further, since this RKBA for one's personal safety is affirmed to be a RIGHT -as in CIVIL RIGHT -then protections and remedies afforded to the FREE excercise of ALL CIVIL RIGHTS kick in - including the umbrella of the 14th Amendment. With due deference to private property rights - a business be it a corporation or sole proprietorship that solicits trade & commerce with the general public concedes a certain degree of its proprietorial perogatives whenever its policies prevent or hinder the free excercise of a person's CIVIL RIGHTS. Do you see where this is going ? Retail merchants, particularly the "big boys", excercise control over some of the most crime-laden real estate in this nation. Kidnappings, homocides, robbery,are common place and occur every day at these business locations. Also-application of "Heller" does apply to theDenver total ban on OC. Denver's ordinance IS : with intent to prevent or hinder the free excercise or enjoyment of the RKBA (aCIVIL RIGHT)- secured by the US & Colorado Constitutions, and Colorado Revised Statutes. In view of Heller decision the Denver absolute ban on OC in public is null & void. Perhaps Denver elected representatives can be so persuaded ???

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    The best argument that we have against Denver's OC ban isn't the second amendment to the US Constitution. It's Section 13 of Colorado's Bill of Rights:

    "
    The right of no person 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 in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."

    This is pretty obvious. We can keep and bear in defense of our homes, our property and most important in this case, our person. Obviously "person" in this context means ourselves outside of our homes and off our property. And since the amendment clearly doesn't protect CC, the right of "bearing" arms has to mean bearing them openly.

    That is what we need to challenge with Denver's OC ban. Forget the incorporation doctrine and the 14th. 2A ensures the feds won't take our guns and Art. 2 Sec. 13 ensures that Colorado and local gov'ts won't, at least not legally.

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    Regular Member Anubis's Avatar
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    Centsi, I agree with you about the Colorado version of 2A, but it was in place in 2003 and was not a factor in the Meyer decision which allowed Denver to keep the OC ban.

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    You are correct Anubis; Between the two arguments presented on OC, State vs Denver, Meyers took Denver's position. However, the judge wasn't asked to decide the constitutionality of regulating OC in general, but merely who's regulation should apply. Neither side disputed that someone has the right to regulate OC. I think that if this had been an person exerting their rights as individuals under Colorado's Constitutional RKBA statute, the judge would have had to come up with something else.

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