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Thread: California legislative "expert" speaks on open carry fall out from Heller

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    NOTE: This expert errs by stating that open carry was banned at common law and implying that in Calif. an open carry permit is needed to oepn carry. Looks like he never heard of, inter alia, People v. Kinght. He also mistakenly points to "failure" by GeorgiaCarry.org to repeal the license requirement to open carry - GeorgiaCarry.org successfully hijacked the NRA car carry relaxation bill, HB 89, and fortified it to repeal the restaurant, airport, and other gun bans - HB 89 was probably the biggest gun rights coup of the year in the United States. His Constitutional analysis is flawed as well - Scalia and Roberts et al. and others just wrote that their is a right to bear arms but that the District can ban concealed carry - that only leaves . . . open carry as protected.

    --

    http://www.californiaprogressreport....ut_from_t.html

    Fall Out From the Supreme Court Gun Decision in Heller

    By Irwin Nowick


    Friday I wrote an initial article on the Heller decision and I referred to several issues that would spark additional litigation. Since that time there is additional information that has come to light. In addition, there was a response to my article that I want to respond to.

    The first issue relates to what guns are protected by the Court’s decision in terms of what could be acquired and possessed under a ministerial licensing-registration system and not banned outright. In the course of that discussion I noted that in 1932 as part of a weapons control law enacted for the District by Congress (this was pre 1973 Home Rule), Congress enacted a definition of banned “machineguns” which includes semiautomatic firearms to an extent.

    The District of Columbia has a unique status under the United States Constitution (Art. I, § 8, cl. 17), the United States Supreme Court has repeatedly held that Congress shall have power "[t]o exercise exclusive Legislation in all Cases whatsoever, over" the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. See, e.g. Palmore v. United States, 411 U.S. 389, 398-399 (1973)

    Unlike what the DC government did under Home Rule in 1976, the “machinegun” definition emanates directly from an Act of Congress and thus raises Congressional power. Mayor Fenty’s assertion that he will not allow semiautomatics to be registered because Congress expressly enacted an auto loading ban in 1932 (and exactly what was intended is unclear) is therefore not unreasonable. It is one thing to throw out a local ordinance that Congress never explicitly authorized - the 1932 Act of Congress expressly allowed gun possession on private property as many of the Heller briefs noted. It is another thing to declare a congressional statute invalid.



    There was a reason why Dick Heller sought to register a particular type of handgun as opposed to another and it relates to the brain capacities of Bob Levy and Alan Gura. Dick Heller sought to register – and the application is attached to the Court documents as an exhibit and the backup material (I sent an email to the manufacturer regarding this to make sure I was correct) – attempted to register a single action revolver which for want of a better term is a cowboy “six shooter” – though this one had 9 shots because it was a .22 caliber weapon and the cylinder could be manageable.

    I should add that a single action revolver is not exactly an easily dischargeable handgun. In order to be fired the hammer has to be pulled back and the trigger pulled to be fired – each time to discharge the bullets in the cylinder. Modern revolvers (double action) – just as semiautomatics – allow the gun to be fired each time the trigger is pulled. In the case of autoloaders (semiautomatics) gas from spent cartridges reloads the gun. In the case of revolvers I would argue that double action revolvers are safer and more effective than semiautomatics because they are not “chamber loaded weapons” and the gun’s shot capacity is limited by the size of the cylinder as opposed to a separate detachable magazine. (I should add that there are apparently fixed magazine pistols) But that is a matter of personal choice and observation. The reason that Heller sought to register a revolver was to stay away from the “machinegun” issue and get into the validity of an Act of Congress.

    What Congress intended to cover is unclear. However, the statute (what is now DC Code § 22-4514(in 1932) has been held to cover any semiautomatic firearm that can accept a magazine in excess of 13 rounds. United States v. Woodfolk, 656 A.2d 1145, 1147-1149 (D.C.App. 1995), cert. den. 516 U.S. 1183 (1996). It is arguable – as the Woodfolk Court noted – that the DC registration prohibition as to machineguns as enacted locally may be narrower than the local ban but the Congressional ban is greater than the traditional machinegun definition (single pull of the trigger results in multiple rounds being discharged).

    However, the Congressional ban does cover handguns and rifles. While there are semiautomatic shotguns that can accept a detachable magazine, those have been held to be “destructive devices” and thus regulated under the National Firearms Act. They are clearly not protected “arms”. Most auto loading shotguns have tubular fixed magazines. I should add that there are a number of .22 caliber auto loading rifles with tubular magazines that are not banned. Similarly, there are a number of semiautomatic rifles with fixed magazines fed with “stripper clips” – the primary example being the Garand rifle of WW II fame. And, apparently there is a history of semiautomatic pistols with fixed magazines which may make a comeback.

    The rational for the expanded machinegun definition enacted by Congress was stated in Woodfolk as follows:

    “Congress enacted D.C. Code section 22-3214(a) in 1932prohibiting the mere possession of certain weapons, ‘to enforce drastically a prohibition against carrying particularly dangerous weapons within the District of Columbia.’ Worthy v. United States, 420 A.2d 1216, 1218 (D.C.1980). The legislative intent was to strengthen the existing law and tighten controls over the possession of dangerous weapons. United States v. Parker, 185 A.2d 913, 914 (D.C.1962). We explained the legislature's rationale by stating that ‘[t]he weapons listed in subsection (a) are so highly suspect and devoid of lawful use that their mere possession is forbidden.’ Worthy, supra at 1218 (citing United States v. Brooks, 330 A.2d 245, 247 (D.C.1974)).

    “Similarly, we looked at the legislature's intent when we interpreted a D.C. statute that required registration of all firearms within the District, outlawed possession of unregistered firearms, and specifically stated that registration certificates could not be issued for machine guns. We concluded that when the legislature excluded machine guns from those firearms which could lawfully be registered, the legislature was ‘concerned primarily with the inherent fire power of certain weapons, not with the question of firearm modification after registration. The rationale supporting this provision [is] to prohibit residents of the District from possessing guns whose fire power has legislatively been deemed to be dangerous....’ Fesjian v. Jefferson, 399 A.2d 861, 865 (D.C.1979). Hence, we held, even though the machine guns in question were presented for registration with clips holding less than 12 rounds, ‘[s]ince the guns in question, by virtue of their structure, had the capability to shoot the prohibited number of rounds without reloading, they may properly be found to be unregisterable.’ Id. We think a somewhat similar focus underlies the statute before us.

    “It is true that the registration statute in Fesjian defines a machine gun as ‘any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot ... semiautomatically more than 12 shots without manual reloading.’ D.C. Code section 6-2302(10). This is a fuller definition than that contained in section 22-3201(c) and could lead to different results in particular cases. See Townsend v. United States, 559 A.2d 1319 (D.C.1989) (unregistered pistol missing firing pin and spring mechanisms was unlawfully possessed under D.C.Code section 6- 2311(a) even if not "operable" for purposes of D.C. Code section 22-3204). However, in Fesjian we were dealing with constitutional issues and addressed the statutory purposes in broad terms. Given the expansive definitional language that, as we noted, ‘clearly’ prohibited registration of the firearms in question; Fesjian, 399 A.2d at 865, we had no occasion to address further the issue presented in this case.” 656 A.2d at 1148.

    Assuming that the Council was to adopt the core 1932 definition of what a “machinegun” is – and thereby arguably allow a greater number of semiautomatic firearms to be registered under remand, I sincerely doubt that it would undo an Act of Congress by going to the traditional “machinegun” definition.

    I would add that any effort to address the 1932 definition by Congress getting into this raises the specter of “assault weapons” and other issues. The doctrine of “Member Protection” counsels no action at all by Congressional leaders – particularly Republicans. The Republicans in Congress have at least 20 suburban Republicans seats on the table this fall. In fact, Mark Kirk a Republican from Illinois who is from the Chicago suburbs wants to reenact or reinstate the 1994 prospective ban on the domestic manufacture or importation of various categories of firearms that lapsed in 2004. The last thing John McCain (who voted to extend the 1994 prohibition on the importation or manufacture of assault weapons I might add – see the Roll Call on final passage of S. 1805 of 2004) needs is to vote on whether to “legalize in the Nation’s Capitol” a lot of very bizarre looking guns such as the Tech-9.

    Moreover, the Supreme Court in Heller held that machineguns were not “arms” and “unique and dangerous” weapons are not “arms” either and that is the same type of language used in the cases cited in Woodfolk. However, the Second Amendment now clearly applies to individual on federal territory. One of the main rules of Constitutional litigation is not to decide issues in cases unless expressly presented for review. If a case can be decided on statutory grounds to avoid the Constitutional issue, that is the desired result.

    It does make sense for the attorneys to actually litigate if all semiautomatic rifles and handguns that accept a detachable magazine were indeed statutorily banned as “machineguns” by Congress. Semiautomatic pistols were in common existence in 1932 and I sincerely doubt that an all out ban on every semiautomatic pistol and rifle was intended by Congress – particularly when semiautomatic target pistols existed at that time – but a ban of some sort was intended.

    Moreover, I do know that the US Attorneys Office in the late 1970’s did not routinely charge persons carrying pistols without a license where it was a semiautomatic also with “machinegun” possession. The reason I know that is that I interned for the District of Columbia Superior Court at that time.

    Finally, Congressional intent may have been clarified by the authority Congress gave the Treasury Department in 1968 to import only firearms that meet a “sporting test”. A “machine gun” does not meet a sporting test. Numerous semiautomatics were admitted under a sporting test so they are clearly not banned.

    On this issue, I would suggest the strategy will be to “litigate” not “legislate” with another round of very technical litigation on what was intended in 1932.

    Secondly, as to the litigation in San Francisco as to public housing, the Heller case was brought not by the NRA but by Bob Levy who is a very wealthy individual who made his money in the computer-financial analysis field.

    Levy is a pre 1937 Constitutional Revolution style property rights defender. He is not with the NRA but associated with the Cato Institute. While it may sound simple, he feels unless it is some sort of public accommodations style situation, no one should tell another what they can do on their property. As such, he is adamantly opposed to these “guns in parking lots” legislation which in effect forces businesses to allow guns on to their private property. I do not know about how he feels about guns in government owned residential property or whether he even approves of it. He may take a Margaret Thatcher approach to this where she attempted to privatize and sell to the tenants all government housing in England.

    But as to the San Francisco Public Housing situation, California has had a long history of Constitutional Home Rule enshrined in our Constitution since 1879. While this is true across the board, it is particularly true as to chartered entities which San Francisco is. The control of municipal property has been held to be a "municipal affair" that the state cannot regulate.

    Also, Justice Scalia noted that bringing guns on to government property could be strictly circumscribed or prohibited which public housing is. What you may see is a US Senate amendment (no US House Rules Committee control and no germane issues) to one of the pending appropriations bills that shuts off federal money to any local government which bars people who live in federally assisted housing from having guns which private individuals on their own property could have. However, I am not sure Congress can shut off the money even under the rational of South Dakota v. Dole, 483 U.S. 203 (1987).

    Last, but not least, as to open carrying of guns, “open carrying” of loaded guns in urban areas of this state has been banned since 1967. Open carrying of unloaded weapons has also been in effect banned because of the “school zone” law enacted in 1994. The various legislative measures by former Assemblywoman Rebecca Cohn obliquely referred to in Jim March’s blog posting that were drafted by Dr. Cavala and I was really “mop up-clarification” measures.

    In fact, the California Rifle and Pistol Association in response to an assertion by Rebecca on this issue denied vociferously that it supported open carry and instead pointed out it supported reasonable “concealed carry” licensing regulations. However, because the specter has been raised again, I see a Dr. Cavala request that one of his clients reintroduce the Cohen bills. In rural areas of the state, state law allows an open carry license because of legislation carried by former Assemblyman Willard Murray.

    I should add that Wayne LaPierre when asked about this stated that the NRA supported reasonable “behavioral conduct” regulations. The California Rifle and Pistol Association in response to an assertion by Rebecca on this issue denied vociferously that it supported open carry or opposed her legislation. Instead, it pointed out it supported reasonable “concealed carry” licensing regulations. I should add that on its’ most recent Grassroots Alert the NRA pointed out that it helped enact in Rhode Island legislation to allow safe transport of unloaded and locked up handguns without a carry license. I know that NRA representative in Rhode Island – a state with an individual Rights Clause – stated that they wanted no part of any effort to allow open carrying of guns in public.

    Open carrying is a public safety issue. There are legitimate reasons for civilian open carry – the prime example is private security personnel – military parades and the like. However, nothing will set off Chief Justice Roberts and Justice Kennedy as a proliferation of open carrying. Open and concealed carrying of guns within the District of Columbia has been presumptively banned since 1953 by an Act of Congress passed by a Republican Congress signed into law by President Eisenhower. The Common Law banned open carrying of weapons except under very stringent conditions.

    The public reaction to a proliferation of open carrying was just on display in Georgia. Current Georgia Code § 16-11-128 bans carrying of handguns open or concealed in public without a license. A proposal was made by a group in Georgia called Georgia Carry to lift the ban on unlicensed open carrying that the Georgia Supreme Court upheld in 1911 under the Georgia Constitution’s explicit individual right to keep and bear arms clause. That effort was stopped by the Republicans who control the Georgia Legislature who squished the bill in committee because of opposition from the business community and others.


    Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.

    Posted on June 29, 2008


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    Ugh. How nauseating. It's the presence of people like that which makes me count the days until I'm out of this worm pit.

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    American Zampolit


    Irwin Nowick




    It would be wise toread more abouthim and learn everything you can about this man (know your enemy). While extremely intelligent and politically dangerous, his is the face of our real enemy:those who are NOT elected by the people, yet use their knowledge and influence to control legislation and ultimately control people - We the People, that is.He is often the one drafting the legislations, not the legislators and his opinion, while "educated", is not in the best interests of California nor America.

    He is educated, powerful and has powerful friends,intelligent,well versed on the law and codes,and he is outspoken. Study him, learn his motives, his tactics. Find a weakness and exploit it mercilessly, for he and his ilk do that to Americans and Californians every single day in the name of what HE believes is right and wrong.

    I do not now and will not ever subscribe to this man's ideas of freedom nor what he believes in his mind to be safety and security no matter how educated or popular his opinion may be.Staffers like him are the American equivalent of Soviet Military "Political Officers", the Zampolit. He would disarm all of you and have you bow to his will.

    Hell, he's already doing just that. In America.




    More on Irwin:

    7642 WINDBRIDGE DR,Sacramento, CA

    http://www.californiaprogressreport....round_and.html

    http://www.bbvforums.org/cgi-bin/for...amp;post=12177

    http://www.newsmeat.com/fec/bystate_...mp;first=IRWIN




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    This guy wants to get rid of open carry in California becuase of the open carry marches in Ohio.





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    He's right that the school zone law effectively prohibits open carry, at least in the larger cities. Sounds like solid grounds for an appeal, though.

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    Campaign Veteran marshaul's Avatar
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    I don't like that guy one bit. He clearly loves to run around tooting his own horn, referring to all the times he's been called a "genius."

    What a tool.

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    He's an idiot and a liar, as per the OC.org tradition, I will site my sources and reason.



    Idiot..... simply read California's gun laws, they are the most convoluted crappy sorry excuse for a paragraph ever written, theGA isconsidering writing the laws for this reason. CA gun laws are about 100 pages of gibberish and confusing statements of the 600 page ATF annual publication of gun laws.

    Liar.... he's the wrong guy to talk about Rhode Island because of.... me. There are 2 groups in Rhode Island, the state NRA and CRAL. I'm vice president of CRAL so that's enough said on that. The NRA has 3 main lobbyist who have never commented about open carry because most RI residents don't care about open carry. We have good law and case law on CCW.

    As far as the transportation bill he mentioned.... I'm not at liberty to talk about all the details for certain reasons but the bill was written by an F- rated state Senator named Charles Levesque. He wrote the bill because he knew that many gun owners transported pistols outside of the law. He had a moment of truth and thought that if guns are legal, then they should be able to transport them for legal activity without committing a felony. That's where the bill came from.

    I could go on for hours about RI but the bottom line is CRAL is doing a good job of helping people get shall-issue CCW's that are valid everywhere in the state so because of this and the favorable case law on guns in State v Storms and Mosby v Devine, open carry is not an issue in RI and out of the 5,000 AG pistol permit holders, none of them open carry even though they legally can.

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    Campaign Veteran marshaul's Avatar
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    Jared wrote:
    SNIP...
    open carry is not an issue in RI and out of the 5,000 AG pistol permit holders, none of them open carry even though they legally can.
    Why not? :shock: Do you plan on addressing this issue?

    So complacent... For shame.

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    marshaul wrote:
    Jared wrote:
    SNIP...
    open carry is not an issue in RI and out of the 5,000 AG pistol permit holders, none of them open carry even though they legally can.
    Why not? :shock: Do you plan on addressing this issue?

    So complacent... For shame.

    No.

    Complacent... please keep your comments to yourself. I and a few others at have donated lots of time and money to shaping case law the way we have in Rhode Island.

    We do alot... and I don't even live there no more and I'm not even bound by their state carry laws and I still contribute.


    If I could wave a magic wand and make RI Virginia style open carry I would, but the CCW issue is MUCH more important to the gun community in RI and to others then open carry. If you care so much, go to Providence and change it.

    On paper we have the best CCW law on the books of any state. You can carry ANYWHERE in the state, no where is off limits.

    Some of the people we help get concealed pistol licenses need it to carry concealed. Two examples that come to mind are a male who's ex-wife threatened to kill him, we helped him get a town permit, now he can protect himself. Another person was a female who's abusive ex-boyfiend was getting out on parole. We got her a CCW. Other people who just wanted one to have one.... we got and paved the way for PLENTY of them to get CCW's.

    There is simply no interest in open carry and many states have used open carry to get around or repeal harsh CCW laws. RI does not have harsh CCW laws. We have our hands full getting all chiefs to actually issue the license. Our problem is unique but a lot better than what many states have.

    If people start open carrying on Attorney General permits, the general assembly will give the Attorney General authority to restrict permits. I don't encourage or discourage open carry in RI. I like the idea.

    How do I know this you ask... because I know plenty of members of the General Assembly who told me that it would happen and so has one of the NRA lobbyist who has been working with the general assembly sinceWorld War 2.


    I wouldn't say they are complacent, if they don't want to open carry then it's their choice not to. I know it may be hard to believe, but not everyone wants to open carry. Many AG permit holders have the permit for employment purposes and those thatwould want to open carrydon't want to risk their job over OC'ing.

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    Jared wrote:
    If people start open carrying on Attorney General permits, the general assembly will give the Attorney General authority to restrict permits. I don't encourage or discourage open carry in RI. I like the idea.

    How do I know this you ask... because I know plenty of members of the General Assembly who told me that it would happen and so has one of the NRA lobbyist who has been working with the general assembly sinceWorld War 2.
    Just because these folks said this, does not make it a fact. These types of establishment people have said this in state after state - only to be proven false.

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    Jared wrote:
    marshaul wrote:
    Jared wrote:
    SNIP...
    open carry is not an issue in RI and out of the 5,000 AG pistol permit holders, none of them open carry even though they legally can.
    Why not? :shock: Do you plan on addressing this issue?

    So complacent... For shame.

    No.

    Complacent... please keep your comments to yourself.
    You do realize this is an open forum... for open carry... so don't be surprised when people speak freely and advocate open carry.

    I agree that it is complacent to prioritize permits over open carry. The bottom line is that you're too happy to ask for that permission slip. People with concealed weapon permits, in my experience, tend to be rather complacent about open carry. They say, "why don't you just get a permit." Well, you may be content asking your local politician for permission to carry a weapon, but I'm not. I want to exercise a right, not a privilege.
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    CA_Libertarian wrote:
    Jared wrote:
    marshaul wrote:
    Jared wrote:
    SNIP...
    open carry is not an issue in RI and out of the 5,000 AG pistol permit holders, none of them open carry even though they legally can.
    Why not? :shock: Do you plan on addressing this issue?

    So complacent... For shame.

    No.

    Complacent... please keep your comments to yourself.
    You do realize this is an open forum... for open carry... so don't be surprised when people speak freely and advocate open carry.

    I agree that it is complacent to prioritize permits over open carry. The bottom line is that you're too happy to ask for that permission slip. People with concealed weapon permits, in my experience, tend to be rather complacent about open carry. They say, "why don't you just get a permit." Well, you may be content asking your local politician for permission to carry a weapon, but I'm not. I want to exercise a right, not a privilege.
    I do realize that. I've been on this site a year longer than you have... so I know what kind of forum this is.

    This issue came up because Irwin spoke about something he knows nothing about. I corrected him. The next poster says it's a shame that everyone is complacent, maybe they don't care about open carry, that's my point. Not one member of CRAL or the State NRA has ever said to me that they wanted open carry. That's all what my point is. Although I like open carry I don't think it's my place to try to hijack CRAL and make it into an open carry organization.

    Sodon't insert a proxy'ummm you do know this is an open carry forum' when the issue is why don't I drop what I'm doing and push open carry in Rhode Island. I've never pushed it becauseno one cares aboutOCin RI. It doesn't necessarily make them idiots or anyother name some of you would like to call them. Some people just don't care about it.

    Other issues I care about other people don't care about on this forum so it works both ways. How many of you care about the ability to open carry switchblades, and other knives? I care about that. Not many other people do because they think the 2nd amendment only applies to guns.... it doesn't.

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    Mike wrote:
    Jared wrote:
    If people start open carrying on Attorney General permits, the general assembly will give the Attorney General authority to restrict permits. I don't encourage or discourage open carry in RI. I like the idea.

    How do I know this you ask... because I know plenty of members of the General Assembly who told me that it would happen and so has one of the NRA lobbyist who has been working with the general assembly sinceWorld War 2.
    Just because these folks said this, does not make it a fact. These types of establishment people have said this in state after state - only to be proven false.
    Yes but RI is a small state and politics are unique there since everyone knows everyone. This is not true in other states. It's hard to operate in that type of environment. The Speaker of the House and Senate President get what they want because they have the more power than anyone else in the state. It takes a lot to get enough members to say no.

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    Campaign Veteran marshaul's Avatar
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    A small state should be less susceptible to the whims of irresponsive legislators.

    The fact that RI is otherwise underlines the complacency I speak of.

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    Jared wrote:
    I've never pushed it becauseno one cares aboutOCin RI. It doesn't necessarily make them idiots or anyother name some of you would like to call them. Some people just don't care about it.
    From www.dictionary.reference.com
    com·pla·cent [kuhm-pley-suhnt] –adjective
    1. pleased, esp. with oneself or one's merits, advantages, situation, etc., often without awareness of some potential danger or defect; self-satisfied: The voters are too complacent to change the government.
    So, it is my opinion that the people of RI are complacent because they're happy with what they've got, and are ignoring some serious issues.

    Jared wrote:
    How many of you care about the ability to open carry switchblades, and other knives? I care about that. Not many other people do because they think the 2nd amendment only applies to guns.... it doesn't.
    +1

    I care about all illogical, tyrannical restrictions on us. The list is a long one, but the top 3 are the criminalization of: arms (guns & knives), drugs, and prostitution.
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    marshaul wrote:
    A small state should be less susceptible to the whims of irresponsive legislators.

    The fact that RI is otherwise underlines the complacency I speak of.
    Sounds like some legislators need to be primaried.

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    In Jared's defense, although this probably belongs on the RI forum instead of CA...

    RI is a unique case. Not only is it small, it's in New England, and somewhat isolated. It's also the most politically corrupt state in the union. Louisiana and New Jersey have nothing on RI; Chicago has nothing on Providence. The mayor of Providence is de facto the chief executive of the state, much as the mayor of Chicago effectively controls Illinois.

    Speaking of, I believe Buddy Cianci just got out of federal prison after serving time on corruption charges. :P

    Anyhoo, if CRAL/RINRA are able to effectively secure concealed carry licenses for those who need them, even while OC is not in play, then they're worlds ahead of California.


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    Campaign Veteran marshaul's Avatar
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    Eh... CCW really doesn't impress me, least of all if you have to ask permission.

    Worlds ahead? :quirky

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