Constitutionality of requiring a CPL, CCW or CWP...

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sempercarry wrote:

I can't see how open carry is illegal in some states or requires a license. The RIGHT to keep and BEAR arms. You cannot charge a person for a constitutional right. Imagine needing a license to talk freely....it is absurd. Concealed carry is the privilege, OC is the alternative and the inalienable right.

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Don't forget that some STATE constitutions are written in a more detailed way....

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Aaron1124 wrote:

sempercarry wrote:

I can't see how open carry is illegal in some states or requires a license. TheRIGHT to keep and BEAR arms. You cannot charge a person for a constitutional right. Imagine needing a license to talk freely....it is absurd. Concealed carry is the privilege, OC is the alternative and theinalienableright.

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Privilege? How can concealed be a privilege if open carry is a right? They are one in the same, because they are both keep & bear. That's like saying you can own a switch blade knife as long as it does not have a blade.

"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".

Tell me where it says that it is a privilege? Privileges are given by man, rights are given by God. Liberals want you to think that the ability for you to carry your weapon is a privilege, because as long as you think of it as a privilege, it can be taken away from you. As soon as you start to view it as a right, it can never be taken away. Ever. So, the next time some Lib starts in on you about why you are OCing, boldly remind them that it is you right, and as such, you will exercises that right until the day you die. Just like they throw the 1st Amendment in your face when they rally and protest, we shall rally and protest by OCing when ever possible.

On another note, I think a TEA party style gathering is in order before the August recess ends.

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2ndAmendmentDefender wrote:

Aaron1124 wrote:

sempercarry wrote:

I can't see how open carry is illegal in some states or requires a license. TheRIGHT to keep and BEAR arms. You cannot charge a person for a constitutional right. Imagine needing a license to talk freely....it is absurd. Concealed carry is the privilege, OC is the alternative and theinalienableright.

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Privilege? How can concealed be a privilege if open carry is a right? They are one in the same, because they are both keep & bear. That's like saying you can own a switch blade knife as long as it does not have a blade.

"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".

Tell me where it says that it is a privilege? Privileges are given by man, rights are given by God. Liberals want you to think that the ability for you to carry your weapon is a privilege, because as long as you think of it as a privilege, it can be taken away from you. As soon as you start to view it as a right, it can never be taken away. Ever. So, the next time some Lib starts in on you about why you are OCing, boldly remind them that it is you right, and as such, you will exercises that right until the day you die. Just like they throw the 1st Amendment in your face when they rally and protest, we shall rally and protest by OCing when ever possible.

On another note, I think a TEA party style gathering is in order before the August recess ends.

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I want to ask you a few questions here:

1) What makes you think that all Liberals are anti-gun? You might want to look around you here. Washington State has been a very pro-gun jurisdiction for DECADES. I count many here in Washington State who are both "liberal" in your veracity and pro-gun. It was a coalition of gun owners and "liberals" that booted out Mayor Nickels of Seattle and retired him from public office, hopefully permanently. This coalition was made up of people who were gun owners (who all almost universally voted against Nickelbag) and "liberals" who thought "Da Mayor", in their words, was a "corporatist pig". We booted him out, and we sent a message to the next Mayor to not screw with gun owners, or we'll make sure that he's a 1-term mayor.

2) What makes you think that any federal court is going to declare concealed carry a constitutional civil right.

I urge you to read the following legal filings in it's entirety before you consider filing your case:

Sykes v. McGinness (Sacramento County, CA)

Palmer v. District of Columbia

Heller v. District of Columbia, aka Heller 2

Alan Gura and Stephen Halbrook, as well as supporting attorneys Don Kilmer, Jason Davis, Chuck Michel, John Monroe and Don Kates, are by far the best 2nd amendment lawyers who are at the top of their game. If they all don't believe that filing a case declaring concealed carry to be a right and not licensable under the 2nd amendment is winnable, then it may be an indication to you that your attempt to litigate in that matter would actually be detrimental to the 2nd amendment cause.

If you're litigating what I think you're litigating, then I urge you to reconsider. Heller was our Brown v. Board of Education, which generally only desegregated K-12 and other educational institutions. It took later, very carefully planned cases by the NAACP and other allied organizations to finally put the hammer down on segregated public works, such as buses, public buildings, and other situations. A similar plan is in the works along the same tried and true path.

One more thing: It took me a moment to realize who Chuck Klein was.

Klein is from Klein v. Leis, who lost his case declaring the Ohio concealed carry ban to be unconstitutional. There was one silver lining, it made open carry de-facto legal in Ohio. Klein, in the end, still lost in his bid to declare Ohio's CCW laws unconstitutional. The only reason he won in both Common Pleas and Court of Appeals is the fact that the courts there had determined that open carry would result in automatic arrest by local law enforcement. Ohio Supreme Court had an end to that. However, I reiterate again, Klein still lost.

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sempercarry wrote:

...Concealed carry is the privilege, ...

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I disagree. Tell me where you find the distinction?

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.

the right of the people [you and me and everyone] to keep [own] and bear [carry] shall not be infringed [violated or impeded in any way, shape or form].

It is nobodies business how we choose to bear arms. It is nobodies business what type of weapons we choose to keep. The Constitution is completely clear on the matter and if we allow the authoritarians to dictate to us the terms of our liberty, we are dead as a free nation.

The Constitution does not say that open carry is ok, but conceal carry is not... give an inch, they'll take a mile. We take back the mile they've taken and we nail their feet to the ground and put the claw hammer out of their reach.

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Thank you Washingtonian... That is exactly what I've been trying to say. Carrying your firearm IS a right, no matter if you carry it concealed or openly.

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Washintonian_For_Liberty wrote:

sempercarry wrote:

...Concealed carry is the privilege, ...

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I disagree. Tell me where you find the distinction?

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.

the right of the people [you and me and everyone] to keep [own] and bear [carry] shall not be infringed [violated or impeded in any way, shape or form].

It is nobodies business how we choose to bear arms. It is nobodies business what type of weapons we choose to keep. The Constitution is completely clear on the matter and if we allow the authoritarians to dictate to us the terms of our liberty, we are dead as a free nation.

The Constitution does not say that open carry is ok, but conceal carry is not... give an inch, they'll take a mile. We take back the mile they've taken and we nail their feet to the ground and put the claw hammer out of their reach.

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Let me say this up front: My personal policy preference is either Vermont or Alaska-style carry.

Only two courts had declared concealed carry to be "bearing arms" under their state constitutions: The Kentucky Supreme Court in the 1820's (which caused a constitutional amendment to be passed putting concealed carry out of their state RKBA protection) and the Vermont Supreme Court in State v. Rosenthal in 1903.

Besides those two cases, the rest of the cases involving carry or concealed carry have declared otherwise. From a historical perspective, concealed carry has been a disfavored method of carry. This is why many states allowed open carry but disallowed or strongly regulated concealed carry. Wide ranging bans and regulation of open carry was a relatively recent phenomena (Maryland in 1972, New Jersey in the late 1960's, Minnesota in 1973, and California in 1967, limitations in Oregon and Washington in 1969).

Let's say for a minute, that you're right, and I'm right too (all forms of carry is a civil right). Do you have a game plan for convincing all levels of the federal court system that concealed carry is a civil right, overturning over 125 years of precedent? Very few lawyers are skilled enough be able to do this effectively. In fact, an overturning of long standing precedent is being suggested for the McDonald case in order to apply the Bill of Rights entirely to the states. The overturning of Slaughter-House is quite an extreme thing to ask SCOTUS, however it is backed up by an overwhelming amount of law review articles which have examined the history of the 14th amendment, as well as the statements by the authors of the 14th amendment, to determine that the Supreme Court at that time viewed the 14th amendment as a slight against them personally and then neutered the 14th amendment.

I have serious doubts that there is similar amount of consensus in law review articles for the kind of case that you want to file. Failure to confront this reality is detrimental to your case, and I also point out that again, the man that you named, and his lawyers, lost the case that tried to make a declaration that concealed and open carry is no different. Merely telling the judge hearing the case "Your wrong" or "the previous case law is wrong" is not enough to win a case.

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2nd amendment defender,

I agree whole heatedly with what you are saying. I have been hoping and praying for a judicial body to consider a case like this. I would also Cite Lamont Vs. Postmaster General this argument has been around for a while. Read the case.

To sum it up the Ohio supreme court decided that the post office aka big brother could not register the 1st amendment. You cannot register a fundamental right. Atleast I think it was OHIO

This case proves and validates it.

P.S. also on FT Lewis

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OC-Aviator wrote:

2nd amendment defender,

I agree whole heatedly with what you are saying. I have been hoping and praying for a judicial body to consider a case like this. I would also Cite Lamont Vs. Postmaster General this argument has been around for a while. Read the case.

To sum it up the Ohio supreme court decided that the post office aka big brother could not register the 1st amendment. You cannot register a fundamental right. Atleast I think it was OHIO

This case proves and validates it.

P.S. also on FT Lewis

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http://supreme.justia.com/us/381/301/

Here is a link to the case.

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Washintonian_For_Liberty wrote:

the right of the people [you and me and everyone] to keep [own] and bear [carry] shall not be infringed [violated or impeded in any way, shape or form].

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So what would your plan be to keep firearms out of the hands of Criminals, especially convicted criminals?

If I recall correctly, numerous Courts, including SCOTUS have found that reasonable restrictions designed to accomplish the above are not infringements on the Law Abiding Citizen's Rights.

Have you got a better plan?

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amlevin wrote:

Washintonian_For_Liberty wrote:

the right of the people [you and me and everyone] to keep [own] and bear [carry] shall not be infringed [violated or impeded in any way, shape or form].

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So what would your plan be to keep firearms out of the hands of Criminals, especially convicted criminals?

If I recall correctly, numerous Courts, including SCOTUS have found that reasonable restrictions designed to accomplish the above are not infringements on the Law Abiding Citizen's Rights.

Have you got a better plan?

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Yeah, it's real simple:

If they're a felon or criminal and you feel they're still a danger to society, keep them locked up in prison.

If you're releasing them to society under terms such as probation or parole, then you are allowing them to voluntarily abridge their own rights as a condition for early release (or avoidance) of prison, and you restrict their rights.

However, if a felon or criminal has been released from all terms and is considered to be fully rehabilitated, then they have the right to keep and bear arms. If you can't trust them, why'd you let them out of prison?

By the way, I can make this argument from a constitutional standpoint without referring to supreme court cases. In fact the constitution defines the terms quite clearly.

Here's the argument:

Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

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The important term in Amendment 13 is "involuntary servitude" which is specifically listed as a "punishment for a crime whereof the party" has been "duly convicted."

Amendment XV Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

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In Amendment 15, the right to vote shall not be denied or abridged by the U.S. on account of previous condition of servitude.
Thus, convicted felons who are no longer under terms of involuntary servitude should be allowed to vote as per amendment 13 and 15. (Yes, I realize that the intent of amd 13 was to abolish slavery and the intent of amd 15 was to allow former slaves to vote, but the language is quite clear, otherwise they wouldn't have made the exclusion for involuntary servitude to be permitted for criminals who have been duly convicted under amd 13.)
Now, making the argument that amendment 2 applies to all persons is quite straightforward.

Amendment II
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.

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It doesn't say "certain people" or the "non-criminal people" or "people other than felons" it says, quite simply, the people. In the 1700s did they have prisoners and people incarcerated? Yes they did, and while they were incarcerated they did not have the same liberties that free men had. Their liberties were restricted as a punishment for their crimes. (Sometimes men were hanged, such as in treason. This capital punishment is the ultimate deprivation of liberty; it is permanent.)
However, when those convicted were released from incarceration, having served their time, they were again considered free men and all liberties applied to them once-more. But we infringe upon those rights under the "incorporation" or lack thereof by the 14th amendment.
The notion that the first 13 amendments did not apply to the people, but instead only limited the government until 1868 when the 14th amendment came along and incorporated some of the earlier amendments is laughable. Otherwise, the federal government could have trampled all over the 1st, 4th, 5th, 6th, 8th and 13th amendments anytime they wanted between 1791 and 1867 when it came to the people's rights, since until the 14th came along and saved us all, the first 13 only limited the feds, and didn't actually give the people any rights.
This modern take on the Constitution flies in the face of the following amendments: the 2nd (the right of the people to keep and bear arms) and most importantly the 10th, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." which is very clear in stating (and implying) that all rights are reserved to the states or the people if not the state.
Thus, the modern interpretation requiring incorporation under the 14th and allowing reasonable restrictions on rights is absolutely bonkers. Our founding fathers are rolling in their graves.

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amlevin wrote:

Washintonian_For_Liberty wrote:

the right of the people [you and me and everyone] to keep [own] and bear [carry] shall not be infringed [violated or impeded in any way, shape or form].

Click to expand...

So what would your plan be to keep firearms out of the hands of Criminals, especially convicted criminals?

If I recall correctly, numerous Courts, including SCOTUS have found that reasonable restrictions designed to accomplish the above are not infringements on the Law Abiding Citizen's Rights.

Have you got a better plan?

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Keep them in jail. After they get out, they've done their time. If you think the time is too short for the crime, then keep them in longer. But if you do your time and pay your debt to society... how is it that people think they can keep unalienable rights away from that person?

Criminals don't have guns in jail... but when they get out, they are supposed to have paid their debt and get their rights back.

If they go and commit another crime with a gun... I say lock 'em up and throw away the key. Or better yet, let all non violent offenders out. We have too many people in jail for non-violent offenses that are taking the seats of violent offenders that need to stay in jail.

Liberty is non-negotiable. You are either for liberty or you are against it. There is no middle ground. Anyone who tells you otherwise is a control freak who in my eyes is a traitor to the Constitution.

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Washintonian_For_Liberty wrote:

Keep them in jail. After they get out, they've done their time. If you think the time is too short for the crime, then keep them in longer. But if you do your time and pay your debt to society... how is it that people think they can keep unalienable rights away from that person?

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Reality is though that there will be Convicted Felons on the Street. Parole, Comunity Service, etc. The laws state that anyone convicted of a Felony (and some other crimes) shall not posses a firearm unless they have been pardoned.

Now how do you sort the sheep from the wolves? CPL's are one way. Those with CPL's don't seem to be comitting crimes with guns and Felons can't get one. Which group do you think commits most of the crimes involving guns today?

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amlevin wrote:

Washintonian_For_Liberty wrote:

Keep them in jail. After they get out, they've done their time. If you think the time is too short for the crime, then keep them in longer. But if you do your time and pay your debt to society... how is it that people think they can keep unalienable rights away from that person?

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Reality is though that there will be Convicted Felons on the Street. Parole, Comunity Service, etc. The laws state that anyone convicted of a Felony (and some other crimes) shall not posses a firearm unless they have been pardoned.

Now how do you sort the sheep from the wolves? CPL's are one way. Those with CPL's don't seem to be comitting crimes with guns and Felons can't get one. Which group do you think commits most of the crimes involving guns today?

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If we go for the pure constitutional issues at heart, then none of this really matters. The problem, again, is the courts. Remember, for 70 years, the lower courts will running around like chickens with their heads cut off, declaring the 2nd amendment a "collective right of states". We can't even tackle a lot of issues involving 2A until we get incorporation with McDonald. Stick with the law abiding citizens first. Let's get them taken care of. I'd say that getting rid of 922(o) and state Class 3 bans is more important than this issue.

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I agree with Washington_for_Liberty and 2ndamendmentDefender on a number of points and would like to point something out.

Regarding felons. I am a little surprised I feel this way, but it does make sense to allow the restriction based on the court decisions regarding their case in addition to jail time, but after that sentence is served they do have a good point about the right being restored. But what would keep the judge from restricting it forever anyways?
Sort of like a life sentence against bearing arms, which I can see as a good idea in many, many cases.

However, any felony seems to be over zealous. Do you really think someone that shoplifts something over $400( high end sunglasses) and is convicted of a class III felony is a dangerous killer?

Look at it this way: If things really did become so bad that you, me, auntie Em and your neighbors down the street are considered to be enemies of a tyrannical government, you can bet that we will find ourselves falling into becoming felons due to our dissent. That is the purpose of our 2nd amendment right as citizens to be protected from such actions.

The difference between concealed carry and open carry... we are bearing arms either way. It is a sneaky trick to get us to register. Simple as that. I did not have the view that I did regarding many things before becoming a member of this board, so Thank you all for the education.

I think that being "in your face" is only a good idea to the right audience. Most people respond better to more subtle means, or by peer pressure. No one wants to look like an ignoramus. Some though... yeah, they need to be told to smarten up in a not so nice way sometimes. Just know your arguments and try to come across to spectators as the educated one, even if you are a little perturbed.

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Gray Peterson wrote:
If we go for the pure constitutional issues at heart, then none of this really matters. The problem, again, is the courts. Remember, for 70 years, the lower courts will running around like chickens with their heads cut off, declaring the 2nd amendment a "collective right of states". We can't even tackle a lot of issues involving 2A until we get incorporation with McDonald. Stick with the law abiding citizens first. Let's get them taken care of. I'd say that getting rid of 922(o) and state Class 3 bans is more important than this issue.



I disagree about placing 922(o) & class III bans before restorations of rights, mainly because as soon as the rights are restored, and CCW's are no longer required, the rest will fall in place, including any & all bans of any type of firearm.