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Thread: Carrying "COCKED AND LOCKED" is being "READY"

  1. #1
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    When permitted by law, I should have the right to carry my handgun OPENLY or CONCEALED.

    In most states that issue Conceal Carry Permits, individuals who possess the permits have the choice between carrying openly or concealed.

    Here are some facts ofwhat I am faced with as a resident ofthe State of California

    TO BE ARMED AND READY IS TO POSSESS AND CARRY A LOADED FIREARM
    [/b]
    I am currently, (under California law), entitled to purchase a handgun

    I am, currently, (under California law), entitled to possess a handgun with certain restrictions

    I am currently, allowed by California law to carry a handgun UNLOADED OPENLY with certain restrictions as to location and the manner in which I carryammunition for the weapon.

    I am currently restricted from OPENLY carrying an UNLOADED handgun in certain areas that would otherwise be permitted if in possession of a Concealed Carry Weapons Permit and a LOADED CONCEALED handgun.

    I am therefore currently prevented from being able to bear arms as described by Justice Ginsburg when she defined“bear arms” to mean “wear, bear, or carry…upon the person or in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in a case of conflict with another person.”

    The requirement for individuals without Conceal Carry Permits to carry handguns OPENLY and UNLOADED exposes the individuals to frequent high risk tactical confrontations with armed members of law enforcement, (as frequently described on this message board), who may during the confrontation, (as authorized by the California Penal Code in section 12031(e)), approach law abiding citizens and their families with loaded drawn weapons while in plain clothes or uniforms.

    The purpose of the Second Amendment is to ensure the individual right to self-defense in case of conflict with another person.

    In Heller, the Court affirmed Justice Ginsburg’s definition of the meaning of “bear arms.” Justice Ginsburg defined “bear arms” to mean “wear, bear, or carry…upon the person or in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in a case of conflict with another person.” (Quoting from Heller).

    From this definition, it is clear that the intent of the Second Amendment is to ensure the individual right of being armed and ready[/b] in case of conflict with another person. An individual cannot lawfully be armed and ready if the law prohibits the wearing, bearing or carrying of a loaded[/b] firearm without a permit and the permit is impossible to obtain.

    Individuals who carry OPENLY and UNLOADED are NOT required to submit to any positive identification, have "GOOD CAUSE", undergo any form of firearms training or submit to any type of background investigation.

    My conclusion and opinionis this:

    Individuals who are required to carry their weapons UNLOADED are not READY for offensive or defensive action in case of conflict with another person.

    As quoted inthe Heller decision:

    In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”


    Fortunately I enjoy having more than one 'RESIDENCE", one of which is in the State of Connecticut where individuals obtain a "PERMIT TO CARRY PISTOLS AND REVOLVERS", which entitles the permit holder to carry OPENLY or CONCEALED.

    This opinion was formulated after reading the draft response to a motion to dismiss my Federal Suit against the San Diego Sheriff's Department over the denial of my CCW application.

    edperuta@amcable.tv


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    I have just been informed that the final response to the Sheriff's Departments motion to dismiss will be filed and in my hands by Monday. I will post the document as soon as it is received.

    Ed Peruta

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    PLEASE UNDERSTAND THAT ANY INFORMATION I POST PRIOR TO THE CLOSE OF BUSINESS ON MONDAY IS SUBJECT TO MODIFICATION AND CHANGE.

    HERE IS WHAT I FEEL COMFORTABLE SHARING AT THIS TIME, SUBJECT TO ANY SUGGESTIONS AND MODIFICATIONS BY MYSELF OR MYLEGAL TEAM.



    A PORTIONFROM THE DRAFT RESPONSE:

    Apparently, California lawmakers believed that by enacting Penal Code 12050, lawful citizens such as Plaintiff could invoke their Second Amendment right to keep and bear arms by obtaining a permit to carry a concealed weapon. The problem with Penal Code section 12050 is the “good cause” requirement, which gives county sheriffs the unbridled discretion of determining whether to grant or not grant such permits after making a determination of whether the applicant has “good cause.” Further, “good cause” is not defined, leaving the meaning vague and ambiguous without providing any guidelines for determining whether an applicant has “good cause.” So, even lawful citizens solely desiring to invoke their constitutional right to be armed and ready for self-defense purposes may be denied a permit to carry a concealed weapon if the county sheriff determines they have no “good cause.” Again, there are no established guidelines for determining “good cause.” Thus, for lawful citizens residing in California, a person’s Second Amendment right is dependent upon county sheriffs’ policies and practices for determining whether an applicant has “good cause” for a carrying concealed weapons permit. Clearly, the intent of the Second Amendment was not to make an individual’s right to keep and bear arms dependent upon a third person’s, such as the county sheriff, unguided opinion of whether an individual has “good cause” or not.

    Defendant Gore appears to take the position that Heller [/i]only established the right to possess a gun in the home for lawful self-defense purposes. Heller[/i] stands for much more than just the right to possess a gun in the home, as the Second Amendment does not only protect to the right to keep and bear arms in the home. Assumingly, if the Court in Heller [/i]intended to limit the right to keep and bear arms to one’s home then it would have made that limitation clear. However, nowhere in Heller[/i] does the Court state that right to keep and bear arms is limited to the home. What Heller[/i] does make clear, is that the “inherent right of self-defense has been central to the Second Amendment.” Heller[/i], [/i]at 2817. This is a right that has never been limited to self-defense in one’s home and cannot be limited to one’s home because many law abiding citizens do not have homes. The United States Constitution provided rights to citizens of this country and did not discriminate between persons with and without homes.

    Defendant Gore also incorrectly takes the position that Heller[/i] is about protecting the manner how weapons are used. Defendant Gore stated that carrying a concealed firearm on the person or in a vehicle is not in the nature of a common use of a gun for lawful, which according to Defendant Gore was declared protected by Heller[/i]. (Motion to Dismiss, ¶ 5.) However, it is not the nature of a common use of a gun that Heller [/i]protects. Instead, it is the type of weapon that is protected, and those protected weapons are weapons of common use. The Heller[/i] Court, in affirming United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206, 1939-1 C.B. 373 (1939), declared, “that the sorts of weapons protected were those ‘in common use at the time.’ ” Heller, [/i]at 2817. “[T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled rifles.” Heller, [/i]at 2815. Thus, according to Heller[/i], it is not the manner in which the weapon is used that is protected, but the types of weapons commonly used that are protected.

    Defendant Gore’s misinterpretation of “common use” is important due to the fact that California gun laws, as shown above, not only prohibit the carrying of concealed weapons without a permit, but also prohibit the carrying of loaded weapons that are merely capable of being concealed without a permit to carry a concealed weapon. This means that a handgun, which is “the most popular weapons chosen by Americans for self-defense…” Heller,[/i] at 2818, may not lawfully be carried by an individual in California without a permit to carry a concealed weapon because it is capable of being concealed. By requiring a permit to carry a loaded weapon that is merely capable of being concealed, California has effectively outlawed the open carrying of protected weapons of common use. Thus, California has expressly and effectively outlawed the open and concealed carrying of common use weapons without a permit. By doing so, California has made an individual’s Second Amendment right to bear arms dependent upon the county sheriff granting a concealed carrying weapons permit after determining whether “good cause” exists. This is unlike the laws of the states which lawfully prohibit the carrying of concealed weapons but allow for the open carrying of weapons. California gun laws clearly violate the Second Amendment right to bear arms, defined by Justice Ginsburg to mean “wear, bear, or carry…upon the person or in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in a case of conflict with another person.” Heller, at ___–___ ; 171 L.Ed.2d at 653.

    The inherent right to self-defense has been central to the Second Amendment right. Heller,[/i] at 2817. Heller[/i] does not say that the inherent right to self-defense in the home has been central to the Second Amendment. The Second Amendment is clearly all about an individual’s right to self-defense. California has attempted to make that inherent right dependent upon the opinion of a third person, such as the county sheriff, who determines whether a person has “good cause” or not. The Second Amendment does not state that an individual has the right to bear arms if “good cause” can be shown. The right to bear arms is given so that an individual can be armed and ready to defend against conflict with another person. California has violated an enumerated constitutional right by completely prohibiting the carrying of loaded weapons of common use, either openly or concealed, without a permit that is not obtainable until a county sheriff with unbridled discretion determines an individual has “good cause.”

    Because a showing of “good cause,” to be determined by a county sheriff, is required in order for a law abiding citizen to obtain a license to carry a concealed weapon and thereby lawfully bear arms, California Penal Code 12050 violates the Second Amendment of the United States Constitution.


    B. DEFENDANT SHERIFF GORE’S POLICY OF REQUIRNG FULL TIME RESIDENCY [/b]

    VIOLATES PLAINTIFF’S SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS [/b]
    Plaintiff’s first cause of action alleges that both the statutory “good cause” requirement and Defendant Gore’s policy of requiring full time residency violate his right to keep and bear arms under the Second Amendment of the United States Constitution. Plaintiff does not contend that a residency requirement violates the Second Amendment, and contends only that the policy of requiring full time residency is a violation.

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    Fully time?

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    Thanks, I corrected the spelling error.

    But the question is, did you get the concept?

    That's why I wasn't going to post until all editing was completed.

    But I thought the idea of NOT being "ARMED and READY" was a significant argument and wanted those that care to get a glimpse of what to expect.



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    Edward Peruta wrote:
    Thanks, I corrected the spelling error.

    But the question is, did you get the concept?

    That's why I wasn't going to post until all editing was completed.

    But I thought the idea of NOT being "ARMED and READY" was a significant argument and wanted those that care to get a glimpse of what to expect.

    Yeah, should be binding precedent once we have incorporation.

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    Looks good Ed, and what may make perfect sense to normal law abiding gun owning folk will cause the sky to fall for the Californian sheeple.

    I can't wait for the next installment!

    Keep up the good fight Ed, enjoy the warm weather.

    Robert

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    There are other issues involved in my complaint other than the Second Amendment.

    The issue of letting individualChiefs and Sheriffs use "RULES DE JURE" when determining "GOOD CAUSE" because there isno state established guidelines which must be followed by issuing authorities.

    The issue of demanding that individuals maintainwhat amounts to "DOMICILE" in the jurisdiction of the issuing authority rather than simply a "RESIDENCE"as mandated by state law.

    The policy of allowing people with FIXED AND OR PERMANENT RESIDENCES to submit applications while discouraging and denying those of use with mobile or temporary residences and those that may be homeless, the equal right to make application and receive a CCW.

    Equal Protection is a very big issue in my complaint, but it's kind of hard to NOT raise and make the Second Amendment argument.

    I'm going to be extremely happy if Iwin on the residency issue alone.

    I refuse to have any government official tell me that I am not a resident of San Diego or San Diego County when I know for a factthat I meet or exceedALL the required elements to be a resident here.

    In for a penny -in for a pound, fortunately this Federal Action will not cause me to suffer financially or socially,and may benefit others similarly situated.

    I do not likeor respectCOCKY politicians or bureaucrats who make decsions, or runand operate their public agencies using"RULES DE JURE.




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    Every opinion, fact, omission and decision involving my applications for a personal CCW and CCW Instructor status with the San Diego Sheriff’s Department began with the belief that I WAS NOT by their standards, a resident of the City and/or County of San Diego.

    The audio recording of the initial interview with Donna Burns, internal documents and correspondence from the Sheriff’s Legal advisor provided clear and convincing evidence of the facts that the Sheriff’s Department intended from the beginning, to protect and continue their policy and procedures regardless of whether they were legally right or wrong.

    The Sheriff’s Department DID NOT[/b] make contact with or inquires to any of the named references provided who could substantiate my resident status.

    The Sheriff’s Department by the tone of their verbal and written comments and correspondence demonstrated their hostility to my claim of residence and the fact that I exercised my First amendment rights[/b] to communicate my frustration with other individuals and public agencies.

    The Sheriff’s Department by the tone of their written comments and correspondence demonstrated their hostility to the fact that I appeared before and spoke to the Citizens Law Enforcement Review Board on December 9, 2008.

    The Sheriff’s Department by the tone of their written comments and correspondence demonstrated their hostility to the fact that I went to and had communications with Officer Limon who was at the time and may still be, a member of the San Diego Police Department.

    On 03/04/09, I received information regarding a telephone call received from SDPD Officer LIMON regarding an incident at their front counter involving PERUTA. I called the phone number provided

    (619-531·2231) and spoke with Officer HARVEY.HARVEY stated his partner Officer LIMON was the one who had dealt with PERUTA but was out due to a family emergency. HARVEYstated he would be speaking to LIMON later in the afternoon and would have him send me a narrative of the incident via Interoffice (see statement by LIMON). It should also be noted that PERUTA attended the Citizens’ Law Enforcement Review Board (CLERB) meeting on December 9, 2008, and addressed the Board requesting clarification on the California Penal Code sections 12050 through 12054 pertaining to the Sheriffs Department's denial of his application for a concealed weapon permit (see attached minutes)

    The Sheriff’s Department’s verbal statements, administrative actions and written documentation, provide clear and convincing evidence that they considered my knowledge of the California Penal Code, questions, statements, honesty, openness and willingness to confront, challenge and verbally express my opinions to others (CLERB & San Diego Police), regarding my opinion on existing Sheriff’s Department policy to be a character flaw.

    Evidence to support these beliefs and statement may be viewed at:
    http://ctgunrights.com/00.Webpages/CA.motion.to.Dismiss.htm

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    Go get 'em Ed!

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    Keith, check the Connecticut section of this forum, David Drake called me this morning regarding the seven month delay situation in Stratord, he has informed me that the issuewas resolved favorably today and he will be getting his permit next week.

    I only wish that the attitudes found in the the Stratford Connecticut Police Departmentcould somehowfind their way west to the State of California.

    Because I travel and reside in several different states, it's been an eye opener to deal with issuing authorities in what I always thought was a forward thinking state.

    California is without question a very different place when it come to logic and the law.


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    THE EFFECTS OF QUESTIONING AUTHORITY

    California Penal Code Section 12050 requires applicants for CCWs to be of good moral character.

    The San Diego Sheriff’s Department in their written denial of my application, makes the allegation that, (in their opinion), I possess “CERTAIN NEGATIVE CHARACTER ISSUES”.

    The Sheriff's Department didNOT provide any specific documentation or reference to substantiate the statement regarding my character.

    I believe that every person who posts their firearm experiences or questions regarding Open Carry, Concealed Carry or any other matter that questions authority would suffer the same opinion.

    Without a clear definition of “MORAL CHARACTER” as stated in Section 12050 of the California Penal Code, the person or people charged with making the determination
    are left with only their personal opinions and observations to determine same.

    The only Character issues demonstrated during my application process were related to:

    1. My refusal to walk away and make my CCW application in Los Angeles County.

    2. My ability to read and understand the appropriate sections of the California Penal Code.

    3. The fact that I refused to accept their opinion regarding my resident status.

    4. My knowledge of and ability to explain the difference between the words "RESIDENCE” and “DOMICILE”.

    5. My willingness to question authority, and challenge existing policies and procedures.

    6. My ability to express myself verbally and in writing.

    7. The fact that I when over the heads of involved personnel.

    8. The fact that I appeared before the Citizens Law Enforcement Review Board (CLERB).

    9. The fact that I contacted a spoke with a member of the San Diego Police Department.

    10. The fact that I made known my willingness to litigate the definition and issue regardingresidence.

    11. The fact that I made several visits to the Sheriff’s Department without an Appointment.

    12. The fact that I was completely honest and answered all questions in a complete and detailed manner.

    At no time prior to, or during, the application process did I provide any information or demonstrate any personal characteristics that could lead to anyone to believe that I do not possess the required “MORAL CHARACTER” required to qualify for a CCW license anywhere in the State of California.

    To the contrary, I believe that I conducted myself in an extremely professional manner and provided extremely qualified character references, who if contacted, could have and would have, offered opinions their professional and personal opinions on my ‘CHARACTER”.

    STAY TUNED!!


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    That's the thing. The required moral character might as well be willingness to campaign contribute coughbribecough to any and all CLEOs in the state who will not give you a CCW otherwise.

    "Negative character issues" from their point of view can include refusing to be a part of the corrupt status quo.

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    N6ATF wrote:
    That's the thing. The required moral character might as well be willingness to campaign contribute coughbribecough to any and all CLEOs in the state who will not give you a CCW otherwise.

    "Negative character issues" from their point of view can include refusing to be a part of the corrupt status quo.
    I wonder if the California codes define 'Negative character issues'?
    I don't think it will be found under the moral turpitude sections!
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    2nd amendment says.... "...The right of the people to keep and bear arms SHALL NOT BE INFRINGED!"

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    On a side note regarding Constitutional rights. Is it possible to make application to exercise your2nd amendment rights (CCW permit) without waiving your 5th amendment rights? When you answer questions under threat that your answers could be held against you in a court of law, are you not waiving your 5th amendment rights when you sign the application? Same could be said of filling out the form to purchase a firearm.
    Life member GOA and NRA. Member of SAF, NAGR, TXGR and Cast Bullet Assoc.

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    The Big Guy wrote:
    On a side note regarding Constitutional rights. Is it possible to make application to exercise your2nd amendment rights (CCW permit) without waiving your 5th amendment rights? When you answer questions under threat that your answers could be held against you in a court of law, are you not waiving your 5th amendment rights when you sign the application? Same could be said of filling out the form to purchase a firearm.
    That will likely be the main argument once we have secured the 2A as an individual right. The effects may be more far-reaching than most of us imagine.
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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    Don't Tread On Me.

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    I'd like to thank and assure those that are following this situation that this issue does in fact have the potential to answer many questions regarding problems that need to be resolved.

    I have spent many hours in preperation for any questions that may arise in the Federal Litigation.

    Here are a few of the quesitons I would like to ask and have answered.

    Thirteen (13) Questions regarding what I believe are the minimumREQUIREMENTS TO RECEIVE a California CCW:

    Is the applicant over the minimum age required to obtain a CCW?

    Did the applicant submit fingerprints and positive I.D.?

    Was a California and National Criminal History requested and received?

    Were any of the applicants references contacted to determine residency or moral character?

    Does the applicant currently have legal status in the United States?

    Does the applicant have any disqualifying criminal convictions?

    Does the applicant have any documented disqualifying events or factors?

    Were any facts found that effect or diminish a finding of Good Moral Character?

    Did the applicant supply a statement of Good Cause?

    Did the applicant provide proof of the required Firearms Training

    Did the applicant provide proof of Residency in San Diego County?

    Were other factors beyond those mentioned above considered during the applicantsCCW application process?

    Does the applicant currently have Permits to Carryopenly or concealed which are issued by other states?


    A FEW OF THESE QUESTIONS ARE NOT MANDATORY TO RECEIVE A CCW IN CALIFORNIA, BUTGO TO THE HEART OF THE ISSUES BEING ADDRESSED IN THESUIT.

    I AM AWARE THATI CAN CARRY AN UNLOADEDHANDGUN OPENLY, BUT BELIEVE THATI WILL HAVE FEWER TACTICAL CONFRONTATIONS WITH MEMBERS LAW ENFORCEMENT IF I POSSESS A CCW.

    NEVER ASK A QUESTION OR MAKE A STATEMENTIF YOU DON'T KNOW THE ANSWER TO THE QUESTION OR HAVE THE FACTS TO SUPPORT THE STATEMENT.




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    UPDATE:

    In the San Diego County Sheriff’s Department has fileda set of Points and Authorities, where they state facts and cite cases that go to the heart of the issues.

    Link to the recently filed Points and Authorities filed By San Diego County Sheriff’s Department.

    http://ctgunrights.com/00.ca.docs/12....oppositon.pdf

    The court noted that in Los Angeles County, with a population of over 7 million, the sheriff had issued only 35[/b] licenses, while in Orange County, the sheriff had issued over 400[/b].

    Exactly on point, one Sheriff issued 400 STATE CCW PERMITS[/b] while Los Angeles issued only 35.

    Until ALL Sheriff’s in California are mandated to use a similar, (if not exact), set of guidelines to determine “GOOD CAUSE”, then individuals who possess good cause in one county will be denied for failing to have good cause in another.

    He fails to allege intentional discrimination by the Defendant and appears to claim that the sheriff has his own narrow interpretation[/b] of the residency requirement. As long as that interpretation is consistent[/b], the sheriff is not treating persons differently.

    Every Sheriff in California to ensure equal access to a CCW, must possess, interpret and apply a similar set of standards when determining the required good cause in part because the California Concealed Weapons Permit is a STATEWIDE PERMIT TO CARRY LOADED AND CONCEALED, and NOT a local county permit.


    Most of the facts and circumstances of this issue can be found in the link included in this posting.

    A hearing is scheduled in Federal District Court in San Diego on Monday December 21, 2009 at 10:30am.

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