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Thread: Circuit Court of Appeals Decisons Post McDonald/Chicago

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    SOMETHING TO CONSIDER:

    Much has been discussed about the upcoming case to be argued on March 2, 2010.

    The McDonald/Chicago case will decide if the Second Amendment is incorporated to the states and we all believe that there is a good chance that it will.

    The questions we need to ask is WHAT NEXT?

    Those that follow Federal Litigation on firearms know most of the cases that are discussed regularly here and on other Internet sites. (McDonald, Palmer, Nordyke , Sykes etc.)

    But exactly howthese cases may effect the future rights of everyday citizens to sell, purchase, transfer, possess, store, transport or carry are yet to be litigated or reviewed in depth with Second Amendment protections considered.

    I would like to predict here and now that the flood gates regardingall of these topics will be opened for challenge if the Supreme Courtrules that the Second Amendment is incorporated to the stateregardless of the reason or reasons why they do so.

    Regardless of what happens, reasonable regulation of firearms will never be ruled unconstitutional and most of the future postMcDonald/Chicago cases will be filed to determine"REASONABLENESS"

    On September 17th 2009, the Second Circuit Court of Appeals heard two combined cases out of Connecticut, they are referred to as the Kuck and Goldberg cases.

    Kuck is: M. PETER KUCK, individually, and on behalf of others similarly situated v. Danaher

    Goldberg is:JAMES F. GOLDBERG, individually and on behalf of others similarly situated v. Danaher

    Goldberg also has another Federal case against the Town of Glastonbury, CT and their Police Department which is well into the discover phase of the litigation.

    These two cases which have been flying under the discussion radar, (having already beenargued beforethe Second Circuit Court of Appeals), and may becomethefirst two Federal Appellate Court cases rendered and released post McDonald/Chicago and may begin the legal process ofclarifying the rights of gun owners in the future.


    If anyone knows of anypending or new Federal Cases other thanthose mentioned, please postinformation with case names and the issues being addressed.




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    I keep my hopes up, but I realize that Mcdonald/Chicago may fail. As much as I contemplate future positive legislation, I have to imagine what the fallback plan is should March 2nd go awry.

    I also would consider your case, Ed, for nomination as a new Federal case that will have significant impact on the legislative efforts of pro and anti gun rights cases nationwide.

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    Regular Member Gundude's Avatar
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    My question is.....Why would they not incorporate the 2nd against the states. From reading the briefs, the question was whetherto incorporate using the privileges and immumities clause or the due process clause. It would seem that since incorporation ofthe other amendments has been done, there would not be a question of whether to do it or not, but how to do it. What possible reason could they have not to do it?

    Not a legal eagle
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    Think of it like building a new home.

    It the McDonald/Chicago Case ruling is for Incorporation it's going to be open season for lawyers.

    Heller was buying the land and McDonald will be putting in the foundation.

    What has yet to be decided will bewhat the house will look like, how many roomsand what zoning restrictions will be placed on the builders and occupants.

    The Second Amendment will become a new area of Federal Litigation and the number of attorneys practicing Second Amendment law will increase substantially.

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    Regular Member Gundude's Avatar
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    I think I understand the process that is going on. Heller established that the right to bear arms is an individual right. McDonald will establish that the states must recognize that right. Then the cases will come up to establish what is reasonable regarding that right.

    What I don't understand is, Why wouldn't McDonald prevail. The only argument against it would seem to be, that the states or cities don't want the feds telling them what they can and can't do. Is my picture correct?
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    I would agree with everything you've just posted.

    The fine tuning of what we can and cannot do with our Second Amendment Rights will be determined by future cases and future courts.

    The only reason I can see where the Second Amendment wouldnot be incorporated is the belief that it may create a "SLIPPERY SLOPE" depending on the manner of incorporation.


    I believe incorporation will be recognized and mandated by the court.

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    Edward Peruta wrote:
    I would agree with everything you've just posted.

    The fine tuning of what we can and cannot do with our Second Amendment Rights will be determined by future cases and future courts.

    The only reason I can see where the Second Amendment wouldnot be incorporated is the belief that it may create a "SLIPPERY SLOPE" depending on the manner of incorporation.


    I believe incorporation will be recognized and mandated by the court.
    LOL I liked "SLIPPERY SLOP" better. Cool typo.
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    I just realzied how close we are to this case being heard... the infamous, "two weeks."

    Of course we probably won't actually get a decision for a few months after that... but I'm excited that we're approaching the hearing. The questions and responses by the judges should be revealing enough to whet our appetites.
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    Don't Tread On Me.

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    I posted in Several States in an attempt to obtain information about other Federal Cases that are before the courts.

    These cases were supplied in the Penn. area of ODCO.

    It appears that some of the language and facts may fit here in California where open carry detentions take place.


    Link to Pennsyalvania Kraft Complaint: http://www.ctgunrights.com/00.ca.doc..._complaint.pdf

    Link to Pennsyalvania StokesComplaint: http://www.ctgunrights.com/00.ca.doc..._complaint.pdf

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    Link to Pennsylvania Banks et al Complaint: http://paopencarry.org/dicksoncity/complaint.pdf

    Kraft and Banks are the same incident, but two separate filings.

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    Is there any information on the status of the Pennsylvania Complaints.



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    Edward Peruta wrote:
    Is there any information on the status of the Pennsylvania Complaints.

    I tried calling Robert Magee, but no answer, sat on the line waiting, left a message with hisslightly abrasive answering service.You might have better luck with your gravitas, but I'll try again tomorrow, and seeif he calls me back.

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    The thing I find frustrating is that the plain language of the 2nd Amendment indicates that it applies to the states regardless of the 14th Amendment.

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    rpyne wrote:
    The thing I find frustrating is that the plain language of the 2nd Amendment indicates that it applies to the states regardless of the 14th Amendment.
    It also says that it shall not be infringed, and yet it has been infringed into oblivion by too many traitors in government.

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    Edward Peruta wrote:
    Is there any information on the status of the Pennsylvania Complaints.

    I spoke to one of the attorneys at the Worth law offices, unfortunately I was a little late to the party and Bob Magee was off for the weekend, it being about 5:30 there, so we will have to wait until Monday to speak again.

    I'm going to PM you his contact info, the other attorney in his office said he would likely be very happy to oblige, so you may get some good info from him.

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    There's one filed in Louisiana (http://opencarry.mywowbb.com/forum26/38675.html), Osterweil v. Edmundson, et al. Has to do with the issuance of a Louisiana CHP (Concealed Handgun Permit).

    Covers a few items:
    • The right to carry precludes a requirement for a permit to carry concealed.
    • The requirement to furnish photographs and pay a fee is contrary to the free exercise of one's rights.
    • The requirement for a medical/mental release violates right to privacy.
    • Two separate rates for permits based on length of residency violates equal protection.
    • The requirement for a hold harmless agreement with the state subjects the applicant to potential lawsuits and expenses.


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    I have put together this document in an attempt to viusualize the cases that have been heard and will be heard regarding firearms and the Second Amendment.

    If anyone knows of others currently filed or on appeal, please let me know.

    edperuta@amcable.tv



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    Statkowski wrote:
    There's one filed in Louisiana http://opencarry.mywowbb.com/forum26/38675.html Osterweil v. Edmundson, et al. Has to do with the issuance of a Louisiana CHP (Concealed Handgun Permit).

    Covers a few items:
    • The right to carry precludes a requirement for a permit to carry concealed.
    • The requirement to furnish photographs and pay a fee is contrary to the free exercise of one's rights.
    • The requirement for a medical/mental release violates right to privacy.
    • Two separate rates for permits based on length of residency violates equal protection.
    • The requirement for a hold harmless agreement with the state subjects the applicant to potential lawsuits and expenses.
    edit: fixed that link
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.

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    I said this before on another forum, be prepared that the court will rule that 2A applies to the States, but does not prevent the States from regulating what type of arms can be carried based on federalist and conservative principles. There are many conservative members of the court of appeals who believe this way -- that there is a right to bear arms, but that the State has a right to decide which arms they can bear.

    It's not so cut and dry that it will 100% be ruled one way.

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    Well, it really IS that cut and dried, "shall not be infringed' is pretty clear, but I see your point that it won't be ruled that way.

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    "shall not be infringed" isn't cut and dry either. I always try to ask people in the gun community to keep an open mind to things because understanding others arguments can make you a better technical debater.

    There is a real argument that 2A would require the government to allow citizens to bear arms, but that it wouldn't prevent the government from limiting what type of weapons one could carry based on public safety and that the definition of "bear arms" is very limited, especially in light of what was available when the Constitution was written.

    For example, I have no doubt that the framers of the US Constitution meant Rifles, since that was the common carry at the time. I am pretty sure they would agree, if they were alive, handguns now fit the same definition.

    However, I would believe that everyone in this forum would agree that there must be a line of what type of arms is allowed? Does anyone here think that everyone should have access to build Nukes? Obviously that is a ridiculous statement, but who decides what the line it? Is it Machine Guns? Grenade Launchers?

    I think the main issue after McDonald will be who draws the line, who decides what line can be drawn etc. I am 100% sure that home carry will be made legal in every jurisdiction, but we will have issues with interstate carry (ie, I live in Arizona, visiting California and my XDM 9m allows too many rounds).

    One thing I hope, is that the OpenCarry movement members can educate themselves about the law, the creation of laws and the method of jurisprudence. It's easy to say "these are our rights" but the way our system works in this country is very, very slow -- its one of the great things about the Constitution is that it normally makes it hard to make significant changes. Unfortunately twice in the last 100 years we allowed Presidents to overstep the Bounds and make huge changes: - FDR during the depression, Bush after 9/11 and if we are not careful, Obama will use those powers and make even bigger changes without the people's approval.

    Best,
    Pace

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    Pace wrote:
    For example, I have no doubt that the framers of the US Constitution meant Rifles, since that was the common carry at the time. I am pretty sure they would agree, if they were alive, handguns now fit the same definition.

    However, I would believe that everyone in this forum would agree that there must be a line of what type of arms is allowed? Does anyone here think that everyone should have access to build Nukes? Obviously that is a ridiculous statement, but who decides what the line it? Is it Machine Guns? Grenade Launchers?
    You obviously need to actually read what the founders said about the Right to Keep and Bear Arms. The main purpose of the Second Amendment was to ensure that the people would always be better armed than the government.

    You are wrong that everyone" one the forum would agree that there must be a line". There are plenty of us who understand the real purpose of the Second Amendment and are willing to defend our freedom rather than roll over and play dead.


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    rpyne wrote:
    You are wrong that everyone" one the forum would agree that there must be a line". There are plenty of us who understand the real purpose of the Second Amendment and are willing to defend our freedom rather than roll over and play dead.
    Really? So you think we should have the ability to have nukes?

    There is a line in my opinion as well, and I'm not sure what that line should be. I find myself being content with having access to purchase the same equipment that an infantry soldier can purchase. However, we are nowhere near having that. The day I can buy frag grenades is the day I'll be happy.

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    As my friend said, "so anyone should be able to buy nukes?"

    "The main purpose of the Second Amendment was to ensure that the people would always be better armed than the government."

    According this thought, then everyone should have access to nukes, strategic missiles, armored tanks, battle ships, F-16's etc.

    I hate to burst your bubble here, but Citizens will never be better armed than the government, and I doubt that you want that. I couldn't imagine how we'd defeat Nazi Germany if the government hadn't had better technology (even then) than the average person.

    Ideas are great, and the freedom philosophy serves a purpose, but lets be real here. Nobody wants terrorists to get rocket launchers, nukes, etc in their hands.


    rpyne wrote:
    Pace wrote:
    For example, I have no doubt that the framers of the US Constitution meant Rifles, since that was the common carry at the time. I am pretty sure they would agree, if they were alive, handguns now fit the same definition.

    However, I would believe that everyone in this forum would agree that there must be a line of what type of arms is allowed? Does anyone here think that everyone should have access to build Nukes? Obviously that is a ridiculous statement, but who decides what the line it? Is it Machine Guns? Grenade Launchers?
    You obviously need to actually read what the founders said about the Right to Keep and Bear Arms. The main purpose of the Second Amendment was to ensure that the people would always be better armed than the government.

    You are wrong that everyone" one the forum would agree that there must be a line". There are plenty of us who understand the real purpose of the Second Amendment and are willing to defend our freedom rather than roll over and play dead.

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    Pace argues "Shall Not Be Infringed" still means that there must be a "line" drawn with regards to what "arms" cannot be infringed upon. While the idea of "Shall Not Be Infringed" being open to interpretation is arguable, Pace is most likely correct that the U.S. Supreme Court will, eventually, draw a line.

    I would refer back to the founders' intent for the 2A. Defense of individual liberties (Living Free). Defense for self-protection and Defense against a tyrannical government or an invading nation. Whether by criminal, tyrant, or enemy, all three wish take liberty/possessions from you by force.

    Therefore, any and all weapons necessary to fight those battles (I'll suggest ON HOME SOIL - In the U.S.A) should be Constitutional. Since certain weapons (nukes, battleships, etc) would probably do more harm to the cause (Living Free on U.S. soil) than good, I'll guess the Supremes would definitely decide to not allow citizens to have the kinds of weapons that are more geared toward deterring international aggression or weapons for the oceans (navigable rivers/lakes is different argument, however).

    I'm pretty much of the mind that most weapons/systems ARE allowed and the government should have to make the case for the few items that are not. I'd rather that the default list be ALL are allowed, until the Supreme Court says no to a very short list.

    To do it the other way puts the burden on the Citizens to fight through the courts for every item added to a list of what is allowed. This is exactly why the Founders didn't want to open this can of worms when the carefully wrote "Shall Not Be Infringed".

    Pace is absolutely correct that we must begin thinking more about this "line" issue. With the 2A likely to be incorporated and governments trying to figure out how to deal with it, we need to examine and refine our arguments so that we can achieve maximum effectiveness in securing the widest range of ARMS we can choose to "keep & bear".

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